Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 4)

[2018] NSWLEC 149

Land and Environment Court

New South Wales

Medium Neutral Citation:	Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 4) [2018] NSWLEC 149
Hearing dates:	19, 20 and 21 June 2018
Date of orders:	20 September 2018
Decision date:	20 September 2018
Jurisdiction:	Class 4
Before:	Moore J
Decision:	(1)   The proceedings are dismissed; (2)   Costs are reserved; and (3)   The exhibits are returned.
Catchwords:	JUDICIAL REVIEW - requests for statements of reasons - document provided by Council not a statement of reasons - document provided by Department not a statement of reasons of the Minister’s Delegate - documents rejected JUDICIAL REVIEW - making of amendment of local environmental plan - provision of zoning map with application for gateway determination - complaint no zoning map provided - indicative layout plan provided - held plan provided sufficient detail to satisfy statutory provision - if plan did not do so, failure did not vitiate process for seeking of gateway determination - Ground 1 rejected JUDICIAL REVIEW - allegation of defective air quality report as part of public consultation process - ground seeks impermissible factual review of report’s conclusion - report’s conclusion not manifestly unreasonable - Ground 2 rejected JUDICIAL REVIEW - failure of Council to consider report lodged concerning desirable curtilage of items listed as local heritage items in LEP - holding out that report would be considered - circumstances of holding out limited - circumstances not satisfied - unnecessary to consider if power to waive requirement for timings of lodgement of submissions - community consultation process did not fail as a consequence of non-consideration of report - Ground 3 rejected JUDICIAL REVIEW - alleged failure to consider likelihood of state heritage listing of expanded curtilage - no basis to believe OEH would have advised expanded curtilage being considered - statutory heritage listing process not commenced prior to making of LEP amendment - expanded curtilage not necessarily in conflict with rezoning - three separate reasons to reject Ground 4 - Ground 4 rejected COSTS - multiple respondents - potential for public interest challenge argument available to Applicant - costs reserved
Legislation Cited:	Campbelltown Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Local Government Act 1993 Heritage Act 1977
Cases Cited:	Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Charlton v Moore (No 2) [2009] NSWLEC 47 De Angelis v Pepping [2015] NSWCA 236 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning (2006) 69 NSWLR 156; [2006] NSWCA 388 Help Save Mt Gilead Inc v Mount Gilead Pty Limited [2018] NSWLEC 88 Help Save Mt Gilead Inc v Mount Gilead Pty Limited (No 2) [2018] NSWLEC 147 Help Save Mt Gilead Inc v Mount Gilead Pty Limited (No 3) [2018] NSWLEC 148 Homeworld Ballina Pty Ltd v Ballina Shire Council (2010) 172 LGERA 211; [2010] NSWCA 65 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Minister for Immigration v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2) [2017] NSWLEC 186 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414; [2004] HCA 63
Category:	Principal judgment
Parties:	Help Save Mt Gilead Inc (Applicant) Mount Gilead Pty Limited (First Respondent) Stefan & Anna Dzwonnik (Second Respondents) The Greater Sydney Commission (Third Respondent) The Minister for Planning (Fourth Respondent) Campbelltown City Council (Fifth Respondent) Lendlease Communities (Mt Gilead) Pty Limited (Sixth Respondent)
Representation:	Counsel: Mr T Robertson SC/Ms J Walker, barrister (Applicant) Ms Z Heger, barrister (First Respondent) Submitting appearance (Second Respondents) Ms I King, barrister (Third and Fourth Respondents) Submitting appearance (Fifth Respondent) Mr N Williams SC/Mr A Shearer, barrister (Sixth Respondent)   Solicitors: Connor & Co (Applicant) Addisons Lawyers (First Respondent) Carter Ferguson Solicitors (Second Respondents) Department of Planning (Third and Fourth Respondents) Marsdens Law Group (Fifth Respondent) Addisons Lawyers (Sixth Respondent)
File Number(s):	370175 of 2017
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The Mount Gilead land

Introduction

The relevant statutory planning provisions

The Further Amended Summons

The relief sought

The general introduction to the grounds

The “Statements of Reasons”

Introduction

The basis for seeking a “Statement of Reasons”

What constitutes a Statement of Reasons?

The dispute about the Statements of Reasons

The Council document

The departmental document

Ground 1

Introduction

The relevant statutory provision

Ground 1 - a sufficient explanation of the provisions of the proposed LEP amendment was provided

The requirement for a zoning map was satisfied

The initial absence of a formal zoning map

The January 2015 amended planning proposal

The Council’s process leading to public exhibition of the planning proposal

Public exhibition of the planning proposal

The statutory requirement for the existence of a zoning map

The Council’s “primary indicative layout plan” was sufficient

Consideration of Ground 1 - the requirement did not need to be satisfied

Introduction

Submissions that the requirement did not need to be satisfied

Consideration

Conclusion on Ground 1

Ground 2

Introduction

Three procedural skirmishes

The Wilkinson Murray report

The confined scope of this ground.

The 2009 peer review

The 2012, 2013 and 2014 material tendered by the Association

The focus of the Association’s air pollution complaint

The air quality material tendered by Lendlease

Consideration concerning the air quality material

Conclusion on Ground 2

Ground 3

Introduction

The relevant chronology

The Association’s submissions

Consideration

The material resolved to be put on exhibition

The fallacy advanced concerning the Council vote

Conclusion on Ground 3

Ground 4

Introduction

The Association’s pleadings

Consideration

Introduction

The OEH position

The statutory processes under the Heritage Act

The relationship between zoning and heritage protection

Conclusion on Ground 4

Costs

Orders

JUDGMENT

Introduction

1. It is appropriate, at the commencement of this decision in judicial review proceedings, to record some important matters concerning the scope of the matters I am required to decide.

2. First, it is appropriate to set out a short-list of things about which I am not making any determination. They are:

• the merits of the proposed subdivision of land at Mount Gilead, an area some seven kilometres to the south of the Campbelltown CBD;

• what should be the extent of any heritage curtilage around a number of items listed as being of local heritage significance in the Campbelltown Local Environmental Plan 2012 (the LEP);

• what are likely to be impacts on residents within dwellings constructed on land rezoned for residential purposes at Mount Gilead; and

• what might be the impact on regional air quality of the rezoning of land at Mount Gilead for residential purposes and the subsequent residential development that would result on such land.

3. On the other hand, it is appropriate to set out a short-list of matters which Help Save Mount Gilead Inc (the Association) says should lead me to conclude that the making of Amendment No 2 to the LEP occurred in a fashion that was defective and should cause me to conclude that that amendment (being the amendment to the LEP which rezoned land at Mount Gilead for, primarily, residential purposes) was invalid.

4. The Association presses four grounds as to why the 2017 amendment to the LEP should be set aside. In summary, these complaints are that:

• the 2012 proposal submitted to the Minister for Planning and Environment (the Minister) to gain approval for the founding gateway determination lacked information that was required by the Environmental Planning and Assessment Act 1979 (the EP&A Act) and thus the resultant gateway determination was invalid;

• during the processes undertaken by Campbelltown City Council (the Council) in assessing and approving the proposed rezoning for submission to the Minister, the Council failed several of the compulsory processes set by the EP&A Act in a fashion that meant that the proposal approved by the Council was invalid; and

• the Delegate of the Greater Sydney Commission (the Commission), who made the determination that had the effect of making the challenged amendment to the LEP, did not validly do so. This was because the material provided as the basis for assessment was deficient and thus the processes required to be carried out by that Delegate were defective and that this rendered the amendment to the LEP invalid. In this context, it is to be observed that the Minister delegated to the Commission the role of determining whether the LEP should be amended and that, in turn, the Commission delegated that role to an authorised officer of the Department of Environment and Planning (the Department) to carry out that function.

5. The Association makes no complaint about the validity of the delegations described immediately above.

The Mount Gilead land

Introduction

6. The land at Mount Gilead requiring consideration in these proceedings is not confined merely to the land which was rezoned as a consequence of the amendment to the LEP. It is also necessary to have regard to land generally to the south-west of the rezoned land and the European structures erected thereupon. All of this land can be described, in general terms, as being the Mount Gilead Estate (although the various elements comprising the Mount Gilead Estate were aggregated over time, as discussed in the brief history noted below of the Mount Gilead Estate).

7. The land covered by the challenged amendment to the LEP comprises part of the landholdings which formed the historic Mount Gilead Estate and the totality of the land in the Hillsborough Estate. In the Navin Officer/Tropman & Tropman Architects report of October 2015 (prepared in support of the challenged rezoning proposal), entitled “European Heritage Assessment of Mt Gilead” (Evidence Book, Tab 64), these consultants, in supporting the rezoning proposal from a heritage context, described:

1. the ownership sequence of the Mount Gilead Estate since the first land grant of its founding portion was made in 1812. The history of the accrual of additional land, over the years up until the middle of the 20th century, was also included; and

2. the history of the landholding known as the Hillsborough Estate, the landholding in the central-eastern portion of the land which has been rezoned by the challenged LEP amendment.

8. The report also discusses the three items listed as matters of local heritage significance in the LEP that are called up for potential consideration in Grounds 3 and 4 pressed by the Association. These are:

1. the Mount Gilead Homestead complex, a complex constructed from the mid-1810s;

2. the windmill used for grain crushing and which was constructed in 1836;

3. the artificial lake which was constructed in 1825; and

4. the curtilages said to be necessary to protect their heritage values and significance.

9. Included amongst the material initially submitted to the Department by the Council was an indicative layout in different colours. For the present purposes, I have marked it to give locational context to the three relevant local heritage items. The Mt Gilead Homestead complex is circled in blue; the windmill in green and the artificial lake in red. A copy of the plan is reproduced below (Evidence Book, Tab 17, folio 371):

The relevant statutory planning provisions

10. The relevant statutory provisions requiring consideration in these proceedings are ss 55 to 58 of the EP&A Act. Although these provisions were renumbered as a consequence of the adoption, from 1 March 2018, of a Dewey decimal numbering system for the entirety of the EP&A Act, that renumbering did not effect any changes of substance to the provisions here engaged.

11. It was convenient, during the course of the hearing, to refer to the numbering of these legislative elements in the fashion that applied as at the relevant dates requiring consideration. The relevant sections are set out below:

55   Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal

(1)   Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).

(2)   The planning proposal is to include the following:

(a)   a statement of the objectives or intended outcomes of the proposed instrument,

(b)   an explanation of the provisions that are to be included in the proposed instrument,

(c)   the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117),

(d)   if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument,

(e)   details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.

(3)   The Secretary may issue requirements with respect to the preparation of a planning proposal.

56   Gateway determination

(1)   After preparing a planning proposal, the relevant planning authority may forward it to the Minister.

(2)   After a review of the planning proposal, the Minister is to determine the following:

(a)   whether the matter should proceed (with or without variation),

(b)   whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal),

(c)   community consultation required before consideration is given to    the making of the proposed instrument (the community consultation    requirements),

(d)   any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument,

(e)   whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body,

(f)   the times within which the various stages of the procedure for the making of the proposed instrument are to be completed.

(3)   A determination of the community consultation requirements includes a determination under section 73A (or other provision of this Act) that the matter does not require community consultation.

(4)   The regulations may provide for the categorisation of planning proposals for the purposes of this section, and may prescribe standard community consultation requirements for each such category.

(5) The Minister may arrange for the review of a planning proposal (or part of a planning proposal) under this section to be conducted by, or with the assistance of, the Planning Assessment Commission or a joint regional planning panel:

(a)   if there has been any delay in the matter being finalised, or

(b)   if for any other reason the Minister considers it appropriate to do    so.

(6)   The relevant planning authority may, at any time, forward a revised planning proposal to the Minister.

(7) The Minister may, at any time, alter a determination made under this section.

(8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section.

57   Community consultation

(1)   Before consideration is given to the making of a local environmental plan, the relevant planning authority must consult the community in accordance with the community consultation requirements for the proposed instrument.

(2) The planning proposal (as revised to comply with the determination under section 56 and in a form approved by the Secretary) is to be made publicly available during the period of community consultation. Detailed provisions may be summarised instead of being set out in full if the Secretary is satisfied that the summary provides sufficient details for community consultation.

(3) During the period of community consultation, any person may make a written submission to the relevant planning authority concerning the matter (other than any matter that is mandatory under an applicable standard instrument under section 33A).

(4)  The relevant planning authority may (but need not) make publicly available, in accordance with the community consultation requirements, the submissions made concerning a matter (or a summary of or report on any such submissions).

(5)   If:

(a)   a person making a submission so requests, and

(b)   the relevant planning authority considers that the issues raised in a submission are of such significance that they should be the subject of a hearing,

the relevant planning authority is to arrange a public hearing on the issues raised in the submission.

(6)   The relevant planning authority may arrange a public hearing on any issue whether or not a person has made a submission concerning the matter.

(7)   A report of any public hearing is to be furnished to the relevant planning authority and may be made publicly available by that authority.

(8)   The consultation required by this section is completed when the relevant planning authority has considered any submissions made concerning the proposed instrument and the report of any public hearing.

58   Relevant planning authority may vary proposals or not proceed

(1)   The relevant planning authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason.

(2)   If it does so, the relevant planning authority is to forward a revised planning proposal to the Minister.

(3) Further community consultation under section 57 is not required unless the Minister so directs in a revised determination under section 56.

(4)   The relevant planning authority may also, at any time, request the Minister to determine that the matter not proceed.

The Further Amended Summons

The relief sought

12. The Association’s Further Amended Summons sought the following relief:

1. A declaration that the Gateway Determination purportedly made by the Director-General of the Department of Planning and Infrastructure on 7 September 2012 in relation to a proposal to rezone land at Mt Gilead is invalid.

2. A declaration that Campbelltown Local Environmental Plan 2015 (Amendment No. 2) is invalid.

3. An order setting aside Amendment No. 2.

13. The Association also sought an order that the Respondents pay the Association’s costs of the proceedings.

The general introduction to the grounds

14. The Further Amended Summons set out some general introductory material before setting out the detailed pleadings in support of the four specific bases upon which the Association sought the primary orders set out in [12] above.

15. It is appropriate to reproduce here the general introductory material but to reproduce the detailed material separately as I address each of the four specific grounds. The general introductory material was in the following terms:

1   The first respondent is the owner of Lot 3 DP 1218887 (formerly Lots 1 and 2 DP 807555 and Lot 59 DP 752042), 901 Appin Road, Mount Gilead.

2   The second respondent is the owner of Lot 61 DP 752042, Appin Road, Mt Gilead.

3   In around 2012, the first and second respondent made a request to the fifth respondent (the Council) to rezone part Lots 1 and 2 DP 807555 and Lot 59 DP 752042 (now Lot 3 DP 1218887) and Lot 61 DP 752042 (the Land).

4   The sixth respondent has entered into agreements with the first and second respondents which will result in it acquiring and developing the Land once planning approvals are obtained.

The “Statements of Reasons”

Introduction

16. The Association sought to tender documents said to be “Statements of Reasons” provided by the Council, and by the Minister’s Delegate. The two documents said to satisfy this description are contained in Exhibit E, Court Book, Tab 9 (what is said to be the Council's reasons for decision forwarding the post-exhibition planning proposal to the Minister seeking that it be given effect by amending the LEP) and Exhibit E, Court Book, Tab 10 (what is said to be a “Statement of Reasons” on behalf of the Delegate of the Commission, being the Delegate who made the amending LEP.

17. Prior to turning to consideration of each of the four grounds advanced by the Association to challenge the making of the amendment to the LEP, it is convenient to deal with the status of two documents sought to be relied upon by the Association. The first of them purports to be a “Statement of Reasons” provided by the Council as the basis upon which the Council made its decision on 22 November 2016 to forward the revised planning proposal to the Minister for the making of Amendment No 2 to the LEP. The second document purports to be a “Statement of Reasons” explaining why Mr Marcus Ray, a senior officer of the Department acting as the Delegate of the Commission, made the amendment to the LEP on 7 September 2017.

18. Although the bases for rejecting each of these documents as constituting a valid Statement of Reasons for the purposes of Pt 59 r 9 of the Uniform Civil Procedure Rules 2006 (UCPR) differ, nonetheless, in each instance for the separate reasons which follow, these documents cannot be accepted for any such purpose and they are, therefore, rejected.

The basis for seeking “Statements of Reasons”

19. The Applicant's submissions on the admissibility of these documents make it clear that both of these resulted from requests pursuant to Pt 59 r 9 of the UCPR. This provision of the UCPR is in the following terms:

59.9   Special procedure where public authority is defendant

(1)   This rule applies to proceedings for judicial review in which relief is sought in relation to a decision of a public authority.

(2)   The plaintiff may, within 21 days of commencing proceedings against a public authority or within such other time as the court may direct, serve on the public authority a notice requiring the public authority to provide to the plaintiff:

(a)   a copy of the decision, and

(b)   a statement of reasons for the decision.

(3)   A statement of reasons for the decision must:

(a)   set out findings on material questions of fact, and

(b)   refer to the evidence or other material on which those findings were based, and

(c)   explain why the decision was made.

20. The document provided on behalf of the Council in response to the request to it pursuant to the UCPR provision set out above is contained in a document entitled “Statement of Reasons”, signed by Mr Jim Baldwin, Director, City Development. The document is undated. At its commencement (Court Book, folio 41), it reads:

Council decision/reasons for finalisation

The decision to advance the subject amended planning proposal to finality and forward it to the Department of Planning and Environment is documented in the report considered by Council at its Ordinary Meeting of 22 November 2016. A copy of such report forms Attachment A.

A copy of the Council minutes in respect of the decision forms Attachment B.

Explanation of reasons for finalisation

An explanation for the reasons for Council's decision, referred to at 1 above and documented in Attachment A is provided below.

21. The document, between folios 41 and 47, purports to be the “Statement of Reasons” as to why the Council adopted its resolution on 22 November 2016. It will be necessary, later, to consider the terms of the Council’s adopted resolution. It is sufficient, at this point, to observe the source and structure of the documents said to be the Council's “Statement of Reasons”.

22. With respect to the request seeking a “Statement of Reasons” from the Delegate of the Commission who made the amendment to the LEP, a Principal Legal Officer, Litigation of the Department of Planning and Environment, wrote to the Applicant's solicitor in the following substantive terms:

We refer to your letter of 16 January 2018 providing notice, pursuant to rule 59.9 of the Uniform Civil Procedure Rules 2006, to provide a Statement of Reasons for the decision on 7 September 2017 to make Campbelltown Local Environmental Plan 2015 (Amendment No 2).

Please find the Statement of Reasons enclosed.

23. This letter and its attached documents are in Exhibit E, Court Book, Tab 10. A copy of the formal amending instrument is in Exhibit E, Court Book, Tab 8.

What constitutes a Statement of Reasons?

24. As Biscoe J said in Charlton v Moore (No 2) [2009] NSWLEC 47, at [22], such a statement needed to be one which was:

… the statement setting out the council’s reasons for the decision [which] would be to the best of its knowledge, information and belief or that of the person providing the statement.

25. It is in the context of this test that I turn to consider the documents from the Council and from the Department that are said to be, for relevant purposes, Statements of Reasons explaining, first, why the Council made its decision on 22 November 2016 and, second, why the Delegate made his decision on 7 September 2017.

The dispute about the Statements of Reasons

26. I granted leave to Lendlease to file written submissions on the adequacy and admissibility of these two documents. Lendlease's objections fell into two distinct categories. First, with respect to each document, that it could not be accepted as a “Statement of Reasons” made by either the Council or by the Delegate with respect to the relevant document. Lendlease also submitted that, if I did not reject the documents on this basis, I should not admit them for the purposes of drawing any conclusions from them adverse to Lendlease.

27. As I have concluded that neither of the documents can be regarded as having a proper foundation to be considered as a “Statement of Reasons” explaining the relevant decision of the Council, or, subsequently, of the Delegate, it is unnecessary to deal with their admissibility. I turn, first, to Lendlease’s submissions on why neither of the documents can properly be characterised as a “Statement of Reasons”. Lendlease’s submissions on this point (submissions filed on 3 July 2018) were in the following terms:

As a starting point, neither of the Reasons can be attributed to the CCC or the Commission (as the case may be). In the case of the CCC Reasons it is signed by an employee of the CCC (CB/9/47) and states “[a]n explanation of the reasons for Council’s decision referred to at 1 above and documented in Attachment ‘A’ is provided below” (CB/19/41). It does not purport to be the reasons of the council itself, being those councillors who made the relevant decision. It does not give any indication as to how it was compiled in this regard. It only purports to be an “explanation of the reasons” made by an employee. It self-evidently is not in a form that complies with r 59.9 of the UCPR. As to the Commission Reasons, there is no authorship attributed to that document and it is not signed at all (let alone, by the Delegate who made the decision).

It says “[t]he reasons are summarised below” (CB/10/213). It too is not in a form that complies with r 59.9 of the UCPR. Leaving aside the specific issues of admissibility discussed below, even on their face the documents cannot be accepted as the reasons of the body or individual who made the relevant decisions.

28. The Council has filed a submitting appearance and, hence, has made no submissions supporting its “Statement of Reasons”.

29. On the other hand, the written submissions from Ms King (submissions filed on 29 June 2018) on behalf of the Minister and the Commission (concerning the document in support of the decision of the Delegate and said to be, relevantly, a “Statement of Reasons” in its support) were dealt with in the following terms:

2   Some features of the Statement of Reasons require consideration:

(a) They are self-evidently drafted in response to a request from the Applicant made pursuant to rule 59.9 of the Uniform Civil Procedure Rules 2005. For the avoidance of any doubt, attached to these submissions is a copy of the letter from Connor & Co dated 16 January 2018 which gave rise to the production of the reasons.

(b)   The Statement of Reasons is signed and dated by Lauren Sims as Principal Legal Officer, Litigation in the Department of Planning and Environment.

(c)   The Statement of Reasons is only intended to summarise the reasons to make Campbelltown LEP 2015 (Amendment No.2) and state “The attached Planning Team Report outlines the reasons for the decision (…).”

(d)   The Statement of Reasons quite clearly refer to, attach and adopt the Plan Finalisation Report (which has not been the subject of objection and clearly predates the decision).

(e)   The Plan Finalisation Report predates the decision.

30. The Association’s written submissions addressing Lendlease’s complaints were, relevant to the preliminary point as to whether or not these documents purporting to be “Statements of Reasons” should be so regarded, was in the following terms:

4 The sixth respondent also complains that the Commission’s SOR was not signed and does not identify the author. This is not a requirement of UCPR 59.9. The SOR was provided under a covering letter from the Department of Planning, which is the Commission’s legal representative in these proceedings and therefore its agent. It was thus issued by the public authority that made the decision. A public authority providing a statement of reasons has a statutory duty to give its genuine reasons for decision, and not an ex-post-facto justification which it believes will stand up in Court. This duty, along with the unlikelihood of the authority making a statement against its interest, provides a better assurance of the statement’s accuracy than a mere signature.

31. Finally, in the submissions in reply on behalf of Lendlease, those submissions address, further, the question of attribution of the reasons. They do so in the following terms:

Attribution of the Reasons

5.   There is a further issue as to the attribution of the respective Reasons to (respectively) the 14 individual councillors and the Commission (or its delegate). This affects their admissibility or the basis on which they could be received, quite aside from the hearsay issues discussed further below. The submissions below reply to submissions concerning this issue.

6. As to the CCC Reasons, A-SAR [7] confuses what might be done in compliance with an obligation to produce reasons (which is what Charlton v Moore (No 2) [2009] NSWLEC 47 addresses) and the admissibility of reasons after they have been produced. The Applicant seeks to tender the CCC Reasons as the reasons of the CCC - that is, reasons of the 14 individual councillors who made the relevant decision (or of the majority who voted in favour of it). The Applicant, who seeks to tender the document, must prove that the document is such. Saying that “there is nothing to suggest that inquiries were not made of Councillors…”, is beside the point and seeks to reverse the onus. There is no evidence to support that they were so compiled. Self-evidently the document is not a document of the 14 individual councillors and cannot be received as such.

7.   As to the Commission Reasons, R3&4-SAR [2(b)] assert that the document is signed by a solicitor in the Department of Planning and Environment. That is not correct, the covering letter enclosing the Commission Reasons is signed by that person. The Commission Reasons is not signed by that (or any other) person. In any event, this would not make it a document of the Commission. Furthermore, the reference to s 155(1)(a)(ii) of the EA is beside the point. The Commission Reasons are not a “public record”. Furthermore, even if it was, s 155 does not affect the question of admissibility - if a record is inadmissible, s 155 does not make it admissible: Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069.

8. For the Applicant’s part, A-SAR [4] recognise that the Commission Reasons “was not signed and does not identify the author”. The Applicant says, however, this is not a requirement of r 59.9. But whatever r 59.9 may require as to this matter does not address the more fundamental issue as to admissibility. Again, the Applicant seeks to tender the Commission Reasons as reasons of the Commission (or the relevant delegate). It must prove that the document is such. There is nothing on the face of the document to establish this. The Applicant acknowledges that the document does not identify its author. The document does not prove itself.

The Council document

32. As earlier outlined, the Council's document, entitled “Statement of Reasons” signed by its Director, City Development, asserts that the basis of the decision arose from the officer’s report which formed Attachment A to the Council’s “Statement of Reasons”. At pages 34 and 35 of that document (folios 81 and 82), there is set out, under the heading “Officer’s Recommendation”, seven elements of a resolution that were proposed as the elements of a Council resolution. It is unnecessary to set out the terms of the seven elements of this proposed resolution (the reasons for this are obvious from that which follows).

33. As also noted in the Council's “Statement of Reasons”, the Council minute, with respect to the decision, formed part of the attached Council minutes (relevantly at folios 202 and 203). This resolution was one in eight parts, the first seven parts of which are in identical terms to the resolution proposed in the Council officer’s report.

34. However, there was an additional eighth element to the resolution, one in the following terms:

The Council write to the Minister for Transport requesting the provision of a bus service from Mount Gilead to and from Campbelltown CBD from day one of the first occupancy.

35. The Council’s resolution was adopted by 11 votes to three. Nothing in the Council’s minutes explains where the final, new element of the resolution came from.

36. In the officer’s report said to comprise the primary element of what was described by Mr Baldwin as the Council's “Statement of Reasons”, there are a number of references to bus services. These are in the Evidence Book, at Tab 91, where the following appear:

• At folio 1448, there is noted an element in the submission from NSW Health concerning early development of a bus service. The report comments on this but makes no suggestion that the Council should adopt any resolution concerning it;

• At folio 1450, there is a comment on the submission made by the Environment Protection Authority (the EPA) concerning the desirability of an adequate bus service as a contribution to reducing private vehicle usage (in the context of air pollution). There is no recommendation for a resolution;

• At folio 1451, Busabout Neville’s Bus Service Pty Ltd is reported as being prepared to provide bus services to the Mount Gilead development area;

• Finally, in the broader discussion of the proposal, at folio 1462, the officer’s report says:

To assist in addressing the impact of vehicle emissions which are a major source of air pollution, negotiations have been held with a local bus company to ensure that an adequate bus service can be provided to the subject site in an effort to reduce private car usage.

37. Nowhere in the officer’s report, which is said to provide the “Statement of Reasons” for the Council’s resolution, is there any suggestion, whatsoever, that the additional element added to the officer’s recommendations by the Council resolution should be so added. In the absence of any explanation for why the variation was made to the officer’s recommendations by the added element of the Council resolution, it cannot be said that the document constitutes a “Statement of Reasons” why the Council adopted the resolution that it did. Although the coincidence of the first seven elements might be regarded as some partial explanation of the reasons for the Council’s resolution, the absence of any explanation for the additional element means that the document purporting to be a “Statement of Reasons” is incomplete in a relevantly material respect and therefore cannot constitute a valid “Statement of Reasons”.

38. On this basis, the Council's purported “Statement of Reasons” is rejected.

The departmental document

39. The departmental letter of 1 February 2018 attached two documents. The first (at Exhibit E, Tab 10, folios 213 to 215) is headed “Statement of Reasons Campbelltown LEP 2015 (Amendment No. 2)”. It commences with the following:

The attached planning team report outlines the reasons for the decision to make Campbelltown LEP 2015 (Amendment No 2).

40. It then sets out, under 13 separate headings, what is said to be a summary of the reasons for making the amendment to the LEP. The entirety of the discussion is one that was put in terms of matters being “quoted”, “noted”, or “concluded”. They are all referenced to the second document being the Plan Finalisation Report (Exhibit E, folios 216 to 248) with, at folio 240, recommendations made (I am prepared to assume proposed to be) to the Delegate but with that document, although having attribution to an author by name and a proposed endorsement by that author’s supervisor, not having any intended recipient identified. The document is unsigned and undated.

41. More tellingly, the first of the documents purporting to be the “Statement of Reasons” is unauthored and unsigned/undated and contains nothing that could provide a basis that could cause me to conclude that it constituted reasons for the decision to the best of “the knowledge, information and belief of the person providing the statement” (as relevant from Charlton v Moore earlier quoted) as there is no indication as to who has provided the statement.

42. It cannot be said that the transmission of the document, by the author of the departmental letter of 1 February 2018, was in any way proposing that the document at folios 213 to 215 was adopted by the author of that letter as being based on that author's “knowledge, information and belief”.

43. Whilst there is no suggestion that the document at Exhibit E, Tab 8 (the formal instrument making the amendment to the LEP) is not a proper and sufficient embodiment of the making of that amendment by the Delegate, there is no proper basis upon which it is possible to conclude that the documents provided under the cover of the departmental letter of 1 February 2018 could be regarded as constituting the reasons of that delegate for exercising his delegated authority to make that instrument.

44. The consequence of this is that, as was submitted for Lendlease as earlier set out, there was no valid Statement of Reasons provided to explain why the Delegate made the instrument.

45. For these reasons, the document purportedly the “Statement of Reasons” of the Delegate is also rejected.

Ground 1

Introduction

46. The basis for Ground 1 was explained by the Association in its Further Amended Summons in the following terms:

Failure to include zoning maps in the planning proposal

5 On or about 25 July 2012 the Council submitted a planning proposal for rezoning of the Land (the Original Planning Proposal) to the fourth respondent (the Minister) pursuant to s.56(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act).

6 The Original Planning Proposal did not comply with s.55(2)(d) of the EP&A Act in that

a.   it proposed to adopt zoning maps for land use zones, but did not include any version of the proposed zoning maps; and

b.   it did not contain an explanation of the provisions that were to be included in the proposed instrument.

7 On 7 September 2012 the Director-General of the Department of Planning and Infrastructure as delegate of the Minister purported to make a determination under s.56 of the EP&A Act in relation to the Original Planning Proposal (the Gateway Determination).

8 The Gateway Determination was invalid because the Council had not complied with a legal prerequisite to the making of a Gateway Determination, namely the submission of zoning maps in accordance with s.55(2)(d) of the EP&A Act.

9   Between 28 April 2015 and 30 June 2015, a revised version of the Original Planning Proposal containing zoning maps (the Amended Planning Proposal) was publicly exhibited by the Council.

10 The exhibition of the Amended Planning Proposal between 28 April 2015 and 30 June 2015 did not constitute community consultation within the meaning of s.57 of the EP&A Act, because no valid gateway determination had been made, and no valid community consultation requirements had been issued.

11   The Council resolved to forward the Amended Planning Proposal to the Department of Planning and Environment (the Department) for making on 22 November 2016.

12 The Deputy Secretary, Planning Services, of the Department, as delegate of the third respondent (the Commission) purported to make Campbelltown Local Environmental Plan 2015 (Amendment No. 2) (Amendment No. 2) on 7 September 2017.

13   The Commission did not have power to make Amendment No. 2 in circumstances where no valid Gateway Determination had been made and no valid community consultation had occurred.

14   By reason of the matters stated in [5]-[13] above, Amendment No. 2 is invalid.

The relevant statutory provision

47. The relevant statutory provisions, s 55(2)(b) and (d), require:

55   Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal

(1)   Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).

(2)   The planning proposal is to include the following:

(a)   …

(b)   An explanation of the provisions that are to be included in the proposed instrument,

(c)   …

(d)   if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument (emphasis added),

(e)   …

(3)   …

Ground 1 - a sufficient explanation of the provisions of the proposed LEP amendment was provided

48. The Association complains that the planning proposal forwarded for gateway consideration in 2012 did not comply with the requirements of s 55(2)(b) because it did not include:

b)   An explanation of the provisions that are to be included in the proposed instrument.

49. The Association’s submissions on this point (Amended Written Submissions filed 14 June 2018 at (7)) were in the following terms:

The Original Planning Proposal also did not comply with s.55(2)(b) because it did not contain an explanation of the provisions to be included in the proposed instrument. The document contained a section headed “Part 2 - Explanation of the Provisions”9 but this was not in substance an explanation of provisions. The first paragraph simply described the land the subject of the proposed instrument. The second paragraph described the existing planning controls. The third paragraph explained why the Council had decided to proceed by way of an extension to Campbelltown Local Environmental Plan 2002, rather than an amendment to Interim Development Order No 15 - City of Campbelltown. Subsequent paragraphs identified the further studies which Council was proposing to commission, and the section concluded with the statement that the outcome of these studies would be used to define the zone boundaries and applicable planning controls. Taken as a whole, the section could be more correctly seen as an explanation of why the provisions of the proposed instrument had not yet been identified, and of the mechanics of doing so, rather than an explanation of the provisions to be included in the proposed instrument.

50. To understand how this objection is to be viewed, it is necessary not only to consider the terms of the letter from the Council to the Department dated 18 July 2012 (and its attachment) but also to consider the terms of the further letter written on 2 August 2012 in response to a departmental enquiry. Both these documents are in evidence (at Evidence Book, Tab 16, folios 342 to 357 and Evidence Book, Tab 16, folios 358 to 385).

51. It is unnecessary to address this complaint in significant detail. An examination of the documentation attached to the two letters from the Council to the Department referenced above makes it clear that the Association’s complaint as to the limitation of the material is, simply, factually incorrect. In addition, unlike the Association’s complaint concerning the alleged non-compliance with s 55(2)(d), one requiring significantly greater detailed consideration as a consequence of the apparently prescriptive nature of that provision, the language of s 55(2)(b) is not in such prescriptive terms.

52. There is significant information across a wide range of topics explaining the nature of the provisions that are expected to be proposed by the Council in the planning proposal to be developed if its application for a gateway determination was to be successful. Setting aside the specific complaint concerning the absences a zoning map (dealt with in detail below), the material contained in the two communications from the Council was clearly sufficient to satisfy s 55(2)(b). As this is obvious from the face of the two documents, it is unnecessary for me to traverse them in any significant detail.

53. It is also to be observed that that which can be seen from the two documents is sufficient, from their contents, to address this aspect of the Association’s submissions concerning the adequacy of this aspect of the gateway proposal.

The requirement for a zoning map was satisfied

The initial absence of a formal zoning map

54. It is common ground that no formal zoning map, as would subsequently be implemented as a result of the amendment to the LEP, was provided at the time the Council resolved, in 2012, to seek a gateway determination pursuant to s 56 of the EP&A Act to permit it to commence the process of considering whether to seek rezoning of land at Mount Gilead. However, the history of the departmental consideration of the forwarded 2012 planning proposal is relevant and is later discussed.

55. Nonetheless, despite the absence of such a formal zoning map, a gateway determination was made on 7 September 2012 permitting the proposal to go through the subsequent statutory steps.

The January 2015 amended planning proposal

56. During the period between the forwarding of the 2012 proposal and early 2015, it is to be inferred that there was further internal work undertaken by the Council. In January 2015, a Council document (Evidence Book, Tab 51) was produced as a revised planning proposal. There is no evidence that any revised gateway determination was sought (or contemplated). This document did include a draft zoning map (folio 788).

The Council’s process leading to public exhibition of the planning proposal

57. On 17 February 2015, the Council was presented with a recommendation from its Planning and Environment Committee.

58. The recommendation proposed that a draft Mount Gilead planning proposal be put on public exhibition. The resolution put to the Council was in the following terms (Evidence Book, Tab 42, folio 681):

1.   That Council place the draft Mt Gilead Planning Proposal and associated documentation on public exhibition.

2.   That upon receipt of community feedback that Council consider adopting the draft Mt Gilead Development Control Plan as an amendment to the Campbelltown (Sustainable City) Development Control Plan 2014 for public exhibition in accordance with the provisions of the Environmental Planning and Assessment Regulation 2002.

59. That meeting of the Council did not adopt this proposed resolution. Instead, it adopted a resolution deferring further consideration of this matter. That resolution was in the following terms (Evidence Book, Tab 42, folio 682):

1.   That this matter be deferred until Councillors have received all reports in relation to this matter.

2.   That Council be provided with a briefing highlighting the holistic approach that is required for this development and further developments in Campbelltown South to proceed.

60. Following this deferral, further relevant steps occurred. The proponents of the draft Mount Gilead planning proposal provided the councillors with the requested briefing on Tuesday 24 March 2015, where they specifically addressed concerns that had been raised by Council. A copy of the presentation given to the Council on 24 March 2015 is in the Evidence Book at Tab 45.

61. This document comprises what appear to be the slides of a PowerPoint presentation given by consultants acting on behalf of the First and Second Respondents. The slides commence at folio 700 and, at folio 712, there is a slide which reproduces, relevantly, a proposed zoning map, including a legend. This proposed zoning map, shown to the councillors in this presentation, is reproduced below:

62. As can be seen, this map covers the same area as the indicative layout plan reproduced earlier after [9].

63. Following the deferral by the Council resolution of 17 February 2015, the Council's Manager - Environmental Planning prepared a subsequent report to a further meeting of the Council's Planning and Environment Committee held on 14 April 2015. The report notes (Evidence Book, Tab 46, folio 732) that:

A copy of all the technical studies prepared to support the draft Mt Gilead Planning Proposal was forwarded to all Councillors in accordance with the abovementioned resolution.

Also the proponents of the draft Mt Gilead Planning Proposal provided Councillors with a briefing on Tuesday 24 March 2015 where they specifically addressed concerns that had been raised by Council. These included the proposed road works to Appin Road and associated funding issues, the proposed fauna corridor through the subject site and the proposed mitigation measures with regard to protecting the visual impact of the any future development on the heritage listed Mt Gilead homestead and mill.

A further briefing was provided on Tuesday 31 March 2015 by representatives of NSW Planning and Environment with regard to the State Government’s Urban Capability Study into the Greater Macarthur South Urban Investigation Area, which includes the Mt Gilead site.

As the Councillors have now had the opportunity to peruse all the Mt Gilead technical reports and have been briefed in accordance with the resolution of 17 February 2015 the following report is resubmitted for Council’s consideration.

64. This report was presented to the Council meeting held on 21 April 2015, at which the Council resolved to place the planning proposal on exhibition. This resolution was in the following terms (Exhibit 63, page 47):

1.   That Council place the draft Mt Gilead Planning Proposal, the associated draft Development Control Plan as well as other associated documentation on public exhibition.

2.   That Council write to the Minister for Planning and Minister for Roads Maritime and Freight requesting:

a.   the Government outline its commitment to the upgrade of Appin Road and other infrastructure relevant to the Mt Gilead proposal.

b.   a timetable be provided for the funded delivery of the upgrade of Appin Road and other infrastructure requirements created by the proposal.

3.   That the public exhibition period be extended to 60 days.

Voting for the Council Resolution were Councillors: Brticevic, Chanthivong, Glynn, Greiss, Hawker, Kolkman, Lake, Lound, Matheson, Mead, Oates and Rowell.

Voting against the Council Resolution were Councillors: Borg, Dobson and Thompson.

Public exhibition of the planning proposal

65. Amongst the documents placed on exhibition was a map showing the zoning proposed to arise out of amendment to the LEP if the planning proposal was to be implemented. This zoning map, which was subsequently attached to the final planning proposal, is reproduced in the Evidence Book at Tab 51, folio 788. A copy of the exhibited zoning map is reproduced below:

66. Although there are trifling differences between this map and that reproduced after [61] (being confined, on my observation, to minor labelling relocations but with the labelling detail and the legend remaining unchanged), the zoning proposal shown to the councillors in March 2015 by the proponents was, functionally, identical to the zoning proposal which was put on public exhibition in the form shown immediately above.

67. As can be seen from that which I have set out above concerning the evolution of mapping of the lands which are the subject of these proceedings, by the time the planning proposal was put on public exhibition for the purposes of satisfying s 57 of the EP&A Act, a proper map, in conventional terms, depicting the changes proposed to be effected to the LEP's land use zoning maps had been incorporated in the planning proposal and adopted by the Council.

68. Having set out the above processes, I note that there is no submission made on behalf of the Association that the map adopted by the Council and placed on public exhibition for the purposes of community consultation on the planning proposal was inadequate for that purpose.

The statutory requirement for the existence of a zoning map

69. The statutory provisions for the existence of a zoning map as part of a planning proposal are, as earlier set out, to be found in s 55(1) and (2)(d) of the EP&A Act.

The Council’s “primary indicative layout plan” was sufficient

70. I have earlier included, for geographic contextual purposes, the schematic depiction provided to the Department by the Council as part of the 2012 application. Although that schematic shows differing coloured designations for various areas shown and a key was not provided with this map to explain what might have been meant by each of the different colours, it is to be inferred as identifying, in imprecise terms, differing future land use characterisations anticipated to arise from the rezoning proposal, if successful.

71. The requirement, in s (2)(d) of the EP&A Act, was that:

if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument

was to be included in the planning proposal advanced by the Council.

72. On 18 July 2012, the Council wrote to the Department forwarding the original planning proposal (Evidence Book, Tab 16).

73. On 2 August 2012, the Council wrote a further letter (Evidence Book, Tab 17) to the Department forwarding additional information. The letter noted (folio 358):

Included in the supporting documentation is a draft indicative layout plan (ILP) which outlines a possible approach of how the subject land could potentially be developed. Council has not yet prepared a draft zoning map as it was not considered appropriate to pre-empt the outcomes of the proposed technical studies. As such Council has followed the same approach that the Department has undertaken with regard to the proposed rezoning of the East Leppington Precinct, by acknowledging a primary ILP [indicative layout plan] but reserving the preparation of a zoning map until all issues, with regard to the capability of the subject site for residential development, have been dealt with.

Council is also reluctant to identify specific boundaries for land likely to be required for environmental protection, stormwater drainage, open space, etc, until further detailed information is available. However, at this early stage, Council is of the opinion that the R1 General Residential zone may be the most appropriate zone for the bulk of the site, as it provides for a variety of housing types and densities.

74. The Council’s letter of 2 August 2012 attached a document entitled “Background information to support the Mount Gilead Planning Proposal” (Evidence Book, Tab 17, folios 359 to 385). At folio 370, the document read (indicative development statistics omitted):

3.0   Land Proposed to be Rezoned

3.1   The MDP Site

The MDP [The Metropolitan Development Program 2010/ 2011 Report] identifies the site, the subject of this Planning Proposal, as essentially a triangle extending south of Campbelltown’s urban footprint. The western boundary of the MDP site diagonally bisects Lot 1 in DP 807985 ending at the south eastern boundary of Lot 2 in DP 807555. The eastern boundary is Appin Road. The total land area of the MDP site is 210ha.

Figure 8 shows an indicative illustrative layout for the site to support the site configuration shown in the MDP. The MDP indicates a yield of 1500 dwellings from the Mt Gilead site. Based on the site area and environmental features and constraints, this would produce a range of lot sizes on average 700sqm in area - summarised indicatively in the following table.

The indicative illustrative site layout confirms that 1500 lots can be achieved in accordance with the requirements of the MDP.

3.2   Concept Plan

A concept plan will be provided as part of the final Planning Proposal, illustrating an indicative residential layout for a quality new suburb that is a natural and logical extension of the Campbelltown urban footprint.

It is intended that development of the site will deliver a broad range of lot sizes consistent with the natural features of the site, the need for environmental buffers and the provision of a legible street layout. Average lot size will be 700 sqm in area so providing a broad choice of dwellings types for potential buyers.

The key features of the Concept Plan will be to:

•   incorporate and maximise the existing landscape and topographical characteristics of the site;

•   retain existing native vegetation and protect and enhance biodiversity and sensitive habitats enhance the existing riparian corridors;

•   protect visually prominent features such as ridgelines;

•   enhance visual links to distant views, heritage features and open space;

•   encourage passive surveillance and increase safety;

•   facilitate sustainable transport and access;

•   maximise solar access for future lots and sustainable design outcomes; and

•   provide a legible and walkable neighbourhood.

The Concept Plan for Mt Gilead is founded on the aforementioned MDP boundary.

75. The indicative layout plan reproduced earlier, at [9], followed on (folio 371) from the above material.

76. A New South Wales Government Planning Team Report dated 23 August 2012 (Evidence Book, Tab 20, folios 393 to 401) addressed the Council’s proposal. Set out below are relevant extracts from the body of the report (emphasis in the first paragraph added by me):

Supporting notes

Council’s second letter to the department, dated 6 August 2012, suggested that a R1 general residential zone may be the most appropriate zone to be applied across approximately half of the 210 ha site. However the range and location of other relevant zones; open space/recreation, environmental has not been indicated. Council has stated: “Council has not yet prepared a draft zoning map as it was not considered appropriate to pre-empt the outcomes of the proposed technical studies … Council is also reluctant to identify specific boundaries for land likely to be required for environmental protection, stormwater drainage, open space, etc, until further detailed information is available.”

The matter has been referred internally to the department’s MDP Team, Metropolitan and Regional Strategy Team and the Strategies and Infrastructure Team.

Advice from the MDP Team is: “The planning proposal does not raise any issues of new urban land - the release has been agreed by government.” As advice from the other two teams has not yet been received, and as the proposal requires substantial background work to determine the firm zoning plan, a condition to the gateway determination is proposed which would require the re-submission of the proposal, prior to public exhibition. The proposal should be re-submitted once technical studies, incorporating preliminary advice from key agencies, are complete, a clear zoning map and provisions are outlined, and advice is received from the department’s own specialist teams.

The proposal was originally submitted on the 25 July 2012, see Attachment 2. As this proposal lacked an adequate conceptual zoning map and written description of provisions - particularly proposed zones, further information was requested. Council provided further information via a letter and report received on 6 August 2012 - see Attachment 3. Further clarification of information was provided on the 13 August.

Other matters that need to be considered

…

The proposal’s consistency with some specific S.117 Directions and SEPPs, will require particularly scrutiny, this is particularly the case for those guidelines that pertain to the location of zones, the protection of the environment, and the provision of support infrastructure.

The proposal’s consistency with these S.117 Directions and SEPPs can only be assessed once the technical studies are undertaken and the range of impacts and the proposed zoning details have been detailed. Assessment will be further informed by the advice of critical agencies, and the Department’s internal specialist teams.

77. It is to be observed that the Council’s letter of 13 August 2012 mentioned above (at the conclusion of the fourth paragraph reproduced from the Supporting Notes) does not appear to be in evidence but, given the content of the subsequent documents discussed below, cannot bear on the question of a zoning map.

78. The Planning Team made six recommendations (Evidence Book, Tab 20, folio 400) to the Department’s internal Gateway Panel. The first of them was in the following terms:

1.   The proposal is to be re-submitted, prior to exhibition, for review by the gateway once technical studies, incorporating preliminary advice from key agencies, are complete and a clear zoning map and provisions are outlined.

79. The second paragraph of the Planning Team’s supporting reasons was in the following terms (Evidence Book, Tab 20, folio 401):

It is anticipated that detailed background studies, and external and internal consultation will resolve any impediments and provide a blueprint for future development of the site. The requirement re-submit will allow the gateway to ensure the matter proceeds to final rezoning on sound planning, environmental and infrastructure basis.

80. However, after considering the Planning Team’s report and recommendations, the Department’s Gateway Panel did not adopt the recommendation of the Planning Team but, instead, made the following relevant recommendation to the Director-General of the Department (as the Minister’s Delegate):

The Planning Proposal should proceed subject to the following conditions:

…

2.   Council is to ensure that a proposed land zoning map is prepared following completion of the necessary technical studies. The zoning map and any other relevant maps are to be included with the planning proposal for the purposes of public exhibition.

81. On 7 September 2015, the Director-General made the gateway determination subject to eight conditions (Evidence Book, Tab 22). The conditions replicated those proposed by the Gateway Panel.

82. It is clear that the final zoning map reflects, although now in precise detail, the various land uses able to be inferred from the indicative layout plan were likely to be proposed by the Council when a formal zoning map was prepared.

83. Unlike the position with respect to the two purported “Statements of Reasons” earlier discussed, there is a clear and coherent chain of provenance between the document submitted by the Council to the Department in the correspondence of 18 July and 2 August 2012 and the making of the gateway determination by the Director-General of the Department on 7 September 2012 to conclude that the indicative layout plan reproduced above at [9] was sufficient for the satisfaction of the Director-General for the purposes of s 55(2)(d) of the EP&A Act.

84. Ground 1 warrants rejection on this basis alone.

Consideration of Ground 1 - the requirement did not need to be satisfied

Introduction

85. However, in addition to there being a proper factual basis upon which to conclude that s 55(2)(d) of the EP&A Act was satisfied, a second, alternative basis was advanced by the Minister and the Commission, as well as by Lendlease, that, if there was no element of the Council's submission which could be regarded as satisfying the provision, nonetheless, the gateway determination remained valid despite the absence of a document satisfying that provision.

86. I now turn to consider this alternative basis upon which the gateway determination might be sustained if my conclusion above that there was a sufficient factual basis for satisfying the provision might be incorrect.

Submissions that the requirement did not need to be satisfied

87. This possible basis for addressing the alleged failure to satisfy s 55(2)(d) can adequately be dealt with by considering the written submissions on this point.

88. First, to understand the complaint made by the Association concerning statutory construction (as opposed to my factual consideration earlier) of s 55(2)(d), it is appropriate to set out, first, the full terms of the Association’s written submissions on this point (omitting citations). The submissions were (Amended Written Submissions filed 14 June 2018 at (10) to (16)) in the following terms:

10.   First, s.55(1) expressly states that before an environmental planning instrument under Division 4 is made, a planning proposal is to be prepared. Section 55(2) then describes the essential elements that a planning proposal must contain. This gives a strong indication, expressed in mandatory terms, that the legislature intended that compliance with each of these elements would be a condition precedent to a valid LEP.

11.   Second, the legislature chose to enshrine these requirements directly in the Act rather than in subordinate legislation.

12.   Third, the s.55(2) requirements play an important function in Division 4 as a whole. The process of creating an LEP is initiated by the formulation of a planning proposal. The concrete details contained in the planning proposal including the proposed zoning maps and an explanation of the proposed provisions provide the basis upon which the Minister decides whether or not to support the plan going to public exhibition with or without amendments, and the public consultation requirements. Then, once the gateway determination is issued and its requirements fulfilled, it is the planning proposal itself, not some other document, which is exhibited. Division 4 permits but does not require the amendment of a planning proposal between the issue of the gateway determination and public exhibition. The planning instrument carrying into effect the planning proposal is not drafted until after the conclusion of public exhibition (s.59(1)). Therefore, of its nature, a planning proposal must be sufficiently concrete to provide a basis both for the issue of a gateway determination and for meaningful public participation.

13.   Fourth, the legislative history of Part 3 Division 4 supports this conclusion.

14.   The Environmental Planning and Assessment Amendment Act 2008 came into force on 1 July 2009. Under the previous scheme, local councils were responsible for the preparation of draft LEPs. It was the draft LEP which would be certified by the Director-General for public exhibition, and the draft LEP which would be placed on public exhibition (unamended ss.65 and 66). The 2008 amendments represented a shift in approach, allowing Councils to prepare more conceptual document in lieu of a draft LEP. However by s.55(2) specifying the contents of a planning proposal, the legislature signalled that a planning proposal had to be more than a mere statement of planning intent. A Council could not approach the minister saying “we would like to zone some land in this neighbourhood for residential purposes; give us a gateway determination now, and we will work out prior to public exhibition the proposed zoning maps and the nature of the provisions to be contained in the new LEP”.

15.   One of the objectives of the new process, as expressed in the Second Reading Speech, was to ensure sufficient justification for the planning proposal early in the process to warrant proceeding with the proposal.13 The s.55(2) elements were an essential part of that scheme, because they ensured that proposals were sufficiently detailed to enable the Minister to decide whether to support or require an amendment to the proposal, and also sufficiently detailed to enable meaningful public participation. Therefore, the legislature must have intended that failure to comply with subsections 55(2)(b) and (d) would produce invalidity of any gateway determination and LEP produced as a result of such a process.

16. The Gateway Determination was issued prior to the commencement of Rule 59.10 of the Uniform Civil Procedure Rules 2005 on 15 March 2013, so it is not subject to the three month time limit for the commencement of judicial review proceedings.

89. Submissions in response were made on behalf of the Minister and the Commission, as well as by Lendlease. It is appropriate to set them out in this order.

90. First, Ms King, counsel for the Minister and the Commission, submitted (footnotes omitted) (Written Submissions filed on 15 June 2018):

4.   The Third and Fourth Respondents deny that technical non-compliance with s 55 (2)(d) has the necessary effect of producing invalidity of any Gateway Determination and LEP produced as a result of the process under Division 4 of Part 3 of the EPA Act. It is not in dispute that proposed zoning maps were not included with the Original Planning Proposal; however the consequences of such a failure do not necessarily require a finding of invalidity of the process under Division 4 of Part 3.

5.   In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 104 CLR 355 (“Project Blue Sky”) the plurality judgment identified that where there has been noncompliance with a statutory process, invalidity of the consequences will only result where there can be “discerned a legislative purpose to invalidate any act that fails to comply” (at [91]). The plurality emphasized that there is “no decisive rule” in making this discernment, indeed, not even “a ranking of relevant factors or categories to give guidance” (at [91]).

6.   In that case, however, the Court identified the following factors as leading to a conclusion that non-compliance with a statutory process results in invalidity:

(a)   Whether the process was an “essential preliminary” to the “exercise of a statutory power” rather than a “breach of a procedural condition”: [92], [94];

(b)   The presence or absence of a “rule-like quality” to the process, whether the process involves questions of policy or administration or a judgment to be formed about whether the process has met a policy standard: [95];

(c)   Whether the process involves goals that are indeterminately framed: [96];

(d) Whether public inconvenience will result if all non-compliant actions are invalidated: [97].

7.   The Second Reading Speech for the amendments to the EPA Act which introduced s 55 in its current form includes the following comments about the introduction of the Gateway Proposal procedure:

“The review process is costly, legalistic, adversarial and not accessible to ordinary people. The planning process adds to the cost of delivering infrastructure and impacts on affordability. (…) We want to ensure our planning system is transparent, rigorous, accountable and efficient. (…) These reforms are also intended to cut red tape and make the system simpler and more accessible, especially for mums and dads and small business.

(…) the big reforms in relation to plan making are those applying to the local environmental plans. The key change is the introduction of the new Gateway process. As the name suggests, the Gateway will ensure there is sufficient justification early in the process to proceed with the planning proposal. This stops wasting time with planning proposals that are not credible. If it is agreed in principle, the planning proposal then can proceed to a full assessment. The Gateway determination settles what assessment is required to develop the details of the plan, including infrastructure needs, what community or agency consultation is required, and whether a public hearing is required. These provisions provide for flexibility and a strong emphasis on effective community consultation.”

8. There are five features here that point to there being no legislative purpose to invalidate any act that fails to comply with its specific requirements of s 55(2)(d):

(a)   First, the legislative purpose of Division 4 of Part 3 of the EPA Act was described in the Second Reading Speech as “intended to cut red tape and make the system simpler and more accessible;” and to “ensure there is sufficient justification early in the process to proceed with the planning proposal.”

(b) Second, the language used in s 55(2)(d) is not sufficiently emphatic to have a rule like quality. As was noted in De Angelis v Pepping [2015] NSWCA 236 (20 August 2015) at [99] the starting point for determining whether a breach of a section of the Act rendered an amending LEP invalid is the language of the EPA Act. In s 55, there is no use of the word “must” nor “shall” in relation to the requirements to include “a version of the maps.” On the contrary, the section suggests an obligation “expressed in indeterminate language” through the more general specification of a requirements to prepare “a document that explains the intended effect of the proposed instrument”.

(c) Third, the structure of the provisions of Division 4 of Part 3 lends weight to a conclusion that s 55(2)(d) was intended to be a merely procedural provision. Section 56(1) conferred a discretion on a relevant planning authority as to whether or not a planning proposal might be forwarded to the Minister. Section 56(2) conferred a discretion on the Minster who has received a planning proposal to determine whether the matter should proceed, be resubmitted, or revised whether after further studies or not. Section 56(8) stated “A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made.” In De Angelis v Pepping [2015] NSWCA 236 (20 August 2015) at [103] (per Sackville JA, MacFarlane and Gleeson JJA agreeing) the Court of Appeal confirmed that a failure to undertake community consultation (despite the seemingly prescriptive terms of the second sentence in s 56(8)) did not render an instrument invalid. The scope of the discretion conferred under s 56 was described by Pain J in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2) [2017] NSWLEC 186 (21 December 2017)

“[97] Section 56 does not specify any explicit mandatory relevant consideration in the context of the Gateway Determination.”

The express power of the Minister to require additional or alternative information under s 56(2) strengthens an analysis that Division 4 is not intended to prescribe “sequential steps in an integrated process.”

Similarly, s 57(2) provided that a planning proposal to be exhibited is to be in a form approved by the Director-General (or Secretary), and not in the form initially provided pursuant to s 55. This strengthens a finding that the s 55 requirement is merely procedural.

Further, s 58(1)-(2) provided:

“(1)   The relevant planning authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason.

(2)   If it does so, the relevant planning authority is to forward a revised planning proposal to the Minister.”

The ability to change the Planning Proposal supports a conclusion that the requirements of s 55(2)(d) were not intended by Parliament to be an “essential preliminary” to the “exercise of a statutory power”. Section 59(2) confers a discretion on the Minister to make a local environmental plan (with or without variation of the proposals submitted by the relevant planning authority) in the terms the Minister considers appropriate.

(d) Fourth, the goals of s 55(2)(d) were met by the Original Planning Proposal. This is not a case where the zoning maps were omitted due to oversight, or due to failure to consider the needs to change the zoning maps. The Planning Proposal states:

“A number of detailed technical studies would be required to be prepared to inform a final planning proposal (…) The outcome of these studies would be used to define the zone boundaries and applicable planning controls within the subject site, and the final planning proposal would include the proposed amendments to CLEP 2002 that would be required to accommodate these changes.”

The Planning Proposal identifies the site of the proposed rezoning, and the existing Zoning Map with the site overlaid. The Gateway Determination that was issued specifically deals with the issue of the zoning maps stating:

“1.   It is noted that Council has identified that additional information regarding flora and fauna, heritage, bushfire, flooding, air quality, economic impacts, social impacts, traffic and transport, geotechnical and mine subsidence and infrastructure will be investigated in detail to support the next stage of the rezoning process. Council is to undertake the necessary technical studies and the planning proposal is to be amended to reflect the outcomes of this work.

2.   Council is to ensure that a proposed zoning map is prepared following completion of the necessary technical studies. The zoning map and any other relevant maps are to be included with the planning proposal for the purposes of public exhibition.”

There is no suggestion that the quality of public participation in the exhibition process was impaired by lack of inclusion of zoning maps with the original Planning Proposal.

(e)   Fifth, in circumstances where at any stage a planning proposal could be amended for any reason public inconvenience is likely to result if an unduly technical approach is adopted in relation to the requirements of s 55. In particular, proponents will be deterred from adopting a flexible approach to planning proposals that reflects the outcome of technical studies to be undertaken. A similar construction of the EPA act was advanced, and rejected by the Court of Appeal in De Angelis v Pepping [2015] NSWCA 236 (20 August 2015) at [108].

91. The written submissions on behalf of Lendlease on this point were (footnotes omitted) (Written Submissions filed on 15 June 2018):

26.   Even if the information provided prior to the making of the Gateway Determination is taken in some way to not strictly conform with an information requirement of ss 55(2)(b) or (d), this does not invalidate the Gateway Determination or the LEP Amendment. Failure to comply with a procedural requirement need not result in invalidity.

27.   In deciding whether an act done in contravention of a statute renders the act invalid, it is necessary to ask whether it is a purpose of the legislation that invalidity should be the consequence of the contravention: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; De Angelis v Pepping [2015] NSWCA 236 at [98] (per Sackville AJA, Macfarlan and Gleeson JJA agreeing). The approach to considering this issue was stated in Project Blue Sky as follows (at 388-389 per McHugh, Gummow, Kirby and Hayne JJ):

165. This, it is said, caused that element of the community consultation process to fail in the fashion proposed by the Association.

Consideration

166. However, it seems to me that this submission, for the reasons explained below, can only have had validity if the elected Council had, at its meeting on 17 February 2015, accepted the recommendation to proceed to public exhibition of the planning proposal as it was at that time.

167. For the reasons which follow, I am satisfied that, on a consideration of the facts in conjunction with the relevant statutory provisions, this ground lacks foundation and is to be rejected.

168. The first step in the path to my reaching this conclusion arises from the fact that, in his report of 17 February 2015, Mr Lawrence was writing in support of a recommendation that the planning proposal be placed on public exhibition in order to trigger commencement of the statutory process. This recommendation, from the Council’s Planning and Development Committee, was rejected by a meeting of the elected Council held on 17 February 2015. Instead of resolving to place the proposal on exhibition, the Council in fact resolved (Evidence Book, Tab 42, folio 682):

1.   That this matter be deferred until Councillors have received all reports in relation to this matter.

2.   That Council be provided with a briefing highlighting the holistic approach that is required for this development and further developments in Campbelltown South to proceed.

169. It can clearly be seen from the terms of the final paragraph in Mr Lawrence's memorandum earlier reproduced that the intention was that the GML Consultants report could be treated as a submission as part of the community consultation process on the planning proposal, provided the recommendation to the Council that the planning proposal be placed on exhibition forthwith, was adopted by the Council when it considered that report.

170. Whilst, technically, the GML Consultants report would not have been a submission complying with the requirements of s 57(3) of the EP&A Act, as it would not have been made “during the period of public exhibition” had the Council resolved (as recommended) that the then proposal be placed on exhibition, nonetheless, the temporal deficiency of what could only have been a comparatively short period of time and would not have made that process an unreasonable one to have been followed.

171. However, as can be seen from what is set out above, that recommendation was rejected and the necessary condition proposed by Mr Lawrence for treating the GML Consultants report on a publicly exhibited planning proposal can be regarded as having lapsed as a consequence of the Council’s determination not to proceed to put the planning proposal to public consultation at that time and to await provision of further material prior to doing so.

172. To the extent there might have been a holding out by Mr Lawrence on behalf of the Council that the GML Consultants report would be treated as a submission concerning the planning proposal, that holding out was contingent, as can be seen from what has been set out above, on the planning proposal being put on exhibition for community consultation within the limited timeframe that would have resulted had the February 2015 recommendation been adopted.

173. It is clear that the undertaking to treat the GML Consultants report as a submission on the planning proposal was not given as an open-ended one (in effect, that the study would be held in escrow until some potentially relevant planning proposal went on exhibition) but was an undertaking given because of the anticipated temporal proximity of the public exhibition of the then version of the planning proposal. It was not some open-ended, temporally unlimited undertaking to treat the GML study as a submission to any future version of any planning proposal that might be advanced for rezoning of any or all of the Mount Gilead land being considered in these proceedings.

174. Even though the undertaking given, as noted in Mr Lawrence’s memorandum, voluntarily accepted a degree of temporal flexibility for treating the GML study as a submission, the fact that the study was not subsequently treated as a submission concerning a planning proposal adopted on a subsequent occasion does not constitute any administrative error of the Council failing to implement its own intention in the sense proposed by the Association in its written submissions in reply, at [15], citing Minister for Immigration v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 at [14].

175. In this process of reasoning, it is unnecessary to consider whether there was any statutory power for Mr Lawrence to give his undertaking concerning the GML Consultants report - there may well not have been in light of the terms of s 157(3) of the EP&A Act earlier set out.

176. I have earlier noted, at [60] and [61], that a presentation on behalf of the rezoning proponents was subsequently made on 24 March 2015 to the Council as requested in the 17 February 2015 resolution.

177. It is necessary to set out what took place within the Council's democratic processes that led, subsequently, to the adoption of a resolution commencing the exhibition process.

178. At a meeting on 21 April 2015, the Council went through a process which did result in a resolution to put the planning proposal on exhibition for public comment. The relevant resolution recorded in the minutes of that meeting of the Council is reproduced above at [64].

The material resolved to be put on exhibition

179. As can be seen, that which was to be placed on exhibition differed, as a package, from that which was earlier proposed to be placed on exhibition (but rejected) some two months earlier. The April 2015 resolution could not be regarded as a mere deferred adoption, in terms, of the recommendation rejected in February 2015.

180. The relevant statutory requirements here requiring consideration concerning the exhibition process which was commenced by the adoption of the above Council resolution were materially different from that which would have been placed on exhibition had the recommendation proposed in February 2015 been adopted by the Council. This can be seen to be the position for two reasons.

181. First, the Council resolution, the adoption of which initiated the processes for public consultation, expressly referenced the draft development control plan provisions proposed to set out the more fine-grained planning controls that would apply to the carrying out of development in the area proposed to be rezoned by amendment to the local environmental plan. This material was not, by implication, available at the earlier time (but even if it had been available at the earlier time, it was not proposed by the rejected resolution in February 2015 so to be exhibited).

182. Second, the report to the Council that provided the basis initiating the Council's deliberative processes on 21 April 2015 leading to the carriage of the resolution to exhibit the planning proposal was in evidence (Exhibit 63). This document set out explanatory material for the elected councillors.

183. Although the explanatory material for the elected councillors who adopted the resolution to exhibit the planning proposal did not expressly refer to the GML Consultants report, this report had been circulated to each of those councillors. Although there is no express mention of it, nonetheless, it is appropriate to have regard to the fact that that material had been in the councillors’ possession at the time they made the decision to place the rezoning proposal on exhibition.

184. There is no valid basis to complain that these councillors were not able to have had regard to the GML Consultants report in their placing the matter on exhibition. However, as earlier explained, that which was put on exhibition differed significantly from that which had been considered and deferred in February 2015.

185. Whilst it is reasonable to assume that the councillors had had knowledge of the content of the GML Consultants report, the earlier temporal nexus with that report and the February 2015 proposal does not provide any basis for asserting that the councillors were mandated, in their April 2015 decision, to have had regard to the GML Consultants report as a submission on that now-to-be-exhibited proposal. Second, there was no obligation, express or implied, that the GML Consultants report would be treated as a submission requiring to be addressed as part of the public exhibition process which commenced after the April resolution of the Council.

The fallacy advanced concerning the Council vote

186. Between the decision in February 2015 to defer placing the proposal on exhibition and the vote on 22 November 2016 (after the conclusion of the public exhibition and further examination period) to forward the planning proposal to the Minister seeking the making of the amendment to the LEP, there was a local government election.

187. The Council election was held on 10 September 2016. There was a deal of change in the composition of the Council as a result of that election.

188. The Association submits that, having regard to the actual vote which took place on 22 November 2016 to proceed with the proposal, the turnover in Council membership meant that the resolution to do so was flawed. The reason for this, the Association said, was that three of the 12 Council members who had voted in favour of the resolution were new members.

189. As a consequence, it was submitted, these new members had not had the GML Consultants report circulated to them, they not having been members of the collegiate council to whom that document was circulated on 17 February 2015 (as earlier discussed).

190. The GML Consultants report was not, for the reasons earlier explained, appropriate to be regarded as a submission during the public consultation process that followed the April 2015 resolution of the Council. There was no holding out, either expressly or by implication, that that document would be regarded as a submission to any future exhibition of any rezoning proposal for the Mount Gilead land. As was earlier explained, the only holding out was an express and confined one which related to the proposal to the Council in February 2015 that was rejected. There was no necessity for, or any mandatory statutory foundation, mandating that the GML Consultants report be treated as a public submission made during any exhibition whenever that might occur when, clearly, this was not the position.

191. On this basis, there was no obligation for the officers (who were reporting on the submissions made during the consultation period), nor on the councillors (in considering the outcome of that public consultation), to have regard to the GML Consultants report. The complaint concerning the November 2016 Council vote cannot be sustained on this basis.

192. Second, however, this submission is, simply, also numerically unsustainable.

193. On 22 November 2016, the Council voted to forward the final planning proposal (Evidence Book, Tab 93) to the Department, which was done under cover of a letter dated 30 November 2016 (Evidence Book, Tab 98). The minutes of the meeting were in evidence at Tab 95 of the Evidence Book. The relevant text is as follows (folios 1593 to 1594):

8.   REPORTS FROM OFFICERS

8.1   Draft Mt Gilead Planning Proposal - Outcome of Public Exhibition

Meeting Note: Mr Smithers, Mrs Durnan, Mr Lonza, Mr Gay, Ms Banister, Mr Kite, Mr Anderson and Ms Clarke addressed the meeting.

Council Resolution

It was Moved Councillor Lound, Seconded Councillor Lake:

1   That Council endorse the amended draft Mt Gilead Planning Proposal generally in accordance with attachment 2 and forward to the Department of Planning and Environment for approval and referral to the Minister for Planning to make the plan.

2   That Council approve the amended draft Mt Gilead Development Control Plan being an amendment to Campbelltown (Sustainable City) Development Control Plan 2015, Volume 2, Part 6 generally in accordance with attachment 3.

3 That notice of Council’s approval of the amended draft Mt Gilead Development Control Plan being an amendment to Campbelltown (Sustainable City) Development Control Plan 2015, Volume 2, Part 6, be published in the local newspaper in accordance with clause 21(2) Environmental Planning and Assessment Regulation 2000, and such notice include a commencement date equal to the date of notification of the amendment of Campbelltown Local Environmental Plan 2015 with regard to the rezoning of the Mt Gilead Urban Release Area.

4   That all those who provided a submission to the public exhibition of the draft Mt Gilead Planning Proposal and draft Mt Gilead Development Control Plan be advised of Council’s decision.

5   That Council delegate authority to the General Manager to sign the application to the Minister for the Environment for the biodiversity certification of the Mt Gilead Urban Release Area.

6   That Council write to Roads and Maritime Services and Transport for NSW requesting assurance that the provision of a safe wildlife crossing of Appin Road will be included as part of any upgrading road-works. Also write to the Department of Planning Environment requesting formal support for this action.

7   That Council advise the owner of the Mt Gilead Retirement Estate that Council would only consider any change to the current rural zoning of the land occupied by the Mt Gilead Retirement Estate being Lot 2 DP 1065919 Glendower Street, Gilead through the lodgement of a site specific planning proposal request.

8   That Council write to the Minister for Transport requesting the provision of a bus service from Mt Gilead to and from the Campbelltown CBD from day one of the first occupancy.

222   The Motion on being Put was CARRIED.

Voting for the Council Resolution were Councillors: Brticevic, Chivers, Chowdhury, George, Greiss, Hunt, Lake, Lound, Manoto, Oates and Rowell.

Voting against the Council Resolution were Councillors: Borg, Moroney and Morrison.

194. As can be seen from the extract from the Council’s minutes reproduced above concerning voting on the finally adopted resolution which triggered the exhibition process, the vote was 12 members of the Council in favour and three members against. Of the 12 members in favour, it is true that three were newly elected members of the Council.

195. For the purposes of exposing this fallacy (and only for that purpose), I am prepared to assume that those three votes in favour of the resolution should be disregarded in their entirety. On that basis, the vote of the Council would be regarded as six votes in favour and three votes against.

196. Such a vote would constitute a majority of those being taken as having participated as being in favour of the resolution.

197. It is appropriate to note, in this context, that s 368 of the Local Government Act 1993 establishes the basis upon which a quorum is to be calculated for the holding of council meetings. A quorum for this Council, being a council of 15 elected councillors, requires the presence of eight councillors (being more than half the number of the elected councillors).

198. Even if I was to treat the three newly elected councillors who voted in favour of the resolution not only as not so voting but also as if they did not exist, for the purposes of determining whether a quorum of the Council was present, there would still have been nine elected councillors present and participating in the vote, clearly a quorum.

199. It therefore follows that, even making the exclusionary assumptions I have been prepared to make for the purposes of addressing this complaint by the Association, the complaint is simply without mathematical foundation. It is rejected.

Conclusion on Ground 3

200. There is nothing arising out of matters put on behalf of the Association concerning this ground which warrants concluding that any of these aspects of the Council’s process miscarried.

201. Ground 3 is rejected.

Ground 4

Introduction

202. The Association complains that the Council failed to enquire into, and have regard to the potentiality for, the adoption of a state heritage listing for the heritage items at Mount Gilead that had already been listed as being of local heritage significance in the LEP.

203. Inherent in such potentiality, the Association submitted, was that a state heritage listing might well have encompassed the listing of a curtilage for such items as might have been inscribed on the State Heritage Register where that curtilage might have been in conflict with proposed development of the land, subject to the rezoning proposal, if the land was so rezoned.

204. It is appropriate, in my consideration of this complaint to set out, first, the relevant elements of the Association’s pleadings contained in the Further Amended Summons and to set out a brief chronology of what took place within the relevant element of the state administration responsible for assessment of, and making recommendations to the Heritage Council about, potential state heritage listing.

205. It is then appropriate, after doing so, to examine whether the validity of this ground is established.

The Association’s pleadings

206. The relevant portion of the Association’s pleadings was in the following terms:

The heritage listing

30   On 1 December 2015, Mr Wayne Smithers forwarded the Curtilage Study to the Office of Environment and Heritage (OEH) with a request to initiate state heritage listing of the Mt Gilead Homestead and its curtilage.

31 Between 1 December 2015 and 8 September 2017, Mt Gilead Homestead and its curtilage, including up to the whole of the land owned by the first respondent referred to paragraph [1] above were being actively considered by OEH or its successor for listing on the State Heritage Register under s.33 of the Heritage Act 1977.

32   When it decided on 22 November 2016 to forward the Amended Proposal to the Department for making, the Council failed to consider the fact that the Mt Gilead Homestead and its curtilage were being actively considered for listing on the State Heritage Register.

33   When it decided on 22 November 2016 to forward the Amended Proposal to the Department for making, the Council failed to make simple inquiries of the OEH which would have disclosed that the Mt Gilead Homestead and its curtilage was being actively considered for listing on the State Heritage Register.

34   In deciding to make Amendment No. 2, the Commission’s delegate failed to consider the fact that the Mt Gilead Homestead and its curtilage was being actively considered for listing on the State Heritage Register.

35   In deciding to make Amendment No. 2, the Commission’s delegate failed to make simple inquiries of the OEH which would have disclosed that the Mt Gilead Homestead and its curtilage were being actively considered for listing on the State Heritage Register.

36 By reason of the matters stated at [30]-[35] above, Amendment No. 2 is invalid.

Consideration

Introduction

207. There are three reasons why this complaint lacks validity. Each of those reasons is, in itself, sufficient to reject this ground. They are:

1. What might have been the response to any such enquiry from the Council or the Delegate to Office of Environment and Heritage (OEH) had it been made;

2. The fact that, in a statutory sense, state heritage listing processes had not commenced at the time the Minister’s Delegate, being the Delegate of the Commission, made the amendment to the LEP; and

3. The interaction between a state heritage listing, if effected, and the potential for development of the rezoned land identified for residential development.

The OEH position

208. It is unnecessary to address the parties’ submissions potentially relevant to the first reason for rejection of this ground as it can be dealt with purely on the bases of the documents that are in evidence. First, it is appropriate to set out a chronology of the public arena interaction of officers of the OEH concerning the possibility of a State Heritage Register listing of land at Mount Gilead. Those interactions can be seen in the table below:

2008	The Heritage Council’s State Heritage Committee considered a draft nomination for listing the early colonial stone buildings and structures on the Mount Gilead estate on the State Heritage Register. The Committee considered Mount Gilead to be impressive and of state heritage significance but further researched was needed to proceed.	EB Tab 32
27 September 2018	OEH Heritage Division officers met with the Mount Gilead rezoning consultant team.	6R’s Written Submissions (WS) at [83]
26 June 2014	OEH advised Council that it had been considering a draft nomination for listing the Mount Gilead buildings since 2008 and that Mount Gilead was likely to be considered for listing as part of the 2014-2015 listing program.	EB Tab 32
27 November 2015	Mr Smithers made a new nomination for state listing.	EB Tabs 73 and 74
1 December 2015	Mr Smithers’ nomination was received by OEH.	1R’s WS at [9]
8 March 2016	OEH resolved Mr Smithers’ letter was a formal nomination.	EB Tab 77
10 May 2016	OEH began preparing draft curtilage plans for discussion.	EB Tab 79
20 June 2016	OEH letter “Subject: Nomination of Mount Gilead Estate to the NSW State Heritage Register” sent to First Respondent.	EB Tab 80
9 November 2016	OEH letter “Nomination of Mount Gilead Estate for inclusion on the State Heritage Register” sent to First Respondent.	EB Tab 88
25 November 2016	First Respondent wrote to OEH requesting further information about the listing.	EB Tab 97
28 November 2016	Letter from First and Sixth Respondents’ consultant to OEH attaching a copy of the zoning map from the Mount Gilead Final Planning Proposal.	EB Tab 96
2 May 2017	TKD Architects (engaged by First and Sixth Respondents) provided OEH with a Preliminary Heritage Assessment.	EB Tabs 106 to 108
August 2017	OEH sent a letter to First and Sixth Respondents’ consultant attaching proposed curtilage plans for discussion. The proposed curtilage was consistent with the planning proposal, in that it did not include any areas subject to residential development.	EB Tab 125
1 November 2017	OEH finalised a briefing for the Heritage Council on the Mount Gilead Estate for consideration at its meeting in November 2017. The briefing rejected the curtilage recommended in Mr Smithers’ request, recommended a restricted curtilage and recommended the Council proceed with a notice of intention of listing.	EB Tab 137
2 May 2018	The Heritage Council resolved to give notice of intention.	6R’s WS at [98]
28 May 2018	Notices of intention to consider listing were given by the Heritage Council.	Transcript, 21 June 2018, page 132, lines 15 to 16

209. Equally, however, are the internal discussions, shown from the documents in evidence, that took place within the OEH itself. To understand this, it is first appropriate to set out a list of those OEH staff involved in these various exchanges:

• Mr Cliff Daylight, OEH Officer (title not known)

• Ms Emma Dortins, Senior Team Leader Listings, Metropolitan Region North

• Ms Lucy Hampton, Acting Senior Team Leader, State Heritage Register Program, Listings Section (as at 12 May 2016); Acting Manager, Listings Section, Heritage Division (as at 27 June 2016)

• Dr Siobhan Lavelle OAM, Manager, Listings, Heritage Division

• Ms Juanita McCarthy, Manager, Metropolitan Region, Heritage Division Office of Environment and Heritage

• Mr Stuart Read, OEH Officer (title not known)

210. The internal email exchanges that are relevant to this point are set out below. The first are from an e-mail chain with the thread running from 10 May 2016 to 28 June 2016 (Exhibit Book, Tab 81):

1. 10 May 2016, Dortins to Hampton:

I’ve just reviewed Cliff’s Mt Gilead report and work flowed it to you. I’ve been through it as closely as I can the past few hours and tried to make sure it lines up with your comments on our draft from last month, and includes all the right information. I’ve asked Winston to provide maps for us, and we should be able to include those within next couple of days. I’ve also asked Cliff to double check that the HOD form is word for word on significance, and asked him to fill out all the ownership etc fields so text is as complete as possible - we’ll tackle images next week - and to pdf and attach it to the main document as soon as possible. Do you think we need to add an additional annexure with the Curtilage Study? - It’s 60 pages, so I just wanted to check with you before we put it in there. Apologies for any shortcomings.

2. 12 May 2016, Hampton to Dortins and Daylight:

Cliff, I’ve just discussed Mt Gilead with Emma while she was here in Parra. I think the Notice of Intention report is a little pre-emptive at this stage as I’m concerned that we haven’t fully liaised with the owner (Mt Gilead Estate). I understand that the company includes the sister and the brother who have conflicting views about listing. Does the company include a third party that we should consult with as well? Who exactly makes up the company? Before we commence the statutory process under the Heritage Act, I think we really need to contact the brother (and any other party) and seek comment on the proposed listing. We need to get a clear understanding of the different viewpoints and give any in opposition the opportunity to understand the listing process prior to commencement. If we commence now, we risk stalling in the middle and having to start from scratch. I’ll review the paper anyway as we’ll be able to use it later (with minor modification).

3. 27 June 2016, Hampton to Dortins and Daylight:

Although Mt Gilead didn’t make it to the June meeting, I have just reviewed the report as promised. I have workflowed it back to Cliff with some amendments and questions. Cliff, text highlighted in yellow needs content and my questions (to be deleted later) is in red text. My main concern is that we have taken the assessment and curtilage straight from the GML report. Although GML is a reputable firm, have we fact-checked any of the info? Are we happy that the assessment best articulates the significance of the site? The curtilage is extensive, should we be going this far considering it’s in a Growth Centre? In the past, we have had to do much tighter curtilages on colonial landscapes. Although a large curtilage is ideal, is it possible? As any SHR listing is OEH property, I don’t think we should cut and paste directly from a consultant report. There could be copyright issues.

4. 28 June 2016, Dortins to Hampton:

Thank you. Your input is really valuable. We are discussing curtilage, and I’ll check that your other comments have been taken on board.

211. On 19 July 2016, there is a further relevant email - from Read to Dortins (Exhibit Book, Tab 84):

Colonial Landscapes of the Cumberland Plain & Camden - consolidated 2 volumes electronically

Check out:

a)   Mt. Gilead entry (and the neighbours: Beulah (SHR/about to be extended - new nomination; Humewood);

b)   the 'learnings from the study' section at the rear - with maps/planning advice/stuff about setbacks and getting a better result and new suburban 'edge' onto reduced curtilages ...

note it was a 2000/1 study, commissioned by the HC of NSW; which recommended immediate listing on the SHR of a bunch (some 45 or so) of items; extensions of existing SHR listings which were inadequate/not representing core historic land use (farming/grazing), key paddocks/drives/ entries/presentation or address to historic roads...

212. The Evidence Book (Tab 87) reproduces a subsequent file note from the OEH file. The author is not recorded. It is in the following terms:

Mt Gilead

Potential ways forward:

Called Stuart Read (18/7) to ask whether he might be able to help us map a smaller curtilage. He was very enthusiastic about an alternative way of operating - ie listing an entire property and then controlling development within it. He feels this is working very well for three properties in Western Sydney:

•   Denbigh, Cobbitty

•   Oran Park, Camden

•   Clydesdale, Marsden Park

Working well in the sense that development can be shaped within the property - instead of having a smaller curtilage with the ugly back fences of MacMansions facing the heritage item on all sides, one can stipulate that the development eg faces the heritage item with single storey, timber fences, landscaping … that it follows the contours, that creek lines and significant vegetation is preserved within the development etc. Stuart seemed to be saying that these results were achieved by means of site specific exemptions, which could act a bit like a DCP … I can see that this may mean a lot of work for us and in fact exceed our capacity at this stage.

213. It is then appropriate to reproduce extracts from two letters sent by officers of the OEH to persons associated with the proposal to develop the land at Mount Gilead involved in the challenged amendment to the LEP.

214. On 9 November 2016, Dr Siobhan Lavelle OAM, Manager, Listings, Heritage Division writes to Mr Lee Macarthur Onslow saying, inter alia (Evidence Book, Tab 88):

We recognise that part of the Mount Gilead Estate is subject to a re-zoning proposal currently with Campbelltown City Council. Listing may not be inconsistent with, and indeed can complement, future development on the site. It should be noted that the Heritage Council has, in the past, supported substantial developments within a number of comparable large rural estates in the western Sydney area, such as Denbigh, Cobbitty; Oran Park, Camden; and Clydesdale, Marsden Park following their listing on the State Heritage Register.

215. On 30 May 2017, Ms Juanita McCarthy, Manager, Metropolitan Region, Heritage Division, Office of Environment and Heritage wrote to Mr Darryl Kite, Director, Old Mill Properties Pty Limited, relevantly as follows (Evidence Book at folio 1791):

Receipt of preliminary heritage assessment for Mount Gilead, 901 Appin Road, Gilead

Thank you for the copy of the Mount Gilead Preliminary heritage Assessment Report by TKD Architects, and meeting on 1 May. The report, along with the Mount Gilead Heritage Curtilage Review (TKD Architects, October 2015) that you previously provided, will help the Heritage Council of NSW progress the State Heritage Register nomination of the place.

The next step is for Heritage Division to prepare the nomination in full. This will include a description of the place and its significant components, a statement of significance and the proposed curtilage for the State Heritage Register listing. We will also work with you to develop any site-specific exemptions for the place.

216. Ms McCarthy subsequently wrote a further letter to Mr Darryl Kite, Director, Old Mill Properties Pty Limited. The copy in the Evidence Book (at folio 1865) is undated. An image of the whole of this two page letter appears below:

217. Finally, it is to be observed that, as one of the attachments to the above letter, there was a marked up air photo entitled “Proposed State Heritage Register curtilage - Mount Gilead, 901 Appin Road, Gilead”. A copy of this “Proposed curtilage for investigation” is reproduced below:

218. This proposed curtilage, dated 1 August 2017 (prior to the date of making the challenged amendment to the LEP), depicts a curtilage that is, to the extent that it encompasses land within the area subject to the challenged amendment to the LEP, identical to areas zoned either RU2 Rural Landscape or RE1 Public Recreation as can be seen from the zoning map reproduced at [65] earlier in this judgment.

219. It is clear from the material set out above that any enquiry to the OEH concerning any Mount Gilead heritage curtilage would have elicited (depending on the date the enquiry was made) one of the following responses:

1. There has been a nomination of land at Mount Gilead for inclusion on the State Heritage Register and we are thinking about it but no definite conclusion has been reached and no formal steps have been undertaken under the Heritage Act 1977 (the Heritage Act); or

2. No formal steps have been undertaken under the Heritage Act.

220. There is no material which could support the conclusion that any enquiry made (if such an enquiry would have been made) of OEH would have elicited any response that there was any likelihood (let alone any significant likelihood) of a State Heritage listing in the foreseeable future (let alone one adopting any curtilage to the extent proposed in the GML Consultants report).

221. It would be entirely inappropriate to conclude that the Council or the Delegate would have been advised that there was any possibility (let alone any significant probability or inevitability) that a curtilage of the nature canvassed in the GML Consultants report was likely to be adopted if a state heritage listing was effected of land at Mount Gilead. Indeed, given that which is shown at [214] and [217], had the Delegate made such an enquiry prior to making the amendment to the LEP, the advice from the OEH would have been that the curtilage under consideration was not that proposed by the GML Consultants report but was one entirely compatible with the proposed amendment to the LEP.

The statutory processes under the Heritage Act

222. Second, had there been an enquiry made of the relevant part of the Office of Environment and Heritage, prior to the making of the amendment of the LEP, as to whether there was a statutorily founded investigation being undertaken into possible state heritage listing for the locally identified heritage items at Mount Gilead, the answer which would have been given would have been negative.

223. This would have been the necessary consequence of the fact that no notification had been given to the owners of any of the land at Mount Gilead of any intention to consider listing. The necessity for the giving of such a notice of intention is a statutory precondition to the commencement of any formal investigation of any potential state heritage listing.

224. The obligation to commence an investigation with such a notice arises as a consequence of the terms of s 33(1) of the Heritage Act, a provision in the following terms:

33   Procedure before recommendation for listing

(1)   Before making a recommendation for the listing of an item on the State Heritage Register, the Heritage Council must follow this procedure:

(a)   the Heritage Council is to give notice that it is going to consider whether or not to recommend the listing of the item concerned (a notice of intention to consider listing):

(i)   by written notice given to each person that it considers to be an affected owner or occupier (except in the case of the listing of a precinct), or

(ii)   in the case of the listing of a precinct, by notice published in at least one metropolitan newspaper and one local newspaper circulating in the precinct, and

(b)   within 14 days after notice of intention to consider listing is given under paragraph (a) (i), the Heritage Council is to cause a notice of intention to consider listing to be published in at least one newspaper circulating in the area in which the item is situated, and

(c)   a notice of intention to consider listing is to invite submissions on the listing and is to specify a date as the closing date for the receipt of submissions (being a date that is at least 14 days after publication of the newspaper notice) and the manner in which submissions may be made, and

(d)   the Heritage Council is to consider the submissions that are received before the closing date for receipt of submissions and is to decide within 30 days after that closing date whether or not to recommend the listing, and

(e)   the Heritage Council is to give notice of its decision in the same manner as it is required to give notice of its intention to consider listing under paragraph (a) and is also to give notice to the council of the area in which the item is situated and to each of the persons who made submissions that were considered, and

(f)   if the decision of the Heritage Council is to recommend the listing, the Heritage Council is to make that recommendation to the Minister within 14 days after notice is given of the decision under paragraph (e).

…

225. No step pursuant to s 33(1)(a) or (b) had been given as at 7 September 2017 - the date of the making of the amendment to the LEP.

226. Although such s 33(1)(a)(i) notices have now been given (having been given on 28 May 2018 (Transcript, 21 June 2018, page 132, lines 15 to 16)) and such an investigation, in a statutory sense, has now commenced, statutory notification clearly post-dates the making of the amendment to the LEP in September 2017. The fact that such a statutory notice of intention has now been given can, therefore, play no role in these proceedings.

The relationship between zoning and heritage protection

227. Finally, perhaps of lesser importance but nonetheless appropriate to be noted, the change of zoning by the making of the amendment to the LEP merely creates a potentiality for development. It does not grant consent for any development to occur. Potentiality for development does not necessarily mean, if there are other constraints that would limit the extent of development on the land which has now been rezoned as a consequence of the LEP amendment, that such development will eventuate to the full extent otherwise permissible by the rezoning. It is open to a consent authority to reject or limit such development (BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399) on a merit basis when assessing specific development proposals.

228. The development assessment and approval process under the EP&A Act necessarily requires any development application made in reliance on the amendments to the LEP to take into account heritage matters (including, now, the fact that a notice has been issued pursuant to s 33(1) of the Heritage Act). How that might play in the assessment and determination of any such application is not a matter appropriate to be speculated upon in these proceedings.

Conclusion on Ground 4

229. Each of the three reasons for rejection of this ground is separately sufficient for it to fail. Ground 4 is rejected.

Costs

230. The Association has failed in all four grounds advanced in support of its challenge to the amendment to the LEP.

231. In the ordinary course, some costs order could be expected to be made on a “costs follow the event” basis (Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 and Pt 42 r 42.15 of the UCPR). However where there are multiple respondents (as is here the case), such a position does not necessarily automatically follow.

232. In addition, given the name of the applicant Association in these proceedings, there is also at least the potential that the Association might wish to press public interest litigation issues in the context of potential costs liability (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11).

233. In these circumstances, given my determination that all matters claimed in the Association’s Summons were without merit, it is appropriate that I order that the question of costs be reserved.

Orders

234. It follows, from the conclusions I have earlier set out, that the orders of the Court are:

1. The proceedings are dismissed;

2. Costs are reserved; and

3. The exhibits are returned.

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Decision last updated: 21 September 2018