Howarth v Gosford City Council (No 2) - [2014] NSWLEC 40

Land and Environment Court

New South Wales

Medium Neutral Citation: Howarth v Gosford City Council (No 2) [2014] NSWLEC 40
Decision date: 17 April 2014
Jurisdiction: Class 4
Before: Sheahan J
Decision:
1. The amended summons is dismissed.
2. The Applicants are ordered to pay the Respondent's costs, on a party-party basis, as agreed or assessed, unless within 28 days one or both parties file(s) a Notice of Motion seeking some different costs order.
3. All exhibits are returned.

Catchwords: JUDICIAL REVIEW: DEVELOPMENT CONSENT: deferred commencement conditions; whether deferred commencement condition valid; whether deferred commencement condition satisfied; whether unreasonably satisfied; discretion; whether a s 25B order under the Land and Environment Court Act 1979 should be made?
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Fisheries Management Act 1994
Interpretation Act 1987
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Rivers and Foreshore Improvement Act 1948
Rural Fires Act 1997
Uniform Civil Procedure Rules 2005
Cases Cited: Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; (2006) 148 LGERA 439
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139
Blanch v British American Tobacco Australia Services Limited [2005] NSWCA 241; (2005) 62 NSWLR 653
Casa v Ryde City Council [2009] NSWLEC 212; (2009) 172 LGERA 348
Coalcliff Community Association Inc v Minister for Urban Affairs and Planning & Ors [1999] NSWCA 317; (1999) 106 LGERA 243
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
CSR Ltd v Fairfield City Council [2001] NSWLEC 221; (2001) 117 LGERA 77
Dooralong Residents Action Group Pty Ltd v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274
Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33
GPT Re Limited v Bell Morgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647
House of Peace v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498
Howarth v Gosford City Council [2012] NSWLEC 126
Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; 190 LGERA 119
K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23
Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72
Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737; (2005) 143 LGERA 237
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23;143 LGERA 277
Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695; 147 LGERA 234
Marrickville Metro Shopping Centre Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67
Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Ltd [2007] NSWLEC 411
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 [2005] NSWCA 9; (2005) 137 LGERA 320
Newbury District Council v Secretary of State for the Environment [1981] AC 578, 616
Northey v Bega Valley Shire Council [2010] NSWSC 527
Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Reid's Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171; 169 LGERA 307
Rich v Lennox Palms Estate [2009] NSWLEC 167
Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
Scott v Wollongong City Council (1992) 75 LGRA 112
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196
Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333
Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245
Winn v Director General of National Parks & Wildlife [2001] NSWCA 17; 130 LGERA 508
Category: Principal judgment
Parties: Russell Howarth (First Applicant)
Cherie Reid (Second Applicant)
Gosford City Council (Respondent)
Representation: Mr D Wilson, barrister (Applicants)
Mr J Maston, barrister (in 2012), Mr P Larkin SC (in 2013), both with Ms S Ross, barrister (Respondent)
Landers & Rogers (Applicants)
P J Donnellan & Co (Respondent)

File Number(s): 40221 of 2012

Judgment

A: Introduction

This complex Class 4 matter was commenced on 28 February 2012, and concerns the conditions attached to, and the validity of, a 2003 development consent, but, relevant events, and negotiations between the parties, date back to about 2000.

The hearing commenced on 30 October 2012, but did not conclude until 18 July 2013. The issues shifted substantially over that period, and there was a change in senior counsel for the Council (from Mr J Maston to Mr P Larkin, SC). It will be necessary to explain those events in some detail, but, firstly, the broad context of the matter should be sketched.

Brief Background to the dispute

On 25 November 2003, the delegate of Council granted development consent ("DC" 15954/2003) to a development application ("DA") for a tourist facility, namely a "proposed community titled (154 suite) motel/destination resort", at 10 Townsend Ave, Avoca Beach, a project with some bushfire and other complications.

Such complications are often addressed by an "integrated development" process, but the applicants chose not to seek that course, and they now concede that, despite various documents labelling the DC as "integrated development", the application and the consent were not for "integrated development" (T17.7.13, p4, L7-10, and p35, LL24 - 25).

Instead, the DC was made subject to a series of six deferred commencement conditions ("DCC"), and the project required "sign-off" from several other government agencies, including the Rural Fire Service ("RFS"), and the State's fisheries and water regulators. As the respondent says (amended subs par 134, and T17.7.13 p35, LL35 - 8), the DCCs reflect the applicants' election not to seek integrated DC.

The DC has since been modified on four occasions, the relevant outcomes of which, for present purposes, were the finalisation of the wording of the only DCC of concern in these proceedings ("A(iv)"), and the fixing of 3 December 2008 as the last date by which the applicants had to comply with it.

The applicants primarily assert (1) that the key DCC is invalid, or (2) that, if that DCC is valid, they have fulfilled it, or (3) that Council's satisfaction as to their fulfilment of it has been invalidity or unreasonably withheld. They seek (T17.7.13 p24, LL20 - 22), essentially, a decision that they have the "benefit of an operative consent".

Council is not hostile to the project, provided its requirements are met, but contends, primarily:

(1) that the DC lapsed on 4 December 2008 (according to Mr Maston early in the hearing), if not on 3 December (Mr Larkin later); and

(2) that mere submission of material in response to a DCC does not necessarily satisfy either the condition itself, or its time stipulation.

DCC A(iv) was imposed on the DC pursuant to the power found in s 80(3) of the Environmental Planning and Assessment Act 1979 ("the EPA Act"), as a condition to be "met to the satisfaction of Council [by the date finally stipulated] ... Such satisfaction will be achieved by:

...

"iv. Development plans be amended and submitted to Council for approval to incorporate the requirements of the Commissioner of the NSW [RFS]. Amended plans shall not further impact upon existing vegetation; rather requirements of the Commissioner of the [RFS] shall be accommodated through a reduction in the size of the proposed development, including the deletion of buildings as required." (my emphasis)

The history of the delayed hearing

On 5 April 2012, the case was fixed for hearing on 20 June 2012, but when points of claim ("POC") were not filed, and none of the Court's directions of 5 April had been complied with, the hearing date was vacated by Pepper J on 1 June 2012: Howarth v Gosford City Council [2012] NSWLEC 126.

Her Honour was very critical of the conduct of both sides (see [6] - [10]), and considered dismissing the proceedings for want of prosecution. She made clear that the Court would need to be satisfied, before a new hearing date would be allocated, that pleadings were closed, and all evidence was on. New hearing dates of 30-31 October 2012 (two days) were fixed, and I was rostered to hear the matter.

The evidence upon which both counsel opened the matter on the first day of hearing was overwhelmingly documentary. The three volumes tendered by the applicants (as Exhibit A1) include almost 1,000 folios, and they were supplemented by another 230-odd folios of documents, in one volume tendered by the Council (Exhibit C1 - tabs 1A, 4A, 4B, 8A, and 10A). Much of that material was not seriously in contest, but needed to be closely examined by the Court.

In addition, there was an affidavit from the applicants' planner, (Stanley) John Hancock (CV in Exhibit A2), upon which he was eventually cross-examined, briefly, at the very end of the hearing (on the morning of the last day, 18 July 2013).

As the end of the first hearing day (30 October 2012) approached, and Mr Maston, then senior counsel for the respondent, was nearing the conclusion of his opening address, Mr Wilson, counsel for the applicants, announced that he would seek, next morning, leave to amend the applicants' POC to add a further claim based on estoppel. Both counsel adhered to the view that the hearing would still conclude on the second of two scheduled hearing days (T30.10.12, p37).

Just before the resumption at 10am the next morning (31 October 2012), draft amended POC ("APOC") were provided to the respondent, and at 10am leave to amend was sought from the Court. The respondent argued that the discretion to allow the amendment ought not be exercised, largely on the basis of the principles established by Aon Risk Services Australia Ltd v Australian National University ("Aon") [2009] HCA 27; (2009) 239 CLR 175, and Minister for Immigration and Ethnic Affairs v Kurtovic ("Kurtovic") (1990) 21 FCR 193.

The estoppel count in the draft APOC was extensively particularised in what was the then proposed new POC 12; minor non-controversial amendments were also proposed to POCs 3 and 11; and, with no advance notice to the respondent, the applicants also sought to add four additional, substantial particulars to what was to become POC 13, which argued the invalidity of the DCC at the heart of the matter.

Mr Maston sought an adjournment, and Mr Wilson made no objection to that course, nor to an order for costs thrown away. As I could not see any real prejudice to the respondent which could not be, at least largely, compensated by a costs order, and by my granting it leave to put on additional evidence, I allowed the amendment, made a costs order, and gave appropriate directions.

The parties then reported to the Court that they were in negotiation about a possible way to resolve their impasse altogether (given that Council is not really opposed to the project), and, to allow those discussions to continue, I adjourned the matter, by consent, for mention on 7 November 2012.

The mooted settlement was not achieved, and the applicants again indicated, at that 7 November mention, that they would seek to amend their summons and POC, and to resume the hearing before me, on a part-heard basis. A further series of directions was agreed, and I made them by consent.

On 11 December 2012, the solicitors for the applicants exercised their liberty to apply, and the matter came before me again. Mr Wilson filed in Court, and moved on, a Notice of Motion seeking the Court's leave to amend the summons and POC. The amendments sought to the POC were more extensive than the Court had expected, but I granted leave to amend both pleadings, ordered the parties to agree on a timetable, and made further directions. The hearing was then fixed to resume on 23 - 24 April 2013, counsel believing that probably only the first of those days would be required.

In mid-April 2013, I was heavily involved in the lengthy hearing of a very urgent Class 4 matter, and the listing of this part-heard case had to be vacated. The hearing was then rescheduled for 17 - 18 July 2013, and it proceeded before me on those dates.

The July 2013 hearing was conducted on the basis of the amended summons and APOC, which were filed on 19 December 2012. Further Amended Points of Defence ("FAPOD") were filed on 2 May 2013.

Despite the earlier foreshadowing by Mr Maston of the possible filing of further evidence in response to the applicants' APOC, none were filed. Amended respondent's submissions were, however, filed on 16 July 2013, when Mr Larkin SC replaced Mr Maston as senior counsel for the respondent.

The majority of the first day of the resumed hearing (17 July 2013) was utilised by Mr Wilson to recapitulate the matter. Mr Wilson worked off the APOC filed 19 December 2012, and informed the Court that the matter had been "refined" (T17.7.13, p3, L16).

However, he indicated (T17.7.13, p24, LL1-3) that, if invalidity were made out, and the Court were minded to grant an order under s 25B of the Court Act (set out in [28] below, but see also [26] 7, [27] 7g, and [27] 8(viii)), further submissions would need to be made on the appropriate terms of such an order. Mr Larkin submitted (T17.7.13, p31, LL 14 - 37) that s 25B was not "available in this case".

The Pleadings and the Issues in final form

The amended summons seeks (emphasis added):

1. A declaration that DCC A(iv) of modified DC. 19594/2003, or so much thereof that is uncertain or ambiguous, is invalid and of no effect.

2. Alternatively, a declaration that the Applicants had on or from 3 December 2008 satisfied the DCCs of that said DC.

3. Further or in the alternative, a declaration that on the true construction of DC No. 19594/2003 and in particular DCC A(iv), the DCCs have been satisfied and the DC is operative, subject to the conditions thereof.

4. Alternatively, a declaration that the satisfaction of the Respondent required by DCC A of the said DC has been and is unreasonably withheld.

5. Further, a declaration that the said DC was an operative DC on and from a date not earlier than 3 December 2008 pursuant to the provisions of the EPA Act as amended.

6. Alternatively, a declaration that the decision of the Respondent that it was not satisfied that the terms of DCC A(iv) of the DC were not satisfied was invalid and of no effect.

7. That insofar as the effect of the declarations and orders herein sought by the Applicants have or may have the consequence that the DC granted by the Respondent is invalid, that the Court make an order pursuant to the provisions of S25B of the Land and Environment Court Act 1979 ("the Court Act").

8. "Further or other order or direction or inquiry".

9. Costs.

I am content to adopt the respondent's summary (in its amended submissions of 16 July, pars 6, 7 and 8) of the APOC, FAPOD and the remaining issues between the parties, viz:

6. By the [APOC], the Applicants contend that:

a. paragraph [7] - they have done all things necessary to meet the satisfaction of the Respondent with respect to DCC A(iv) on or before 3 December 2008;

b. paragraph [8] - the Respondent has refused and continues to refuse to be satisfied in respect of DCC A(iv);

c. paragraph [9] - the Respondent has failed to determine that the requirements of DCC A(iv) were satisfied;

d. paragraph [10] - the refusal by the Respondents to determine, or alternatively, the absence of satisfaction of the Respondent that DCC A(iv) has been met, is unreasonable, or, alternatively, contrary to fact;

e. paragraph [11] - on the true construction of the Development Consent and in particular DCC A(iv), the Applicants have satisfied all of the DCCs, the Development Consent is operational and the Development Consent has not lapsed;

f. paragraph [12] - the failure of the Respondent to be satisfied, or alternatively the Respondent's determination that it was not satisfied, that the requirements of DCC A(iv) were not satisfied on or before 3 December 2008, was erroneous;

g. paragraph [13] - the Respondent is estopped from asserting that the Development Consent has lapsed by reason of the failure of the Applicants to satisfy the Respondent of the requirements of DCC A(iv) on or before 3 December 2008; and

h. paragraph [14] - DCC A (iv) of the Development Consent was, or ought to have been treated by the Council as having been, satisfied.

7. The Respondent contends:

a. DCC A(iv) is valid;

b. DCC A(iv) is so fundamental to the Development Consent that the Development Consent would never have been granted by the Council without a DCC which enabled the Council to determine the impact on vegetation due to the requirement of the Commissioner of the Rural Fire Service, and that a consent without DCC A(iv) would operate as a fundamentally different consent. Thus, DCC A(iv) cannot be severed from the Development Consent;

c. DCC A(iv) was never met to the satisfaction of the Council and no such satisfaction was ever communicated to the Applicants;

d. it is not open to the Court in these judicial review proceedings to determine whether DCC A(iv) ought to have been held by the Council to have been satisfied;

e. the Development Consent lapsed on 4 December 2008, which affects the whole of the Applicants' claim;

f. the Council cannot be estopped from asserting that the Development Consent lapsed on 4 December 2008;

g. an order pursuant to section 25B of the Land and Environment Court Act should not be made in the circumstances of the case; and

h. in the exercise of the Court's discretion, relief would not be granted on the basis of delay, the failure of the Applicant[s] to avail itself of merit review rights and the proceedings only raise hypothetical or academic questions because the proceedings were commenced some 4 years after the Development Consent lapsed.

8. Accordingly, the issues raised ... are:

(i) First, whether the Council, as a matter of fact, was satisfied that DCC A(iv) had been fulfilled on or prior to 3 December 2008;

(ii) Second, whether it is open to the Court in these judicial review proceedings to determine whether DCC A(iv) ought to have been held by the Council to have been satisfied;

(iii) Third, whether the Development Consent is operational and the Development Consent has not lapsed;

(iv) Fourth, whether the lack of satisfaction of the Council that DCC A(iv) had been complied with was unreasonable, contrary to fact or erroneous;

(v) Fifth, whether the Council is estopped from asserting that the Development Consent lapsed on 4 December 2008;

(vi) Sixth, whether DCC A(iv) is invalid and of no effect for uncertainty or absence of finality, and if it is, whether DCC A(iv) can be severed from the Development Consent or whether the Development Consent as a whole must be set aside;

(vii) Seventh, whether any of the relief sought by the Applicants ought to be granted in the exercise of the Court's discretion; and

(viii) Eighth, whether an order pursuant to section 25B of the Land and Environment Court Act should be made in the circumstances of the case.

Statutory Provisions and other relevant instruments and publications

Section 25B of the Court Act provides:

25B Orders for conditional validity of development consents

(1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order:

(a) suspending the operation of the consent in whole or in part, and

(b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2) Terms may include (without limitation):

(a) terms requiring the carrying out again of steps already carried out, or

(b) terms requiring the carrying out of steps not already commenced or carried out, or

(c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

Section 80(3) of the EPA Act provides:

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

Section 80A(4) of that Act provides (emphasis mine):

A consent may be granted subject to a condition expressed in a manner that identifies both of the following:

(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b) clear criteria against which achievement of the outcome or objective must be assessed.

At all material times, cl 95 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") relevantly provided:

(1) A "deferred commencement" consent must be clearly identified as a "deferred commencement" consent (whether by the use of that expression or by reference to section 80 (3) of the Act or otherwise).

(2) A "deferred commencement" consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions.

(3) A consent authority may specify the period within which the Applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters.

(4) The Applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period.

(5) If the Applicant produces evidence in accordance with this clause, the consent authority must notify the Applicant whether or not it is satisfied as to the relevant matters.

(6) If the consent authority has not notified the Applicant within the period of 28 days after the Applicant's evidence is produced to it, the consent authority is, for the purposes only of section 97 of the Act, taken to have notified the Applicant that it is not satisfied as to those matters on the date on which that period expires.

Clause 100(4) of the Regulation also relevantly provided:

In the case of a development consent granted subject to a condition that the consent is not to operate until the Applicant satisfies the consent authority, or a person specified by the consent authority, as to any matter specified in the condition:

(a) the date from which the consent operates must not be endorsed on the notice of determination, and

(b) if the Applicant satisfies the consent authority, or person, as to the matter, the consent authority must give notice to the Applicant of the date from which the consent operates.

Council's case is that the DC lapsed on either 3 or 4 December 2008. (It does not much matter which - see [91] - [92] below). The relevant law on lapsing was substantially changed by an amending Act in 2006, which inserted s 95(6) in the EPA Act, in these terms:

Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 80(3) lapses if the Applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority within the period so specified.

The 2006 amending Act also added a special transitional provision (cl 111) to Sch 6 of the EPA Act:

LAPSING OF CONSENT

111. A development consent granted before the commencement of section 95(6) as inserted by the amending Act, that is subject to a deferred commencement condition under s.80(3), lapses if the Applicant fails to satisfy the consent authority as to the matter specified in the condition within:

(a) five (5) years from the date consent was granted; or

(b) two (2) years after the date of commencement of section 95(6), whichever is the later.

Both s 95(6) and cl 111 commenced on 4 December 2006. The relevant dates stipulated for this project, in terms of subclauses (a) and (b) of cl 111, are (a) 25 November 2008 (i.e. 5 yrs after DC) and (b) 4 December 2008 (i.e. 2 yrs after the 2006 amendment), so the "lapsing date" for the subject DC is the later of those, namely 4 December 2008 (or certainly no later than that date).

Section 32 of the Interpretation Act 1987 provides (emphasis mine):

32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.

(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.

The provisions of the relevant local environmental plan ("LEP"), and the requirements of relevant development control plans ("DCP"), are not in contest.

However, the requirements of several RFS publications, namely the 2001 and 2006 versions of its manual entitled "Planning for Bushfire Protection" (both versions in Exhibit C1, tabs 1A and 10A), and the RFS document entitled "Standards for Assessment Protection Zones", were also important to the matter in dispute. Section 100B of the Rural Fires Act 1997 ("the RF Act") relevantly provides:

(1) The Commissioner may issue a bush fire safety authority for:

(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or

(b) development of bush fire prone land for a special fire protection purpose.

(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.

(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).

(4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations.

...

The RFS manual (e.g. fol 652A) clearly explains "the components of an asset protection zone", distinguishing between the "inner protection area" and "outer protection area" within a property's boundary with the hazard.

Various other Acts and regulations were also referred to in the context of the requirements of other government agencies, eg as to Riparian Zones, but they need not be set out here.

B: The Key Documentary Evidence, and the History of the Project

Early days

The project was the subject of close consultation with relevant officers of the Council prior to the submission of any DA. Proponents had also consulted with relevant State Government authorities to ensure the protection and re-enforcement of existing vegetated areas (Exhibit A1, Vol 1, tab 5, fols 22 and 23).

Originally there was a DA (No 12130/01) for a substantially larger development of the site. The relevant Statement of Environmental Effects ("SEE"), prepared for that DA by Hancock, and dated May 2000 (included in the 2003 DA documents at fols 43ff), noted, in the introduction (at fol 49), that the site had previously been used for farming, and that "the existing pattern of vegetation, cleared areas, dams etc reflect (sic) that traditional agricultural use which was common to the locality". DA 12130/01 was refused, and was the subject of earlier proceedings before this Court, which were current in 2003.

The 2003 DA

Hancock submitted the 2003 DA at issue in these proceedings, under cover of his letter of 31 March 2003. The nominated "applicant" (for consent) was Hancock's then firm, "Longhill Planning". The "DA documentation" is included in Exhibit A, Vol 1 (with the DA itself at tab 4). The estimated construction cost for the project was $15,000,000.

That 2003 DA was accompanied by a "Supplementary Statement Of Environmental Effects" ("SSEE"), which embraced the 2000 SEE and included various supporting documents. It was collated/prepared by Hancock and dated March 2003 (fols 20 - 543 of Exhibit A, Vol 1, tab 5). Relevant accompanying documents included reports prepared by Conacher Travers ("Conacher"), Morse McVey ("Morse"), and Gunninah Environmental Consultants ("Gunninah"). A bushfire hazard assessment report by consultants Building Code & Bushfire Hazard Solutions, dated June 2003, appears to have followed (Exhibit C1, tab 4A).

The SEE/SSEE expressed the view that the application complied with the objectives of the relevant zone, under the LEP, and with the requirements of various DCPs.

The subject site is relevantly zoned 7(c3) "Scenic Protection - Tourist Accommodation" under the LEP. Something like 45% or more of it comprises bush vegetation, which "contains" the cleared areas (fol 49):

It is the extensive vegetation cover which gives the land its essential visual character and its relationship within the sub-regional landscape. This vegetation was intentionally left by the owners in the operation of farming the land so as to provide windbreaks for the protection of the cleared areas. The extent of that vegetation cover will remain visually as it exists with only minor modifications.

The SEE proposed (at fol 53) that:

Throughout the site, maximum advantage will be made of the natural flora and fauna features and other attributes including landscape view opportunities as well as the construction of bird-hides and walking trails. It is envisaged that the walking trails would also be employed during the hours of darkness for wildlife spot-lighting activities to identify the nocturnal animals that are likely to inhabit the site.

The existing vegetation and associated biophysical systems comprise one of the dominant attributes of the site and hence its suitability for tourist orientated accommodation. It is therefore in the interest of the operation of the complex that the natural resources are managed in an environmentally responsible manner.

Any exotic vegetation was to be progressively removed to allow regeneration of native species or replacement of the exotics with species consistent with the landscaping plan. Any native species that needed to be removed for construction purposes would be replaced with the same or similar species in appropriate locations (fols 53 - 4).

It was also proposed (fol 54) to fence the whole site in a manner designed to exclude "marauding exotic fauna".

Section 5.4 (fols 56 - 57) of the SEE dealt with bushfire management in these terms:

It is noted that vegetated areas exhibit the features of a medium fire hazard, although the moist gully areas reduce the potential for fire movement through the area. The owners have noted that over the more than two generations they have been involved with the land, no bushfire has traversed through these moist gully areas. In this situation, it is proposed that hazard reduction be ensured by:-

a 10 metre fuel-reduced zone within the perimeter of the bushland;
construction of buildings with enclosed undercroft areas and non-combustible materials;
reticulated mains pressure water system with hydrants and hose reels;
preparation of a detailed Bushfire Management and Action Plan to identify procedures for the ongoing management of the hazard reduction system.

The SEE noted (at fol 59) that "existing vegetation is retained to the maximum extent by confining the development to those areas which have previously been cleared" (site plan at fol 69).

A flora and fauna assessment (commencing at fol 93) was prepared by Conacher in October 1999. It noted (at fol 97) that the vegetation at the site consisted of Open Forest, Closed Forest, Mosaic Closed Forest, and Cleared Land, and the Gunninah materials noted that the native vegetation included individuals of the threatened Magenta Lilly Pilly (fol 428).

Conacher's report noted, in conclusion (at fol 133), the following impacts on vegetation and fauna habitats:

The proposed developments are likely to result in minimal disturbance to fauna habitats within the site as the tourist cabins will be predominantly incorporated into the areas already cleared with only small areas of selective tree removal being undertaken. Much of the site has been previously cleared for agricultural activities. Due to the minimal tree clearing involved, and the extent of prior disturbance and the future management of the site it is expected that the impact on [flora] and fauna habitats would be minimal.

The vegetation on the site generally consists of a vegetation community similar to the Open Forest (9g) community described by Benson (1986). This community covers approximately 80,000ha of the Gosford/Lake Macquarie 1:100,000 scale map sheets and the site represents a very small proportion of this community. It is expected that the impact of the proposed development will be low due the current level of disturbance and small area of this vegetation community to be disturbed by the proposed development. The areas of Closed Forest will not be cleared for the proposed development.

The areas of natural vegetation will remain relatively undisturbed by the proposed development, thereby retaining substantial areas of natural vegetation throughout the site. The use of adequate soil conservation measures will minimise sedimentation of the low-lying areas of the site. Likewise downstream environments and habitats will not be adversely affected if adequate soil conservation measures are implemented.

Morse prepared an augmented report on water management systems and associated matters, on 28 March 2003 (commencing at fol 278).

Gunninah prepared reports in 2002 and 2003 (see fol 414). Their November 2002 report noted (at s 4.6 on fol 427, cf [50] above) the following in respect of Bushfire Protection Measures:

The vegetation on the subject site has been classified as representing a medium fire hazard, although the moist gully reduces the potential for fire movement in the area. The owners have noted that over two generations on the site, no bushfire has traversed through the moist gully area.

Bushfire hazard reduction measures proposed on the subject site include:

a 10m fuel-reduced zone within the perimeter of the bushland;

construction of buildings with enclosed undercroft areas and non-combustible materials;

reticulated mains pressure water system with hydrants and hose reels; and

preparation of a detailed Bushfire Management & Action Plan to identify procedures for the ongoing management of the hazard reduction system.

In terms of fauna, Gunninah noted (at fol 428) that:

most of the fauna species of conservation significance recorded on the site (the Yellow-bellied Glider, Greater Broad-nosed Bat and East-coast Freetail Bat) are wide-ranging and highly mobile, and the site constitutes only a very small fraction of the suitable habitat and resources in the vicinity and locality.

The Gunninah conclusion (at fols 430 - 431) was as follows:

The proposed tourist development in Precincts 1-5 on the subject site at Avoca Beach has been designed in response to the site constraints and existing circumstances by essentially restricting development activities to those portions of the site which are already cleared and which have long been used for grazing and other agricultural purposes. Most of the native vegetation on the subject site is to be retained, notwithstanding the long-term practice of selective logging which has occurred on the property.

The proposed development of the subject site at Avoca Beach is both environmentally sensitive and site-responsive, and will involve:

the retention of most native vegetation on the subject site;

its long-term management and enhancement for conservation purposes;

the implementation of an Environmental Management Plan (EMP) which incorporates a Construction Management Plan for both construction and operational phases of the proposed development and a long-term Bushland Management Plan for the management of vegetation on the site; and

the implementation of appropriate impact amelioration and environmental management measures to reduce and/or manage impacts which may or will arise from the proposed development.

Given the extent of retention of vegetation and habitats on the subject site, and their long-term management, and the implementation of appropriate impact amelioration and environmental measures as an integral part of the proposed development, it is not likely that significant adverse impacts will be imposed on the natural environment in terms of s.79C of the EP&A Act.

Furthermore, given the retention of most vegetation and habitats on the site, and their appropriate long-term management, as well as the extent of such resources in the locality, the proposed development is not "likely" to impose "a significant effect" upon any "threatened species, populations or ecological communities, or their habitats", pursuant to s.5A of the EP&A Act. As a consequence, there is no requirement for the preparation of a Species Impact Statement for the proposal.

As indicated above, the proposed development of the subject site at Avoca Beach incorporates the preparation and implementation of a detailed EMP designed specifically to protect the natural environment and to provide long-term management measures.

On 31 March 2003, Conacher made further comments (at fol 542), noting that the mosaic of surrounding vegetation would be classed as "Group 3" under the 2001 RFS manual. That group of vegetation has the lowest bushfire hazard classification of the various vegetation types identified. Conacher recommended the following measures:

1. Enclosure of all undercroft areas with either steel mesh and/or non-combustible material;

2. Protection of openings by installation of metal mesh screens;

3. Reticulation of mains pressure water lines throughout the relevant precincts;

4. Installation of hydrants and/or hose reels at strategic locations not more than 40 metres apart; and

5. Preparation of an evacuation plan (displayed graphically on the inside of entry doors to every suite.

Assessment

The Council officers prepared their assessment report on or about 14 October 2003, for Council's ordinary meeting on 4 November 2003 (Exhibit C1, tab 4B, fols 42A - 82A).

That report notes (at fol 44A) that the subject site lies within "Precinct 11 - Scenic Buffers of the Kincumber Character Statement". The "desired character" statement in DCP 159, for that precinct, is introduced by a paragraph saying that the areas involved should remain scenically distinctive backdrops to a major tourist route, as well as semi-rural buffers between surrounding residential suburbs. Council's Urban Planning Design Planner agreed that the proposal "generally" complied with the principles in that DCP for the immediate locality, and noted that the development is generally located in existing cleared areas conserving existing visual buffers, and that it proposed additional landscape works and bush regeneration. As a result of these matters, the development would be largely screened from surrounding development and the site would continue to contribute to the scenic buffer between the residential areas (fol 45A).

DCP 149 (fol 47A) deals with conservation and scenic protection in the 7(c) zones, and requires a number of things, including that the project maximise retention of existing vegetation, with all development confined to existing cleared areas. Council may consider sensitive design that minimises native vegetation removal either by construction of buildings or by radiation zones. The officers' report commented that the development was confined to existing cleared areas, and that driveways generally followed existing access tracks. The proposed buildings would not require the removal of trees, except for four particular trees in precinct 5: "This is considered satisfactory" (fol 48A item (b)).

The report further noted (at 49A) that the proposal was considered to be "integrated development", requiring a Bushfire Safety Authority permit under Part 3A of the Rivers and Foreshore Improvement Act 1948 and a permit under the Fisheries Management Act 1994. It noted that the applicants had indicated they did not wish the Council to treat the application as integrated development. Council's solicitors advised that that was the applicants' choice, and that, should the matter be considered for approval, a deferred commencement consent would be appropriate, requiring the applicants to obtain approvals and/or licences from all relevant authorities.

Consent granted

The DC was granted on 25 November 2003, subject to the DCCs.

The resolution recommended by Council's review committee (Exhibit A1, Vol 2, tab 6, fols 544ff) included the original version of DCC A(iv) (numbered "B(iv)" on fol 544, because the paragraph numbered "A" in that version was a recommendation that Council apply SEPP 1 to vary a development height standard).

The formal notification of the determination of the DA in accordance with the recommendation changed the numbering to A(iv), but mistakenly refers to the determination (at tab 7, fol 564) as concerning "integrated development".

Modifications/Lapse date

Various modifications followed.

The notice of determination of the modification application dated 10 November 2004 was sent to Hancock on 30 November 2004 (Exhibit A1, Vol 3, tab 86, fols 934 - 6).

The notice in respect of the modification application dated 20 April 2005 (Exhibit C1, tab 8A), sent on 17 May 2005 (Exhibit A1, Vol 2, tab 9, fols 602ff), includes the final version of A(iv) (at fol 603).

On 4 December 2006, both s 95(6) of the EPA Act, and the relevant transitional provision ([33] and [34] above), commenced.

The DCCs' "satisfaction" date gradually shifted to 3 December 2008 (as above at [6]), the date specified on determination of the third modification on 3 September 2008.

Other approvals

A controlled activity approval from the Department of Water and Energy ("DWE") was issued on 12 May 2008 (Exhibit A1, Vol 2, tab 15). It includes (at fol 641) the following conditions in respect of Vegetation Management and Riparian Zones:

23. The approval holder must delineate, protect and maintain a riparian zone with a minimum width of 20 metres on both sides of Saltwater Creek.

24. All areas identified in the approved vegetation management plan must be revegetated in accordance with that plan. The revegetation works must be monitored and maintained for a minimum period of 2 years in accordance with the approved vegetation management plan.

25. The approval holder must fence the riparian zone with a stock proof fence prior to commencement of controlled activities.

26. The approval holder must not remove or damage vegetation on waterfront land.

27. The approval holder must not compromise the implementation of the vegetation management plan for any work and/or controlled activity at the site.

On 13 June 2008, the requirements of the RFS were provided to representatives of the proponents (Exhibit A1, Vol 2, tab 17, fols 643 - 6).

The RFS Commissioner considered the matter as if it were integrated development and provided "general terms of approval", pursuant to s 100B of the RF Act, with the response to be deemed a bushfire safety authority, as required by that section.

The letter dealt with each of the five precincts depicted on the plans, and then said (as Condition 6 - at fol 644):

All forest areas on slopes less than 18 degrees shall be ... maintained as an outer protection area (OPA) as outlined within section 4.1.3 and appendix 5 of Planning for Bush Fire Protection 2006 and the NSW Rural Fire Service's document 'Standards for asset protection zones'.

The outer protection area shall comprise of the following:

vegetation that does not provide a continuous path for the transfer of fire; and
fuel loadings are maintained below 8 tonnes per hectare by mowing, slashing or other approved hazard reduction methods.

At the end of its 13 conditions, the RFS approval letter provided the following "General Advice" (at fol 645):

This assessment was based upon the development proposal composite plan prepared by Longhill Planning, ref. 991110-08/G, dated 07.05.08. and information contained within the Riparian Buffer Zone and Vegetation Management Plan prepared by Canacher [sic] Environmental Group, ref 8049V, dated April 2008.

On 23 June 2008 (Exhibit A1, Vol 3, tab 87, fol 937), Council wrote to Howarth (C/o Hancock), referring to the transitional provisions, and rejecting any proposal to extend the deferred commencement period beyond 3 December 2008. On 10 July 2008 (Vol 2, tab 19, fol 648), Hancock wrote to the Council, confirming the applicants' amendment of their then current modification application, such that the DCC period would extend to, and expire on, 3 December 2008 (see Vol 3, tabs 88 and 89, fols 937 - 41). The letter of 10 July 2008 continued:

As discussed, the further refined plans for the whole of the site (plans reflecting the RFS requirements) are in the course of preparation and will be delivered to Council as soon as possible in accordance with Condition AIV of the Deferred Commencement Condition.

You will note in relation to the other Deferred Commencement Conditions that:-

i A valid permit from the Department of Water and Energy has been issued;

ii A valid permit from NSW Department of Primary Industries (Fisheries) has been issued;

iii We are in receipt of the Bushfire Authority from NSW Rural Fire Service and are currently modifying the precinct plans to accord with the requirements of that authority (those plans will be with Council as soon as possible).

iv Development plans are being amended as mentioned above;

v The report of Treers Rose & Associates dated March 2006 was supplied previously in relation to sewer system capacity analysis;

vi Your Mr Favetta has received and endorsed concept engineering plans prepared by BT Ryan & Associates.

On 17 July 2008, a composite plan, incorporating the RFS requirements, was submitted (Vol 2, tab 20, fols 651 - 656).

On 3 September 2008, the relevant Council officer Mr Peter Drew sent a letter to the applicants Howarth/Hancock, confirming the extension of the deferred commenced period to 3 December 2008 (tab 21, fol 657).

On 16 September 2008, Hancock submitted, in accordance with A(iv) (mistakenly referred to as A(v)) development plans amended to incorporate the RFS requirements (tab 22, fol 658f). The most relevant drawing (at fol 659) has been the subject of much focus in submissions. Hancock noted in his letter that the provision of the plan "now concludes The Deferred Commencement component of the Consent with all other issues attended to previously".

The Council suggested, on 29 September 2008 (tab 23, fol 660), that a s 96 application was required to accompany the amended plans. Hancock pointed out on 29 September 2008 (fol 660), that, in his view, the plan submitted on the 16th satisfied Condition A(iv), and he sought confirmation that the applicants had "now fulfilled the deferred commencement component of the Consent".

On 3 October 2008 (tab 25, fol 667), Hancock submitted the requested s 96 application (the fourth modification - tab 26, fol 668f), accompanied by a "Concise Statement of Environment Effects" he had prepared ("CSEE" - tab 27, fols 670-698), dated October 2008.

The CSEE noted (at fols 672 - 4) that compliance with A(i) occurred on 14 May 2008, A(ii) on 14 April 2008, A(iii) on 30 June 2008, A(iv) on 16 September 2008, and A(v) and A(vi) on a date not specified, and then noted (fol 675, par d):

In response to Deferred Commencement Condition A(iv), detailed discussions were held via Building Code and Bushfire Hazard Solutions directly with the Rural Fire Service Authority and in consideration of those discussions, amendments were effected to accommodated (sic) the inner protection areas of various widths as now described on the plans.

Contemporaneously, the Riparian Zone Management Plan considerations were integrated with the revised Site Plan to provide for the optimum protection of vegetation within the site consistent with sound planning purposes, particularly with respect to the bushfire protection and management of the Riparian Zones which, in part, overlap.

The plans as amended, give due regard to both issues ...

The CSEE concluded (fol 677), in respect of A(iv):

No additional issues are raised by the modification to the plans other than to confirm compliance with the relevant Deferred Commencement of (sic) Conditions and accordingly, we anticipate the issue of the Council's formal Consent to the amendments and confirmation that the Deferred Commencement Conditions have all been complied with.

On 13 November 2008 (tab 28, fol 699), Drew wrote to the DWE:

The applicant has submitted amended plans and a copy of the Controlled Activity Approval, issued by your department, in order to comply with deferred commencement conditions for the above DA. It appears that the asset protection zone conflicts with the riparian restoration area. Your comments on this matter would be appreciated.

Algis Sutas, the Gosford licensing officer of the DWE, replied on 18 November 2008 (tab 29, fol 700):

Any amended plans, which are different to those previously submitted to DWE, must be referred to DWE for assessment. The CAA has been issued based on documentation supplied, and referenced within the CAA. Condition 5 of the CAA issued by DWE refers to "Riparian, Buffer Zone and Vegetation Management Plan" prepared by Conacher. This document (hopefully you have been provided with a copy) states on pages 3 and 10, that any bushfire protection zones will be outside the riparian buffer zones, and within the development area. If the applicant is unable to achieve the works as advised within his supporting documentation, he would need to resubmit to DWE for reassessment, or otherwise change his development.

On 26 November 2008 (tab 30, fol 701), Drew sought from Hancock "an accurate site plan for the above application", as there appeared to be "numerous discrepancies between the various plans". He asked Hancock to "ensure all plans are consistent". Hancock responded (tab 31, fol 702), regarding concern expressed at a meeting on the 25th about "the overlap" of the inner protection area and the riparian zones, contending that there was no overlap, and therefore no conflict in terms of riparian zone management:

... areas to be managed in accordance with the Conacher Environmental advice will largely feature native grasses and other "under storey" at levels consistent with the Inner Protection Zone requirements of the Rural Fire Service Publications.

Hancock went on to note that precinct 3 may require some minor pruning of trees to ensure no interconnecting and that similar work may be required in precinct 4. He did not see these as "significant works", but they would require confirmation by DWE that the work is acceptable, so that Council could issue its approval.

A copy of that letter was forwarded to Sutas, who replied to Hancock on 2 December 2008 (tab 32, fol 703):

The Controlled Activity Approval issued by DWE dated 12 May 2008, refers to the Riparian, Buffer Zone and Vegetation Management Plan prepared by Conacher Environmental Group. This report, in sections 1.4 and 2.8 clearly indicates that no bushfire Asset Protection Zones are to be located within the required 20m wide Riparian Zones. I also note that no bushfire management plan was provided to DWE as part of the application for a Controlled Activity Approval. DWE does not generally support the incorporation of any requirements for bushfire Asset Protection Zones within any Riparian Zones.

The Lapsing date passes in December 2008

It appears (from tab 33, fol 704) that, on 3 December 2008, the DCCs' "satisfaction" date, Drew notified a colleague of Hancock that "the deferred commencement expires today".

Hancock then wrote to Drew later that day, to "reaffirm our view that all of the deferred commencement elements of the Council's consent have been attended to", notably A(iv), and assert that the fact that the plans submitted formally by way of a s 96(1A) application had not yet been approved "does not dilute the effect of satisfying" the DCC. Noting that "further matters of finite detail" may also require some attention, he commented that any request for further detail would not "diminish the satisfactory performance" of the DCCs. A minor amendment to the precinct plan was also delivered on that day (tab 34, fols 705 - 711).

As noted above, Council insisted, in the early stages of the hearing, that the DC lapsed on 4 December 2008, but Mr Larkin, in the later stages, contended that it lapsed on 3 December 2008 (see T17.7.13, p30, LL4 - 23, cf T30.10.12, p33, L30). In opening the applicant's case, Mr Wilson had argued that it was 4 December, and, in his closing submissions (T17.7.13, p12, LL47 - 49), he said: "In its terms A(iv) required the plans to be submitted before 4 December. The condition did not require approval of the council before 4 December 2008".

However, as Mr Larkin observed, the date for satisfaction of the condition was 3rd, not 4th, and post-lapse events of relevance to the matter did not commence until 19th, making the argument between 3rd and 4th, as the correct lapsing date, quite otiose.

The Parties' Subsequent relevant dealings

On 10 December 2008, Sutas forwarded to Drew a copy of Conacher's "Riparian, Buffer Zone and Vegetation Management Plan", from April 2008 (tab 35, fols 712 - 744), including a detailed marked-up aerial photograph (fol 731).

The plan was said (at fol 719) to include "measures and management strategies for the protection of native riparian vegetation, riparian buffers and other retained forest vegetation within the site". It noted (at fol 721):

The proposed development will include associated infrastructure such as access, electricity, telephone and water, [and] ... will also provide for a Riparian Zone with retained creekline vegetation that will be managed together with its associated vegetated buffer on both sides. Additional existing areas of Open Forest will also be retained and managed between some precincts and on steep slopes

Section 2.8 of that Conacher Plan dealt with bushfire protection measures (fol 728):

The replanted areas within the Core Riparian Zone (CRZ) and the Vegetated Buffer (VB) zone are not proposed to be managed as a bushfire asset protection zone. The required 10 metre wide asset protection zones are to be located outside of the VB zone and will include areas incorporated into road reserves, stormwater controls, nutrient control grassed swales and building line setbacks. Rainforest type species have been selected for replanting within the riparian buffer zone areas as these species create a lower bushfire risk to the future tourist accommodation developments than eucalypt species.

The bushfire protection measures to be utilised for the future tourist accommodation development will be specified in a Bushfire Assessment Report prepared in accordance with Planning for Bushfire Protection (RFS, 2006).

On 17 December 2008, Drew wrote to the applicant Howarth in the following terms (tab 36, fol 745 - some emphasis mine):

I refer to development application DA19594/2003 and advise that the amended plans show a clear conflict between the required bushfire asset protection zones (APZs) and riparian restoration area. Accordingly the deferred commencement conditions have not been met to the satisfaction of Council.

Amended plans shall be submitted to Council which demonstrate compliance with the General Terms of Approval issued by both the Rural Fire Service and the Department of Water and Energy. As the required APZs are not permitted to overlap with the riparian restoration area, a further reduction in the size of the development may be required. Alternatively, Council will accept an amended bushfire report which demonstrates (to the satisfaction of the RFS) that compliance with the requirements of Planning for Bush Fire Protection 2006 can be achieved despite a reduction in the width of the APZs.

Please submit this information within thirty (30) days, otherwise the application with (sic) be refused by Council.

Council's staff is still assessing the development application, and compliance with the information in this letter does not infer or promote approval of the Development Application or Construction Certificate.

Cordial correspondence between Hancock and Council continued into 2009, as did meetings with Drew, Sutas and others. Further composite plans, incorporating RFS, Conacher and Council requirements were submitted on 20 March 2009 (tab 43). Drew referred those plans to DWE for comment, and responded to Howarth on 23 March (tab 44, fol 754 - some emphasis mine):

Council is of the opinion that development consent for this application lapsed on 4 December 2008. Notwithstanding this, Council's assessment staff are prepared to delay determination of the current section 96 application for a further twenty one (21) days to allow submission of a legal opinion to support any claim that the development was 'physically commenced' prior to this date, and that Council is therefore empowered to approve the application.

Council will determine the development application based on the information submitted to date, should the information not be received.

Council's staff is still assessing the development application, and compliance with the information in this letter does not infer or promote approval of the Development Application or Construction Certificate.

On 8 April 2009, the applicants responded to Drew, through their solicitors, Lakos & Company (tab 46, fol 756f), referring to the "pending application", and contending that the DCCs were duly satisfied prior to 30 October 2008, and that there had been "physical commencement" of the development, for the purposes of the EPA Act.

An internal Council memo dated 15 May 2009 (tab 49, fol 760), indicates that Drew was seeking advice as to whether physical commencement had been achieved or whether the consent had lapsed.

A further revised Riparian/APZ Plan was submitted on or about 26 June 2009 (tabs 52 and 53, fols 763 and 764).

Council's senior town planner, Diane Spithill, noted during June 2009 (tab 54, fol 765), on a copy of Drew's internal memo of 15 May 2009, that the plans submitted on 31 October 2008 were "assessed under s 96", and she communicated with Hancock in late June 2009.

Also in June 2009, Conacher prepared a further report on management of the riparian buffer zone (tab 55). His report notes (at fol 769) the "dual function of reduced bushfire hazard and riparian buffer zone" in these terms:

The purpose of a buffer zone is as an area of land / vegetation which can be managed to reduce and control the impacts of a development of landuse on a specific feature which is to be protected. In this particular case the 10 metre wide Riparian Buffer Zone has been required to provide a buffer between the aquatic areas of the creekline and the dwellings and ancillary developments of the future residential land.

Hancock submitted that report to Spithill, on 1 July 2009, to "be read in conjunction with our plan dated 26 June 2009" (see tab 56, fol 773).

On 6 July 2009 (tabs 57-8, fols 774-5), Spithill sought further advice from the RFS and DWE.

On 27 July 2009 (tab 59, fols 776-7), DWE commented that the revised plan of 26 June was "not to a satisfactory standard", and that the Conacher June 2009 report did not meet its requirements.

On 4 August 2009 (tab 60, fol 778), the RFS confirmed to Spithill that it raised no objections, provided that its previous terms of approval, dated 13 June 2008, were complied with.

On 12 August 2009 (tab 61, fol 779), Hancock referred to Conacher the DWE letter of 27 July.

A report was drafted for Council (tab 62, fols 780 - 789). It included the following paragraph (at fol 783):

This information was submitted before 3 December 2008 and accordingly it is recognised that the conditions of deferred commencement consent have been complied with.

The draft went on to say that further refinements were required to the plans of 31 October 2008 before they could be considered for approval by Council.

On 27 October 2009, a further draft Council report was noted to be not endorsed by the Council's Independent Development & Environment Panel ("IDEP"). Controversially, that draft said (at tab 66, fol 801):

While it is recognised by Council that the consent is now operative, the applicant will need to lodge a further section 96 application ...

On 13 November 2009 (tab 67, fol 868), Hancock confirmed to Spithill that, as a result of further discussions involving Conacher and Sutas, a single Riparian Zone Management Plan had evolved (which would appear to be dated 5 November 2009, in the material at tab 64, fol 791).

On 17 November 2009 (Vol 3, tab 68, fol 869), Hancock sent to Spithill a copy of Conacher's November 2009 report in support of a Vegetation Management Plan of that time.

On 7 December 2009 (tab 69, fol 890), the renamed NSW Office of Water confirmed that it had no objection to Hancock's Riparian Management Plan, dated 5 November 2009, nor to Conacher's Vegetation Management Plan, dated November 2009.

On 8 December 2009 (tab 70, fol 891), Hancock asked Spithill to confirm that the DCCs "are now fully satisfied and that the formal consent will now be issued".

On 18 December 2009 (tab 71, fol 892), he wrote again to Spithill regarding certification that the site plan, as amended, fulfilled the RFS requirements. He continued:

As discussed, earlier plans tabled were titled "Composite Plans" because they contained Rural Fire Service and Riparian Zone Management Issues.

The plans most recently conveyed to Council focus on the Rural Fire Services issues and accordingly, we will dispatch a Plan, which reflects the Rural Fire Services requirements.

We have in the meantime spoken to Wayne Tucker of Building Code and Bushfire Hazard Solutions and anticipate receipt of certification within the next seven (7) days when we will be in touch again.

On 22 December 2009 (tab 72, fol 893), the applicants' bushfire consultant, Wayne Tucker (of Building Code & Bushfire Hazard Solutions), wrote to Hancock certifying that all Asset Protection Zone Inner Protection Areas shown on the Masterplan forwarded to him by Hancock complied with the requirements of the RFS approval of 13 June 2008 points 1 - 5 (which concerned individual precincts so numbered - see [74] above).

In respect of Condition 6 (set out in [74] above), which covered all forest areas on slopes of less than 18 degrees, Tucker drew attention to the inclusion of specific requirements that vegetation "does not provide a continuous path for the transfer of fire", and that "fuel loadings are maintained below 8 tonnes per hectare by mowing, slashing or other approved hazard reduction methods". He commented that "this would still apply to the relevant areas outside the steep portions, APZ's and riparian areas shown on the plan".

On 15 January 2010 (tab 73, fol 894), Hancock sent a copy of that report to Spithill indicating his view that Council now had all the requirements it needed to "sign off" on the project. He sought her "further formal advice in reply".

On 9 February 2010 (tab 74, fol 895), Council's Senior Environment Assessment Officer, M A Stables, informed Spithill that (some emphasis mine):

The objectives of the relevant policies, zoning objectives and potential environmental impacts associated with the proposal have been considered. Based on vegetation removal / modification to existing Open Forest / Closed Forest areas <18 degrees in slope in accordance with Condition 6 of the RFS 100B certificate, the amended plans are not compliant with deferred commencement condition A(iv).

On 11 February 2010 (tab 75, fol 896), Spithill emailed Hancock about that non-compliance. She advised him that the application would be referred to Council's IDEP for determination, unless he could clearly demonstrate compliance with the DCC.

On 7 March 2010 (tab 76, fols 897 - 8), the applicant Howarth acknowledged Spithill's email to Hancock of 11 February, and commented as follows:

The existing condition of the majority of < 18 degree slope forested areas of the property complies with Condition 6 of the RFS 100B certificate.

The remaining relatively small areas of < 18 degree slope forested areas will require relatively little further modification in order to comply with Condition 6 of the RFS 100B certificate.

The overall foot print area of retained bushland will not be further reduced by compliance with Condition 6 of the RFS 100B certificate.

Under historical and existing usage it has been necessary to remove vegetation. Bushfire hazard reduction is necessary for responsible management of the property and the protection of neighbours. In earlier years the bush was burned off to reduce the hazard, nowadays hazard reduction is achieved by slashing and underscrubbing. The need for regular removal and control of invasive species (such as lantana, blackberry, privet and camphor laurel) also requires that vegetation be removed.

The need for ongoing hazard reduction and vegetation removal will remain during the life of the proposed development or any alternate private use of the property.

Deferred commencement condition A (iv) requires - - no further reduction of vegetation- -. I hold that this is most reasonably interpreted as no further reduction of the retained footprint area of bushland rather than no further modification of the retained area of bushland. As such I believe that the amended plans are in compliance with deferred commencement condition A (iv).

I am unaware that it was previously requested that the bush fire consultant would certify the amended plan and provide clear evidence/justification that no further impact upon existing native vegetation would result from compliance with RFS 100B requirements. My understanding was that the bush fire consultant was requested to certify that the amended plans met the requirements of the RFS 100B certificate.

I will instruct Mr Hancock to obtain bushfire consultant advice on specific detail of what additional bushfire hazard reduction works may be required to achieve OPA standard on <18 degree slope forested areas outside APZs and riparian areas to assist your further consideration of the amended plan.

Stables commented to Spithill on 9 March 2010 (fol 897):

I am happy to review any further bushfire advice relating to specific details of what additional bushfire hazard reduction works may be required to achieve OPA standard on <18 degree slope forested areas outside APZs and riparian areas.

This advice should be based on plans showing those areas that are <18 degree slope forested areas and >18 degree slope areas. Specific details of vegetation removal / modification ought be provided (if required).

It should be noted that Condition 46 requires a bushland management plan to be prepared and implemented for those land identified as 'Area A' on the approved plans. APZ's including OPA's will not be supported within 'Area A'.

It is recommended that final bushfire advice provided by the applicant if forwarded to RFS for final certification to hopefully once and for all address this issue.

Stables's comments were emailed by Spithill, later that day, to the applicant Howarth (fol 897).

On 10 March 2010 (tab 77, fol 899), Howarth confirmed to Spithill that, despite his contention that all outstanding issues had been "achieved", he and the applicants were seeking further clarification/certification from their bushfire consultants.

Council officers' final, but undated, draft report on the 31 October 2008 application was then prepared (tab 78, fols 900-917), and it noted (at fol 903):

This information was submitted before 3 December 2008 and accordingly it is recognised that conditions of deferred commencement consent have been complied with [with] the exception of deferred commencement condition A(iv). In this regard, further refinements are required to the plans submitted with the current section 96 application (lodged on 31 October 2008) before they can be considered for approval by Council.

On 16 June 2010 (tab 78, fol 908, repeated at tab 79, fol 918), Spithill advised "Greg Flynn" that the DA report had been "amended as discussed". She drew attention to the wording of A(iv), which was "development plans to be amended and submitted to Council for approval ...", rather than "for approval by Council or to Council's satisfaction". She annexed an advice from Council's solicitors (which is not before the Court), and then commented:

Alternatively, if Council recognises that [DCCs] have been complied with, the applicant may choose to act on the consent and GTA's issued by RFS/Water integrated approval bodies based on plan(s) submitted and not make further amendments to minimise impact on vegetation.

The Council report in its final form (dated 25 June 2010) is twice included in Vol 3 (tab 78, at fols 910ff, repeated in tab 80, fols 919ff). That document is marked "authorised by IDEP". The relevant paragraph, that had undergone the several drafts quoted earlier, was finally worded as follows (at fols 913 and 922):

This information was submitted before 3 December 2008 and accordingly it is recognised that conditions of deferred commencement consent have been complied with [with] the exception of deferred commencement condition A(iv). In this regard, further refinements are required to the plans submitted with the current section 96 application (lodged on 31 October 2008) before they can be considered for approval by Council.

Later (at fols 914 and 923), the report commented that the amended plans were:

still not in accordance with the Deemed Bushfire Safety Authority issued by the NSW [RFS] and conditions of consent. The applicant has failed to demonstrate that no further impact upon existing native vegetation would result from compliance with RFS 100B requirements.

The report says, in its conclusion (at fols 915 and 924 - emphasis in original):

The objectives of the relevant policies, zoning objectives and potential environmental impacts associated with the proposal have been considered. Based on vegetation removal / modification to existing Open Forest / Closed Forest areas <18 degrees in slope in accordance with Condition 6 of the RFS 100B certificate, the amended plans are not compliant with deferred commencement condition A(iv).

The assessment report concludes with the following "assessment comment" (at fols 915 and 924):

The section 96(1A) application is therefore recommended for refusal having regard to the length of time the section 96 application has been with Council, despite repeated granting of extensions of time, ongoing negotiations and various revisions to environmental reports and plans. The applicant has failed to demonstrate that no further impact upon existing native vegetation would result from compliance with RFS 100B requirements within a reasonable time frame. Accordingly the amended plans are not compliant with Deferred Commencement Condition A(iv) and it would appear that the deferred commencement consent has lapsed.

Paragraph A3 of the recommendation which followed says (at fols 916 and 925 - emphasis mine):

The proposal as amended does not comply with deferred commencement condition A(iv). In this regard, the application has failed to demonstrate that amended plans shall not further impact upon existing native vegetation as a result of compliance with Condition 6 of the General Terms of Approval for a Bush Fire Safety Authority issued by the NSW Rural Fire Service, based on vegetation removal / modification to existing Open Forest / Closed Forest areas less than 18 degrees in slope.

On 29 June 2010 (tab 81, fol 927), Council wrote to the applicants (c/o Hancock), indicating that the negative recommendation, including paragraph A3 quoted immediately above ([131]), had been considered by Council's IDEP and been approved. The result being a refusal, the applicants were advised of their s 97 appeal rights.

On 25 July 2011 (tab 82, fol 928), the relevant Council officers, including Council's internal solicitor, Alan Ford, agreed that the Council had to be satisfied that the DCCs had or had not been satisfied:

Unless 'satisfaction' of the conditions of 'deferred commencement consent' has been achieved and Council have 'notified' the applicant with 28 days (cl.95(6) EP&A Regulation 2000)) after the applicants evidence is produced, the consent authority (GCC) is, for the purposes only of s.97 of the EP&A Act, 1979, taken to have notified the applicant that it is NOT SATISFIED as to those matters on the date on which that period expires. If we have not notified the applicant that the consent is 'operative' and he can prove 'physical commencement' under s.95(4), I cannot see how it is possible that the 'deferred commencement consent' has not lapsed.

Spithill wrote to Lakos & Company, on 22 August 2011 (tab 83, fol 930 - 1), saying, in conclusion (fol 931), that:

satisfaction of deferred commencement condition A(iv) has not been achieved within the time frame specified ... and accordingly the 'deferred commencement consent' ... has lapsed.

Lakos wrote back to Spithill on 26 August 2011 (tab 84, fol 932), challenging that advice, and requesting reconsideration of the matter. Land and Environment Court proceedings were foreshadowed.

Spithill responded to Lakos, on 18 November 2011 (tab 85, fol 933), reaffirming Council's view that "the consent lapsed on 4/12/2008".

C: Mr Hancock's Evidence

Hancock's evidence was received in relation to factual matters, and was not accepted as expert evidence.

Hancock swore an affidavit in July 2012 - it would appear from the witness's certificate that it may have been on 31 July 2012 - and it was filed on 6 August 2012. It was read, subject to my dealing with some objections from Mr Maston, on 30 October (T30.10.12, p24, L31), but the exhibited bundle of tender documents was withdrawn, as much of the material was already before the Court.

He was originally not required for cross-examination (p27, L41), but Mr Larkin wanted to question him when the hearing resumed in July 2013 (Tp17.7.13, p11, LL1 - 20).

Hancock's curriculum vitae (Exhibit A2) shows him to be a qualified town planner, who commenced work as a trainee in 1972. He worked for councils, including Gosford City Council, until 1985, and has since been in private practice as a consultant planner and project manager.

He deposed (par 1) that he has been involved with this DA since early 2003, but he may have been involved in the site even earlier than that ([42] above). He enumerated (in par 6) the documentation submitted to Council in support of the DA, and deposed (par 7) that, in or around March 2003, the original development plans were amended at the request of Council to address the height of buildings and other issues.

His affidavit went on to describe the conditions imposed on the DC, the impact of the original plans on existing vegetation, and the requirements of the RFS.

On the subject of his client's asserted compliance with condition A(iv) he deposed:

14. On 16 September 2008 I caused to be submitted to the Council a composite plan ("Amended Plan") ... [on] 16 September 2008 ...

15. I am satisfied that the Amended Plan:

(a) did not further impact upon existing vegetation;

(b) complied with the requirements of the NSW Rural Fire Service; and

(c) did not require a reduction in the size of the proposed development nor the deletion of buildings.

16. I am also satisfied that on 16 September 2008, when I caused the Amended Plan to be submitted to Council for approval, Condition A(iv) had been satisfied.

In his oral evidence on 18 July 2013 (T18.7.13, p1 - 16), Hancock adhered to the contents of his affidavit, and identified, in response to Mr Larkin, some plans lodged with the final form of application to which the DC was granted. He adhered to his opinion that the relevant amended plan satisfied the requirements of DCC A(iv), as it embraced the requirements of the RFS (Tp7, LL30 - 34). He accepted responsibility for the content of the letter of 16 September 2008 (at tab 22, folio 658), which accompanied the plan.

Mr Larkin primarily cross-examined Hancock in relation to his understanding of the impact of the proposed development on the existing vegetation, and how he had formed the opinion that A(iv) had been satisfied.

He conceded that the second requirement of the condition was that there be "no further impact" on existing vegetation. The edge of the "clearing" areas, as depicted on the plans, was determined by reliance on surveys, and aerial photographs (T18.07.2013, p3, LL35 - 48). He maintains that there was no further vegetation removal required, but he noted that the subject land had a history of having been cleared for timber, salad vegetable production, and cattle grazing. The concept of the development was a number of buildings located in discrete precincts surrounded by existing vegetation (Tp9, LL24 - 8).

Hancock was cross-examined on his familiarity, as a planner, generally, with provisions relating to bushfire protection (Tp9). The original DA did not propose asset protection zones of the scale ultimately proposed. Although DCC A(iv) says nothing about specific areas of the site, Hancock contends that he was informed by conversations with council officers (Tp10, LL24 - 8, and p16, LL36 - 9).

Mr Larkin questioned him on the inner protection zone's relationship with the application (Tp9, LL39 - 47):

Q. I suggest to you that you know full well that an inner protection zone involves the substantial clearing of vegetation and the removal, substantially, of all groundcover vegetation. That's correct isn't it?

A. It involves managed fuel loads and--

Q. Managed to such an extent that one is required to substantially clear the whole area and substantially remove all groundcover, isn't that right?

A. But no further clearing than was originally proposed in the application as lodged.

He testified (at Tp11, L30 - p12, L10) as follows:

A. The intention from the outset was to contain the buildings and the works to within the existing cleared areas and I think from memory there may have been one or two trees required to be removed in total with the application. The further refinements, particularly to the RFS requirements for access, in my understanding required no further tree removal. Most certainly the implications of the bushland management plan or the RFS IPAs and so on would have an impact and I suppose it is a point of, is that more or less than on the revised plan than the original plan and I say it's no different.

Q. Let me test that proposition. You accept don't you - withdraw that. Your understanding is that the original proposal and consent contemplated no adverse impact on the heavily vegetated areas well outside of the clear areas?

A. None was proposed as part of the application.

Q. Also, your understanding was the consent did not authorise impact on vegetation well outside of the clear areas?

A. The consent required a bushland management plan, so it certainly contemplated something happening. If nothing happens on the land something will need to be done in perpetuity to manage the vegetation.

[57] As noted in Kindimindi (at 293 [57]) the various elements of s 80A, subs (1)-subs (6) are permissive and, at least in some parts, address different aspects of development approval, thus suggesting that they are not cumulative. They affect the statutory scheme, but not the test of validity of a consent. They allow that the conditions will not be uncertain or imprecise if, although in general terms, they identify the outer limits of what is being authorised: see Genkem ... at 44 per Gleeson CJ, 49 per Powell JA, Dunford JA agreeing with both.

The law on construction of consents/conditions has been well established by the higher courts, and it will suffice for the purposes of this judgment for me to now quote it from two recent Court of Appeal judgments (in cases unsuccessfully appealed from decisions given by me in this Court).

In K and M Prodanovski Pty Ltd v Wollongong City Council ("Prodanovski") [2013] NSWCA 202; (2013) 195 LGERA 23, Meagher JA said (at [23]):

The principles governing the construction of the consent are not in issue and were summarised by this Court in House of Peace v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [23], [37]-[41] per Mason P (Stein and Giles JJA agreeing). The meaning of the language is to be determined objectively having regard to the context in which the consent was issued and taking into account the fact that, unlike a contract between parties, the consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant ...

His Honour had earlier said, in Allandale (omitting citations):

42 The relevant principles are, in some respects, more easily stated than applied. The task is to construe the document constituting the consent mindful of the fact that the approval is a unilateral act of the consent authority which has an enduring function. The consent is not the result of a bargaining process between two or more parties, and is not personal to the applicant but enures for the benefit of subsequent owners and occupiers. Its meaning must be determined objectively, having regard to these matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority. To that extent, the principles of construction appropriate to contracts, which provide that in the case of ambiguity or uncertainty reference may be made to surrounding circumstances known to the relevant parties, do not apply: ...

43 The extrinsic evidence to which reference legitimately may be made when construing a public document, such as a development consent, is more limited. Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication: ...

Conclusion on Validity

The development in the present case is large and complex, and the flexibility referred to in Scott is relevant. Bushfire safety would have been dealt with, prior to the grant of consent, had the DA been for integrated development, and I accept the respondent's submission that the DC is responsive to the DA as made.

Condition A(iv) provides an objective, the development plans are to incorporate the requirements of the Commissioner of the RFS, with criteria and an outcome, that the requirements are to not further impact on existing vegetation and incorporate the Commissioner's requirements through a reduction in the size of the development. The condition identifies with enough clarity what is to be achieved and necessary criteria for that achievement.

In my opinion, condition A(iv) does not fail for uncertainty or lack of finality. It, and so the consent, are held to be valid.

Issue (ii) - Severance and/or Section 25B

Having found the condition valid, there is no need for me to consider either

(a) the question of severability, upon which I would have applied the principles laid down in Anambah (at [162] - [176]); or

(b) an order under s 25B of the Court Act, which Hoxton indicates, as Mr Larkin submitted, would not have been appropriate.

Issue (iii) - Whether Condition A(iv) was Satisfied

Section 80(3) (see above [29]) restricts the applicants' consent from becoming operational until Council is satisfied that the requirements of Condition A(iv) have been duly complied with.

Condition A of the consent requires the DCCs to be met to the satisfaction of Council. Condition B stipulates that upon compliance with the DCCs, and notification by Council, the consent will commence operation.

It is common ground that the DCC had to be satisfied by 3 (or 4) December 2008 (T17.7.2013, p24, L30). The effect of the transitional provision (see [34]) on the applicants' DCC is that it provides the consent with a date after which, if the conditions are not satisfied, the consent will lapse. That date, it is agreed, was 4 December 2008.

Recently, Biscoe J in Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 usefully outlined in detail the principles in relation to subjective and objective jurisdictional facts (citations omitted):

112 ... A jurisdictional fact is a fact that, by statute, is a condition precedent to the decision-maker's exercise of jurisdiction. An objective jurisdictional fact is that X exists or occurred. A subjective jurisdictional fact is that the decision maker has a prescribed mental state, such as being satisfied or holding the opinion that X exists or occurred. In the case of a subjective jurisdictional fact, the court determines on the evidence before it whether the decision maker was satisfied or held the opinion that X exists or occurred. But (as discussed below) even if that is so, if that state of satisfaction or opinion was seriously irrational or illogical the decision will be unlawful. In contrast, in the case of an objective jurisdictional fact the court determines on the evidence before it whether X exists or occurred; therefore, inquiry into irrationality by the administrative decision maker is irrelevant. ...

113 A subjective jurisdictional fact is open to challenge on the basis that the subjective state of mind was "irrational, illogical and not based upon findings or inferences of fact supported by logical grounds": ... These were all cases of subjective jurisdictional fact (the decision-maker was empowered to make a decision if "satisfied" as to prescribed matters).

His Honour then went on to discuss "serious irrationality" and "Wednesbury unreasonableness" (again many citations omitted):

114 It is convenient to call this ground "serious irrationality" since not every rational or logical lapse will suffice. That is the basis on which I would distinguish the principle that there is no error of law in simply making a wrong finding of (non-jurisdictional) fact: ... Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321 at 356 (Bond); ... In Bond Mason CJ held at 356: "Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place". Acceptance of serious irrationality as a basis for judicial review resolves, in effect, the "serious question" whether such a suggested error "is of the kind to which the Wednesbury principle is directed": [Minister for Immigration and Multicultrual Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611] at [40] per Gleeson CJ and McHugh J. It is difficult to reconcile the serious irrationality ground with the majority decision in Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 155-156 (per Glass JA, Samuels JA agreeing) that even a perverse finding of fact is not an error of law. The dissenting view of Kirby P in Azzopardi at 151 has prevailed that there is an error of law where there is "manifest error or illogicality in the reasoning process" or reliance on facts which "indicate such an unexplained perversity as to suggest that an error has taken place".

115 This serious irrationality ground sets the same very high standard as for manifest (Wednesbury) unreasonableness. Thus, an attacked finding of fact must be one that no rational or logical decision-maker could have made: ... [T]he characterisation of a decision as seriously irrational or illogical should "not receive an affirmative answer that is lightly given": ...

116 It has been said that Wednesbury unreasonableness is "confined to the exercise of a discretion in circumstances where no reasons are required" or (alternatively) that there is an overlap between Wednesbury unreasonableness and a standard of rationality: [Minister for Immigration and Citizenship vSZMDS [2010] HCA 16; (2010) 240 CLR 611] at [128] per Crennan and Bell JJ. In New South Wales, the exercise of a discretion "in circumstances where no reasons are required" is limited in scope because court rules and practice notes provide machinery whereby an applicant for judicial review can obtain reasons from the decision-maker: Part 59 r 59.9 Uniform Civil Procedure Rules 2005; Supreme Court Common Law Division - Administrative Law List; Practice Note SC CL 3 Administrative Law List at [23]; Land and Environment Court Rules 2007 r 4.3(b); Land and Environment Court Practice Note Class 4 proceedings at [14(b)]. In four decisions of the New South Wales Court of Appeal, the serious irrationality formula has been treated as synonymous with Wednesbury unreasonableness itself in a non-jurisdictional fact context. ...

...

118 Before determining that a failure to observe the requirements of a legislative scheme has the consequence that the exercise of a statutory power has failed and that the result of the purported exercise is invalid, it is necessary to ask whether there is a legislative purpose to invalidate the exercise of the statutory power by reason of the alleged failure: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355 at [91]: Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 [2005] NSWCA 9, (2005) 137 LGERA 320 at [90].

In Casa, Pepper J discussed the principles of jurisdictional fact in relation to satisfaction of a DCC, and reviewed relevant authorities, before concluding:

64 Having regard to the propositions and decisions referred to above, a proper construction of s 80(3) of the EPAA reveals the existence of a "particular kind of jurisdictional fact" only in the limited sense described in [Timbarra Protection Coalition Inc v Ross Mining NL ("Timbarra") (1999) 46 NSWLR 55; 102 LGERA 52] (at [42]), namely, that the existence of the mental state of the council (its satisfaction) is a jurisdictional fact which enlivens the exercise of statutory power rendering the development consent operational. Judicial review by this Court is accordingly confined to determining whether the mental state existed and if so, whether that mental state was reasonably open on the facts in the Wednesbury unreasonableness sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). It does not permit the Court to inquire into the existence of the facts underlying the achievement of the requisite mental state.

65 The applicants contend that the mental state contained in s 80(3) of the EPAA is a factual reference preliminary to the exercise of statutory power which is strongly suggestive of a parliamentary intention to establish a jurisdictional fact (Timbarra at [44]). I do not agree.

66 The power to impose a condition under s 80(3) derives from s 80A(1)(h) of the Act. The power to impose the condition is not preconditioned upon the existence of any fact, unlike, for example, the power to grant consent for a development in s 80(1) of the EPAA, which is, by contrast, preconditioned on the fact that to do so must not result in a contravention listed in s 80(2). Rather, s 80(3) merely confirms the power of the consent authority to grant a development consent subject to a condition fitting the description contained in that provision should it elect to do so. The power to grant a development consent, and in particular a conditional deferred development consent, derives from ss 80(1) and 80A(1)(h) and not simply s 80(3). Viewed this way there is no jurisdictional factual reference to be made in the statutory conferral of power in s 80(3).

67 To the extent that the applicants rely on cl 95(2) and (5) of the Regulation in support, cl 95(2) merely states that the deferred commencement consent must clearly distinguish between those conditions requiring the consent authority to attain a mental state from those that do not. Clause 95(5) of the Regulation goes on to specify that once the required mental state is achieved by the consent authority as to the matters specified in the condition, then the authority "must notify the applicant whether or not it is satisfied as to the relevant matters". The operation of neither cl 95(2) nor (5) of the Regulation themselves enliven the operation of the development consent. Rather, it is the attainment of a state of satisfaction by the consent authority as to any matter specified in the condition together with the notification that render the development consent operative.

68 Therefore, at its highest the power in s 80(3) which is engaged to permit the development consent to become operational may be expressed "as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs" and the existence of the satisfaction is treated "as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker" (Corporation of the City of Einfeld v Development Assessment Commission (2000) 199 CLR 135 at [34]). This militates strongly against the establishment of a jurisdictional fact (Gedeon at [32]-[33]).

I respectfully agree with Her Honour's analysis.

In the present case, counsel for both parties (applicants' submissions pt2, at 38, and respondent's submissions, at 62) accept Pepper J's approach as correct. Hence, the satisfaction of DCC A(iv) is a question of subjective jurisdictional fact, and, that the Court can inquire into only the existence of that mental state of satisfaction, and also, whether serious irrationality or Wednesbury reasonableness occurred on the part of Council in not being satisfied. It is not for this Court to decide whether the Council ought objectively to have been satisfied.

I turn, therefore, to whether the required mental state of satisfaction existed within Council, in the context of the proper construction of A(iv).

There may well have been problems with the plan as submitted, but, according to the applicants, all that was required was the submission of a plan, which incorporated the RFS requirements (T30.10.12 p23, L12). Following the submission of the s 96 application, Council assessed it under s 79C (subs 42 - 3). Council need not have done anything at all after 3 December 2008, and the applicants conclude, from that continued process of assessment, that Council was satisfied that all the DCCs had been complied with. The fact that Council did not approve the s 96 is irrelevant for the satisfaction of condition A(iv).

Even on its own, the requirement that a s 96 application be submitted indicates some confusion on Council's part as to what A(iv) meant and required, but it was certainly satisfied that a plan was submitted in time.

Hancock relied on communications with Council for his understanding that the second leg of the requirement, namely that there was no further impact on vegetation, was fulfilled by the plan.

As communications between an applicant and a consent authority cannot be so relied upon, Hancock's evidence had no real value to the Court.

The applicants needed to appeal by 3 December 2008 against the deemed refusal of their s 96 modification application.

At no time did Council indicate its satisfaction prior to or on the lapsing date (sub 68), nor is there any evidence of there being a state of satisfaction within Council (T17.7.13 p37, L46). In fact, on the day before the lapse date Council officers communicated that it was their understanding that the consent was not operational (LL48ff).

The evidence upon which the applicants seek to rely occurs after the lapse date, but much of that evidence demonstrates that the necessary state of satisfaction did not exist within the Council. Only the attainment of the state of satisfaction, and the notification of it, can render the consent operative (Tp37, L10 - 21).

Having regard to Pepper J's principles in Casa, I have formed the opinion that Council was not satisfied as to compliance of DCC A(iv) by 3 December 2008.

Issue (iv) - Correctness and/or Validity of Council's Conclusion

In their APOC 8, 9 and 10, the applicants assert:

(a) that the respondent has refused, and continues to refuse, to be satisfied;

(b) that the respondent failed to determine that he requirements of condition A(iv) were satisfied; and

(c) that the failure of council to be satisfied is unreasonable or contrary to fact.

The applicants have not pleaded that any irrationality or Wednesbury unreasonableness has occurred, in the sense that Council made a decision so unreasonable that no reasonable Council in the same situation would make it.

The respondent admits that it did not determine that the condition A(iv) had been satisfied (subs par 80), but notes that, even if the Council officers lacked authority to engage in the relevant communications with the applicants, the applicants must still prove that the state of satisfaction was reached, and they have failed to do so. The respondent relies on Casa to assert that only the mental state of satisfaction may be enquired into, rather than whether the absence of satisfaction was contrary to fact or unreasonable.

Not every rational or illogical lapse in decision making by a consent authority, e.g. a mistaken construction of its own condition, is sufficient for a court to enter into judicial review, particularly if an inference was reasonably open on the facts, the decision must have been one that no rational or logical decision maker would have made.

The consideration of the s 96 application following the lapse date may indeed be illogical, and Mr Larkin did not - or possibly could not - explain why the process of approval continued after the lapse date.

The applicants rely upon the continuation of the assessment process, correspondence etc relevant to it, and the eventual determination of the s 96 application as evidence of satisfaction of conditions, such that the DC became operative.

I have rejected the applicants' case on satisfaction, which rejection has the inevitable consequence that the DC never became operative, and the statutory lapsing provisions had no need operate as they were intended. No contrary interpretation of events subsequent to the lapse date can alter that legal reality: Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737; (2005) 143 LGERA 237 per Preston ChJ, at [32] - [42], and Reid's Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171; (2009) 169 LGERA 307, per Pepper J at [55].

The applicants must, therefore, also fail on issue (iv).

Issue (v) Estoppel

This late-added claim by the applicants was not fully articulated in their submissions, but appears to be based upon drawing an inference, from Council's continued consideration of the s 96 application which it required of the applicants, to the effect (a) that the Council thereby represented to the applicants that the development consent was operative, and (b) that the applicants relied upon that representation, and continued to correspond with, and submit reports to, Council.

The respondent Council submitted that estoppel is not available in the present case (T17.7.2013, p29, L9), and that, even if estoppel were available, the necessary elements have not been properly pleaded or made out.

Consents are public documents, which operate in rem (Prodanovski), and estoppel is a doctrine which operates in personam to bind individuals on the basis that it would be unconscionable for them to deny what has been represented or assumed.

Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 held, at 413, that the necessary elements which must be proved by the applicants in order to make out an estoppel by representation are that (see respondent's subs, par 116):

a. the Respondent induced the Applicants to make an assumption that a state of affairs existed;

b. the Respondent knew or intended the Applicants to act on that assumption;

c. the Applicants have acted in reliance on the assumption; and

d. the Applicants would suffer detriment if the assumption were not adhered to.

In Kurtovic, at 208, Gummow J observed:

As a starting point, I should note that the present case is not one where a party asserts that the executive or other public authority is estopped from asserting that a particular action, of which the other party seeks performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying. Rather, in the present case, the respondent seeks to prevent the appellant from making a decision within the latter's power which would have the effect of altering a previous intra vires decision. The respondent is then met with the objection that to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion.

The principles governing the application of estoppel by representation, or promissory estoppel, and related doctrines, have evolved largely in the context of private law. Difficult issues arise as to the extent to which those principles are to be applied in administrative law. The generally accepted proposition is that:

"Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public."

Brereton J noted, in Northey at [38], that these principles do not extend into the "public law of planning control, which binds everyone". His Honour said (most citations omitted):

Equitable estoppel does not operate to enlarge statutory rights to deal with land ... Where the capacity of a public authority to contract or otherwise fetter the future exercise of its powers or discretions is restricted by statute, those restrictions cannot be circumvented by resort to estoppel. Estoppels bind individuals on the basis that it would be unconscionable to deny what has been represented or assumed, but these concepts do not extend into 'the public law of planning control, which binds everyone' [Newbury District Council v Secretary of State for the Environment [1981] AC 578, 616 (Lord Scarman); ...]

The Council and the Court lack, inter alia, jurisdiction to grant an extension of the absolute lapsing date under the EPA Act. As Mr Larkin noted (subs par 125 - 126):

125. In Northey Brereton J held at [39] that the applicant in that case could not gain by equitable estoppel what she could not lawfully have been granted by a more formal dealing.

126. Applying the principles in Kurtovic and Northey to the present case, even if there had there been a relevant representation, relevant reliance and relevant detriment there would still be no estoppel because:

a. the Court does not have jurisdiction and the Council did not have power to grant an extension to the absolute lapsing date of 4 December 2008 under clause 111 of the 2006 Amending Act;

b. the Applicants cannot gain by equitable estoppel (ie revival, extension or non lapsing of the Development Consent) what it could not lawfully have been granted by a more formal dealing; and

c. estoppel cannot be raised against a public authority where it would have the effect of compelling the authority to act ultra vires.

I accept those submissions, and find that estoppel has not been made out.

Hence, issue (v) is also resolved in the Council's favour.

Issue (vi) Discretion

As the applicants have been totally unsuccessful in discharging their onus of proof in relation to matters of both fact and law, the issue of discretion does not arise.

However, there would have been no utility in making the declarations sought by the applicants (see Blanch v British American Tobacco Australian Services Limited [2005] NSWSC 241; (2005) 62 NSWLR 653), and, in exercising the Court's discretion, relief should have been refused, particularly as the applicants have been guilty of delay (T18.7.13 p34, LL10 - 14), and relevantly failed to pursue rights of appeal arising at various stages of their dealings with the Council (see T18.7.13 p33, L47 - p34 L8, and Coalcliff, at [67]).

F: Conclusion and Orders

The amended summons brought by the applicants should be dismissed.

Such an outcome would be expected to bring with it an order for costs in favour of the respondent Council, but the parties' submissions were silent on the costs question, and an opportunity should be left open for it to be properly argued, if need be.

The Orders of the Court will, therefore, be:

(1) The amended summons is dismissed.

(2) The Applicants are ordered to pay the Respondent's costs, on a party-party basis, as agreed or assessed, unless within 28 days one or both parties file(s) a Notice of Motion seeking some different costs order.

(3) All exhibits are returned.

**********

Decision last updated: 17 April 2014

Medium Neutral Citation:	Howarth v Gosford City Council (No 2) [2014] NSWLEC 40
Decision date:	17 April 2014
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	1. The amended summons is dismissed. 2. The Applicants are ordered to pay the Respondent's costs, on a party-party basis, as agreed or assessed, unless within 28 days one or both parties file(s) a Notice of Motion seeking some different costs order. 3. All exhibits are returned.
Catchwords:	JUDICIAL REVIEW: DEVELOPMENT CONSENT: deferred commencement conditions; whether deferred commencement condition valid; whether deferred commencement condition satisfied; whether unreasonably satisfied; discretion; whether a s 25B order under the Land and Environment Court Act 1979 should be made?
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Fisheries Management Act 1994 Interpretation Act 1987 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Rivers and Foreshore Improvement Act 1948 Rural Fires Act 1997 Uniform Civil Procedure Rules 2005
Cases Cited:	Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; (2006) 148 LGERA 439 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 Blanch v British American Tobacco Australia Services Limited [2005] NSWCA 241; (2005) 62 NSWLR 653 Casa v Ryde City Council [2009] NSWLEC 212; (2009) 172 LGERA 348 Coalcliff Community Association Inc v Minister for Urban Affairs and Planning & Ors [1999] NSWCA 317; (1999) 106 LGERA 243 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 CSR Ltd v Fairfield City Council [2001] NSWLEC 221; (2001) 117 LGERA 77 Dooralong Residents Action Group Pty Ltd v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274 Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 GPT Re Limited v Bell Morgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647 House of Peace v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 Howarth v Gosford City Council [2012] NSWLEC 126 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; 190 LGERA 119 K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737; (2005) 143 LGERA 237 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23;143 LGERA 277 Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695; 147 LGERA 234 Marrickville Metro Shopping Centre Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Ltd [2007] NSWLEC 411 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 [2005] NSWCA 9; (2005) 137 LGERA 320 Newbury District Council v Secretary of State for the Environment [1981] AC 578, 616 Northey v Bega Valley Shire Council [2010] NSWSC 527 Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Reid's Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171; 169 LGERA 307 Rich v Lennox Palms Estate [2009] NSWLEC 167 Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 Scott v Wollongong City Council (1992) 75 LGRA 112 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196 Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333 Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 Winn v Director General of National Parks & Wildlife [2001] NSWCA 17; 130 LGERA 508
Category:	Principal judgment
Parties:	Russell Howarth (First Applicant) Cherie Reid (Second Applicant) Gosford City Council (Respondent)
Representation:	Mr D Wilson, barrister (Applicants) Mr J Maston, barrister (in 2012), Mr P Larkin SC (in 2013), both with Ms S Ross, barrister (Respondent) Landers & Rogers (Applicants) P J Donnellan & Co (Respondent)
File Number(s):	40221 of 2012