Fuller v Bellingen Shire Council
[1988] NSWLEC 125
•06/16/1988
Land and Environment Court
of New South Wales
CITATION: Fuller v Bellingen Shire Council & Anor [1988] NSWLEC 125 PARTIES: APPLICANT
L.C. FullerFIRST RESPONDENT
Bellingen Shire CouncilSECOND RESPONDENT
Commercial Radio Coffs Harbour LimitedFILE NUMBER(S): 40171 of 1985 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act, 1979
Government Act, 1919
Height of Buildings Act 1912CASES CITED: Aldcroft & Ors v. Bega Valley Shire Council & Anor (28th February 1986);
Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986);
Prineas v. Forestry Commission of N.S.W. and Ors (1984);
Jarasius v. Forestry Commission of N.S.W. & Ors (1988) ;
Carltona, Limited v. Commissioners of Works and Ors, (1943)DATES OF HEARING: DATE OF JUDGMENT:
06/16/1988LEGAL REPRESENTATIVES:
JUDGMENT:
HIS HONOUR: Lynette Carol Fuller, a member of an unincorporated body known as the "Save Our Scenery Committee", seeks declarations and orders with respect to the lawfulness of a development consent issued by the first respondent ("the Council") for the construction of transmitter towers on premises Lot 1 of the Subdivision of Portions 293, 357, 390 and 505 in the Parish of South Bellingen, Yellow Rock Road, Raleigh, on behalf of the second respondent.
On 20th February, 1985 an application was made to the Council pursuant to the provisions of the Environmental Planning and Assessment Act, 1979 ("the E.P.& A. Act") for consent to development comprising the erection of two radio transmission towers, associated guy wires, anchor blocks, transmitter sheds and ancillary services on the subject premises. The said application was considered by the Council at its meetings of 8th March and 21st May, 1985, and at the latter it resolved:|CF2.|PSI
"... that the application be approved subject to conditions considered relevant by the Town Planner." |CF1.|PSO
On or about 22nd May, 1985 the Shire Town Planner, Mr G.H. Smyth, purported to approve the application subject to the following conditions: |CF2.|PSI
the Chief Health Surveyor in accordance with Government Act, 1919, as amended and Ordinances accompanied by:
a) the fee fixed by Ordinance 70;
b) Structural Engineer's details for all reinforced concrete and structural steel components;
c) duplicate copies of full architectural details.
in accordance with plans and specifications to Engineer.
separate application pursuant to Ordinance 55 4. Arrangements to the satisfaction of the Chief of water and sewerage facilities. Details of submitted with the Building Application and Council is satisfied the means of disposal is 5. No dwelling-house shall be permitted on the not be used for human habitation.
be 500 mm above the 1 in 100 year flood event In this regard a Surveyor's Certificate shall construction to substantiate this requirement.
the requirements of all relevant regulatory 8. The towers shall be painted in a dark tone Aviation.
and properly maintained.
around both towers and the transmitter shed flammable matters, at all times.
by the Board of Fire Commissioners.
expiration of 24 months from the date of this substantially commenced or unless the prior time has been granted.
conditions of this Interim Development Consent "1. The applicant shall be responsible for all footing, frame (with plumbing roughed in), inspections will not be carried out unless 2. The floor level of the Transmitter Shed shall as determined by the Public Works Department. be submitted to Council prior to completion of 3. The towers shall be painted in a dark tone Aviation.
by the Board of Fire Commissioners.
on all beacon lights so as to prevent light 6. A septic tank shall be installed for the installation shall be the subject of a separate specifications and approval by Council prior to 7. Complete engineering details shall be submitted commencement of any work on the proposed "This Statement is to be read in conjunction with Montgomerie Pty Ltd, addressed to Bellingen Shire 84216.
Land.
environmental effect on the Community.
not cause any significant impact on the Locality.
ecosystems presently functioning within the The Proposed Development will not diminish the quality or value of the Locality.
buildings or land which have aesthetic, historical, scientific or social significance or generations.
species of flora or fauna.
environment.
will not be curtailed.
There will be no environmental problems associated There will be no increased demands on resources, become in short supply.
cumulative environmental effect upon other existing "... I assessed that the impact on the scenic Councillors to assess and I referred this aspect sufficient information regarding the towers to effect of them and I was satisfied that the scenic was outweighed by the benefits which would be that lighting detail was not available I was in any subsequent building application which would available to me concerning lighting at the time of of Civil Aviation dated 4th February, 1985. This follow and these details were not in fact supplied |CF2.|PSI"a) It is one of the few areas which permits the licensed area without the use of translators.
transmitted over the Pacific Ocean thereby Nambucca Shire.
prerequisite quality for the efficient d) It does not conflict with the flight path Aviation (all areas in the coastal section of major aviation constraints).
to achieve high signal strength and excellent "The two towers are to be obstruction marked and lit particular, beacons shall be provided at two levels suggested location for the lower level beacons is say one metre of the apex. The beacons are to azimuth at approximately a ratio of 40 per minute. is 200,000 cd/day, 20,000 cd/T-light and day marking by painting the structure red/white is be used." |CF1.|PSO
Following receipt of the lighting specifications the Shire Planner made extensive investigations concerning the lights, and satisfied himself that they were in accordance with the standard statutory requirements. He noted as a consequence of the Department of Aviation requirements that the placement of lighting was at two positions on the towers, at approximately 90 metres and 169 metres. He later made enquiries of Mr T. Sullivan of the Department of Aviation, Canberra, who informed him that the same system was employed in Melbourne suburbs, and was satisfied that impact from the lights could be mitigated by a system of shielding which eliminated any reflection of light below the horizontal plane. The Shire Planner, after enquiries of the suppliers of the lights, was satisfied that the subject lights would be noticed as a spot or point in the locality, and not emit a beam.
An approval subject to conditions was granted by the Minister pursuant to the Height of Buildings Act 1912, and the application was again considered by the Council at its meeting of 21st May, 1985. The Shire Planner's report thereto initially only stated that he would "verbally" report at the meeting on the present situation. However, before or at such meeting the Councillors were provided with a further four page Shire Planner's report, together with annexures. The application had created a public controversy and submissions received by the Council were summarised in the report and tabled for perusal by Councillors. A further submission from the Save Our Scenery Committee was also tabled at such meeting.
A number of Councillors who participated in debate and voted at each meeting gave evidence. Councillor Childs, who strongly supported the Save Our Scenery Committee, stated that, with the exception of visual impact, at either meeting Councillors did not "discuss" other matters referred to in s.90 of the E.P.& A. Act. On 5th March he unsuccessfully moved that the proposal be advertised for objections. On 21st May he did not receive the said four page Shire Planner's report until he attended the meeting. He again unsuccessfully moved that the application be deferred, but on this occasion his reason was to enable further replies to be received from the Department of Communications.
Councillor Rennie, who seconded Mr Childs' motion on 5th March, said he did so because he felt that at that time he had insufficient time to assess the development. However, he subsequently inspected the site and satisfied himself that he should vote in favour of the proposal.
Other Councillors gave evidence as to the nature and extent of discussion at each meeting, and the reasons why each had formed the view that the visual impact of the development was acceptable. Whilst the lights on the structures as erected appear somewhat brighter than anticipated by each such Councillor at the time of each meeting, I am satisfied that even had they been aware of the actual level of brightness the same decision would have been made.
The towers were erected and have been in operation on the subject land for some three years.
In proceedings commenced on 3rd October, 1985 the applicant claims the following orders: |CF2.|PSI
First Respondent, of which written notice was application No. 1508 granting consent to the guy wires and anchor blocks, transmitter shed (Subdivision of Portions 293, 357, 390 and 505, Urunga, subject to conditions, was ultra vires.
have been given by the First Respondent on application No. 1508 submitted by the Second 3. A declaration that the determination of the given on 23 May 1985, in respect of development 4. An order that the Second Respondent, by itself, taking any step in reliance upon the purported dated 23 May, 1985.
its servants and agents be restrained from work in relation to the erection of transmitter transmitter shed and ancillary services on 357, 390 and 505, Parish of South Bellingen), with a valid development consent and valid case may be, by the First Respondent.
remove any work carried out pursuant to the Respondent dated 23 May 1985.
as far as is practicable, the land affected by consent of the First Respondent dated 23 May immediately before any such work was carried 1(a) Zone pursuant to the provisions of Interim a deemed environmental planning instrument for the consent of the Council as the consent authority general delegation from the Council of its powers was invalid and of no effect.
5. The resolution of 21st May, 1985 could not be the Council.
The applicant submits:
1. The document described as a Statement of Environmental Effects accompanying the Development Application failed to comply with the requirements of s.77(3) of the E.P.& A. Act.
2. In the absence of such statement -
a) the application was invalid;
b) any consent thereto was thereby invalid;
c) alternatively, if the application was valid, the absence of such statement was evidence of and deprived Council or its delegate of the ability to discharge its duty to consider relevant matters pursuant to s.90.
3. Council or its delegate took into account a) the misleading, illegal or erroneous reasons b) the urgency of the application.
4. Council or its delegate failed to consider relevant by Council but an unlawful instruction or direction should exercise his delegation to approve the Shire Planner to approve the application, but the the reason that he submitted a draft Notice of his hand in the name of the Council.
The respondents submit:
1. The Statement of Environmental Effects met the requirements of s.77(3).
2. An inadequacy, if any, only in the Statement of Environmental Effects does not invalidate a determination of the application if the Council otherwise discharged its duties pursuant to s.90.
3. The resolution of 21st May, 1985 was a delegtion to the Shire Planner who properly determined the matter pursuant to s.90.
The subject development application was made and determined prior to the amendment of s.77 of the E.P.& A. Act on 18th December, 1985 by Act No. 228. S.77(3) was, so far as is relevant, originally in the following terms:|CF2.|PSI
a) be made to the consent authority;
c) where the application is not in respect of i) embody such information as the applicant has given appropriate consideration to the application relates will have on the ii) set out the steps that he proposes to take |CF1.|PSO
I am of the opinion that that provision did not impose requirements of perfection in the consideration by the applicant of the impact of the development, or in the nature or extent of the information which must be submitted to the consent authority to "demonstrate" such consideration. As Perrignon J. said in Aldcroft & Ors v. Bega Valley Shire Council & Anor (28th February 1986, unreported), the section as it then stood |CF2.|PSI"leaves the applicant with some discretion as to what information, if any, should be supplied in relation to such impact." |CF1.|PSO I respectfully agree also that a consideration of the scope and objects of the provisions of the Act suggests that substantial compliance therewith is sufficient, and that the failure to comply strictly with those provisions does not invalidate the development application or the ensuing consent.
It is now well settled in this Court that environmental impact statements are designed to serve the ultimate decision making process, not to replace it. In my opinion, the information supplied pursuant to s.77(3)(c) and described as a Statement of Environmental Effects is similarly a tool to assist the consent authority, together with all other material obtained by it, in the discharge of its obligations in the proper determination of the application; c.f. Prineas v. Forestry Commission of N.S.W. and Ors (1984) 53 L.G.R.A. 160; Jarasius v. Forestry Commission of N.S.W. & Ors (Hemmings J., 4th March 1988, unreported).
In any event, the consent authority did not rely solely on such information contained in the said Statement of Environmental Effects in the determination of the application. The Shire Planner, conformably with Clause 32 of the Regulations, required the applicant to furnish additional information in relation to the proposed development, made independent enquiries, and received submissions from the public and representations by public authorities. In my opinion, even if there had not been substantial compliance by the applicant in the supply of information it would not necessarily invalidate the determination. At best, if it was the only material before the consent authority, it could be a reliable indication as to whether it had given "real" consideration to the application.
I have previously held that non-compliance with the provisions of s.77 with respect to the consent of the owner in writing can be cured at any time up to the determination of the application and, in my opinion, so can any deficiency in the material submitted by the applicant pursuant to s.77(3)(c) (Amacon Pty Ltd v. The Council of the Municipality of Concord, 2nd December 1987, unreported). I am satisfied that not only was there substantial compliance with the said provisions, but any deficiency was cured prior to the determination of the application.
A number of matters taken into account by the consent authority in the determination of the application has been described by the applicant as either misleading, illegal, erroneous or irrelevant.
These matters include the claim of urgency in obtaining an early determination, the ability to broadcast to non-licensed areas such as Nambucca or Lord Howe Island, an alleged unfounded claim of an ability to broadcast to Dorrigo and the claim of a lack of alternative sites.
In my opinion, the alleged urgency and the need for the earliest possible determination are matters that might properly be advanced for consideration by the consent authority so as to avoid any unnecessary delay, loss or inconvenience. A prayer for expedition, in my opinion, does not compel or suggest a breach of its obligations to consider the application properly.
I am not satisfied that the consent authority was misled or misdirected itself in its consideration of the application by an awareness that the site was selected in preference to others because it made it possible not only to broadcast to the licensed area including Dorrigo, but also to unlicensed areas of Lord Howe Island and Nambucca. In any event, the potential to broadcast to areas as yet unlicensed under different legislation has, in my opinion, little significance if any in the consideration of an application pursuant to the E.P.& A. Act. An alleged inaccuracy of information given by the applicant as to the ability to broadcast to Dorrigo from the subject site and the unavailability or unsuitability of alternative sites have also not been made out. I am of the opinion that, provided that the decision maker is not thereby diverted from the proper discharge of its function, every matter that the decision maker takes into account but should not have taken into account could not justify the Court setting as
ide the decision. A factor might be so insignificant that taking it into account could not have affected the decision; Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 60 A.L.J.R. 560 at 565. I am satisfied that the consent authority properly determined the environmental appropriateness of the subject site for the proposed development and that a consideration of any or all of the said matters would not vitiate the decision.
The parties agree that the resolution of 21st May, 1985 cannot be construed as a determination of the application by the Council, and I will decide the matter on that basis.
There also was no issue as to the existence of a general delegation from the Council to the Shire Planner of its power to approve the subject application, but it is submitted that in the circumstances he did not exercise such delegation properly or at all.
The determination of the development application is the exercise of a statutory power and is valid if the act falls within the statutory provisions which confer the power. The relevant power in this case had been delegated and the Shire Planner may, without further authorisation or confirmation, have acted in effective exercise of the power. Such exercise by the delegate must not be confused with the exercise of a Council's power by the authorised acts of another. Where the power is non-delegable but the Council could not have been expected by the Parliament to have exercised it personally in the multitude of instances when its exercise would be required, some classes of acts done by others for and on behalf of Council should be treated as though they were acts of the Council (see Carltona, Limited v. Commissioners of Works and Ors, 1943 2 All E.R. 560).
However, in this matter the Shire Planner as a delegate was exercising his own power and not that of the Council, and such exercise would miscarry if the very act of exercise purports to deny the power which gives validity to his act. The applicant claims that the giving of notice by the Shire Clerk on behalf of the Council denies the exercise of power by the delegate. In circumstances where the Council has authorised (but not delegated) a person to act in exercise of its powers, that act must be done in the name of the Council and not the person. In some circumstances, however, the exercise of a power might be supportable either as the act of a delegate (and therefore in his name) or as exercising the power of the Council in its name; c.f. London County Council v. Agricultural Food Products Limited [1985] 2 QB 218 at 224, and Re Reference under s.10 Ombudsman Act 1976: Ex parte Director-General of Social Services, Brennan J., 2 A.L.D. 86.
The "clear distinction" drawn by the provisions of the E.P.& A. Act between the determination of a development application (s.91), the communication thereof (s.92) and the date of the operation of any consent granted (s.93) was explained by McClelland C.J. in George v. Lismore Council and Ors 52 L.G.R.A. 178. I respectfully agree that the consideration and determination of a development application is not necessarily confined to one act or occasion, and may involve a lengthy "process". In my opinion, it may extend from the date of the application, including site inspections, discussions and the formulation of conditions or reasons for determination.
The consideration of the application by the Shire Planner was not confined to the period subsequent to the resolution of 21st May, 1985.
The Shire Planner gave detailed evidence as to the manner in which he personally "processed" the two applications, and in particular the enquiries he made, the matters he took into consideration for the purposes of s.90 of the E.P.& A. Act, and the conclusions he reached.
Notwithstanding such delegation and his favourable conclusions as to the environmental appropriateness of the proposed development at the subject site, he referred only the matter of its visual impact and public submissions thereon for consideration by the Council. The report made no recommendation that Council itself determine the application or any part of it as the consent authority and, in my opinion, such reference was intended by him to give the Council the opportunity to revoke or limit his general delegation to determine the application.
The Council at its meeting of 21st May, 1985 considered his report and public submissions with respect to visual impact and did not, nor did it purport to consider otherwise, any matter relevant to the determination of a development application. Whilst it would have been open to the Council to limit the exercise of the Shire Planner's delegation with respect to a particular application, I am satisfied that it did not do so and that its resolution is to be properly construed as a confirmation of his delegation and concurrence with his assessment of the acceptability of the visual impact of the development. I reject the submission that it should be construed as an instruction or direction to the Shire Planner as to the manner in which he must exercise his delegation. In any event I am satisfied that it did not fetter the exercise of the delegation as he expressly stated that he believed that he still retained the power to disapprove the application. The Shire Planner stated that he exercised such delegated auth
ority and finally approved the application and formulated conditions on 22nd May, prepared a notice of such determination in the prescribed form and referred it to the Shire Clerk for signature and service.
The Shire Clerk signed the draft on 23rd May without amendment, and it was subsequently served.
I am satisfied that in determining the application the Shire Planner properly exercised the delegated function and for that purpose also properly discharged his duty pursuant to s.90 to take into consideration such of the matters specified as were of relevance to the development the subject of the application.
A document comprising the determination and its conditions of approval by the Shire Planner is not in evidence. Notice of the determination of the application was required to be given in the prescribed form and manner (s.92). Form 7 in the Regulations requires a "signature on behalf of consent authority" to be appended to such notice. "Consent authority" in relation to this development application is the Council having the function to determine the application (s.4). That function would have been delegated pursuant to s.530A of the Local Government Act 1919 and which provides that "when exercised by the delegate shall be deemed to have been exercised by the Council" (ss(7)).
In my opinion, in the scheme of the E.P.& A. Act the notice of determination of a development application is an act independent of the determination thereof. It must be in the prescribed form and may be signed by any authorised person on behalf of the consent authority. It need not disclose that the function to determine the application was exercised by a delegate, or that it was only "deemed" to have been exercised by the Council. Such notice was appropriately signed by the Shire Clerk on behalf of the Council and, in my opinion, did not deny the exercise of the power by a delegate, but merely communicated a deemed act of the Council. In any event, if I be wrong and the notice is defective, in my opinion it could not thereby invalidate the separate and antecedent act of determination by the delegate.
I therefore make the following orders:
1. Application dismissed.
2. Exhibits may be released.
3. Costs reserved.
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