GPT RE Ltd v Belmorgan Property Development Pty Ltd - [2008] NSWCA 256

No judgment structure available for this case.

Reported Decision: 72 NSWLR 647

New South Wales

Court of Appeal

CITATION: GPT RE LIMITED v BELMORGAN PROPERTY DEVELOPMENT PTY LIMITED [2008] NSWCA 256

HEARING DATE(S): 10 September 2008

JUDGMENT DATE:
15 October 2008

JUDGMENT OF: Basten JA at 1; Bell JA at 110; Young CJ in Eq at 111

DECISION:
(1) Appeal allowed and orders made in the Land and Environment Court on 29 January 2008 in matter No. 41049 of 2006 set aside.
(2) Remit the matter to the Land and Environment Court for determination by that Court in accordance with law.
(3) Order the respondent to pay the appellant’s costs of the appeal.

CATCHWORDS: ADMINISTRATIVE LAW – draft local environmental plan – draft control plan – development application – mandatory considerations – whether Council considered development application with reference to draft local environmental plan – presumption of regularity – prohibition on retail premises exceeding 400m2 – Environmental Planning and Assessment Act 1979 (NSW) s 79C(1)(a)(ii) - APPEAL – whether orders available in trial context available on appeal – jurisdiction and powers of Land and Environment Court – powers of Court of Appeal in appeal from class 4 proceedings – exercise of power under Division 3 of Part 3 of the Land and Environment Court Act 1979 (NSW) – Environmental Planning and Assessment Act 1979 (NSW) s 124 – Land and Environment Court Act 1979 (NSW) ss 25A, 25B, 25E, 58 – Supreme Court Act 1970 (NSW) s 75A - ENVIRONMENT AND PLANNING – consent – conditions of consent – conferral of function on Director-General of Department of Planning where not consent authority for purposes of development application – Director-General not subject of statutory constraint - ENVIRONMENT AND PLANNING – development application – deferred commencement consent – conditions of consent – whether consent accords with development application made – whether consent definitive – whether conditions of consent involve substantial changes to proposed development – whether conditions of consent assessable according to clear criteria – reconfiguration of levels in development and car parking space required – Environmental Planning and Assessment Act 1979 (NSW) ss 78A, 80, 80A - EVIDENCE – presumption of regularity – whether presumption operates where evidence exists from which an inference could be drawn – party with burden of persuasion – whether basis for finding invalidity of exercise of statutory authority – whether failure to comply with necessary precondition to exercise of power – Environmental Planning and Assessment Act 1979 (NSW) s 79C(1)(a)(ii) - WORDS & PHRASES – “clear criteria” – “consent” – “details” – “presumption of regularity” – “project”

LEGISLATION CITED: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16
Administrative Decisions Tribunal Act 1997 (NSW), s 119
Environmental Planning and Assessment Act 1979 (NSW), ss 34, 54, 55, 64, 65, 66, 70, 75A, 75B, 75D, 75E, 75ZA, 76, 76A, 76B, 78A, 79C, 80, 80A, 83B, 103, 122, 123, 124; Parts 3A; 4, Div 2A; 5
Interpretation Act 1987 (NSW), s 45
Land and Environment Court Act 1979 (NSW), ss 20, 22, 23, 25A, 25B, 25E, 58; Part 3, Div 3
Supreme Court Act 1970 (NSW), s 75A

CATEGORY: Principal judgment

CASES CITED: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187
Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; 153 LGERA 450
Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; 135 LGERA 257
Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153
Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33
GPT Re Limited v Wollongong City Council [2006] NSWLEC 303; 151 LGERA 116
Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7
Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277
Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; 150 LGERA 333
Lane Cove Council v Minister for Urban Affairs and Planning [2005] NSWCA 122; 140 LGERA 185
McLean Bros & Rigg Ltd v Grice [1906] HCA 1; 4 CLR 835
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Morris v Kanssen [1946] AC 459
North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740
Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142
Scott v Wollongong City Council (1992) 75 LGRA 112
Selby v Pennings (1999) 102 LGERA 253
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; 129 LGERA 195
Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150
Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW) [1999] NSWCA 196; 46 NSWLR 598
Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508

TEXTS CITED: Thomas Starkie, A Practical Treatise of the Law of Evidence (10th ed, 1876) at 741

PARTIES: GPT RE Limited – Appellant
Belmorgan Property Development Pty Limited – First Respondent
Wollongong City Council – Second Respondent

FILE NUMBER(S): CA 40026/2008

COUNSEL: J Gleeson SC/Dr S Pritchard – Appellant
J Doyle – First Respondent
Submitting appearance – Second Respondent

SOLICITORS: Allens Arthur Robinson – Appellant
Thomson Playford – First Respondent
DLA Phillips Fox – Second Respondent

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 41049/2006

LOWER COURT JUDICIAL OFFICER: Sheahan J

LOWER COURT DATE OF DECISION: 29 January 2008

LOWER COURT MEDIUM NEUTRAL CITATION: GPT RE Limited v Wollongong City Council and Anor (No. 4) [2008] NSWLEC 28

CA 40026/2008
LEC 41049/2006

BASTEN JA
BELL JA
YOUNG CJ in Eq
15 October 2008

GPT RE LTD v BELMORGAN PROPERTY DEVELOPMENT PTY LTD

Headnote

On 26 August 2004, Belmorgan Property Development Pty Ltd lodged a development application with respect to land in Wollongong.

On 1 August 2005, Wollongong City Council (“Council”) consented to the development application, but, in 2006, the Land and Environment Court upheld a challenge to the validity of the consent. In 2007, the Court of Appeal dismissed an appeal from that decision.

On 24 July 2006, the Council deferred consideration of the development application, following a letter from the Minister for Planning, which noted his concerns that the proposal might be inconsistent with a new Local Environmental Plan (“LEP”), which was intended to cover the Wollongong city centre, including the land the subject of the development application. Notice was given to bring the application back before the Council at its next meeting on a motion to rescind the 24 July decision.

On 11 August 2006, a draft LEP and a draft Development Control Plan were placed on public exhibition. These documents were directly relevant to any reconsideration of the development application.

On 21 August 2006, the rescission motion was carried together with a motion granting “deferred commencement consent”.

On 3 November 2006, the appellant filed an application in the judicial review jurisdiction (class 4 proceedings) of the Land and Environment Court, seeking a declaration that the development consent granted on 21 August 2006 was void and of no effect, and a consequential order restraining Belmorgan from carrying out works pursuant to the consent. On 29 January 2008, Sheahan J dismissed the application. The appellant challenged that decision.

The issues for determination on appeal were:

(i) whether the trial judge erred in deciding that the Council considered the draft LEP when they granted deferred commencement consent to the development application;

(ii) whether the trial judge erred in deciding that the Council consented to the development application as lodged; and

(iii) if the appeal succeeded, whether the Court should declare that the development consent granted on 21 August 2006 was void and of no effect or remit the matter to the Land and Environment Court.

The Court held, allowing the appeal (per Basten JA, Bell JA and Young CJ in Eq agreeing):

In relation to (i)

1. Section 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 (NSW) (“EP&A Act”) prescribed that the Council had to consider the draft LEP because it had been placed on public exhibition before the consent was granted: [15]–[16], [110], [111].

Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; 129 LGERA 195, applied.

2. The trial judge’s conclusion that the draft LEP had been considered by the Council because it had been drawn to the Councillors’ attention did not grapple with the existence of the prohibition on retail premises over 400m2 in the draft LEP, the prohibition’s possible ambiguity and the fact that significant areas of the proposed development did not comply with it: [67], [110], [111].

3 The fact that conditions to the consent required the respondent to address the draft LEP, without indicating how, supported the view that members of the Council had not appreciated the issues requiring determination by them: [67], [110], [111].

In relation to (ii)

4. When a council consents to a development application, the consent must accord with the development that was the subject of the application. The consent must also be definitive in the sense that it authorises the applicant to proceed with its proposed development: [44], [48], [110], [111].

5. Where a consent requires variation of the application, there is potential for departure from so much of the statutory scheme as requires that the consent be given or refused in relation to the development identified in the application: [46], [49], [110], [111].

Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Transport Action Group Against Motorways Inc v Road and Traffic Authority (NSW) [1999] NSWCA 196; 46 NSWLR 598, considered.

6. Section 80A of the EP&A Act permits the modification of “details” of the development. Conditional consents are valid if they achieve an express outcome or objective, assessable according to “clear criteria”: s 80(4). Conditions of development consent are not uncertain or imprecise if, although in general terms, they identify the outer limits of what is being authorised: [55]–[57], [110], [111].

Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277, applied.

Scott v Wollongong City Council (1992) 75 LGRA 112; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508, referred to.

7. A number of aspects of the conditions imposed on the development consent would reasonably be expected to alter significantly the proposal. There were no clear criteria against which the means of achievement of the respective outcomes or objectives could be assessed. The consent conditions did not comply with s 80(4) and there was no consent in unqualified form given to the respondent’s application: [58]–[63], [70]–[72], [110], [111].

In relation to (iii)

8. The effect of the purported consent granted on 21 August 2006 depends upon the statutory scheme of the EP&A Act and the Land and Environment Court Act 1979 (NSW) (“LEC Act”): [90], [110], [111].

9. Sections 25A, 25B and 25E of the LEC Act indicate a statutory intention that non-compliance with mandatory provisions of the EP&A Act may, but does not necessarily, result in invalidity of an impugned consent. Whether or not it does in a particular case depends upon an exercise of discretion on the part of the Land and Environment Court: [93], [110], [111].

10. Section 58(2) of the LEC Act lists what the Court of Appeal can do on hearing an appeal from class 4 proceedings. The issue before the Court was whether the Court, in exercising a power under s 58(2), could make the order which, in its view, should have been made in the Land and Environment Court, and if so, whether only where no other order was reasonably open, and not where an exercise of discretion was required: [96], [110], [111].

11. Since the exercise of power on the Council’s part miscarried in a substantial way, so that even the underlying intention of particular conditions was unclear, it would seem to be inevitable that there be a declaration of invalidity. That course would be available, unless there was further evidence which could be relevant to that exercise: [102]–[104], [110], [111].

B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277; North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740; Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150; Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257, considered.

Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142, referred to.

12. If there is some concern that steps were taken pursuant to the consent, which may be invalidated, it did not follow that those steps were necessarily unlawful, so as to give rise to adverse consequences. Since it cannot be said that, as a matter of law, the Land and Environment Court would not permit the respondent to call some evidence with respect to the possibility of an alternative order under s 25B, the Court set aside the orders below and remitted the matter to the Land and Environment Court, rather than declaring the consent invalid: [107], [109], [110], [111].

CA 40026/2008
LEC 41049/2006

BASTEN JA
BELL JA
YOUNG CJ in Eq
15 October 2008

GPT RE LTD v BELMORGAN PROPERTY DEVELOPMENT PTY LTD

Judgment

1 BASTEN JA: On 26 August 2004 Belmorgan Property Development Pty Ltd (“Belmorgan”) lodged a development application with respect to land on Corrimal Street, Wollongong, between Crown and Burelli Streets and known as DA 2004/1565.

2 Since then, not everything has run smoothly for Belmorgan. On 1 August 2005 the Wollongong City Council (“the Council”) gave consent to the development application, but a challenge to the validity of that consent was upheld in the Land and Environment Court: GPT Re Limited v Wollongong City Council [2006] NSWLEC 303; 151 LGERA 116 (Biscoe J). An appeal from that decision to this Court was dismissed: Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; 153 LGERA 450.

3 The decision of Biscoe J was handed down on 9 June 2006, with orders being made on 7 July 2006: GPT Re Ltd v Wollongong City Council [2006] NSWLEC 401; 151 LGERA 158.

4 In July 2006 the Council, in collaboration with the Minister for Planning’s Department, was engaged in the preparation of a new Local Environmental Plan (“LEP”), which was proposed to cover the Wollongong city centre, including the land the subject of the proposed development. On 20 July 2006 the then Minister for Planning wrote to the Chief Executive Officer of the Council noting his concerns that “the proposal may be inconsistent with” the proposed new LEP and inviting the Council to defer further consideration of the application, which had been listed for consideration at the Council’s meeting on 24 July 2006. The Chief Executive Officer wrote to the Lord Mayor and Councillors strongly urging deferral. At its meeting on 24 July 2006, the application was not deferred but refused.

5 However, notice was given to bring the application back before the Council at its next meeting on a motion to rescind the decision on 24 July, not with the intention of deferring consideration but of granting consent.

6 On 11 August 2006 a draft Wollongong City Centre Local Environmental Plan 2006 was placed on public exhibition, together with a draft Development Control Plan (“the draft LEP” and “the draft DCP” respectively). As will be seen, those documents had direct relevance to any reconsideration of the development application.

7 At the meeting of Council on 21 August 2006 the rescission motion was carried, as was a further motion granting “deferred commencement consent”. It is that consent which is the subject of the present proceedings.

8 On 3 November 2006 the appellant filed an application in the judicial review jurisdiction of the Land and Environment Court, seeking a declaration that the development consent granted on 21 August 2006 was void and of no effect and a consequential order restraining Belmorgan from carrying out works pursuant to the consent. The application was heard in the Land and Environment Court in November 2007 before Sheahan J. On 29 January 2008 his Honour handed down judgment dismissing the application: see GPT RE Limited v Wollongong City Council (No. 4) [2008] NSWLEC 28. The appellant now seeks to challenge that decision.

Further background

9 The development application related to part only of a larger project under contemplation by Belmorgan. The elements the subject of the application, sometimes referred to as “stage 1”, involved a large land space, with three street frontages, three underground (basement) levels, and seven or eight above-ground levels (including a roof). The above-ground levels were in some of the documents referred to as the podium, presumably because they were properly so described by reference to stage 2, which involved towers intended to contain a hotel, conference centre and residential apartments. The inter-relationship between the two stages was not explored in this Court, although it might be inferred that there were both architectural and civil engineering ramifications for stage 1 arising from the need to accommodate, in the future, stage 2. So much may be inferred from the approval for the application, which required the deletion of “[a]ll design features associated with Stage 2 (towers)”. Other aspects of the consent implied the continuing intention of Belmorgan to proceed with stage 2 at some time in the future.

10 The history of Belmorgan’s development application, briefly adverted to above, involves a number of further complications. First, the consent granted on 21 August 2006 made no reference to the earlier consent and was presumably dealt with on the basis that there was no extant consent, the consent of 1 August 2005 having been set aside by the Land and Environment Court. The existence of the second consent appears not to have been known to this Court at the time of the first appeal, heard on 1 June 2007, judgment being delivered on 18 July 2007. As it turned out, Belmorgan’s appeal was dismissed and no issue arises as to the possible complications which might have arisen had the appeal been allowed.

11 Secondly, the terms of the consent of 21 August 2006 are, even at this stage, unclear. On one version of the resolution, the consent was subject to a condition subsequent which required Belmorgan to take certain steps within 12 months. Failure to take those steps within the period specified may have resulted in the consent lapsing. The appellant, however, has been content to address the matter on the basis that the consent did not lapse for failure to comply with the condition and hence the litigation retains utility.

12 A third potential complication arises from the fact that, on 2 November 2007 the Minister for Planning declared the development to be a project to which Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”) applies. That declaration raised a question as to the operation of s 75D of the EP&A Act, which provides:

75D Minister’s approval required for projects

(1) A person is not to carry out development that is a project to which this Part applies unless the Minister has approved of the carrying out of the project under this Part.

13 The consent granted by the Council was a consent pursuant to s 76A of the EP&A Act, which is contained in Part 4. The declaration of a project under Part 3A, following the grant of a consent under Part 4, gives rise to a question as to the continuing effect of the Part 4 consent. Section 75ZA, as in force at the time that the declaration was made, expressly provided that a declaration may be made even though “action has been taken” under Part 4. The consequences of such a declaration are by no means clear and were the subject of correspondence between the parties. The Council took no active part in the appeal proceedings, in part at least because its lawyers had formed the view that the consent granted on 21 August 2006 no longer had effect. The solicitors for the appellant took a different view and contended that the proceedings retained utility partly because of the scope of the project identified in the Minister’s declaration. That declaration was not before the Court and neither in the Land and Environment Court nor in this Court did either party seek to agitate any question as to the effect of the Minister’s declaration. Although the situation is by no means satisfactory, it is necessary for the Court to determine the dispute between the parties on the basis that the consent of 21 August 2006 has not been invalidated or superseded by any steps taken under Part 3A of the EP&A Act.

Relevance of the draft LEP

14 Before turning to the consent purportedly granted by the Council on 21 August 2006, it is necessary to refer to the legal significance of the draft LEP. In broad terms, a local environmental plan is prepared by a council, either of its own motion, or when directed to do so by the Minister: EP&A Act, ss 54 and 55. Once prepared, the draft plan is submitted to the Director-General (of the then Department of Infrastructure, Planning and Natural Resources now the Department of Planning): s 64. The Director-General is empowered to issue a certificate providing that the draft plan may be publicly exhibited, in accordance with s 66: see s 65(1). Upon receiving the certificate and complying with any condition contained therein, the council is required to give public notice that the relevant documents may be inspected by the public and publicly exhibit copies of the documents: s 66. The purpose of public exhibition is to allow members of the community to make submissions to the council prior to the Minister, in due course, making the local environmental plan, pursuant to the power conferred by s 70.

15 No doubt it was well known to the Council and other interested parties that a new LEP was in the course of preparation during 2006. It might have been expected, even if the detail were not known, that the new instrument might affect Belmorgan’s application. Whether that was the reason why it was sought to have the matter brought back before the Council as a matter of urgency, despite at least the possibility of an appeal to this Court with respect to the adverse decision in the first Land and Environment Court proceedings, is not known. In any event, the placing of the draft LEP on public exhibition before the consent was granted prevented the application being considered without reference to the draft LEP. That result flowed from the specific provision with respect to such circumstances in s 79C of the EP&A Act, which prescribes the mandatory considerations to be taken into account by a council in considering whether to grant consent to a development application. Relevantly, that section provides:

79C Evaluation

(1)

Matters for consideration—general

16 It was not in dispute that the draft LEP was an instrument which fell within the terms of sub-par (ii) as at 21 August 2006. It was also common ground that the draft LEP applied to the land the subject of the application. It therefore needed to be taken into consideration by the Council in dealing with the development application.

17 The draft LEP had one specific provision applicable to the land proposed to be developed which became the focus of consideration in the present case. The land use table found in Part 2, cl 15 of the draft LEP prohibited “retail premises (but only if the total area of the premises exceeds 400 square metres)”: Zone B4 City Edge, item 4. There was some ambiguity as to whether the area identified in the prohibition applied globally to the whole of a development or building, or to particular units within a building. Although there was a definition of retail premises in Schedule 5 to the draft LEP, it did not clearly resolve the question, being in the following terms:

retail premises

18 According to the primary judge, the project (by which his Honour appears to have meant so much of the project as was covered by the development application) involved 18,913m2 of gross leaseable retail floor space: at [2]. The appellant, however, was content to work on the basis that the prohibition applied to specific areas and not the total retail space, noting that there were identifiable separate areas in excess of 400 square metres at basement level 1, on the ground floor, at level 2 and at level 3, propositions which were not challenged by Belmorgan.

19 This in turn gave rise to a question as to what might be involved in a legal obligation to “take into consideration” the draft LEP, in circumstances where major aspects of the development were prohibited by it, although that instrument had not commenced. The correct approach to the consideration of a draft instrument was considered by this Court in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; 129 LGERA 195 at [5]-[7] (Spigelman CJ) and [44]-[50] (Mason P, Spigelman CJ and Ipp JA agreeing). As explained by the Chief Justice, “the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft”: at [5]. His Honour continued at [7]:

“Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.”

20 These statements reveal the potential incongruity in a consent authority, which is the proponent of a planning instrument which would prohibit a particular development and has reached the stage of seeking public comment on its content, contemporaneously approving a development which did not comply with its own proposal. No doubt there might be countervailing factors in a particular case, such as the fact that the proposed development had been planned and presented for approval before changes to the relevant planning controls had been made known, but that would be a factor which would tend to reduce, rather than remove, the apparent incongruity. For reasons which will appear below, it is not necessary to identify in any more detail the weight to be given to the prohibition in the draft LEP, nor how the statute intended that the consent authority should approach the matter.

21 The minutes of the Council’s ordinary meeting held on 21 August 2006 recorded resolution No. 236, as passed in the following terms:

“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 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 of 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.”

22 “Attachment 2 of the report” was, the parties accepted, a reference to attachment 2 to the report provided to the Council in respect of the agenda item, dated 10 August 2006 and signed by Mr Joe Scimone, the Council’s Group Manager Sustainability. According to the minutes, the meeting commenced at 5.02pm. By a 27 page letter bearing the same date (“the notice of determination”), Mr Scimone advised Belmorgan that there had been a “deferred commencement” consent to the application, as set out in a section headed “Schedule A”. Schedule A appears to have been part of the report to the Council contained in the business papers for the meeting. Schedule B identified the approved plans and specifications and imposed a lengthy list of general conditions, which are not presently relevant. The notice sent to Belmorgan commenced with the following three paragraphs:

Schedule A

Deferred Commencement

23 There was an alternative form of “attachment 2” contained in a set of the Council papers included in the evidence. So far as the material set out above is concerned, the alternative draft was in completely different form, but not to substantially different effect.

24 The third paragraph of the conditions of Schedule A, as set out in the notice of determination, read as follows:

“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 [sic]:”

25 The alternative version of this statement made no reference to the draft LEP or the draft DCP, provided a 12 month deadline for fulfilment of the conditions and further stated:

“If compliance with the matters contained in condition number 1 results in a substantial variation to the development approved deferred commencement, a new development application must be submitted.”

26 There followed, in the notice of determination, a list of matters to be complied with which read as follows:

27 As noted above, the draft LEP prohibited retail space in excess of 400m2. Even though that provision was ambiguous, a number of floors had retail spaces, calculated individually, which were greater than 400m2 . Apart from anything else, level 1 (being the ground floor) contained a large supermarket. Accordingly, it would have been necessary for the Council, in considering the possible effects of the draft LEP, to identify how it would apply in such circumstances. Thus, even if the prohibition operated only with respect to separate retail areas, there were numerous areas which exceeded the proposed limit.

28 The alternative version of (a) prescribed the requisite set back, but from Crown Street only and without reference to the draft DCP. Condition (b) was differently worded but to similar effect. Condition (c) referred not to the “podium” but to the “external façade” and contained no reference to sub-condition (i), requiring compliance with the draft DCP. The other two sub-conditions were the same.

29 The first argument raised by the appellant was that the Councillors did not have drawn to their attention the specific floor space prohibition contained in the draft LEP. The Court was invited to infer that the Council, in the absence of such advice, did not advert to an important consideration in the draft LEP, which they were obliged, in law, to consider. The appellant’s submission relied upon the statement at the end of the report prepared by Mr Scimone for the Council and dated 10 August 2006, which stated:

“This report provides Councillors with all the relevant information and is correct at the time of writing. This information has been relied upon in preparing the report and its recommendations.”

30 The appellant noted that this document was signed and dated the day before the draft LEP and draft DCP went on exhibition. Although there are references to “the draft LEP for the City Centre” in the report and to the fact that, with respect to the overall proposal, it would be necessary for the applicant to address “the provisions of the draft City Centre Plans on exhibition”, it was suggested that these references were to earlier versions of the plans and did not, in any event, suggest that it was necessary, for the purposes of determining the development application, to address the content of the draft LEP.

31 To address the appellant’s submission, it is necessary to determine which of the two sets of business papers were in fact before the Councillors when the consent was granted. Because the conditions of consent set out in the notice of determination refer to the “draft LEP” and “draft DCP”, it is arguable that those were the draft conditions contained in attachment 2 as presented to the Council as the Councillors would have been aware that those documents had gone on public exhibition. The alternative view is that the draft conditions were changed later by Mr Scimone when he sent the notice of determination. However, as the notice was dated the day of the Council meeting, that seems unlikely. As Belmorgan was content to rely upon the conditions set out in the notice of determination, the appellant not having sought to demonstrate otherwise, the Court should act on the basis that the terms were as shown in the notice of determination.

32 The redrafting of the determination gave rise to some grammatical awkwardness to the extent that the first two introductory paragraphs of Schedule A referred to the applicant satisfying or complying with matters listed in or under Schedule A itself. However, it is reasonably clear that the first two paragraphs sought to identify those parts of Schedule A which constituted “requirements listed in” it or “issues under” it as being matters which the applicant must satisfy or with which it must comply. Those requirements or issues were set out in the third paragraph, by reference not only to the specific items but also by reference to the chapeau. The chapeau was important for two reasons: first, it identified the purpose of the conditions, which was to “ensure” that the proposal the subject of the application (not the Council) “addresses the provisions of” the draft LEP and DCP. Secondly, it required that the “following matters” must be complied with “to the satisfaction of” not merely the Council, but also the “Director General of the Department of Planning”.

33 These requirements were curious in several respects. First, although the Council was not in terms delegating its responsibility to the Director-General (nor could it), it did appear to seek to confer upon him a function which, if not performed, would prevent the consent operating. The explanation for that may be divined from the brief background material placed before the Councillors with the business papers for the meeting, over the signature of Mr Scimone. The final paragraph of the background information, before stating the options for Council, was in the following terms:

“However, in relation to the remaining stages of the overall proposal, it is considered appropriate that the applicant lodge a concept plan to the Minister for Planning, under Part 3A, (Major Projects) for the entire project (Stages 1 and 2 of the Gravity proposal), as well as the Oxford site. Such an application would need to address the provisions of the draft City Centre Plans on exhibition.”

34 That statement is confused: it starts by referring to “the remaining stages of the overall proposal” but then suggests that the applicant lodge a concept plan for the entire project, including stage 1, being the subject of the proposed consent. Further, an application under Part 3A, as envisaged in the last sentence of the paragraph, could only be made in relation to a “project”: EP&A Act, s 75E(1). A “project” is a development which is declared under s 75B to be a project to which Part 3A applies: s 75A, project. It may be inferred that the officer preparing the report for Council anticipated that such a declaration would be made.

35 Secondly, the third paragraph to Schedule A sought to ensure that stage 1 “addresses” the provisions of the draft LEP and DCP, then on exhibition. This language involved several layers of confusion. One was the requirement that the development “addresses” the provisions of the draft LEP. It could comply with them or not comply with them, but it was the Council which was required to “address” the requirements, in the sense of taking them into consideration. Further, if the obligation to “address” the requirements involved something less than actual compliance, how that was to be done could not be known until the Council and the Director-General had indicated what was, in their respective views, necessary to satisfy them that the provisions had been addressed.

36 Finally, the requirement in the second paragraph of Schedule A that the issues under Schedule A be complied with is said to be required for the reason of “[s]tatutory requirement and design improvement”. What precisely that envisaged was unclear, but may have meant that the development had to be redesigned to comply with statutory requirements.

37 Leaving to one side the prohibition in the draft LEP referred to above, the conditions were unequivocal that not only must the set back provisions in the DCP be complied with, but that the podium “shall be redesigned” to comply with all relevant aspects of the draft DCP; that all design features associated with stage 2 (the towers) were to be deleted; that the elevated car-parking on levels 4 and 5 were to be relocated below street level (with the possible result that a further basement level was required); that the space which would then become available at levels 4 and 5 would have to be reallocated to other uses.

(b) no consent to development application as lodged

38 As counsel for the appellant contended, it must have been envisaged that these requirements would involve substantial changes to the proposed development: that conclusion was demonstrated, apart from any abstract consideration of likely effects, by reference to the plans and specifications and by the fact that Council required that it be satisfied in relation to the outcome, before the approval took effect.

39 There was no expert evidence, either before the Land and Environment Court or before this Court, as to the significance of the changes in architectural, engineering or other respects. However, there was in evidence in the Land and Environment Court, and in an enhanced form in this Court, two sets of plans, being those before the Council on 21 August 2006 and what were described as “final amended plans” dated 9 August 2007. These plans indicated the significance of the removal of the car-parking from level 4 and level 5 and the addition of a fourth basement level. As counsel suggested, without contradiction, in the course of argument, in the original plans, there had been car spaces for 154 cars on level 4 which took up significantly more than 50% of the space available. On removal of the car-parking, level 4 was reconfigured and a level 4 mezzanine was added. Level 5, which originally had a similar proportion of parking, was changed to include an area of office accommodation and the roof over the cinemas.

40 In the background report prepared by Council’s officer, there was a statement to the following effect:

“There was extensive discussion surrounding the retail/commercial component of the project and bearing in mind that the application had been under consideration for some time, Stage 1 and its retail component could remain.”

41 If this were to be interpreted as an oblique reference to non-compliance with the prohibition on retail space exceeding 400m2 (in the draft LEP), it was at best ingenuous. There was no indication as to what was being referred to by the phrase “extensive discussion”, nor was there any direct statement that the retail space was in numerous respects outside the terms of the draft LEP. Furthermore, if that were the only written material placed before Council, to describe it as containing “all the relevant information” and as being “correct at the time of writing” would have been to ignore the fact that, on the following day, Council was advised of the exhibition of the draft LEP, which then became a mandatory consideration. There was no evidence before the Court which expressly stated, or from which it could reasonably be inferred, that Council was informed of the significant level of non-compliance with the draft LEP, on or before 21 August 2006.

42 Counsel for Belmorgan submitted that, because there was evidence that Councillors had, some 10 days before the meeting on 21 August, been provided with a copy of the draft LEP as exhibited, it should be presumed they both appreciated its significance as a mandatory consideration under s 79C(1)(a)(ii) of the EP&A Act and how it impacted upon the application before them. This was said to be the consequence of the presumption of regularity, in the absence of evidence to the contrary.

43 It will be necessary to return to this submission in due course. First, it is necessary to consider the principles relevant to the granting of conditional consent with a deferred commencement of operation.

Validity of conditions: legal principles

44 An environmental planning instrument may, with respect to particular categories of development and specified land, permit development, prohibit development, or prohibit development without consent: ss 76(1), 76A(1) and 76B. In relation to the third possibility, to obtain consent a proponent must “apply” to the consent authority for “consent” to carry out the “development”: s 78A(1). The matters which the consent authority must take into account are, relevantly, those specified in s 79C(1): see [15] above. This scheme carries with it a number of inherent implications. The first is that any application for consent must contain a sufficient level of particularity to allow the consent authority to assess the proposal against the specified criteria. Secondly, that to which the consent is given must accord with that for which application has been made. Thirdly, a “consent” must be definitive in the sense that it authorises the proponent to proceed with the proposed development.

45 Such bald statements require a degree of qualification. The first, namely the nature of the application, gives rise to no issue in the present case. The second and third do, however, and require further analysis. Aspects of an application, especially one involving a large development with disparate elements, are likely to give rise to a number of matters requiring evaluative judgment on the part of the consent authority. These are likely to be the subject of conditions. Such conditions may fall into one of four broad categories (though the categorisation is not intended to be exclusive):

(a) variation to aspects of the development identified in the application;

(b) compliance with the requirements of other agencies (including those responsible for road safety and fire safety);

(c) control of the construction of the development, and

46 It is only in relation to the first category of conditions that issues arise in the present case. Where a consent requires a variation of the application, there is potential for departure from so much of the statutory scheme as requires that the consent be given or refused in relation to the development identified in the application: EP&A Act, s 80. Whether specific conditions involve such a departure from the application as to prevent the consent satisfying the scheme of the Act will involve questions of degree. Such questions have been the subject of consideration by this Court in a number of cases over the years. In Mison v Randwick Municipal Council (1991) 23 NSWLR 734, this Court identified two broad categories of case in which a consent might fail to comply with the statutory scheme. These were later described in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 in the following terms:

Mison

Transport Action Group

47 In Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW) [1999] NSWCA 196; 46 NSWLR 598, this Court considered whether certain decisions with respect to the construction of a motorway were invalid because of modifications to the proposed works after the completion of a required environmental impact assessment. This provided a different context (the relevant statutory provisions being found in Part 5 of the EP&A Act) to questions of consent to a development application. Nevertheless, the Court noted, with respect to Mison, two different aspects of a valid consent, namely that a condition should not significantly alter the nature of the development and that the granting of consent imported a requirement of finality and certainty: at [115] (Mason P).

48 Questions of finality and uncertainty will often be related, but are likely to bear upon the same question as that addressed in the first category discussed in Mison. In each respect the question must be whether a consent has been given to the development which was the subject of the application. Where conditions give rise to uncertainty, the fact that it is not possible to know whether the satisfaction of the conditions will give rise to a significantly different development may demonstrate that the consent is not a final and valid consent to the development as proposed. A degree of “practical flexibility” is likely to be necessary, especially in respect of complex developments: see Scott v Wollongong City Council (1992) 75 LGRA 112 at 118 (Samuels AP). Where a condition requires variations which can be checked and approved by a council officer, by reference to prescribed criteria, it may readily be said that the consent is sufficiently final and certain. Where the criteria for future assessment are imprecise or unspecified, there may be an effective delegation of authority to the officer to exercise his or her judgment: if the delegation is not in itself a valid means of disposing of the application, the result will be invalid. On the other hand, if the delegation is valid, it may suggest that the consent purportedly given by the Council is not itself a valid consent.

49 The extent to which departure from the development described in the application is permissible may depend in part upon the requirements of public notice and the opportunity to be given for those potentially affected by the development to lodge objections.

50 Before considering the scope of conditions which may be applied in granting consent, it is convenient to refer to Part 4, Div 2A of the EP&A Act, which provides for special procedures concerning “staged development applications”.

83B Staged development applications

staged development application

(2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application.”

51 It was not suggested in the course of the hearing that Belmorgan had invoked the terms of s 83B, but aspects of the description of the application and the formulation of conditions reflected similar language. Thus, Mr Scimone’s report to Council and the conditions referred to there being two stages of the proposed development and, at least in the report to Council, required that the applicant lodge a “concept plan” with the Minister for Planning.

52 Since Mison was decided, the EP&A Act has been amended so as to allow for “deferred commencement” consents. Relevantly for present purposes, s 80 now provides:

80 Determination

General

‘Deferred commencement’ consent

A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

Total or partial consent

53 Section 80A, which commenced in 1998, makes provision for the kind of conditions which may be imposed.

80A Imposition of conditions

Conditions—generally

Conditions expressed in terms of outcomes or objectives

54 These provisions have a number of aspects. First, s 80(1) is permissive as to the scope of conditions but appears not to expand that scope beyond conditions which would be permissible in the legal exercise of the powers of a planning authority: see generally, Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508 at [213] (Stein JA).

55 Secondly, and consistently with Mison, s 80A permits the modification of “details” of the development. This language appears to be inconsistent with any suggestion, contrary to Mison, that the condition could significantly alter the development: see s 80A(1)(g).

56 Thirdly, to the extent that a consent may not be final in the sense of being immediately operative, but may have effect only upon the satisfaction of one or more conditions, it would appear that the principles expressed in Mison in relation to uncertainty are qualified by the validation of consents conditioned upon the requirement to achieve an express outcome or objective, assessable according to “clear criteria”: s 80A(4).

57 As noted in Kindimindi at [57] the various elements of s 80A(1)-(6) are permissive and, at least in some parts, address different aspects of development approval, thus suggesting that they are not cumulative. They affect the statutory scheme, but not the test of validity of a consent. They allow that the conditions will not be uncertain or imprecise if, although in general terms, they identify the outer limits of what is being authorised: see Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 44 (Gleeson CJ), 49 (Powell JA, Dunford JA agreeing with both).

Application of principles

58 There are a number of aspects of conditions (a)-(c), which, taken in isolation from the rest of Schedule A of the consent, might reasonably be expected to alter the proposal significantly. Even if it may be said that a specific outcome or objective is expressed, there are no clear criteria against which the means of achievement of the respective outcomes or objectives can be assessed.

59 First, the requirement to remove all “design features” associated with the stage 2 towers clearly had the potential to change dramatically the nature and appearance of the development. The likely impacts of the development on the natural and built environment, including an assessment of the suitability of the development for the site (see s 79C(1)(b) and (c)), would require reassessment following the removal of the relevant features. There are no criteria by which the result is to be assessed. The changes are not matters of detail, but significantly affect the development; the condition does not comply with s 80A(4).

60 Secondly, the required removal of the over-ground car-parking to a location “within the basements below street level” was also a significant variation on the proposed development. To the extent that the relocation was required “within the basements”, as identified in the application, the condition was not readily capable of fulfilment. One possibility may have been to accommodate some additional car-parking spaces within the existing proposed basement levels; another may have been simply to abandon the above-ground car-parking, in either case resulting in a reduction of on-site parking. A third possibility was to include another basement level, adequate to accommodate the proposed above-ground car-parking, without reduction in spaces. Whether each or all of those possibilities were acceptable was not apparent, because no criteria were specified against which to determine whether any particular change was acceptable.

61 Thirdly, there was a degree of uncertainty as to what other changes were required to the podium by (c)(i), requiring compliance with the draft DCP. That condition was additional to the requirement to comply with the “setback provisions” contained in the draft DCP: see condition (a).

62 As already noted, there was ambiguity in the opening words of the third paragraph of Schedule A as to whether and in what way the application with respect to stage 1 was required to “address” the provisions of the draft LEP. If, as was necessary for a valid consent, the Council itself addressed the requirements of the draft LEP, it was necessary for it to tell the applicant how, in respect of the prohibition on retail space in excess of 400m2, the applicant was required to vary the application. Because a minimum of six months was required to undertake this task, it may be inferred that some significant variation was anticipated. However, this requirement neither identified relevant provisions in the draft LEP, nor identified express outcomes or objectives, nor identified clear criteria by which the means of achievement could be assessed. Even allowing for some greater degree of flexibility permitted by s 80A, the basic principles established by Mison were not satisfied.

63 The inescapable conclusion is that there was no consent in unqualified form given to the application lodged by Belmorgan. Rather, it was expected that significant changes would be made to the application before what might best be described as an ‘in principle’ consent became operative. It was likely, if not inevitable, that the development which might ultimately be undertaken pursuant to the consent would be significantly different from the development contained in the application. The specified changes made that virtually inevitable; the unspecified requirements could reasonably be expected to achieve further significant changes. It must follow that the purported consent given on 21 August 2006 could not fairly be described as a consent within the meaning of s 80 of the EP&A Act to the development application no. 2004/1565, as lodged by Belmorgan.

64 Furthermore, it is clearly a requirement of the conditions that the new design be acceptable to the Director-General. Because the Director-General was not a consent authority for the purposes of the development application, he was neither bound by the mandatory requirements in s 79C of the EP&A Act, nor otherwise the subject of statutory constraint. Indeed, as noted above, it is far from clear that it is a permissible condition to require the approval of a statutory officer, who has no specific statutory authority to undertake such a function.

65 The trial judge considered first whether the Council had given consideration, as required by s 79C, to the draft LEP which had been placed on exhibition on 11 August 2006. His Honour noted that the draft LEP prohibited “retail premises exceeding 400 square metres” in the zone where the development would occur: at [48]. His Honour was inclined to infer that this prohibition had been taken into consideration, because Councillors’ attention had been drawn to the fact that the plan had been placed on exhibition only 10 days before the decision under review: at [49]. His Honour referred to written submissions made by Belmorgan which he said “highlight where, in the various Council papers, Councillors’ attention was drawn to significant changes the documents would make, relevant to this project”: at [49]. Those submissions referred to two documents relevant to the prohibition on retail premises exceeding 400m2. One was a letter of 11 August 2006 from the Manager, City Strategy to each of the Councillors attaching the new draft plans and noting that they would be on public exhibition until 22 September 2006. The second document was a letter from the appellant dated 21 August 2006 (being the date of the meeting), addressed to the Chief Executive Officer of the Council, but ending with the notation “cc Councillors”. This letter raised two complaints in respect of the retail component. First, the business paper suggested that the retail component could remain because it had been the subject of extensive discussion, whereas, according to the appellant, it had always been unacceptable or inappropriate. Secondly, the letter noted changes in the “economic and development landscape” in Wollongong town centre since the development application was submitted in August 2004. It continued:

“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.”

66 On the basis of this material, his Honour was not persuaded that the Council failed to give consideration to the draft LEP and, in particular, the prohibition on the retail premises over 400m2: at [53]. Further, his Honour said he could find no “important aspect of the development” which the Council had deferred “for later decision” in the terms adopted by Clarke JA in Mison at 740: see [44] and [51].

67 With respect, neither conclusion attempts to grapple with the existence of the prohibition in the draft LEP, its possible ambiguity, the fact that significant areas of the proposed development did not comply with it and the need to consider how that proposed prohibition should be taken into account in the circumstances of the application. In respect of the first conclusion, the fact that Schedule A to the consent required that Belmorgan address the draft LEP, without indicating how, is significant evidence in support of the view that members of the Council had simply not appreciated the issues requiring determination, by them, not by the applicant. Before determining whether his Honour was in error in this regard, it is convenient to consider the second element of the reasoning, relating to the imposition of conditions.

68 In relation to the second conclusion, his Honour referred to the number of variations and stated at [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.”

69 He then stated at [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.”

70 There were aspects of this analysis which required further consideration. That the changes would involve “redesigning the project” was not helpfully qualified by the phrase “to some extent” without attempting to address the nature and degree of the changes required. Similarly, to refer to “possible” changes in the layout of the building was to ignore the inevitable changes discussed above which would flow, if only from specified variations. Although it may be a less important matter, the description of changes to the appearance of the building as merely “possible” seems to be an understatement of the effect of removing design features associated with the towers.

71 More importantly, the fact that the Council was “obviously content” for the process to be pursued by Council officers and others, was to misstate the relevant test. The proper question was not what Council might have been content to do, but whether the effect was potentially to change in significant respects the development as approved, from the development as described in the application and, if so, how the changes were to be validly assessed. Nor was it correct to say that Council was content to have the matter pursued by Council officers: the commencement of the consent was expressly stated (twice) to require satisfaction of Council, stated in the second paragraph of Schedule A as “written confirmation” from Council. Accordingly, it seems that Council was only content if the matter came back before it for it to form a view about the changes. Finally, it was not the Department of Planning, which was to be involved in the process, but the satisfaction of the Director-General of the Department, upon which the consent was conditioned. There appears to have been no consideration as to what Council intended by that aspect of the condition.

72 His Honour concluded that “all parties knew precisely what development the consent authority was approving”: at [59]. For the reasons noted above, it seems clear that that was not the case. Further, that inference seems inconsistent with the proposition that Council needed to be satisfied as to compliance with its conditions. If one of the parties was to be the Director-General, there was no evidence as to what his views were at 21 August 2006.

73 In testing the conclusion thus reached, his Honour took the “carpark issue” as “one example”: at [60]. With respect, it was necessary to consider all of the matters potentially subject to alteration, rather than taking one example. However, the example was, for reasons outlined above, sufficient in itself to demonstrate that there would be a significant alteration to the development as described in the application. Having considered the example in broad terms, his Honour concluded in the same paragraph:

Mison

74 For reasons explained above, the proposition that the relevant conditions fell within the terms of s 80A should not have been accepted. More detailed consideration of the effect of the changes would have demonstrated that conclusion. Further, the suggestion that, if a condition fell within the terms of s 80A, Mison had no effect was not necessarily correct. For example, it would have been possible to define outcomes and criteria by which those outcomes should be achieved with a high level of precision, but with the result of turning a cinema complex into an office block. Section 80A(4) may have been complied with, but there would not have been consent to the development described in the application.

Economic impact of development

75 As a third ground, the appellant challenged the proposition that Council had given adequate consideration to the changes in the economic and retail environment since the earlier reports had been prepared and his Honour’s conclusion that councillors did not operate “in a vacuum” and should be understood to appreciate what has happened elsewhere in the Council area in the same sector of the economy: at [71].

76 No doubt it is salutary to recall that councillors do indeed acquire a degree of general knowledge against which they assess particular development applications. Nevertheless, there are limits to how far colourful phrases can cover an absence of information which is satisfactorily obtained through expert reports, focusing upon the particular development at a specified time.

77 Because the consent failed to satisfy the statutory requirements of a consent to the development application, it is not necessary to reach any final view with respect to this aspect of the appellant’s challenge.

Failure to address mandatory considerations: presumption of regularity

78 As noted above at [29]-[37], the terms of Schedule A itself cast significant doubt on the proposition that the Council gave proper consideration to the content of the draft LEP and its relationship to the proposed development, as required by s 79C(1)(a)(ii). Belmorgan, however, supported the conclusion reached by the trial judge, in part on the basis of a presumption of regularity. This gives rise to a nice question as to how any such presumption operates in circumstances where there is evidence before the Court from which an inference could be drawn. The answer to that question may depend upon which party has the burden of persuasion in a particular case and whether such evidence as there is tends to support or undermine the presumption. Further, the presumption may apply differentially in relation to specific facts, such as the existence of an instrument of delegation, or its proper execution, as compared with an amorphous inference, such as the nature of a particular state of satisfaction reached by an officer after reading and considering relevant material.

79 Further, in some circumstances the presumption may be seen to reflect common experience of human affairs, whilst in others it may reflect a particular matter of legal policy. As an example of the former, Griffiths CJ in McLean Bros & Rigg Ltd v Grice [1906] HCA 1; 4 CLR 835 at 849, quoted Thomas Starkie, A Practical Treatise of the Law of Evidence (10th ed, 1876) at 741 to the following effect:

“A presumption may be defined to be an inference as to the existence of one fact, from the existence of some other fact, founded upon a previous experience of their connection. To constitute such a presumption, it is necessary that there be a previous experience of the connection between the known and inferred facts, of such a nature, that as soon as the existence of the one is established, admitted or assumed, the inference as to the existence of the other immediately arises, independently of any reasoning upon the subject."

80 An example of the operation of policy may be found in Morris v Kanssen [1946] AC 459 at 475, where Lord Simonds noted that “[t]he wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order”. After quoting that passage, McHugh JA, in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164C, stated:

“The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office …. And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit ….”

81 The presumption of regularity has attained statutory recognition in s 45 of the Interpretation Act 1987 (NSW), which used to be replicated in s 34(3) of the EP&A Act (now repealed). Section 45 reads:

45 Presumption of validity of certain instruments

(1) It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of an instrument have been complied with and performed.”

82 Section 45 of the Interpretation Act applies, relevantly, to “an environmental planning instrument”: s 45(2)(c). It does not apply to a consent to a development application. That in turn raises a question as to the relationship between the statutory form of the presumption and the general law presumption, a matter discussed by Ipp J in Selby v Pennings (1999) 102 LGERA 253 at 261-262. It is clear from the discussion in Selby that the presumption may operate differentially in relation to instruments in the form of delegated legislation and other administrative acts, and in criminal proceedings, as opposed to proceedings directly challenging the validity of the administrative act in question: at 262-265 (Ipp J) and 282 (Owen J agreeing). Nevertheless, the view expressed by Ipp J that the presumption applies “only to matters of form, rather than of substance” (at 261) has been applied in relation to a challenge to a planning decision under the EP&A Act: see Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; 135 LGERA 257 at [60] (McClellan CJ). His Honour held that, on a challenge to a development consent based upon a failure to have regard to a particular matter, the presumption of regularity was “not relevant”: at [62]. Whether that line of authority is consistent with the view of McHugh JA set out at [80] above, and the reasoning of this Court in Lane Cove Council v Minister for Urban Affairs and Planning [2005] NSWCA 122; 140 LGERA 185 at [31] (Santow JA, Campbell J agreeing) and [77] (McColl JA), addressing the statutory presumption, need not be considered.

83 Although it may do more, it is no doubt correct, as was argued in Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7, that one aspect of such a presumption is to identify the person upon whom lies the burden of persuasion: cf Hill at [52]. Thus a party challenging the validity of an exercise of statutory authority must demonstrate, by appropriate evidence, some basis for a finding of invalidity. Furthermore, that party must affirmatively satisfy the Court that there has, for example, been a failure to comply with some necessary precondition to the exercise of the power: see Lane Cove Council at [31]. What is less clear from the authorities is what role, if any, the statutory presumption has once there is before the Court some “evidence to the contrary” and the equivalent position under the general law principle. Thus, in the present case, it would be open to the Court to infer that the Council did not give more than passing consideration to an important question, namely non-compliance with the draft LEP, for two reasons. The first was that the nature and extent of non-compliance was not drawn to their attention in any coherent fashion, so as to allow an appropriate judgment to be made., The second was that consent was granted on a basis which appeared to impose on the applicant the need to give consideration to compliance with the draft LEP.

84 Ultimately it is not necessary to reach a final view in respect of this issue. The conclusion reached above, namely that the Council failed to give a valid consent to the development as proposed in the application is sufficient to dispose of the appeal.

Orders

85 There remains a question as to what orders should be made. In the event that the appeal succeeded, Belmorgan accepted that the orders made in the Land and Environment Court should be set aside, but challenged the appellant’s proposed declaration that the development consent granted on 21 August 2006 was void and of no effect and the consequential order that Belmorgan should be restrained from carrying out any works pursuant to the consent.

86 The basis for Belmorgan’s position was that some different result could be achieved if the matter were remitted to the Land and Environment Court so that consideration should be given to the possible operation of Part 3, Div 3 of the Land and Environment Court Act 1979 (NSW) (“the LEC Act”). Belmorgan indicated that it wished to call evidence in the Land and Environment Court in support of an appropriate exercise of the Court’s discretion.

87 This course was opposed by the appellant. It contended that, although there had been agreement at trial to postpone questions of relief until it was known whether there had been a failure to comply with the EP&A Act, that was merely for the purpose of further submissions and not for the purpose of calling further evidence. Accordingly, that course should not be permitted. Further, the appellant contended that the only appropriate relief was, in any event, a declaration that the consent was invalid.

88 The jurisdiction of the Land and Environment Court arises under the LEC Act, and includes, in its class 4 jurisdiction, proceedings under s 123 of the EP&A Act: LEC Act, s 20(1)(c). In respect of those, and other proceedings, the LEC Act confers power on the Court to make orders of such kinds as it thinks appropriate: s 23. It is also required to grant all remedies as the Court thinks just, to ensure that all matters in controversy between the parties are completely and finally determined: LEC Act, s 22. These are broad powers which should be construed as confined by the nature of the particular jurisdiction being exercised and the powers conferred under any other Act.

89 The jurisdiction conferred by s 123 of the EP&A Act is that invoked by a person seeking an order to remedy or restrain any breach of that Act, which includes a contravention of or failure to comply with the Act: s 122(a)(i). The powers of the Court in such proceedings are identified in s 124, relevantly, in the following terms:

124 Orders of the Court

Land and Environment Court Act 1979

90 The conclusion reached above was that the consent purportedly granted by the Council did not constitute a valid consent to the development application for the purposes of s 80 of the EP&A Act. Because the consent did not so qualify, Belmogan’s application remains undetermined and, on its face, the Council has failed so far validly to exercise its powers, as invoked by Belmorgan. However, an issue remains as to the effect of the purported consent granted on 21 August 2006. The answer to that question must depend upon the statutory scheme of the EP&A Act, taken together with the LEC Act. It is not to be determined by general law principles as to jurisdictional error, or the difference between a nullity and a voidable decision. Because, like the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16, powers of the Court are couched in terms of discretion, greater flexibility is provided than under the general law: see Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153 at 170 (Gummow J); Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1 at [28]-[44] (Gray and Downes JJ) and [78]-[79] (Kenny J).

91 It is against this background that the key provisions in Part 3, Div 3 of the LEC Act are to be understood. At least since the commencement of the Environmental Planning and Assessment Amendment Act 1997 (NSW), the Division has applied to “a development consent granted, or purporting to be granted” under the EP&A Act by any consent authority: LEC Act, s 25A(1). The Division applies to “invalidity”, of any relevant kind: see s 25A and Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; 150 LGERA 333. The Land and Environment Court is required “to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part”: s 25E. The relevant orders are set out in s 25B as follows:

25B Orders for conditional validity of development consents

92 On first reading, the proper construction of the provision is obscure. An order suspending the operation of the consent must be premised on the existence of an operative consent. That would imply that a purported consent, being one not given in compliance with the EP&A Act, will be valid until declared or determined by the Court to be invalid. On the other hand, the requirement to specify terms “which will validate” the consent is not entirely consistent as it appears to be based on the premise that the consent is invalid until the terms are complied with. The reconciliation lies in the conclusion that the suspension order conditionally invalidates the consent. A suspended consent is however not entirely without effect as it may be revoked by the consent authority: see EP&A Act, s 103(2).

93 So understood, these provisions indicate a statutory intention that non-compliance with mandatory provisions of the EP&A Act may, but does not necessarily, result in invalidity of an impugned consent. Whether or not it does in a particular case will depend upon an exercise of discretion on the part of the Land and Environment Court.

94 The next question is whether it is open to this Court to make final orders in circumstances where the Land and Environment Court has not considered the exercise of power under Part 3, Div 3.

95 The powers of this Court, as conferred by the LEC Act, in an appeal from a decision of the Land and Environment Court in class 4 proceedings, are identified as follows:

58 Class 4 proceedings - appeals

96 Relevantly for present purposes, the question is whether this Court, in exercising a power under s 58(2), can make the order which, in its view, should have been made in the Land and Environment Court, and if so, whether only where no other order is reasonably open, and not where an exercise of a discretion is required.

97 The resistance on the part of Belmorgan to any order being made by this Court, other than a remittal to the Land and Environment Court, was based upon its claimed entitlement to call evidence. Not only is that entitlement resisted, but there are serious questions as to whether the kind of evidence proposed to be called would in any event be appropriate to an exercise of discretion under s 25B. On the other hand, Belmorgan accepted that s 58(2)(d) would permit this Court to make an order of the kind provided under s 25B. Nevertheless, that concession needs to be explored further.

98 In Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150, this Court considered an appeal with respect to a costs order made in the Land and Environment Court and determined that the Court below had acted on a wrong basis, having “impermissibly fettered the statutory discretion”: at [69] and [80] (Spigelman CJ, Mason P, Beazley, Giles and Ipp JJA agreeing). That conclusion gave rise to a question as to whether this Court had power to substitute its own costs order for that made by the Land and Environment Court. The Chief Justice held that the Court should undertake that task: at [135].

99 The precise scope of the principle adopted in Thaina Town was further discussed in this Court in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187. That case involved an appeal on a question of law under s 119 of the Administrative Decisions Tribunal Act 1997 (NSW). The nature and scope of the appeal was expressly raised for consideration, the appellant contending that once an error of law was alleged, the power of the Court to review other matters, including findings of fact, was at large, as on an appeal by way of rehearing, pursuant to s 75A of the Supreme Court Act 1970 (NSW). The relevance of Thaina Town in that context derived from the argument accepted in Thaina Town that the powers of this Court under s 75A were engaged on an appeal under s 58 of the LEC Act. In B & L Linings, Allsop P (Giles JA and I agreeing) held that the analysis of s 75A was “not part of the ratio of Thaina Town”: at [75]. Further, as his Honour noted at [78]:

Thaina Town

100 After considering the well-known line of authority dealing with the scope of an appeal on a question of law, I expressed the following views:

Attorney-General (NSW) v X

[143] Similar questions would arise to the extent that the Court took upon itself, in formulating orders, the role of drawing inferences and exercising discretionary powers. As explained by the President, there is a long line of authority in this Court which would be inconsistent with such an approach ….”

101 Those authorities concede that, if on the facts already found, and in circumstances where there is no question of finding other facts, there is only one outcome in law, this Court can pronounce that result: see, eg, Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142 at [56] (Giles JA, Tobias JA agreeing). In another appeal from the Land and Environment Court, not referred to in B & L Linings or in Thaina Town, namely North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740, McHugh JA (with whom Hope and Samuels JJA agreed) concluded that the Land and Environment Court erroneously exercised its statutory power, and continued (at 747E):

“Accordingly, the matter should be remitted to the Land and Environment Court. It will be a matter for that Court to determine whether the respondent should be given an opportunity to adduce further evidence. But upon the present state of the evidence, it is my opinion that the appeal to the Land and Environment Court must as a matter of law be dismissed.”

102 It is significant that, on the material before the Court, McHugh JA was satisfied that only one conclusion was open, but nevertheless remitted the matter to the Land and Environment Court. In the present case, the exercise of power on the part of the Council having miscarried in a substantial way, so that even the underlying intention of particular conditions is unclear, it would seem to be inevitable that there be a declaration of invalidity. In substance, Belmorgan has presented no contrary submission. Accordingly, it would be appropriate to make that declaration unless persuaded there were further facts which might be established by evidence, which could be relevant to that exercise. The proposed evidence was identified in Belmorgan’s supplementary written submissions in the following terms:

“Evidence that Belmorgan could be expected to tender may include:

(a) evidence recording the actions taken by Belmorgan in reliance upon the development consent (which has never been stayed) such as the demolition of the existing buildings on site …;

(b) evidence as to subsequent consideration undertaken by the Council of the matters relied on by the Appellant as having been deferred by the Council when the consent was granted, and any conclusions reached by the Council as to compliance (or possible compliance) with the draft DCP and draft LEP (which have now both been finalised and commenced);

(c) evidence of consideration by the Council (and/or the Department) of the issues said to have been invalidly deferred by the Council during the exhibition of the draft DCP and LEP;

(d) public consultation during the exhibition periods for the draft DCP and LEP that was undertaken by the Council in relation to the issues said to have been invalidly deferred by the Council in its determination of the DA; and

(e) factual and expert opinion evidence as to the significance of the matters said to have been invalidly deferred by the Council in its determination of the DA.”

103 Assuming (without deciding) that the Land and Environment Court would permit Belmorgan to call such evidence, and that each of the matters identified could be established in fact, and putting to one side the apparent concession made in the course of argument that demolition occurred under a different development consent, it is nevertheless difficult to discern any factual material which would give rise to any reasonable likelihood that an alternative order may be made under s 25B.

104 There are two reasons for this conclusion. The first is that an order under s 25B is unlikely to be apt where the purported consent cannot operate as a consent in accordance with its terms and reveals no clear intention as to how it was expected to operate. Secondly, as explained by McClellan CJ in the Land and Environment Court, in Centro Properties (see [82] above), where the decision-making process has miscarried because significant material has not been taken into account, it is unlikely that the appropriate exercise can be carried out by asking the Council, without reviewing the whole of its decision, merely to consider the additional material and see if it wishes to vary its resolution.

105 These considerations may be contrasted with the situation in Kindimindi Investments, when first before this Court. In that case, it was clear that the Council had considered that a school drop-off facility was a necessary part of the development, but erred in permitting this to be undertaken by way of a separate deed with the developer, rather than requiring it as a condition of consent. The Council may not have been prepared to have imposed such a condition, but there was a reasonable likelihood that it might do so and hence a reasonable basis for allowing the Land and Environment Court to consider an alternative order to a declaration of invalidity.

106 If, as Belmorgan now appears to allege, there is some concern that steps were taken pursuant to a consent which may be invalidated, it does not follow that those steps were necessarily unlawful, so as to give rise to adverse consequences.

107 Further, the scope of the suggested evidence is such as to give rise to a real apprehension that Belmorgan will seek to reopen its case before the Land and Environment Court in a manner incompatible with the limited issues which would remain open for consideration. Nevertheless, because it cannot be said that, as a matter of law, that Court would not permit it to call some evidence with respect to the possibility of an alternative order under s 25B, it is appropriate for this Court to stay its hand and make orders short of a declaration of invalidity. Nevertheless, it should be clear that, absent ss 25B and 25E, such a declaration would follow inexorably from the conclusions reached above and that no discretionary reasons have been made to appear in this Court why such a declaration should not be made, with any necessary consequential orders.

108 Belmorgan should pay the appellant’s costs of the appeal. No submissions were made to why the appellant should not have its costs in the Land and Environment Court, but as the submissions did not expressly go to this issue and as the matter must be remitted, it is appropriate to leave the question of costs of the original hearing before Sheahan J for disposition in that Court.

109 I would propose the following orders:

(1) Appeal allowed and orders made in the Land and Environment Court on 29 January 2008 in matter No. 41049 of 2006 set aside.

(2) Remit the matter to the Land and Environment Court for determination by that Court in accordance with law.

110 BELL JA: I agree with Basten JA.

111 YOUNG CJ in Eq: I agree with Basten JA.

**********

Citations

GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256

Most Recent Citation

Cases Citing This Decision

56

Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32

Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc v MACH Energy Australia Pty Ltd [2025] NSWCA 163

Cases Cited

24

Statutory Material Cited

6

GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303

Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171

GPT Re Ltd v Wollongong City Council (No 2) [2006] NSWLEC 401

Cited Sections

Actions

Download as PDF Download as Word Document

CITATION:	GPT RE LIMITED v BELMORGAN PROPERTY DEVELOPMENT PTY LIMITED [2008] NSWCA 256
HEARING DATE(S):	10 September 2008
JUDGMENT DATE:	15 October 2008
JUDGMENT OF:	Basten JA at 1; Bell JA at 110; Young CJ in Eq at 111
DECISION:	(1) Appeal allowed and orders made in the Land and Environment Court on 29 January 2008 in matter No. 41049 of 2006 set aside. (2) Remit the matter to the Land and Environment Court for determination by that Court in accordance with law. (3) Order the respondent to pay the appellant’s costs of the appeal.

CATCHWORDS:	ADMINISTRATIVE LAW – draft local environmental plan – draft control plan – development application – mandatory considerations – whether Council considered development application with reference to draft local environmental plan – presumption of regularity – prohibition on retail premises exceeding 400m2 – Environmental Planning and Assessment Act 1979 (NSW) s 79C(1)(a)(ii) - APPEAL – whether orders available in trial context available on appeal – jurisdiction and powers of Land and Environment Court – powers of Court of Appeal in appeal from class 4 proceedings – exercise of power under Division 3 of Part 3 of the Land and Environment Court Act 1979 (NSW) – Environmental Planning and Assessment Act 1979 (NSW) s 124 – Land and Environment Court Act 1979 (NSW) ss 25A, 25B, 25E, 58 – Supreme Court Act 1970 (NSW) s 75A - ENVIRONMENT AND PLANNING – consent – conditions of consent – conferral of function on Director-General of Department of Planning where not consent authority for purposes of development application – Director-General not subject of statutory constraint - ENVIRONMENT AND PLANNING – development application – deferred commencement consent – conditions of consent – whether consent accords with development application made – whether consent definitive – whether conditions of consent involve substantial changes to proposed development – whether conditions of consent assessable according to clear criteria – reconfiguration of levels in development and car parking space required – Environmental Planning and Assessment Act 1979 (NSW) ss 78A, 80, 80A - EVIDENCE – presumption of regularity – whether presumption operates where evidence exists from which an inference could be drawn – party with burden of persuasion – whether basis for finding invalidity of exercise of statutory authority – whether failure to comply with necessary precondition to exercise of power – Environmental Planning and Assessment Act 1979 (NSW) s 79C(1)(a)(ii) - WORDS & PHRASES – “clear criteria” – “consent” – “details” – “presumption of regularity” – “project”
LEGISLATION CITED:	Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16 Administrative Decisions Tribunal Act 1997 (NSW), s 119 Environmental Planning and Assessment Act 1979 (NSW), ss 34, 54, 55, 64, 65, 66, 70, 75A, 75B, 75D, 75E, 75ZA, 76, 76A, 76B, 78A, 79C, 80, 80A, 83B, 103, 122, 123, 124; Parts 3A; 4, Div 2A; 5 Interpretation Act 1987 (NSW), s 45 Land and Environment Court Act 1979 (NSW), ss 20, 22, 23, 25A, 25B, 25E, 58; Part 3, Div 3 Supreme Court Act 1970 (NSW), s 75A
CATEGORY:	Principal judgment
CASES CITED:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; 153 LGERA 450 Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; 135 LGERA 257 Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation (1990) 96 ALR 153 Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 GPT Re Limited v Wollongong City Council [2006] NSWLEC 303; 151 LGERA 116 Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; 150 LGERA 333 Lane Cove Council v Minister for Urban Affairs and Planning [2005] NSWCA 122; 140 LGERA 185 McLean Bros & Rigg Ltd v Grice [1906] HCA 1; 4 CLR 835 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Morris v Kanssen [1946] AC 459 North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740 Patrick Operations Pty Ltd v Comcare [2006] NSWCA 142 Scott v Wollongong City Council (1992) 75 LGRA 112 Selby v Pennings (1999) 102 LGERA 253 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; 129 LGERA 195 Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150 Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW) [1999] NSWCA 196; 46 NSWLR 598 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508
TEXTS CITED:	Thomas Starkie, A Practical Treatise of the Law of Evidence (10th ed, 1876) at 741
PARTIES:	GPT RE Limited – Appellant Belmorgan Property Development Pty Limited – First Respondent Wollongong City Council – Second Respondent
FILE NUMBER(S):	CA 40026/2008
COUNSEL:	J Gleeson SC/Dr S Pritchard – Appellant J Doyle – First Respondent Submitting appearance – Second Respondent
SOLICITORS:	Allens Arthur Robinson – Appellant Thomson Playford – First Respondent DLA Phillips Fox – Second Respondent

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 41049/2006
LOWER COURT JUDICIAL OFFICER:	Sheahan J
LOWER COURT DATE OF DECISION:	29 January 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	GPT RE Limited v Wollongong City Council and Anor (No. 4) [2008] NSWLEC 28