Gunning Sustainable Development Association Inc v Upper Lachlan Council and Another
[2005] NSWLEC 23
•4 February 2005
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Gunning Sustainable Development Association Inc v Upper Lachlan Council and Another [2005] NSWLEC 23
PARTIES:
APPLICANT
Gunning Sustainable Development Association Inc
FIRST RESPONDENT
Upper Lachlan Council
SECOND RESPONDENT
Tinvest Pty Limited
CASE NUMBER: 40498 of 2004
CATCH WORDS: Development Consent
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 76(1)a), s 78A(8)(a), s 80(3), s 91(1), s 91A, s 91(3), s 94
Roads Act 1993 s 138
Water Act 1912 s 112, s 113, s 115, s 116
Environmental Planning and Assessment Regulation 2000 cl 27(a), (b), (c), (d), (e), (f) Sch 3,
Land and Environment Court Act 1979 s 25B
Gunning Local Environmental Plan 1997 cl 37, Sch 3, cl 29, cl 31
State Environmental Planning Policy 11 - Traffic Generating Developments
State Environment Planning Policy No. 33 - Hazardous and Offensive Development cl 12, cl 13 , cl 18(2)(d)
CORAM: Talbot J
DATES OF HEARING: 8/11/2004, 9/11/04, 10/11/2004, 11/11/2004.
DECISION DATE: 04/02/2005
LEGAL REPRESENTATIVES
APPLICANT
Mr G D Stewart-Richardson (Agent)
SOLICITORS
n/a
FIRST RESPONDENT
Mr J E Robson SC
SOLICITORS
Minter Ellison
SECOND RESPONDENT
Mr P R Clay (Barrister)
SOLICITORS
Michell Sillar
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESTalbot J
4 February 2005
40498 of 2004 Gunning Sustainable Development Association Inc v Upper Lachlan Council and Another
JUDGMENT
Talbot J: Tinvest Pty Limited, (“the second respondent”) lodged a development application with Gunning Shire Council in November 2003 seeking approval for a proposed highway service centre comprising fuel and retail facilities, restaurant and take away food outlet, toilets and shower facilities with parking for cars, buses and trucks and emergency repair services. The land the subject of the development application is vacant land adjacent to the Hume Highway at Gunning (“the site”).
On 19 January 2004 Gunning Shire Council resolved to grant deferred commencement development consent. Notice of determination of the development application, as a deferred commencement consent, was issued on 20 January 2004 subject to three deferred commencement conditions pursuant to s 80(3) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and 25 operational conditions.
When Upper Lachlan Council (“the first respondent”) was created on 11 February 2004 it was amalgamated with Gunning Shire Council. Gunning Sustainable Development Association Inc (“the applicant”) is an association incorporated on 21 April 2004 under the Associations Incorporation Act 1984.
The applicant is seeking the following relief:-
1. A declaration that Development Consent 41/034 granted by the first respondent on 19 January 2004 is invalid and of no effect.
2. An order restraining the second respondent from taking any step in reliance upon Development Consent 41/034.
3. Such other orders as the Court thinks fit.
4. Costs.
5 The grounds for relief relied upon by the applicant can be summarised as follows:-
1. Failure to comply with the provisions of the EP&A Act applicable to designated development in respect of petroleum works that store petroleum and natural gas products with an intended storage capacity in excess of 200 tonnes for liquefied gases or 2000 tonnes of any petroleum products within the meaning of cl 27(e) of Schedule 3 to the Environmental Planning and Assessment Regulation 2000 (“the EP&A Regulation”).
2. The first respondent did not comply with the requirements of the EP&A Act in respect of Integrated Development that required consent of the Roads and Traffic Authority (“RTA”) under s 138 of the Roads Act 1993 and a licence from the Water Administration Ministerial Corporation under s 116 of the Water Act 1912.
3. The applicant claims that the Council failed to consider the following relevant matters:-
(i) The impact of the fuels which would be stored in the fuel storage system, including the types of fuels which would be stored, the size and/or location of the fuel storage system and/or the potential hazards to the community and the environment.
(ii) The suitability of the bore water supply as a potable water supply.
(iii) The stormwater management on the site or its impacts on surrounding land.
(iv) The management of grey water effluent, particularly the impact which the storage of grey water effluent in the stormwater detention pond would have on the physical and biophysical environment and the amenity of surrounding properties.
(v) The geotechnical suitability of the site for the proposed development.
(vi) The impacts on the locality arising from the construction work involved in the development, including:
A. the impact of noise arising from construction works;
B.the impact of road works on traffic using the Hume Highway/MR52 overpass and intersections;
C. the impact of erosion, particularly from earthwork; and
D. the impact of dust arising from earthworks.
(vii) The impact of the lighting of the development on the amenity of local residents.
(viii) The impact of potentially offensive odours or pollutants from the operation of the centre or from vehicles using the centre.
(ix) The economic impacts which the development would have on the locality, including:
A.the impact of changing road access to Gunning village for business activity in the village; and
B.the impact of the highway service centre on businesses operating in Gunning village.
(x) The impact of noise on surrounding residents from the operation of the proposed development.
(xi) Submissions made in accordance with the EP&A Act.
It is alleged that as the proposed development is a potentially hazardous industry, the first and second respondent failed to comply with the requirements of cl 12, 13 and 18(2)(d) of State Environment Planning Policy No. 33 – Hazardous and Offensive Development (“SEPP 33”).
As the adjoining Do Duck Inn is listed in Schedule 2 of the Gunning Local Environmental Plan 1997 (“Gunning LEP”) as a heritage item, it is alleged that the Council did not comply with cl 31 of the Gunning LEP which requires it to take into consideration the likely effect of the proposed development on the heritage significance of the Do Duck Inn, or its setting.
Finally, the applicant says the consent is uncertain and lacking in finality “as it simultaneously authorises a development which is not a designated development and a development which is a designated development” for the following reasons:-
(i) The First Respondent has issued a consent which does not limit the types of fuel which may be stored on the site.
(ii) The First Respondent has issued a consent which does not limit the quantity of fuel storage which may occur on the site.
(iii) The First Respondent has issued a consent which does not specify or limit the location of the fuel storage.
Both of the respondents deny each of the grounds relied upon by the applicant. Furthermore in the event that the Court finds there has been a breach of any provision of the EP&A Act or the EP&A Regulation the respondents have pleaded that any breach is of such a nature that the Court, in the exercise of its discretion, ought not to grant the relief sought by the applicant. Alternatively, the second respondent says that to the extent that there has been a breach of any provision of the EP&A Act or the EP&A Regulation the Court should make an order pursuant to s 25B of the Land and Environment Court Act 1979 (“the Court Act”).
It is the applicant’s position that the alleged breaches of the planning legislation are fundamental and go to the core of the environmental assessment obligations of the first respondent, and therefore the Court should not, in the exercise of its discretion, refrain from making orders in the circumstances. Final argument in relation to discretion and the application of the provisions of s 25B of the Court Act has been deferred pending a determination of the issues raised by the applicant in support of its application for relief by way of declaration and orders.
In order to properly deal with and understand the countervailing arguments of the parties it is essential to relate the history of the lodgement and the consideration and determination of the application for development consent. This includes the evidence of the steps taken by the Council, the material considered by the Council, the terms and conditions of the deferred commencement consent itself and the proper characterisation of the proposed development.
The history of the development application and relevant planning history of the site
Gunning LEP 1997 was published in Gazette No.1 on 2 January 1998. Under the LEP the land is within Zone 1(a) (Rural Zone) and Zone 2 (Village Zone).
On 30 April 1999 the LEP was amended by the insertion of cl 37 and Schedule 3.
Clause 37 contains the following provisions:-
37 Development for certain additional purposes
Nothing in this plan prevents a person, with the consent of the Council, from carrying out development on land referred to in Schedule 3 for a purpose specified in relation to that land in that Schedule, subject to such conditions, if any, as are so specified.
The land the subject of the development application lodged by the second respondent is part of the land referred to in Schedule 3. The purpose specified in relation to the land in Schedule 3 is as follows:-
- highway service centre, subject to the condition that consent to the carrying out of development is granted within five years from the day on which Gunning Local Environmental Plan 1997 (Amendment No 1) took effect or within such longer period as the Minister may, before the expiration of that period of five years, notify by order published in the Gazette.
On 10 November 2003 the second respondent lodged Development Application No. 41/034 with Gunning Shire Council. The development application was accompanied by a Statement of Environmental Effects (“SEE”). The development application was supported by site and survey plans and architectural drawings, development plans, a traffic report and a landscaping plan and report.
The development application form used was an Integrated Application Form and nominated a requirement for a deferred commencement approval and staged commencement.
The SEE states that the RTA is required to issue consent and release covenants under s 138 of the Roads Act 1938, as the proposed development includes access and connection to the Hume Highway, which is a controlled road.
Reference is also made to the period of five years referred to in Schedule 3 to the LEP which expires on 22 April 2004. It is not disputed that Gunning Shire Council, on 15 September 2003, resolved to amend cl 37, Schedule 3 of the LEP to extend the period within which development consent can be granted from five years, to seven years, although the amendment has not been made by the Minister to date.
The SEE proposed a staged development for the highway service centre incorporating four stages as follows:-
Stage 1 -Subdivision and Land Amalgamations – North/Southbound sites
Stage 2 – Northbound Service Centre and Northbound Ramp
Stage 3 – Southbound Off Ramp
Stage 4 – Southbound Site DevelopmentOn 14 November 2003 the development application was notified by advertisement in the newspaper the Goulburn Post and by letters to owners of properties neighbouring the site. A further advertisement appeared in the Goulburn Post on 17 November 2003. The exhibition period and the time for lodgement of comments response to the development application expired on 15 December 2003. Development application notification signs were erected on the land and a notice of the receipt of the application was included in a fortnightly Shire Council newsletter distributed to Shire residents.
The RTA was provided with a copy of the Integrated Development Application under cover of letter dated 13 November 2003 for assessment under the Roads Act 1993.
At its meeting on 15 December 2003 the Council authorised the General Manager to convene a local planning focus meeting with the applicant for the development consent and affected parties. At the same meeting the public consultation period was extended by 21 days and the environmental planning staff were required to prepare a comprehensive report on the development application for Council determination, once all planning issues were addressed.
On 5 January 2004 the Council’s Environmental Services Manager Elik Kloczko notified “15 affected parties” by letter that the planning focus meeting had been arranged for 7.30pm Thursday 8 January 2004 at the Gunning Shire Council chambers.
The Council received 133 submissions in the form of a pro forma base letter and 28 personal submissions in response to the exhibition of the development application. Mr Kloczko identified 38 distinct issues raised as a consequence of the receipt of the submissions.
The second respondent, Tinvest Pty Limited, reviewed the submissions made to Council and on 8 January 2004 provided a response to issues raised by the owners of properties neighbouring the site of the proposed development. These issues primarily relate to noise, security, signage, lighting, litter control and property damage during construction.
Between 90 and 100 people attended the planning focus meeting on 8 January 2004. It was chaired by Brian Crane who acted as the meeting facilitator. Mr Kloczko represented the Council with Narlisa Briggs the Environmental Services Assistant. The Council’s consulting engineer Rodney Wallace was also in attendance at the meeting. The General Manager of the Council and Councillors were not required to attend the planning focus meeting. The applicant was represented by its consultant town planner Keith Burnham, who attended in the capacity of an observer.
The following summary of issues was included in the facilitators report subsequently presented to Council on 19 January 2004:-
Public advertising of the meeting
a) Why were the invitations to the meeting restricted?
Public Consultation process.
Zoning Approval.
Detail in Development Application-
a) Lack of detail to enable assessment of issues.
Location of the development.
Economic Impact on the Town.
Economic Impact on the Service Centre
a) What will be the impacts if the venture fails?
Water-
a) Augmentation of existing supply.
b) Reserve Capacity.
c) How will rates be affected?
d) Is the bore suitable?
e) What impact will the development have on water restrictions and current capacity?
f) Specific attention needs to be provided to the calculation of usage quantities to ensure that an appropriate supply is available.
Sewerage-
a) How will rates be affected?
b) Reserve capacity.
c) Lack of detail in application.
d) Clarify extent of sewerage.
Public Safety
a) The facility could improve public safety by providing stopping area for the travelling public.
b) The facility could detract from public safety due to potential vehicular impacts with signage, barriers etc.
c) Will the lighting be adequate?
Social Amenity Impacts
Pollution-
a) Fumes
b) Lighting – colours, location, adequacy
c) Noise
d) Rubbish/litter
Tourism positives
a) Promotion of the town as a requirement of the development consent
Employment impacts (positive or negative)
Village amenity loss
Land value impacts
Infrastructure benefits for the town – what are they?
By facsimile message on 19 January 2004 Tinvest Pty Ltd advised the Council that it had always intended that Stage 4 would be the subject of a separate application at some future date. Its inclusion in DA 41/034 was only for completeness. The application was thereupon amended by deleting Stage 4. The deletion of Stage 4 was said to be made in response to an objection lodged on behalf of AMP Capital Investors Limited based, inter alia, upon an alleged prospective breach of covenant affecting Lots 25 and 26 in DP 746075.
In his written report presented to the Council meeting on 19 January 2004 Mr Kloczko described the proposed development as follows:-
The proposed development comprises fuel and retail facilities, restaurant and takeaway food, toilets and shower facilities with parking for cars, buses, trucks and emergency repairs. The proposal includes new access and exit points to and from the Centre to both MR52 and the Hume Highway (north bound lane and south bound lane). The stated objective of the proposed development is to create a world class highway service centre.
The site area comprising 11.286ha was identified together with its relationship to the Hume Highway and Main Road 52 (Gunning to Gundaroo).
Mr Kloczko’s report discusses the issues in relation to the development application under a number of headings as follows:-
Statutory consideration
Integrated development requirements are identified in respect of consent required from the RTA under s 138 of the Roads Act. Mr Kloczko explains the requirements of the RTA in the context of Integrated Development and also pursuant to State Environmental Planning Policy 11 – Traffic Generating Developments (“SEPP 11”) as the development is for a drive in take-away food outlet and refreshment rooms with a gross floor area exceeding 300m2.
Mr Kloczko notes that no expert geotechnical reports accompanied the development application for the purposes of SEPP 33 – Hazardous and Offensive Development. He says, however, provision would be incorporated into conditions of deferred commencement requiring the submission of detailed reports and that “environmental potential (sic) issues will be fully addressed by an expert and required to be best practice.”
The provisions of Gunning LEP 1997 and Draft LEP 2003 are noted in the report. The latter provides for the extension of time to develop the subject site.
Public Interest, Advertising and Public Notification
The issues raised in the submissions in response to exhibition of the development application are summarised and the issues raised at the planning focus meeting are identified. After describing the result of the public consultation process as constructive feedback Mr Kloczko summarises the result as follows:-
The comments received from public exhibition primarily focus on the extent of the development and the associated impact upon the village amenity through visual prominence, loss of privacy, noise, pollution of environment, adverse socio-economic impacts, threat to towns water and sewerage infrastructure, threat to public safety, threat to wildlife and deficient documentation.
Environmental Impacts and Issues
Under this heading Mr Kloczko reports on the building design, architectural character and visual impact of the proposal. In this respect he makes the following observation:-
While this roof design and colour co-ordination philosophy is consistent with many other contemporary highway service centres located on the eastern seaboard of Australia, it is considered the overall character of the building does not have the charm, character or vernacular of traditional rural style buildings found in Gunning Shire. This issue could be addressed by incorporating main architectural elements which reflect the vernacular of Gunning Shire rural setting.
Landscaping
Mr Kloczko briefly explains the landscape master plan and report which accompanied the development application and makes the following relevant comment in that respect:-
The layout of the plantings is also designed to assist noise attenuation particularly adjacent to residential development, this will be supported by a 3 metre high landscape mounds (sic) and a dense acoustic screen wall.
Access, Car parking and traffic impact
The report contains particulars of the proposed parking spaces. Mr Kloczko states that submission of an overall traffic management plan would be a requirement incorporated into the deferred commencement conditions.
Environmental Impacts
There is further reference to the use of vegetated mounding with a maximum height of three metres and/or acoustic fencing between sources of potential noise and adjacent receptors with the specification that design parameters to control intrusive noise levels not exceed 50dB(A) measured at the boundaries of the two nearest residential premises. Reference is made to the fact that the proposed main building is set back approximately 125 metres from the Do Duck Inn boundary and approximately 85 metres from the neighbouring residential property and that the setbacks proposed are considered appropriate. The report advises the Council that there is no evidence on the site of any threatened or endangered species but that the applicant had nevertheless indicated an environmental study will be commissioned. Reference is made to the fact that Erosion and Sediment Control Plans did not accompany the application and that it will be a requirement of the conditions of consent that the applicant submit detailed plans for formal assessment.
Social and Economic Impacts of the Development
No negative impacts in relation to the local economy are identified in the report other than the prospect that the local community could be expected to avail themselves of small convenience goods and retail services at the expense of established businesses. It is noted that the addition of a 300,000 litre reservoir to augment the town water supply will result in significant improvement as the applicant has agreed to meet significant portions of the capital costs of the new reservoir in lieu of s 94 Contributions.
Servicing and Infrastructure Issues (s 94 / s 64 Developer contributions)
Although the application was not accompanied by expert geotechnical, water balance, engineering and hydrological studies or design plans, Mr Kloczko advises that sufficient material has been provided to assist the Council to assess the impact of the proposed development on town water and sewerage infrastructure for the purposes of assessing contributions required pursuant to s 94 / s 64. Mr Kloczko further advises the Council that provision has been incorporated into the conditions of deferred commencement to require the submission of hydrologic engineer drawings for Council approval and dedication of a 300,000 litre static water supply in lieu of s94/s64 contributions.
Conclusion
The report concludes as follows:-
The proposal as detailed in this Statement of Environmental Effects and on the development plans prepared by Maunsell Australia dated November 2003 are consistent with Council’s planning controls and adequately address the impacts on the environment and suitability of the site.
The subject site is presently underdeveloped land within the broad rural landscape character of the local area. Development of the Highway Service Centre provides an opportunity to create a new visual landmark in the Gunning Shire landscape.
The service centre development is valued at $3.5 million. It will provide a necessary stimulus to the local economy.
The proposed development of a Highway Service Centre and associated food and traveller facilities is permissible with the consent under the planning regulations with the site attributes justifying the nature of the development. The proposal satisfies the general objectives of Council’s planning instruments in all respects.
Whilst the proposal is worthy of support, specific conditions of consent need to be imposed in respect to construction to ensure the development meets all standards and community expectations.
The applicant is keen to progress the development as staged development with deferred commencement and with the continued support of the Council, secure a Development Consent that conditionally allows for some latitude as to the final design and layout of the buildings. It is the applicant’s intention to commence the first stages of the development as soon as practicable.
Mr Kloczko attached proposed deferred conditions of consent, a copy of the Planning Focus Meeting Report by the facilitator Brian Crane and a copy of a report arising from the planning focus meeting written by Tinvest’s town planner, Keith Burnham, together with a site plan. Mr Burnham’s report did little more than encourage the Council to approve the development with deferred commencement conditions to address outstanding issues and to point out the positive aspects of the development. However he did particularly refer to the applicant’s letter dated 8 January 2004 regarding the mitigation of potential impacts on neighbouring properties. Mr Kloczko tabled a legal opinion from Council’s solicitors, Minter Ellison.
Mr Wallace prepared a report for the Council dealing with the issues of the effect on Gunning water supply, the sewerage treatment works, disposal of stormwater, traffic, road works, employment and s 64/94 contributions.
Several local persons addressed the Council meeting on 19 January 2004 including Geoffrey Stewart-Richardson who appears as agent for the applicant. Mr Stewart-Richardson tabled a document from the Department of Infrastructure Planning and Natural Resources (“DIPNR”).
After debate the Council resolved that Development Application DA 41/034 be determined by the granting of a deferred commencement consent pursuant to s 80(3) of the EP&A Act, subject to conditions.
Designated development
The applicant alleges that the proposal constitutes petroleum works within the meaning of cl 27 of Schedule 3 to the EP&A Regulation 2000 and accordingly the second respondent’s failure to provide an Environmental Impact Statement (“EIS”) in support of the development application, as required by s 78A(8)(a) of the EP&A Act, means the consent is invalid and of no effect.
Specific details of the quantities and types of fuel to be stored on the premises were not provided with the development application. There is no specification of the exact location or capacity of any proposed fuel storage facility. The applicant says that as the grant of the consent does not limit the capacity of the fuel storage, it has the effect of permitting the developer to undertake designated development specified in cl 27 of Schedule 3 to the EP&A Regulation. The primary provision in cl 27 of Schedule 3 relied upon by the applicant is subparagraph (e). Subparagraph (e) refers to petroleum works that store petroleum and natural gas products with an intended storage capacity in excess of 200 tonnes for liquefied gases or 2000 tonnes of any petroleum products.
First, it is necessary to determine whether the highway service centre or any part of it is to be regarded as “Petroleum Works” in the context of cl 27. Subparagraphs (a), (b), (c) (d) and arguably (f) reflect the general concept of works that incorporate activities associated with production or manufacture in the course of carrying on an industry. Subparagraph (e) is not categorised in that way.
In Bullivant and Others v Wollongong City Council (Land and Environment Court of New South Wales No. 40105 of 1983, 18 October 1983, unreported). Perrignon J referred to the word “works” as being a word of wide elastic and indefinite meaning depending, for its proper understanding, on the context of which it appears. Although the reference to coal industry works that Perringon J considered in Bullivant was contained in a different wording format, his Honour expressed the opinion that the reference to “coal industry works” should be regarded as governing a reference to “works” in the balance of the paragraph if the latter activities could be properly be described as “coal industry works.” Even if contrary to the view expressed, the word “works” was not coextensive with the term “coal industry works” his Honour expressed the tentative view, without deciding, it would be wide enough to include the activities described in the paragraph. The Court of Appeal did not materially disagree with the approach taken by Perrignon J (Bullivant and Others v Wollongong City Council (1984) 54 LGRA 77). Following that same line of reasoning it becomes necessary for the applicant to demonstrate that the highway service centre or some part of it is itself petroleum works before there is any attempt to fit it within category (e).
As a matter of construction it is not consistent with the structure of cl 27 to disregard the words “Petroleum Works.” The term is not defined and therefore it must be given its ordinary meaning. The fuel is to be delivered to the site in a condition that has already rendered it fit for direct sale to retail customers without further process or refinement. The proposal is for a highway service centre for the convenience of motorists including a facility for the sale of fuel for immediate consumption. I am not convinced that the activities involved in a retail operation can be applied to justify the characterisation of the proposal as “Petroleum Works” in the way I believe that term is understood in ordinary parlance. The product is dispensed to the customer in the same state it is in when delivered to the site. There will be no intervening treatment or manufacturing process. No form of industry will be involved. In those circumstances in the absence of any sort of industrial or refining process the highway service centre, in my opinion, is not petroleum works, at least in the context of clause 27.
In Levenstrath Community Association Inc v Tomies Timber and Another (2000) 108 LGERA 176 Cowdroy J decided that if a condition of consent is so uncertain as to leave open the possibility that compliance therewith may alter the nature of the development for which the application was made, the consent is invalid. His Honour made that finding in the context of a development consent, granted for the purpose for a sawmill, that did not limit the intended annual production capacity where the intended production capacity was a relevant criteria for determining whether the proposal was for designated development. The decision in Levenstrath appears to be consistent with the approach taken by Bannon J in Barooga Citizens Action Group Inc v The Council of Shire of Berrigan and Others [1992] NSWLEC 3, 4 February 1992, unreported where the Council had granted a development application for consent to the milling and grinding of grain without any limits as to quantity of grain to be milled or ground. Bannon J held that the application and the consent involved designated development for which no environmental impact statement was obtained and accordingly the purported development consent was invalid.
Despite argument between the parties in relation to the correctness of the approach taken in Levenstrath and Barooga, my conclusion that the highway service centre is not characterised as petroleum works means the applicant’s argument that the consent simultaneously authorises development that is not designated development and development that is designated development cannot be sustained. The proposal will not be designated development irrespective of the storage capacity ultimately installed.
Integrated development
I referred earlier to the applicant’s claim that the development application was in respect of Integrated Development because consent was required from the RTA under s 138 of the Roads Act 1993 and a licence was required from the Water Administration Ministerial Corporation pursuant to s 116 of the Water Act 1912.
The alleged failure to comply with the integrated planning provisions in respect of the approval required under the Roads Act was not ultimately pressed upon the Court with any real conviction by the applicant. In my view, in circumstances where the development application was specifically referred to the RTA and the appropriate integrated development application fee paid to the authority the applicant acted reasonably by not forcefully pressing the issue in that respect. I have nevertheless concluded that the referral to the RTA was sufficient compliance with the relevant provisions of Division 5, Part 4 of the EP&A Act.
Accordingly the applicant’s extant claim is that the Council failed to comply with a number of the integrated planning provisions in the EP&A Act with respect to a licence required in relation to bore water under s 116 of the Water Act 1912.
Relevantly for present purposes, integrated development is defined in s 91 of the EP&A Act as follows:-
Integrated development is development (not being complying development) that, in order for development to be carried out, requires development consent and one more of the following approvals:
ACT Provision Approval
Water Act 1912 s. 116 licence to commence
sinking a bore to enlarge,
deepen or alter a boreDivision 5 within Part 4 of the EP&A Act contains provisions stipulating special procedure for integrated development.
The presently relevant provisions are contained in s 91A as follows:-
1. This section applies to the determination of a development application for local development that is integrated development.
2. Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such development if the consent authority determines to refuse to grant development consent.
The proposed development is local development as development described in subsection (1) of section 76A and is not State Significant Development. It is conceded by the respondents that no attempt was made to obtain general terms of any approval proposed to be granted by the Water Administration Ministerial Corporation as the relevant approval body in relation to s 116 of the Water Act 1912.
The development application was lodged on an Integrated Application Form and the applicant for consent confirmed (by ticking the appropriate box) that it was seeking an approval for Integrated Development. The only existing improvements on the land nominated by Tinvest Pty Ltd in the development application form were 2 bores.
The following statement is included in the Statement of Environmental Effects:-
The car and truck park runoffs will be subject to oil and grease collection traps before flowing to the detention pond. This pond will be utilised for garden irrigation in conjunction with a water bore. The bore license will be the subject of a separate application to the Department of Land and Water Conservation.
The Council wrote to the representative of the applicant for consent on 7 February 2002 and advised as follows:-
The proposed development is classified as Integrated Development as permits issued under the Roads Act 1993 Section 138(e) – Roads and Traffic Authority and the Water Act 1912 Section 116 – Department of Land and Water Conservation are required before Council can consent to the development.
The applicant’s consultant, Maunsell Pty Limited, advised the Council by fax on 13 January 2004 regarding proposed water supply as follows:-
The potable water will be obtained from the town water supply which will be augmented by a supply from an existing on-site bore which will be processed through the Gunning water treatment plant by Gunning Council.
Rodney Wallace inconclusively debated the prospective impact on the town water supply and the potential to augment supply from the existing bore in his report prepared for the Council in January 2004.
In his report to Council on 19 January 2004 Mr Kloczko made the following statement:-
The Highway Service Centre site has available one licensed groundwater bore capable of drawing 1.1 litres/sec (95,000 litres per day). The average 24 hour demand by the service centre for water is stated to be 0.69 litres/sec.(60,000 litres per day).
No relevant licence has been produced and the foreshadowed “separate application” referred to in the SEE and quoted above, gives rise to the inference there was no relevant licence held in respect of any bore on the land either when the development application was lodged, or when the consent was granted. Mr Kloczko, however, in cross examination identified a reference to licence 70BL142589 in a work summary report of a bore provided by DIPNR. Mr Kloczko recalls that the work summary report by DIPNR was produced to him on behalf of the applicant for development consent. He understood from the report that there was an existing approved bore on the site.
The respondents’ primary argument is that s 112 of the Water Act only prohibits the sinking of a bore or enlargement deepening or alteration of a bore unless it is done in pursuance of a licence issued under Part 5 of the Act. An application for a licence for any new bore or for enlarging, deepening or altering any existing bore shall be made pursuant to s 113. After compliance with administrative requirements a licence is issued pursuant to s 115.
Section 116 provides as follows:-
The Ministerial Corporation may, if, in its opinion such a course is necessary, grant a licence for a limited period, and any licence so granted shall (subject to the provisions of this Part with regard to the renewal of licences, and subject to such limitations and conditions as the Ministerial Corporation may think for to make) be renewed by the Ministerial Corporation from time to time on the application of the person holding the licence and on payment of the prescribed fee.
The Ministerial Corporation may limit the period of any renewal. The licence shall lapse if the sinking of the bore or the enlarging, deepening or altering the bore licensed be not commenced and completed within such times or extended times as may be notified by the Ministerial Corporation to the licensee.
It is not necessary for the purpose of the present argument to seek to determine whether the reference to s 116 in s 91(1) of the EP&A Act is a reference that is capable of having practical application because it is clear from s 112 of the Water Act that the category of licenses dealt with in Division 3 of Part 5 are only licenses that authorise the sinking of a bore or where a bore is to be enlarged, deepened or altered. The subject bores are already in place. There is no stated proposal to enlarge deepen or alter the existing bores. It is not altogether clear from the evidence whether technically there will be a change of the use of the water out of the bores from a former industrial purpose to a source of potable supply. Nevertheless in my opinion such a change would not necessarily mean that a bore will be altered as contemplated by s 112 of the Water Act 1912. Accordingly the proposed development did not require an approval under Division 3 of Part 5 of the Water Act in order for it to be carried out. It must follow therefore that the development was not integrated development requiring an approval under s 116 of the Water Act.
In Maule v Liporoni and Another (2002) 122 LGERA 140 at 172 and 174 Lloyd J observed that in his opinion a failure to conform with or follow the procedures for integrated development in accordance with s 91A of the EP&A Act does not involve jurisdictional error because the provisions of Part 4, Division 5 of the EP&A Act are beneficial and facultative. The applicant has urged the Court not to follow the line of reasoning adopted by Lloyd J and to find that the alleged failure to substantially comply with the integrated planning system rendered the subject development consent invalid. Although not expressly argued in Azzopardi and Others v Gosford City CouncilAnd Another (2001) 119 LGERA 132 and Azzopardi and Others v Gosford City Council and Another (2002) 123 LGERA 118 Sheahan J at first instance and subsequently the Court of Appeal appear to have proceeded on the basis that a development consent granted in respect of integrated development without first complying with the provisions of s 91A could lead to invalidity.
Having regard to my finding of fact in relation to the application of the integrated provisions of the EP&A Act in this case I need not take the legal issue any further except to note that Mr Clay, on behalf of the second respondent, has submitted that the decision in Maule should be followed as the provisions have no consequences adverse to the operation of the EP&A Act. Moreover he says the consideration of the development application is not hindered and under ss 91A and 93 of the EP&A Act the power of an approval body is not confined where the application is not referred to it. The submissions by Mr Clay are not without substance.
Whether the Council failed to consider relevant matters
The cornerstone of the applicant’s case in this respect is that the proposal considered by Council was only ever conceptual in nature and that the Council failed in its duty to give legally sufficient consideration to all of the relevant issues raised by the proposed development. The notion of an “in-principle consent” pursuant to s 80(3) (formerly s 91AA) has been firmly refuted by the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181. The Council allegedly failed to weigh up all relevant matters calling for consideration notwithstanding that the development consent was made subject to a deferred commencement condition in respect of some of those matters.
The deferred commencement conditions are as follows:-
DEFERRED COMMENCEMENT CONDITIONS
DA 41/034 has been approved pursuant to the provisions of section 80(3) of the Environmental Planning and Assessment Act 1979 as a deferred commencement consent.
Pursuant to section 80(3) of the EP&A Act the consent shall not operate until the Applicant satisfies the Council in regard to the following:
The Applicant shall submit for the approval of the Environmental Services Manager:
a) refinement of architectural features to incorporate architectural elements reflecting the vernacular of Gunning Shire’s rural setting and prepared by a registered architect;
b) interior fit out details, including details of services and mechanical/electrical systems;
c) details of exterior lighting and advertisements, car parking layout and building foundations.
The applicant shall submit for the approval of the RTA the following in relation to the Gunning Interchange, SH2 and MR52:
a) final plans for the road and intersection configuration, pavement design, drainage design, road landscaping and lighting;
b) detailed location of roundabouts to provide safe intersection sight distance for the sign posted speed limit or the 85%tile speed – whichever is the greatest;
c) ramp design speeds;
d) outdoor lighting design conforming to AS.NZ 1158.1.1:1997 or approved updated standards;
e) signposting;
f) vehicle and pedestrian flow management plan to accommodate peak queue lengths during school holiday periods;
g) facilities for cyclists including on proposed roundabouts;
h) plans to demonstrate no increase in water flow across future SH2 – Hume Highway and existing MR52 – Gundaroo Rd Boundaries;
provision of an emergency management plan;
j) a certificate of concurrence from the RTA is to be submitted to Council together with a copy of the Deed of Agreement for a Work Authorisation with the RTA.
The applicant shall submit details for the approval of the Environmental Services Manager final design plans of the landscape irrigation scheme using treated grey water from the service centre and hard stand areas.
Time to Comply with Deferred Commencement Plans
Evidence that these conditions have been satisfied must be provided to Council within twenty four months from the date of issue of the consent.
The applicant submits that on a proper reading of conditions 1 and 2 some significant aspects of the highway service centre and its operation have been left for later consideration. In other words the deferred commencement process became a substitute for consideration rather than a means by which the authority could stipulate for a state of affairs as Giles JA said in Weal at [94]:-
Section 91AA enabled the consent authority to stipulate for a state of affairs on the basis of which it decided to grant consent, but its consideration had to include an understanding of the state of affairs and an evaluation of the relevant matters with that understanding. The consideration would be given effect in part by a condition of the deferred commencement consent, if that could be done reasonably and consistently with proper consideration.
Apart from the general submission about the improper use of a deferred commencement consent the applicant has identified a number of matters of important detail that were left unconsidered by the Council.
Before dealing with these matters it is appropriate to observe that notwithstanding the confinement of the application of the Carltona principle (Carltona Limited v Commissioner of Works (1943) 2 All ER 560) to circumstances where an officer exercises the decision making power of a council as the delegate of the consent authority, (see McClellan CJ in Centro Properties Limited v Hurstville City Council and Another [2004] NSWLEC 401, unreported) it is nevertheless appropriate to accept that material in the possession of the Council will generally be treated as being in the possession of the Councillors in the absence of evidence to the contrary (Schroders Australia Property Management Limited v Shoalhaven City Council and Another [2001] NSWCA 74, unreported, followed by Pain J in Gee v Council of the City of Sydney and Others [2004] NSWLEC 581, unreported). I have considered the evidence on the basis of the principles identified in Centro Properties and Schroders Australia.
The applicant has listed specific matters that it alleges the first respondent failed to consider during its consideration and determination of the development application. I propose to deal with the most significant of these in turn.
Impact of fuel storage and geotechnical suitability and the application of SEPP 33
The SEE lodged in support of the development application specifically stated the obvious purpose of the highway service centre was to “provide continuous car and truck refuelling facilities” for 24 hours a day, 7 days a week.
Mr Kloczko’s report to Council anticipated that the service centre would sell in excess of 2,000,000 litres of fuel per annum. He specifically referred to SEPP 33 as one of the relevant environmental planning instruments. He had the benefit of a memo of advice dated 15 January 2004 given to him by the second respondent. The advice was to the effect that a preliminary hazard analysis would not be required as the use would not be deemed a potentially hazardous industry and as such is not subject to the requirements of cl 12 of SEPP 33. The memo was identified in evidence for the first time by Mr Kloczko during re-examination. It had been produced to the applicant out of the Council files and is included in the applicant’s bundle of documents as evidence in the proceedings. It set out what were said to be relevant extracts from SEPP 33 with reference to a website where the whole of the legislation could be found.
When Mr Kloczko first drafted the conditions of development consent for his report to Council he incorporated the following as part of a proposed deferred consent condition:-
The fuel storage system shall be design (sic) in accordance with the expert advice and approvals of relevant agency (sic) shall be submitted (sic) Council with final design details.
Following advice from the Council’s solicitors the specific reference to the fuel storage system was deleted. The Council did not adopt the conditions as originally drafted and presented to it by Mr Kloczko but instead determined to grant the consent subject to deferred commencement conditions revised in consultation with the Council’s solicitors. The advice from the solicitors was remitted to Mr Kloczko by email at 5.07pm on the afternoon of the meeting on 19 January 2004 scheduled for 7.00pm. The legal opinion was tabled at the Council meeting as part of a late report in respect of the revised deferred conditions of consent. The advice of the solicitor makes pertinent reading in the present context:-
I have reviewed the proposed deferred commencement conditions. Without having seen the DA, plans and your full report it is difficult to advise you fully on this issue. Our primary concern is that the deferred commencement conditions suggest that Council has not taken into consideration relevant matters and has deferred them for consideration by imposing the deferred commencement conditions. Council’s obligation is to consider all relevant matters at the time the DA is determined (Weal v Bathurst CC). Accordingly, there is some risk that an objector will challenge the validity of the consent. Nevertheless, we have attempted to redraft the terms of the deferred commencement conditions to reduce this risk.
We recommend the conditions be imposed as on the attached document rather than those already drafted.
It was suggested by Mr Kloczko in his oral evidence that the requirement in deferred consent condition 1(b) to submit for the approval of the Environmental Services Manager “details of services and mechanical/electrical systems” includes the details of fuel storage. In my view the connection is tenuous.
The identification of a car refuelling area and a truck refuelling area is the only reference to fuel in the development plans submitted by the applicant and approved by Council. Fuel storage tanks are not mentioned. If the details relating to the means and location of fuel storage is an essential relevant matter for consideration by Council prior to a determination to grant development consent, then in my opinion the Council did not properly consider the matter or at least deferred it for future consideration.
The best that the Council can make of the situation is the evidence of Mr Kloczko who says he had an understanding of how a service station operates and the role of fuel in the operation of that type of development. There is no evidence to show that the Council relied upon this experience. It is the respondents’ case that, in the absence of any evidence that there would be any specific concern about the precise location of the storage tanks or any peculiar or unusual aspects of the land in that context, the issue was not one that would lead to invalidity on the ground that the Council failed to properly consider the matter or at least deferred it for future consideration.
I reject the respondents’ submissions on the basis that the location and means of storage were not self evident matters that could be expected to lie within the knowledge and experience of the members of the Council. Any elevated understanding that Mr Kloczko had in that respect arising out of his own experience, is not relevant unless it can be shown that he communicated that knowledge to the Council. That has not been shown. Furthermore, the Council appears to have deleted the specific proposed deferred commencement condition relating to a fuel storage system based on the solicitor’s advice.
Mr Kloczko’s evidence is that he was satisfied that he was not dealing with a potentially hazardous or offensive industry. He concluded that the proposal was more like a traditional retail petrol station outlet on the outskirts of town, rather than a “bulk” fuel storage which he considered to be more typical of a hazardous industry activity. That opinion does not appear to have been communicated directly to the Council, although the memo of advice regarding the application of SEPP 33 was in the file.
Whether or not the development could be classified as a hazardous or offensive industry is not strictly to the point of the applicant’s claim in respect of this issue. Rather the question is whether the Council did, or was even in a position to, consider the impacts of fuel storage in the context of cl 12 of SEPP 33. The details of that aspect of the development were never provided and accordingly there can be no inference that the Council took them into account before determining the development application.
The lack of geotechnical details in relation to the site only compounds the error. That this aspect of the development was not considered is made clear by the original proposed deferred consent conditions proposed by Mr Kloczko, which required Council approval to a geotechnical investigation. I am entitled to infer, and I do so infer, that the storage of fuel would be in underground tanks and that the geotechnical details of the site would be relevant in that respect. Any reference to the geotechnical investigation was deleted from the deferred commencement conditions following the intervention of the solicitors.
Mr Kloczko’s report specifically noted that the application was not accompanied by expert geotechnical water balance engineering and hydrological studies or design plans “at this stage”. There is no evidence of any explanation provided to the Council to justify the absence of the requirement for geotechnical investigation as a deferred commencement condition. Mr Kloczko states provision has been incorporated into the conditions of deferred commencement to require the submission of hydrologic engineers drawings for Council approval. There was such a requirement at the time he wrote his report, but by the time the solicitors’ amendments had been adopted that requirement had been removed. Although not directly relevant to the issue of a consideration of fuel storage arrangements, the deletion of the requirement to provide the submission of hydraulic engineers drawings for Council approval is once again indicative of the manner in which the application was dealt with by the Council.
An analysis of these issues relating to geotechnical details, fuel storage, SEPP 33 and hydrologic drawings alone is sufficient to show that prior to the meeting Mr Kloczko, at least, held the opinion that a number of matters needed to be addressed in the deferred commencement conditions. These requirements were deleted on the advice of the solicitors for the express purpose of seeking to obscure the fact that the Council had not considered them.
The lack of an opportunity for the Council to consider geotechnical suitability of the site is confirmed by the evidence of Mr Kloczko that he relied upon the statement made on behalf of the second respondent in the SEE that there would be core sampling of the land prior to any work being carried out. He then expresses the following opinion:-
I considered this standard practice prior to commissioning structural type drawings and prior to lodgement of Construction certificate plans. I also made a physical inspection of the site independently. I also carried out inspections of the site with the Council’s consulting engineer Rodney Wallace and Council’s works engineers Bruce Hillier. Based on the advice provided to me by the engineers and my own expertise, experience and local knowledge I was satisfied with the assessment that the land was suitable as a service centre site.
Although it is difficult to see how Mr Kloczko could become satisfied in respect of geotechnical matters as a consequence of his physical inspection of the site and his own expertise, experience and local knowledge, nevertheless there is no evidence that he communicated his abovementioned opinion to the Council.
Mr Robson SC submits on behalf of the Council, that it had no reason (nor warrant) to consider that geotechnical suitability was a matter of moment. It is difficult to reconcile this submission with the original conclusion by Mr Kloczko (before the advice of the solicitors was received) that geotechnical investigation was required and the ultimate reason for the decision to ignore the issue. Moreover it is disingenuous to say there was nothing in the material to warrant any further investigation when there was a dearth of any material, to enable a determination one way or another.
The applicant relies upon the decision of Lloyd J in Sell & Parker Pty Ltd v Blacktown Council [2001] NSWLEC 12, unreported, as reflecting the correct approach to the interpretation of SEPP 33. After noting the definitions of “potentially hazardous industry”, “hazardous industry” and “potentially offensive industry” and “offensive industry” Lloyd J identified the relevant parts of SEPP 33 and in particular for present purposes Part 3 which applies to potentially hazardous and potentially offensive industries. Part 3 requires an applicant for such development to prepare, in accordance with the current circulars or guidelines published by the Department of Planning, a preliminary hazard analysis and to submit the analysis with the development application.
Lloyd J agreed with the finding in Rudman v Tweed Council Land and Environment Court of New South Wales No 10214 of 1993, 28 September 1993, unreported, where Bignold J held that the requirements of cl 12 of SEPP 33 are properly to be regarded as directory and not mandatory. Accordingly it follows that non compliance with the requirements of Part 3 of SEPP 33 does not necessarily produce invalidity in the resultant action. That is so if, at least, it can be shown that there has been substantial compliance with the requirements.
It is submitted by the applicant that the second respondent specifically breached its obligation under cl 12 of SEPP 33 by failing to provide a preliminary hazard analysis to ensure that the Council had sufficient information to assess whether the development was hazardous or offensive and whether to impose conditions to reduce or minimise any adverse impact pursuant to cl 12.
The memo of advice prepared for the second respondent on 15 January 2004 and produced to Mr Kloczko relies upon and suggests a proposed deferred commencement consent to enable Council to fully satisfy the requirements of cl 13 of SEPP 33 in respect of potentially hazardous and potentially offensive industries. In my view it is not a proper approach to defer the preparation and submission and consideration of a preliminary hazard analysis by making it the subject of a deferred commencement condition of consent. The submission made on behalf of the second respondent to the Council prior to its determination appears to assume that the proposed deferred commencement conditions would cover that contingency. Irrespective of the understanding or expectation that the second respondent held at that time, the deferred commencement conditions did not make any provision in that respect. In particular, there is no reference at all to the means by which petrol would be stored nor is there an analysis of the risks associated with the handling of petrol and other fuels on the site.
It is not acceptable for a fundamental and relevant matter, where the issues could go to the essence of the subject of the consent, to be left for analysis and consideration after consent has been granted. The requirements of SEPP 33 are relevant matters that need to be taken into account prior to determination of a development application.
Section 80(3) of the EP&A Act must not be regarded as a panacea that allows a Council to defer such essential matters for future consideration (see Remath Investments No.6 Pty Ltd v Botany Bay Council (No.2) unreported Land and Environment Court No.10649 of 1996, 11 December 1996 as adopted by the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181 at 204). Accordingly the failure to take any of the steps required by SEPP 33 in respect of what is prima facie a potentially hazardous development is a significant omission on the part of the applicant for development consent and the Council respectively.
The suitability of bore water supply
The issue of the availability and use of bore water is discussed in the SEE. There is sufficient analysis and discussion of water servicing and infrastructure issues in the report by Mr Kloczko to Council on 19 January 2004 to enable proper consideration for the purpose of the development application. The approval of the development did not turn on whether bore water was available for any particular purpose. Notwithstanding several alternatives were put forward in that respect. In particular Mr Wallace dealt with the subject extensively in his report recommending that any final decision be deferred until Council resolves a number of outstanding policy issues.
I do not consider the issue of the bore as a matter of such paramount importance that it was essential for it to be finally resolved or dealt with at the time of determination of the development application. There were a number of possibilities as to the way in which the bore water could be utilised either directly onto the site or through the water reticulation system for the town of Gunning. In either case the development can proceed irrespective of the outcome of the deliberations in that respect. The Council was sufficiently alerted to the issues surrounding the use of the bore water by the summary of the planning focus meeting and the specific reference to the potential capability of the bore in Mr Kloczko’s report to Council, as well as in Mr Wallace’s report at its meeting on 19 January 2004. This is not a matter which could lead to a declaration of invalidity on the basis that the Council failed to properly consider the suitability of the bore water supply as a potable water supply.
Lighting
The applicant’s case in this respect relies primarily on the lack of any information in the SEE regarding the proposed lighting of the facility except in a minor respect.
At least three residents specifically made reference to concerns about the level of lighting and the potential to have an adverse impact on residential amenity. For some obscure reason described as a “commercial in confidence matter” a statement regarding the proposed use of specialist lighting with deflectors to ensure light spill is contained within the site was deleted from the reference documents placed before Council. However two Councillors expressed concern in respect of the lighting issue during the discussion at the Council meeting on 19 January 2004.
The deferred commencement conditions require that details of exterior lighting and advertisements be submitted for the approval of the Environmental Services Manager and further that the outdoor lighting design conforming to AS.NZ 1158.1.1:1997 or approved updated standards be submitted for the approval of the RTA in relation to the proposed interchange. Moreover, operating condition number 20 requires the applicant to monitor the impact of lighting from the site and make required modifications to the satisfaction of Council prior to occupation of the service centre.
It is apparent therefore that the issue of lighting was squarely raised before the Council as a consequence of submissions made by residents and observations by Councillors about their concerns at the crucial meeting on 19 January 2004. These concerns are properly reflected and dealt with in the deferred commencement conditions and condition 20. The conditions recognise that concerns about lighting need to be addressed in accordance with recognised performance standards and that both the Council and the RTA are required to be satisfied in that respect before the development consent operates. Even then monitoring to a specified standard is required before operations commence.
Economic impacts
The alleged failure of the Council to consider the possible economic impacts of the development is an issue which attracted significant attention from Mr Stewart-Richardson.
A number of residents supported their objections to Council by reference to the potential for the development to cause hardship to town traders and businesses that presently derive significant benefit from the flow of traffic through the town.
The applicant relies upon the purported assessment of the economic impacts appearing in the SEE and the references to economic matters in Mr Kloczko’s report to support an ultimate submission that there is a strong inference the Council did not properly take into consideration the economic impact. It is suggested that the references are merely advertence to the subject unsupported by any statistical analysis or evidence in the form of a breakdown of expected jobs or the types of jobs that might become available.
The applicant’s submission is riddled with assertions about a self evident likelihood of adverse impacts occurring. The Court is entitled to attribute an awareness of such likely self evident matters to local Councillors representing a small community. Moreover, there was ample material provided by the objectors to alert the Council to the prospect of adverse impacts. On the other hand, the second respondent’s submissions to Council advocated and concentrated upon the potential economic benefits to the local community not only from the point of view of increasing job opportunities but also by offering additional convenience from the retail outlet within the highway service centre.
In the circumstances it cannot be said that the Council did not have sufficient relevant material to enable it to weigh up and balance the competing arguments in respect of the economic impact upon the town of Gunning. The complaint now made by the applicant is more in the nature of a challenge to the merits of the decision rather than an issue in respect of the validity of the decision.
The applicant relied upon the consideration by Pain J in Centro Properties v Warringah Council (2003) 128 LGERA 17 where the economic impact on the locality was never identified as a relevant issue for the Council. That case is clearly distinguishable on its facts. In my view it is not imperative for a Council to require the undertaking of independent inquiries and reports to assist it to make a decision in respect of a matter about which it is able to make a rational judgement for itself. The latter position prevails in respect of this issue, at least to an extent sufficient to meet the challenge by the applicant.
Noise
Once again the Council had the benefit of information in the SEE and numerous submissions from objectors who raised concerns about the potential impact of noise from the development. An acoustic study by an expert was provided. Mr Kloczko relied on it in his report and opined that the proposed noise levels and treatment are considered appropriate for the site and the conditions thereon. Condition 16 of the consent requires the developer to submit a report from an approved acoustic consultant confirming that the design of the centre includes noise attenuation measures sufficient to meet the requirement of a level of 50dB(A) measured at the boundaries of both nearest residential properties.
A primary complaint is that the noise study submitted by the applicant was patently inadequate. Moreover, changes were made to the location of truck access to the site following the completion of the expert’s report so that the impact of these changes was not the subject of his advice to the Council. The Court is expected to reject the adequacy of the acoustic report on its face without any supporting evidence to assist the adjudication of that issue. I am asked to rely solely on the condemnation of the report in submissions.
Even if the Council was incorrect to adopt the acoustic report and to accept that the measures proposed would be adequate, that is not a basis for setting aside its decision unless the determination was so unreasonable that no consent authority properly advised could have come to the same conclusion. The report indicates that if the intrusive noise levels of less than 50dB(A) are maintained at the boundaries of the adjoining properties, the recommended maximum in order to prevent sleep arousal would be achieved. Condition 16 is a clear indication that the Council took cognisance of this advice when it made provision for confirmation that noise attenuation measures would enable that requirement to be met prior to occupation of the service centre. Furthermore condition 10 dictates ameliorative measures during the construction period in order to reduce noise nuisance
Submissions made to Council
The applicant submits that the first respondent failed to consider public submissions. The argument is based upon an inference that the collegiate mind overtly dismissed the submissions. Furthermore Mr Kloczko is alleged to have quarantined the consideration of submissions by giving a meaningless statistical summary in his report.
There is no critical weight of evidence that supports the suggestion that the Councillors effectively dismissed or failed to give sufficient weight to the public submissions by having a higher regard to alleged election promises or other extraneous matters regarding the future of the service centre, as Mr Stewart-Richardson alleges.
Not only did Mr Kloczko summarise the submissions for the convenience of the Councillors, but the submissions were available to be inspected in the Council’s file, as one of the Councillors confirmed in his evidence. The report of the planning focus meeting was tabled.
Evidence in relation to some of the debate and the discussion at the meeting on 19 January 2004 has been recorded by witnesses. It shows that there was significant support from Councillors who spoke at the meeting and at least one of them reiterated a long standing historical commitment to the establishment of the highway service centre. Although some of the comments indicate a lack of understanding of the effect of a deferred commencement consent rather than “agreement in principle”, the claim that the Council took no account of the public concerns and summarily dismissed them cannot be supported.
The evidence of the views expressed by some individual Councillors can be relevant evidence in certain circumstances (Emritus v South Sydney Council [1990] NSWLEC 8, unreported 1 February 1990). However the views expressed by individual Councillors will not generally be indicative of what motivated the collegiate decision. The evidence in this case does not rise to the point where I can find, on the balance of probabilities, that the Councillors chose to ignore the public submissions.
The fact that the ultimate decision of the Council was made contrary to and in the face of public submissions does not lead to an inference that the submissions were ignored. Indeed the opposite is the case as the Council took specific steps to exhibit the proposal over an extended period, arranged the planning focus meeting and allowed ample opportunity for there to be public participation in the debate at the meeting on 19 January 2004 to the point where the Councillors, in my opinion, would have been made acutely aware of the issues raised by the objectors.
Heritage significance
For the purposes of Gunning LEP 1997 a heritage item includes a building described in Schedule 2. Schedule 2 contains the following entry:-
Building known as 22 Hume Street, Gunning
Pursuant to cl 31 the Council must take into consideration the likely effect of proposed development on the heritage significance of an heritage item and its setting when determining an application for consent to carry out development on land in its vicinity. It is not in dispute that 22 Hume Street Gunning is the address of the Do Duck Inn.
Heritage significance is defined by cl 29 of the LEP to mean historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance.
The property at 22 Hume Street comprises a complex of four buildings that is operated as a bed and breakfast, café and residence.
Nowhere in his report does Mr Kloczko directly address the heritage significance of the property. I do not have evidence of the identity of the specific building known as 22 Hume Street, Gunning referred to in Schedule 2 of the Gunning LEP except that the parties have referred to it as the Do Duck Inn.
In July 2004 Lindsay Maxwell Smith, a Senior Archaeologist retained on behalf of the second respondent, prepared a heritage assessment of the Do Duck Inn. It is significant that the assessment was prepared by Mr Smith only for the purposes of these proceedings. It was not available to the Council at the time of the determination on 19 January 2004. Irrespective of Mr Smith’s conclusion in relation to the impacts of the proposed development on the Do Duck Inn, which are predominantly benign, there is no evidence which supports even an inference that the Council or any of its officers specifically directed their attention to the provisions in the LEP in respect of the heritage item and its heritage significance.
Mr Kloczko did report on the proposed building design, its architectural character and the visual impact of the proposed development. In so doing he made observations regarding the overall character of the proposed building and its lack of charm, character or vernacular of traditional rural style dwellings found in Gunning Shire. No reference is made specifically to any building at 22 Hume Street in the context of it being a heritage item. Even the subsequent assessment carried out by Mr Smith does not analyse the heritage significance of the Do Duck Inn in detail except generally in the context of the composite area comprising the Gunning township.
The evidence of Mr Smith was originally read only in respect of the issue of discretion. However subsequently objections to the evidence were withdrawn and his heritage assessment became evidence in respect of the principal issues. Nevertheless the assessment was not available at the time of determination and accordingly has no bearing upon the extent to which the Council considered the matters.
Even so, I set out below the ultimate findings of Mr Smith in relation to mitigation measures suggested by him to demonstrate the nature of the matters that the Council might have been expected to consider if it had fulfilled its obligations under the provisions of the LEP. These findings were as follows:-
4. MITIGATIVE MEASURES
As a result of the above findings, it is suggested that any development in the vicinity of the heritage listed property known as 22 Hume Street, Gunning (the Do Duck Inn) should:
Be cognisant of the heritage significance of the buildings at that place;
Not be intrusive to the place; and
Be sympathetic to the form and colour of the place, and to the form and colour of other heritage listed places within Gunning township.
In this regard, it is suggested that:
Any development in the study should be screened from the adjacent heritage listed building(s) by some form of natural screening, such as, scrubs, trees and the like; and
The form and colour scheme utilised in any development should be sympathetic to that of the adjacent heritage listed building(s) and to other heritage listed places within Gunning township.
Although the Council may have indirectly dealt with some of the issues, nevertheless they were not conclusions reached as a consequence of fulfilling an obligation under the LEP. The specific heritage significance of the Do Duck Inn simply did not arise.
In Hill v Woollahra Municipal Counciland Others (2003) 127 LGERA 25 the Court of Appeal, and in particular Hodgson JA, expressed the view that it was not necessary for a council to refer explicitly to the statute or instrument that poses a question for consideration. Although the Council may have accidentally addressed the substance of some of the questions that arose pursuant to the heritage provisions of the LEP, it did not cognisantly address the heritage significance itself. It is not the absence of a specific reference to the provisions of the LEP that leads to the conclusion that the Council did not fulfil its obligations but rather there is no evidence that it took any account of the heritage significance of the Do Duck Inn. Even despite the evidence of Mr Smith the specific significance of the Do Duck Inn still remains equivocal.
Stormwater and grey water management
The SEE informed the Council that a waste and stormwater management plan will be prepared and submitted to Council for approval prior to the commencement of any approved works or activities. It nonetheless identified initial concepts for the management of waste and stormwater. These were unsupported by any detailed engineering design plans or calculations. A statement in similar terms was made in relation to erosion control and water quality in respect of which an Erosion and Sediment Control Plan was foreshadowed prior to any commencement of approved works.
Mr Wallace made some suggestions in his report in respect of the collecting and storage of stormwater and the grey water treatment process. Mr Kloczko identified these matters in his report to Council noting that the applicant was agreeable to addressing the issues and that they would be dealt with in the operational conditions of the consent. Mr Kloczko also refers to the prospective preparation and submission of an effluent management plan for approval together with detailed hydraulic design plans and calculations prior to the issue of a construction certificate. The initial concepts for the management of waste and stormwater were outlined by Mr Kloczko.
Deferred commencement condition 3 requires the applicant to submit details of final design plans for the landscape irrigation scheme using treated grey water from the service centre and hardstand issues for the approval by the Environmental Services Manager. In my view this is an appropriate use of a deferred commencement condition, particularly where, as in this case, the development application was supported by the lodgement of a landscape plan and report.
Operational condition 11 in the development consent requires the incorporation of the use of AAA rated water saving devices throughout and conditions 24 and 25 deal with the collection of waste water and grey water effluent recycling.
It would have been preferable for the Council to have some greater understanding of how the site would be managed in this respect. However there is no evidence of any particular characteristic of waste water and stormwater that demands special consideration such that would place the Council under an obligation to be further appraised of the details in order to properly consider them as relevant matters before making a final determination of the development application. In the circumstances they were matters properly left to be dealt with by conditions.
Potential Pollution
Mr Stewart-Richardson submits that, as there was no information to inform the Council about the risks posed to users of the service centre or surrounding land occupiers by explosion, corrosion or contamination, the Council clearly failed to consider these matters. In the absence of the identification of any particular issue that should have been self evident to Council arising from its consideration the emission of potential pollutants in and from the site is not necessarily a matter that arises for independent appraisal. However this issue is largely subsumed by the failure to give proper attention to the provisions of SEPP 33 dealt with earlier.
Conclusion
In summary, there were a number of matters that the Council failed to take into account prior to the determination of the development application. The lack of any information regarding the proposed fuel storage system raises the unanswered inference that the Council did not address the issues associated with that aspect of the development. In particular the Council made no effort to understand whether there were likely to be any geotechnical impacts, and then inappropriately, left for future consideration the requirements of SEPP 33. It is in this respect that the significance of the advice from the solicitors becomes manifest and points to overt steps taken by the Council to diffuse a potential challenge to the consent by deleting conditions that could suggest it failed to properly undertake its obligations pursuant to s 79C of the EP&A Act.
The failure of the Council to comply with cl 31 of its own LEP in relation to the heritage significance of the building known as 22 Hume St Gunning is a fundamental flaw in the process.
The above-mentioned two issues taken alone are sufficient grounds for the Court to declare that the development consent is invalid. However the other peripheral issues raised by the applicant, although not individually sufficiently significant to render the consent unlawful, nevertheless contribute to a finding that the Council was prepared to, and did, approach the proposal as a concept for a highway service centre worthy of an in principle approval. The in principle approval was given on the basis that the details of the design and operation of the development including some significant and fundamental aspects could be dealt with at some future time. The Council could have been in no doubt, after having the benefit of Mr Kloczko’s report, that a number of matters were to be left for future consideration. Instead Mr Kloczko and the Council should have insisted that further information be provided by the applicant to enable it to properly and fully take account of all relevant matters during its consideration and if the information was not forthcoming to defer the determination or reject the application according to what was appropriate in the circumstances.
Discussions between Mr Kloczko and representatives of the second respondent and observations made by individual Councillors make it clear that as the window of opportunity for development consent to be obtained was shortly to expire in April 2004, the matter should be dealt with using the deferred commencement process so that an initial consent could be granted in respect of the conceptual idea leaving matters of detail to be addressed in due course. I am not satisfied that the Council was given a proper opportunity to have the degree of understanding of the state of affairs to enable it to make an evaluation of the relevant matters in the manner contemplated by the Court of Appeal in Weal. The Council was simply not in a position to weigh up the overall mass of matters calling for consideration before it determined the development application. A consent authority does not take relevant matters into account by merely averting to them in the conditions of consent and requiring them to be addressed and approved in a particular way after the consent is granted.
A consent authority cannot avoid its obligation to consider what impacts may arise as a consequence of carrying out development by remaining ignorant of those matters. It is obliged to inform itself or require an applicant for consent to inform it so that it can properly determine what likely impacts can arise. I consider that the proposed development was of a sufficiently unusual kind and sufficiently extensive in nature for the Council to take steps to properly inform itself in respect of all matters not within its own expertise or normal understanding. This did not occur in the several important respects identified above as well as a number of peripheral matters. Accordingly I find that the applicant has made out its case and is entitled to a declaration that the development consent granted by the first respondent to the second respondent on 19 January 2004 is invalid and of no effect.
The issue of discretion has been left for evidence and further argument at a continuation of the hearing in the event that I am otherwise prepared to make the abovementioned declaration. There is also a question whether the provisions of s 25B of the Court Act can be applied in the circumstances. Accordingly, I refrain from making any formal declaration or orders at this stage pending further evidence and argument. Appropriate directions will be made for the future conduct of the matter after the parties have had an opportunity to consider these reasons.
In the meantime the exhibits will be retained.
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