GPT Re Limited v Wollongong City Council and Anor (No.4)

[2008] NSWLEC 28

Set aside by Appeal: [2008] NSWCA 256

Land and Environment Court

of New South Wales

CITATION:

GPT RE Limited v Wollongong City Council and Anor (No.4) [2008] NSWLEC 28

PARTIES:

APPLICANT
GPT RE Limited

FIRST RESPONDENT
Wollongong City Council

SECOND RESPONDENT
Belmorgan Property Development Pty Ltd

FILE NUMBER(S):

41049 of 2006

CORAM:

Sheahan J

KEY ISSUES:

Judicial Review :- validity of development consent; deferred commencement conditions

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s.79C, s.80, s.80A,

CASES CITED:

Belmorgan Property Development Pty Ltd v GPT Re Ltd and Another (2007) 153 LGERA 450
Cameron v Nambucca Shire Council (1997) 95 LGERA 268
Currey v Sutherland Shire Council and Others (1998) 100 LGERA 365
GPT Re Ltd v Wollongong City Council and Another (2006) 151 LGERA 116
GPT Re Ltd v Wollongong City Council and Another (No 2) (2006) 151 LGERA 158
GPT Re Ltd v Wollongong City Council and Another (2006) 151 LGERA 174
Hill v Woollahra Municipal Council and Others (2003) 127 LGERA 7
Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190
Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24
Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734
Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319
Schroders Australia Property Management Ltd v Shoalhaven City Council and Another (1999) 110 LGERA 130
Somerville v Dalby and Others (1990) 69 LGRA 422
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376
Weal v Bathurst City Council and Another (2000) 111 LGERA 181

DATES OF HEARING:

22 and 23 November 2007

 
DATE OF JUDGMENT: 

29 January 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Gageler SC with
Dr S Pritchard
SOLICITORS
Allens Arthur Robinson

FIRST RESPONDENT
Submitting appearance
SOLICITORS
DLA Phillips Fox

SECOND RESPONDENT
Mr J Robson SC with
Mr S Balafoutis
SOLICITORS
Bartier Perry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Justice Sheahan

29 January 2008

41049 of 2006

GPT RE LIMITED v WOLLONGONG CITY COUNCIL AND ANOR

JUDGMENT

A. Introduction

1 His Honour: This matter concerns an objector challenge to a development consent granted by the First Respondent, Wollongong City Council (“Council”) on 21 August 2006 to the Second Respondent, Belmorgan Property Development Pty Ltd (“Belmorgan”) pursuant to s.80(3) of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”).

2 The project involves the demolition of all existing buildings on the site, and the development of a major retail, commercial, and cinema complex, involving 18,913 sq metres of gross leaseable retail floor space, to be followed possibly by a “Stage 2” development involving a hotel, conference centre and residential apartments, on land described variously as 23-37 or 31 Crown Street, and 12, 16 and 26 Burelli Street, Wollongong (the “subject land”), sometimes referred to as the “Dwyer’s Holden/Mazda” and/or “Salvation Army Hall” site(s) bounded by Crown, Corrimal and Burelli Streets. The subject land is described in the Development Application documentation as “prime City Core real estate” (Exhibit 1, tab 2, p13), but the Council notes that it is outside the retail core of the city centre (Exhibit 1, tab 9, p3).

3 In earlier proceedings involving the same three parties, Biscoe J noted (151 LGERA at 121-2) that the proposed development “would result in the most significant change to retailing in Wollongong City Centre since 1986” (par [1], and Exhibit 1, tab 3, p1), and that the applicant in both those and these proceedings, GPT RE Limited (“GPT”), owns “the nearby Wollongong Shopping Centre” (par [2]). The Wollongong City Centre competes with major retail complexes at Westfield Figtree, Westfield Warrawong, and Shellharbour Town Centre and some smaller centres (Exhibit 1, tab 3, p4-9).

4 GPT seeks, in these class 4 proceedings, a declaration that the consent is void and of no effect, and consequential relief in the form of an order that Belmorgan be restrained from carrying out any works on the subject land pursuant to the challenged consent. Belmorgan denies that GPT is entitled to this relief, but urges the Court not to exercise its discretion to grant it in any event. GPT and Belmorgan agree that any question of discretion should be deferred for later argument if I decide the validity point in favour of GPT.

5 A submitting appearance, save as to costs, was filed on behalf of the Council on 19 July 2007.

B. The Factual Background

6 This Belmorgan project has quite a history in this Court, and much of the factual background can be found in more detail in three judgments delivered by Biscoe J during 2006 (in cases involving the same three parties as this one, reported at 151 LGERA 116, 158, and 174 - see, especially, pages 123-126), and that of the Court of Appeal in Belmorgan Property Development Pty Ltd v GPT Re Ltd and Another (2007) 153 LGERA 450. Those cases concerned an earlier purported consent to the same development application, granted on or about 1 August 2005, but I will now summarise, briefly, those aspects of the history relevant to the present proceedings.

7 On 26 August 2004, Belmorgan lodged with Council development application 2004/1565 (“the DA”) for a development described as the demolition of existing buildings and construction of a multi-storey entertainment, leisure and retail development on the subject land. The DA (Exhibit 1, tab 1) was accompanied by various expert reports, prepared for the proponent by Urbis JHD (Exhibit 1, tabs 2 and 3), including an Economic Impact Assessment prepared by Leyshon Consulting Pty Ltd (“Leyshon”), dated August 2004. It was also accompanied by a SEPP 1 objection seeking a dispensation from a height limitation.

8 On 20 September 2004 the Council (Exhibit 1, tab 4) sought from Belmorgan extensive additional information, and Leyshon responded by letter dated 11 October 2004 (Exhibit 1, tab 5).

9 In a submission dated 15 October 2004, BBC Consulting Planners (“BBC”) (Exhibit 1, tab 6) wrote to Council objecting to the proposal and identifying perceived deficiencies in the DA. BBC stated it was engaged by “Lend Lease Retail on behalf of GPT” (p2). Annexed to the submission were a ‘Review of Traffic Impact Assessment’, prepared by Mark Waugh Pty Ltd dated October 2004, a review of the Leyshon Economic Impact Assessment, prepared by Dimasi Strategic Research (“Dimasi”) dated October 2004, and an ‘Urban Design Critique’, prepared by Architectus Sydney Pty Ltd’, dated 15 October 2004. Dimasi (at p12 of its review) recommended that Council obtain an independent assessment of the Leyshon report.

10 In November 2004 a supplementary report was produced by Leyshon on behalf of Belmorgan, entitled ‘Response to Comments by Objectors to Proposed Retail Centre Development, Wollongong’ (Exhibit 1, tab 7). Inter alia, this supplementary report dealt with the BBC submission and the Dimasi review.

11 In May 2005 an “independent analysis”, entitled “Belmorgan Site - Retail & Commercial Assessment & Review”, was prepared for Council by Patrick Partners in conjunction with Annand Alcock Urban Design (Exhibit 1, tab 8). The conclusion of the analysis included a recommendation (at p30) that the DA be declined “in its current form and scale”.

12 On 1 August 2005 Council purported to delegate authority to grant consent to the DA. At the meeting the business papers included the independent report and a response from Leyshon dated 6 July 2005 (Exhibit 1, tab 9, pp112-115). The Council officers’ report presented three options - (1) seek deletions from the ground floor proposals, (2) refusal, and (3) approval - and expressed a preference for option (1) (Exhibit 1, tab 9, pp53 and 57).

13 The resolution of the Council’s Environment and Planning Committee (Exhibit 1, Tab 10, p5, and see Biscoe J, 151 LGERA at 129, par [19]) was in the following terms:

1 The General Manager be delegated authority to approve Development Application 1565/2004 as per Option 3 of the report.
2 The consent not be issued until Councillors are informed of the conditions.
3 A 2 metre setback be placed on the Crown Street frontage in line with Council policy.

Two Councillors had put an amendment that the delegation be for refusal. That amendment was lost and, when the above resolution was carried, a third Councillor asked for his/her name to be recorded as voting against it.

14 A notice of determination of the DA was issued on or about 5 August 2005 (but dated 1 August 2005), by Council to Belmorgan, granting a deferred commencement consent on 174 conditions (Exhibit 1, tab 11). The deferred commencement conditions concerned, mainly, issues of site contamination and remediation, and a requirement for a setback and footway (Exhibit 1, tab 11, pp1-2).

15 GPT commenced its earlier class 4 proceedings, to challenge the August 2005 consent, on 28 October 2005.

16 On 9 June 2006, Biscoe J held that the development consent granted by Council to Belmorgan was invalid, on the basis that the Council resolution delegating authority to its General Manager to approve the DA was invalid, as it precluded his/her refusal of it (GPT Re Ltd v Wollongong City Council and Another (2006) 151 LGERA 116). This decision of Biscoe J (“GPT No.1”) was subsequently upheld by the Court of Appeal on 18 July 2007 (Belmorgan Property Development Pty Ltd v GPT Re Ltd and Another (2007) 153 LGERA 450).

17 On 7 July 2006, Biscoe J declared the consent void and of no effect, and ordered that Belmorgan be restrained from carrying out any works on the subject land pursuant to it (GPT Re Ltd v Wollongong City Council and Another(No 2) (2006) 151 LGERA 158).

18 Steps were then taken within Council to list the DA for determination at the Council’s meeting scheduled for 24 July 2006.

19 On 20 July 2006 the Minister for Planning asked Council to defer determining the matter, in order that he might have the opportunity to discuss it with both Council and the developer. Council’s CEO advised the Lord Mayor and Councillors on 21 July 2006 to agree with the Minister’s request (Exhibit 1, tab 12).

20 On 24 July 2006 GPT wrote to Council urging it not to proceed in the absence of “updated assessments” over and above those before Council on 1 August 2005. A legal opinion was enclosed, detailing several changes in allegedly relevant circumstances since August 2005. These current proceedings were foreshadowed (Exhibit 1, tab 13).

21 On 24 July 2006, notwithstanding the representations from the Minister and GPT, the DA was again placed before Council, unamended, for reconsideration. Attachment 1 to the Business Paper prepared for the Ordinary Meeting of Council on that date, was an unamended copy of the report of Manager, Development Assessment and Compliance (Wollongong City Council) dated 1 August 2005, which the Council had before it on 1 August 2005 (Exhibit 1, tab 14, cf. tab 9). The Business Paper stated:

Council is legally required to reconsider the assessment and determination of DA2004/1565 based upon the matters for consideration as listed under Section 79C(1) of the New South Wales Environmental Planning and Assessment Act 1979. There are no new relevant Planning controls or other changed circumstances since Council last considered the application in August 2005 and about which Council should be aware when it considers the development application.

22 The Council officers’ report recommended approval on 174 conditions, but, when a deferment proposition was overtaken by a motion to refuse, Council resolved to refuse the DA for the following reasons (Exhibit 1, tab 15, pp3-4):

1 It is contrary to Development Control Plan No. 6, being outside the retail core of the City.
2 It does not meet Clause 12A and Schedule 2A of Wollongong Local Environmental Plan No. 1990 which prescribes a maximum floor height of 15 metres.
3 It is unsympathetic in scale, height and form in relation to existing developments in the locality.
4 It does not meet the provisions of draft State Environmental Planning Policy 66, being that it must be within a reasonable walking distance of the railway station.
5 It does not meet Development Control Plan No. 94/28 which prescribes a 5 metre front setback on to Crown Street.
6 Due to the economic impact it will have on the City.

23 On 2 August 2006 the Minister for Planning convened a meeting involving representatives of his department, Belmorgan, and Council (Exhibit 1, tab 18, p8). The “outcomes of that meeting” were reported to Council, in writing, at its meeting on 21 August 2006 (Exhibit 1, tab 18).

24 In the meantime, on 11 August 2006, a suite of documents entitled ‘REVITALISING WOLLONGONG DRAFT CITY CENTRE PLAN’ (Exhibit 1, tabs 16 and 17) was put on public exhibition until 22 September 2006. Wollongong was one of six cities in regional New South Wales nominated by the Premier of NSW to be the subject of a significant joint State/Local government strategic planning exercise, the “Taskforce” for which exercise produced for Wollongong a draft City Centre Plan comprising the following documents:

1. a “ Vision ” document ( Exhibit 2, tab 27 );
2. Draft Local Environmental Plan (“ LEP ”) ( Exhibit 2, tab 28 );
3. Draft Development Control Plan (“ DCP ”) ( Exhibit 2, tab 29 ); and
4. Draft “ Civic Improvement Plan ” ( Exhibit 2, tab 30 ).

25 On 21 August 2006 three Councillors submitted a Notice of Rescission in relation to the Council's refusal decision of 24 July 2006 (Exhibit 1, tab 18). Before Council were:

· a business paper signed and dated 10 August 2006, comprising a report of the Group Manager Sustainability dated 10 August 2006 and two attachments: the draft conditions of consent (Exhibit 1, tab 18), and the Business paper for the 24 July 2006 Council meeting and Report of Group Manager Sustainability dated 12 July 2006 (Exhibit 1, tab 14);

· a Report of the Manager, Development Assessment and Compliance (Wollongong City Council) dated 1 August 2005 (Exhibit 1, tab 14) which the Council had before it on 1 August 2005;

· an independent report titled “Retail & Commercial Assessment & Review” dated May 2005 prepared by Patrick Partners in conjunction with Annand Alcock Urban Design (Exhibit 1, tab 8) which had also been before Council on 1 August 2005;

· the original DA documentation, including expert reports, as lodged with Council on 26 August 2004 (Exhibit 1, tabs 1-3).

· a written report on the meeting convened by the Minister on 2 August 2006 (Exhibit 1, tab 18); and

· a set of draft conditions not entirely identical with earlier versions.

26 GPT wrote to Council on 21 August 2006 (Exhibit 3, tab 31) pointing out what is called “several deficiencies” in the Council business papers for the meeting on that day. That letter reiterated the concerns GPT had expressed on 24 July 2006 (Exhibit 1, tab 13), and included the following paragraph:

In essence, the economic and development landscape in the Wollongong Town Centre has changed considerably since Belmorgan submitted the DA to Council in August 2004. The current exhibition of the draft planning controls for the Wollongong Town Centre is significant. It is clear that the DA fails to comply with these controls. Specifically these controls provide that any retail premises on the site beyond 400m2 is prohibited.

27 When the rescission motion came before the meeting of Council on 21 August 2006 (Exhibit 1, tab 19), Council resolved (in line generally with the recommendations at tab 18, p8) that:

1 Development Application No 2004/1565 for the proposed major redevelopment of the Dwyers Holden/Mazda and Salvation Army sites to permit a retail shopping centre, cinema and commercial office complex generally bounded by Crown Street, Corrimal Street and Burelli Street, Wollongong be approved by deferred commencement substantially in accordance with the draft conditions of consent. (Attachment 2 of the report).
2 Council recommend to the applicant that they (sic) lodge an application to the Minister for Planning, under Part 3A, (Major Projects) for a Concept Plan for all stages of the total project, including aspects on any other land/sites (eg Oxford Tavern site) and that the applicant be advised that this application must comply with the provisions of the relevant draft LEP and DCP.

Three Councillors asked that their names be recorded as voting against the motion.

28 On or about 21 August 2006 Council issued to Belmorgan a Notice of Determination for DA 2004/1565, with Schedule A thereof providing deferred commencement conditions (Exhibit 1, tab 20), in the following terms:

This is a “Deferred Commencement Consent” under Section 80(3) of the Environmental Planning and Assessment Act, 1979 (as amended). This consent does not become operative until the applicant has satisfied the requirements listed in Schedule A of this consent.
Upon compliance with the issues under Schedule A and written confirmation from Council to that effect, then the consent shall become operative from a “Date of Endorsement” (to be included on the written notification) subject to the conditions listed in Schedule B and any additional conditions arising from the requirements of Schedule A. (Reason - Statutory requirement and design improvement).
In order to ensure that Stage 1 of the total development addresses the provisions of the draft City Centre Local Environmental Plan and Development Control Plan, currently on exhibition, the Development Consent shall not operate for six (6) months or until the following matters have been complied with to the satisfaction of the Council and the Director General of the Department of Planning, whichever is the latter:
a) The amendment of the proposal to comply with the setback provisions contained within the draft City Centre Development Control Plan.
b) The proposal shall be amended to ensure that all required onsite car parking is located within the basements below street level.
c) The podium shall be redesigned so that:

i. It complies with all relevant provisions of the draft City Centre Development Control Plan.
ii. All design features associated with Stage 2 (towers) are deleted.
iii. The cinemas/commercial office component is redesigned to accommodate the deletion of the elevated carparks surrounding them.

29 Schedule B of the notice contained 175 other conditions. The relevant plans are also in evidence (Exhibit 3, tab 37).

30 On 21 August 2006 Joe Scimone, Council’s Group Manager Sustainability, wrote to Belmorgan (Exhibit 1, tab 21, p1) advising, inter alia:

“The ‘Deferred Commencement’ Consent No. 2004/1565 pre-conditions, (Schedule A), require a redesign of the proposed seven storey retail shopping centre, commercial office and multiplex cinema complex building.
In order to assist in facilitating this and to enable the re-design process to progress efficiently, I have arranged a meeting with Mr Chris Johnson, (Executive Director Department of Planning) for Tuesday, 12 September 2006, commencing 11.00am at the Sydney offices of the Department.
In addition, Council also recommends that you lodge an application to the Minister for Planning, under Part 3A, (Major Projects) for a Concept Plan for all stages of the total project, including aspects on any other land / sites (eg Oxford Tavern site). However, I would remind you that as per our discussions, this application must comply with the provisions of the relevant draft LEP and DCP”.

31 Mr Scimone wrote to GPT on 5 September 2006 in reply to its letter of 21 August (Exhibit 3, tab 31).

32 On 12 September 2006 representatives from Belmorgan, Council, the Department of Planning, Urbis JHD (Belmorgan’s town planner) and DBI Designs (Belmorgan’s architect) met to discuss “the issues associated with the redesign and the Department’s Requirements in relation to design.” Belmorgan’s proposed “Stage 2” project was also discussed, and the meeting concluded with the observation that “[f]urther meeting to discuss redesigns required.” (a File Note dated 13 September, reporting on the meeting, appears at Exhibit 3, tab 32).

33 On 3 November 2006 GPT filed the class 4 application, now before the Court, challenging the validity of the 21 August 2006 consent and seeking to restrain any works pursuant to it.

34 Correspondence and discussions have continued, since these proceedings were commenced, with special concerns being expressed about the implications of the proposed changes to the major planning instruments (see par [24] above and Exhibit 2, tabs 27-30).

35 The Draft LEP would prohibit retail developments larger than 400 sq metres in the proposed “City Edge” Zone (B4) which will encompass the subject land. GPT attaches some significance to the failure to include the subject land in either the “Commercial Core” or “Wollongong Central” in Zone B3 under the draft LEP. Urbis JHD sought assistance from the Council and the Minister to protect Belmorgan’s position, given the relevant consent, in the event the new LEP is made (see correspondence at Exhibit 3, tab 33).

36 Work continued on compliance with the deferred commencement conditions requiring the satisfaction of both Council and the Director General of the Department of Planning (see correspondence at Exhibit 3, tabs 34-38). The Director General’s letter to Council dated 27 September 2007 (Exhibit 3, tab 38) would appear to have concluded that process and cleared the way for Council to render the consent “operative from a ‘Date of Endorsement’”.

37 The terms of the deferred commencement consent, as resolved by a meeting of the elected Councillors (see par [28] above) required, in terms:

a) The amendment of the proposal to comply with the setback provisions contained within the draft City Centre Development Control Plan.
b) The proposal shall be amended to ensure that all required onsite car parking is located within the basements below street level.
c) The podium shall be redesigned so that:

“ In order to ensure that Stage 1 of the total development addresses the provisions of the draft City Centre Local Environmental Plan and Development Control Plan, currently on exhibition … ”.

38 No copy of the “operative” consent is before the Court, as such, but the “final amended plans” provided by Belmorgan to Council on 9 August 2007 are (Exhibit 3, tab 36), and there is material (e.g. Exhibit 3, tab 34) indicating the differences between them and the original project outlined in the DA (the plans at Exhibit 3, tab 37).

39 Below street level the basement areas, and above street level the facades, the number of levels, and the internal layout of the retail, cinema and public spaces have been altered to accommodate the requirements of the deferred commencement conditions. The number of above-ground levels has reduced from eight to six. A central issue faced by the Court is whether these alterations convert the project approved by the Council into a “significantly different development”.

C. The Applicant’s attack on Council’s consent

40 The Applicant’s attack on the 21 August 2006 consent granted by Council to Belmorgan is outlined formally in its Points of Claim (“POC”) filed 22 December 2006 and elucidated in its written and oral submissions. Particular reliance is placed on the principles laid down by two leading authorities, namely Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734 (“Mison”) and Weal v Bathurst City Council and Another (2000) 111 LGERA 181 (“Weal”). The onus lies on the challenger to show that the determination/consent is unlawful.

41 The first claim the Applicant makes (in POC 14&17) is that Council in granting the deferred commencement consent “impermissibly deferred for later consideration”, and/or failed to give “any or proper, genuine and/or realistic consideration” to, matters which Council was required to consider under s79C(1) of the EP&A Act, especially the provisions of the draft LEP and draft DCP placed on exhibition on 11 August 2006 (see par [24] above). This ground of challenge will be considered in section D of this judgment.

42 The second claim made (in POC 14(c)-16) is that the deferred commencement conditions “produce the result that Council granted consent without knowing the final design of the development” (as required by s.79C(1)(b)&(c)), and that the operation of the conditions “significantly altered” the development in the DA to such an extent that Council did not approve the DA made by Belmorgan. There are subsidiary claims that the deferred commencement conditions fail for lack of finality and certainty, yet they required the development to be redesigned to an extent which was unknown to Council at the time it purported to grant consent. This ground of challenge will be considered in section E of this judgment.

43 A third claim (in POC 17(c)) is that the deferred commencement consent was purportedly granted without Council having given any or proper, genuine and realistic consideration, as required by s.79C(1)(b), specifically to the economic impacts of the development, in that Council had before it, at the time of granting consent, no expert material more up-to-date than the Patrick Partners report dated May 2005. This ground of challenge will be considered in section F of this judgment.

D. Deferral or inadequate consideration of essential matters?

44 It has been long accepted that the availability of the power to grant a deferred commencement consent does not relieve a consent authority of its obligation to consider all matters requiring its determination under s.79C of the EP&A Act (Weal at [94]), relevantly the impacts of the proposed development and the suitability of the subject site for it. A deferred commencement consent is a “final” consent, but its commencement date has yet to be settled. Weal, and see also Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-6. In Mison, Clarke JA (with whom Meagher JA agreed) stated at 740:

Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final.

45 GPT submits that Council, by imposing its deferred commencement conditions (a), (b) and (c), (par [37] above), was actually deferring the impact assessments required of it by s.79C.

46 GPT attached to its submissions a table comparing the relevant provisions of the 1990 LEP, the 2005 draft LEP, and the 2006 draft LEP, as they would apply to the subject land. There is also a useful brief commentary on them at Exhibit 1, tab 8, pp 25-26. Each regime is substantially different from both the others, and GPT asserts that Council “impermissibly deferred” consideration of the draft instruments on display as at 21 August 2006, and urges the Court to infer, from the lack of specific consideration of those draft instruments in the documents before Council on 21 August 2006, that Council failed to consider them. In the absence of direct evidence, such an “inference should be drawn only after anxious consideration by the Court”. Weal at [83]; Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319 (“Hale”), at 345; Currey v Sutherland Shire Counciland Others (1998) 100 LGERA 365, at 373.

47 GPT relies on several passages in the judgments in Weal to require more of the Council in this regard than what GPT’s submissions (par 31) calls “simple advertence” to such draft instruments. See Weal at [13] and [80]. The consent authority must give “proper, genuine and realistic consideration” to them: Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2006) 143 LGERA 277 (“Kindimindi”) at [74]-[79].

48 Under the 2006 draft new LEP and DCP, retail premises exceeding 400 square metres would be prohibited in the zone where, if the draft instruments are implemented, the subject land will fall. This is a significant departure from the position under the 1990 LEP, which applied as at the original consent date, 1 August 2005 (Exhibit 2, tab 22), and from provisions in the 2005 draft LEP (Exhibit 2, tab 25 – which was not exhibited as at 1 August 2005), and there is no question that Council, as at 21 August 2006, was required to take the 2006 draft instruments into account in determining the DA.

49 On the other hand, the suite of documents placed on exhibition only ten days prior to the Council’s decision to approve the developments were significant in nature; they flowed from very detailed work by Council and the Department of Planning; they involved extensive stakeholder consultation (see Exhibit 2, tab 17, and tab 27, pp3-4), over a long period; and they were drawn to Councillors’ specific attention (Exhibit 1, tab 16). Belmorgan’s written submissions (at par 19) highlight where, in the various Council papers, Councillors’ attention was drawn to significant changes the documents would make, relevant to this project. The conditions of the deferred commencement consent specifically require that their provisions be addressed.

50 In Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 (“Hospital Action”), Pearlman CJ said (at 195):

… the material from which the state of mind of the Council can be inferred is not limited to what occurred at the Council meeting, or the content of material actually or constructively before the Council in relation to the application the subject of the Council’s decision. Councillors do not make decisions in a vacuum; they have local knowledge and general knowledge which is available to inform them on issues which they have to consider …
See also Hale, at 346, and Somerville v Dalby and Others (1990) 69 LGRA 422, at 429.

51 In this case I can identify no “important aspect of the development”, including the existence of draft new planning instruments, which the Council deferred “for later decision”, apart from the fact that the internal configuration and external façade and setback of the project needed to be redesigned to achieve objectives articulated by Council at the time of consent, with the necessary redesign to be informed by various elements of those proposed new planning instruments.

52 In summary, Belmorgan sought approval for a major entertainment and leisure focussed development, including cinemas, offices, retail and substantial on-site parking. Council ultimately consented to the proposal, but required its redesign by Belmorgan, in consultation with both Council and the Department of Planning. The draft development control plan was to inform that process. No elements of the DA proposal – which was, it must be remembered, for only what Belmorgan saw as Stage 1 – were deleted, save for anything which did nothing other than, effectively, set the platform for the mooted stage 2. No new elements were to be added. Setbacks were to be provided, and all on-site parking was to be placed below street level.

53 There is no evidence of any failure by Council to give proper, genuine and realistic consideration to the draft new planning instruments then on public exhibition, and it simply does not matter that they were not addressed in specific detail in the Council reports regarding the project. Hill v Woollahra Municipal Council and Others (2003) 127 LGERA 7. It is clear, from all the evidence, that Councillors took a keen interest in this DA at every stage – none of the recommendations put to them at the various meetings where the project and the site were considered were taken lightly, and several Councillors asked for their names to be recorded as voting against resolutions that were carried. I conclude that no essential s.79C considerations were deferred. The Council clearly spelt out what it agreed to, and set out to work with the proponent and the Department to achieve it.

E. Significantly different development?

54 The Mison principle may be stated in the words used by Priestley JA (23 NSWLR at 737):

[I]f the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made.

55 The Mison principle still stands, but must be considered and applied against the background of several subsequent amendments to the EP&A Act, including sections 80 and 80A. Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376 (“Warehouse”). See also Basten JA’s analysis in Kindimindi.

56 Obviously, the need to relocate parking below street level, have a wider setback, delete elements related to the planned stage 2, and have regard to movement in Council attitudes on development control, would be expected to involve redesigning the project to some extent, with possible changes in the layout and appearance of the building. Council was obviously content for that to be pursued jointly by Council officers, the proponent, and the Department of Planning.

57 The test of validity is not whether the presentation of the development might alter during that process – as it would in very many cases involving a deferred commencement consent – but whether, in truth, the development itself will be significantly altered by the process.

58 I do not accept GPT’s submission (in par 39) that invalidity flows from the detail of the redesign being “unknown” at the date of decision to grant the deferred commencement consent, nor its submission (in par 42ff) that the conditions in this case offend the requirements of finality/certainty. In Kindimindi, Basten JA (at [28]) expressed the view that “a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development”.

59 It is clear from the evidence summarised above that all parties knew precisely what development the consent authority was approving, and what further work was required before the closely involved regulatory authorities, namely the Council and the Department, would jointly agree that the consent would become operative. Sections 80A(1) and (4), purposively construed, are not offended – and outcomes, objectives and criteria for their assessment were clearly identified. Kindimindi at pars [29]ff, e.g. [59].

60 To take the carpark issue as one example: Section 80A(1)(a) envisages conditions relating to any matter in s.79C of the Act, and s.80A(1)(g) permits conditions to modify details of the development in the DA. Section 79C(1)(a)(ii) provides that draft LEPs are of relevance. Clause 22C(1) of the draft LEP (Exhibit 2, tab 28) requires that parking is to be provided in accordance with the draft DCP. Clause 4(h) of the draft DCP (Exhibit 2, tab 29) requires that, for commercial developments within the proposed “city edge” zone, on-site parking is to be accommodated underground, or otherwise integrated into the design of the building. Council opted for the former option. In the result, s.80A operates to permit the relevant condition even if it may be thought to contravene the Mison principle.

61 When considering whether a consent leaves open the possibility of a significantly different development, an evaluative judgment is required, and the whole development must be considered in context. Kindimindi at [54].

62 I agree with Belmorgan’s reliance (at pars 34-36 of its submissions) on Schroders Australia Property Management Ltd v Shoalhaven City Counciland Another (1999) 110 LGERA 130, where there were 43 amendments in total, affecting, as in this case, internal configuration, setback, external presentation, and car-parking. Pearlman CJ said, at [93]:

In my opinion, the essential nature of the proposed development remained the same before the amendments as after them. It was a development comprising a discount department store, a supermarket, specialty shops, a community centre, car parking and landscaping, and it remained of that essential or material nature after the amendments had been made. The amendments are, in my opinion, matters of design, configuration and appearance. Whilst some of them may be significant, they do not change the essence of the development as initially proposed.

63 I do not accept that there has been a significant difference made to the development – all existing buildings are still to be demolished, all the proposed uses or elements remain, the building envelope remains the same, and the movement below-ground of all parking has caused a logical reconfiguration of some internal spaces.

64 In so far as the subsidiary challenge in POC 16 asserts that the deferred commencement conditions fail for lack of finality or certainty, I cannot accept the submissions made by GPT, which concentrated on conditions (b) and (c).

65 The challenge clearly fails regarding condition (a), as the appropriate setbacks are clearly defined in the draft DCP, which Belmorgan was obliged by the consent to observe. I adopt, with respect, also the comments of Biscoe J on the subject of setbacks in GPT No.1 at 150-151.

66 Condition (b), requiring the above-ground parking to be relocated below-ground is, as I observed above (in par [60]), clearly permitted by s.80A. Likewise, the various components of condition (c) are clearly permitted by s.80A(1)(a) and/or (g). See Warehouse, per Hodgson JA at [89]; and GPT No.1 per Biscoe J, at [90].

F. Inadequate consideration of economic impacts?

67 GPT complains that Council had before it, in July and August 2006, no assessment of any changes in the “economic and retail environment” since it had considered, on 1 August 2005, the expert material assembled before or during May 2005. GPT acknowledged in its oral submissions that economic impacts, as then evident, were fully considered when Council took its August 2005 decision, but stressed the need for Council in 2006 to have had before it “the most recent and accurate information” (Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 44 per Mason J).

68 GPT relied on affidavit evidence from its retained retail economist, Gavin Duane, of Dimasi (now part of Pitney Bowes Mapinfo), and Belmorgan relied on the affidavit evidence of its research analyst and consulting town planner, Peter David Leyshon, principal of the company bearing his name. The Court accepts their qualifications to give expert evidence on the “economic and retail environment” relevant to the project and the subject land.

69 Mr Duane opined that there had been significant movements in the retail sector in and near Wollongong, and that Council had relied, in both 2005 and 2006, on an August 2004 projection by Mr Leyshon of only minimal such movements.

70 Mr Leyshon acknowledged that there had indeed been the marketplace events of which Mr Duane spoke, but that they had had “only a minor impact” on the situation, and would not have “led to any substantial change in” his 2004 conclusions, had he been asked to revisit them before the July/August 2006 reconsideration of the project by Council.

71 The two more significant of the developments or proposals dealt with by these experts (Dapto and Fairymeadow) are not only located within the Council’s area; they both in fact received consents from the Council. I again rely on Pearlman CJ’s comments in Hospital Action, regarding councillors not operating “in a vacuum”, to observe that the Court is entitled to assume that, in this particular case, they did not look only at the expert reports before them, to the exclusion of any recollection of what they have agreed to elsewhere in their council area at a relevant time in the same sector of the economy.

72 Council did not rely solely on Mr Leyshon’s advice, or that of Dimasi; it had before it also the independent advice of Patrick Partners, dated May 2005 (Exhibit 1, tab 8, see especially pp27-30), which was far from entirely favourable to the project. Councillors also had letters and legal advice from GPT arguing its case against the granting of consent (Exhibit 1, tab 13, if not also Exhibit 3, tab 31). I am satisfied Council had before it “the most recent and accurate information” available.

73 I do not accept that Council’s failure to seek an up-to-date report on economic impact issues was a failure which should result in the Court invalidating the consent.

G. Conclusion

74 It follows from the analysis above that I am not satisfied that GPT RE Limited has sustained any of its challenges to the validity of Wollongong City Council’s relevant consent in favour of Belmorgan Property Development Pty Limited.

75 The Applicant’s Class 4 application should be dismissed. Having been entirely unsuccessful in its proceedings, the Applicant is exposed to a costs order, but, as the Council has not appeared at the hearing of the challenge, the question of costs will be reserved. All the exhibits may be returned.

76 The formal orders of the Court will be:

1. Application dismissed.
2. Costs reserved.
3. Exhibits returned.