Inglis v Buckley

[2023] NSWLEC 77

Land and Environment Court

New South Wales

Medium Neutral Citation:

Inglis v Buckley [2023] NSWLEC 77

Hearing dates:

24, 27 April 2023

Date of orders:

20 July 2023

Decision date:

20 July 2023

Jurisdiction:

Class 4

Before:

Pain J

Decision:

The Court declares and orders as follows:

(1) That development consent DA 2022/0023 granted by the Second Respondent to the First Respondent on 19 May 2022 as amended by Notice of Determination dated 24 August 2022 is invalid and of no effect.

(2) Costs are reserved.

Catchwords:

JUDICIAL REVIEW – challenge to grant of development consent for subdivision in rural area which created undersized lot with a dwelling entitlement transferred as part of boundary adjustment – council failed to form requisite state of satisfaction that potential for land use conflict will not be increased as a result of the subdivision – whether council resolution to approve subdivision and delegate imposition of standard conditions to CEO offended rule against indivisibility of function

Legislation Cited:

Conveyancing Act 1919 (NSW), s 88E

Environmental Planning and Assessment Act 1979 (NSW), ss 1.5, 4.15, 4.16, 4.55

Local Government Act 1993 (NSW), s 377

Snowy Valleys Council Development Control Plan 2019, Pt 9.8, cll 9.8.1, 9.8.4, 9.8.5, 9.8.6

Tumut Local Environmental Plan 2012 (NSW), cll 4.1, 4.2, 4.2A, 4.2B, 4.2C

Cases Cited:

Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17

Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; [2007] NSWCA 171

Benedict Industries Pty Ltd v Sutherland Shire Council [2015] NSWCCA 272

Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353

Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401

Currey v Sutherland Shire Council (1998) 100 LGERA 365

Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227

Franklins Ltd v Penrith City Council [1999] NSWCA 134

Gee v Council of the City of Sydney (2004) 137 LGERA 157; [2004] NSWLEC 581

GPT Re Limited v Wollongong City Council (2006) 151 LGERA 116; [2006] NSWLEC 303

Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23

Manly Council v Hortis (2001) 113 LGERA 321; [2001] NSWCA 81

Parramatta City Council v Hale (1982) 47 LGRA 319

Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504

Weal v Bathurst City Council [1999] NSWLEC 132

Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88

LendLease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61

Category:

Principal judgment

Parties:

Michael Inglis (Applicant)
Lindsay Buckley (First Respondent) (submitting appearance)
Snowy Valleys Council (Second Respondent)

Representation:

Counsel:
F. Berglund (Applicant)
T. G. Howard SC (Respondent)

Solicitors:
Commins Hendriks Pty Ltd (Applicant)
Kell Moore Pty Ltd (First Respondent)
Shaw Reynolds Lawyers (Second Respondent)

File Number(s):

2022/243339

JUDGMENT

1. The Applicant Mr Inglis seeks judicial review of the grant of development consent DA 2022/0023 dated 19 May 2022 (the Development Consent) by the Second Respondent Snowy Valleys Council (the Council) in respect of land located in Goobarragandra Road (Walls Creek Road East), Goobarragandra (the Land). The Land is in a rural primary production zone and the development the subject of the Development Consent is a boundary adjustment and consolidation of lots with a dwelling entitlement to be transferred to a small lot to be created as part of the boundary adjustment.

2. The First Respondent Mr Buckley has filed a submitting appearance save as to costs and has not filed a defence or any evidence in the proceedings. The Council advised the Applicant by letter dated 11 October 2022 that its “role in the proceedings will be limited to making submissions on powers and procedures and any question of law if requested by the Court”. The Council has not filed a defence in the proceedings. Its representatives have conferred with the Applicant regarding the material to be included in the Evidence Book, read an affidavit, tendered evidence and made submissions to assist the Court. The Applicant bears the onus of proof on the balance of probabilities of establishing the grounds of review.

Legislation

Environmental Planning and Assessment Act 1979(NSW)

3. Section 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) states:

Part 4 Development assessment and consent

…

Division 4.3 Development that needs consent (except complying development)

4.15 Evaluation

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

…

(iii) any development control plan, and

…

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

…

Tumut Local Environmental Plan 2012 (NSW)

4. The Tumut Local Environmental Plan 2012 (NSW) (TLEP) states:

Land Use Table

Zone RU1   Primary Production

1   Objectives of zone

•  To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

•  To encourage diversity in primary industry enterprises and systems appropriate for the area.

•  To minimise the fragmentation and alienation of resource lands.

•  To minimise conflict between land uses within this zone and land uses within adjoining zones.

•  To protect, enhance and conserve the natural environment, including native vegetation, wetlands and wildlife habitat.

•  To ensure development prevents or mitigates land degradation.

•  To protect significant scenic landscapes.

2   Permitted without consent

Environmental protection works; Extensive agriculture; Forestry; Home occupations; Intensive plant agriculture; Roads

3   Permitted with consent

Aquaculture; Cellar door premises; Dwelling houses; Extractive industries; Farm buildings; Garden centres; Intensive livestock agriculture; Markets; Open cut mining; Plant nurseries; Roadside stalls; Rural workers’ dwellings; Secondary dwellings; Any other development not specified in item 2 or 4

4   Prohibited

Advertising structures; Amusement centres; Centre-based child care facilities; Commercial premises; Eco-tourist facilities; Entertainment facilities; Exhibition homes; Exhibition villages; Function centres; Local distribution premises; Recreation facilities (indoor); Registered clubs; Residential accommodation; Respite day care centres; Restricted premises; Service stations; Sex services premises; Vehicle repair stations; Wholesale supplies

…

Part 4 Principal development standards

4.1 Minimum subdivision lot size

(1) The objectives of this clause are as follows—

(a) to ensure the protection of natural and environmental values in the locality,

(b) to ensure the efficient use of land resources through appropriate subdivision patterns,

(c) to prevent the fragmentation of agricultural land and ensure viable farm sizes are protected through appropriate subdivision patterns.

(2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan.

(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land.

(4) This clause does not apply in relation to the subdivision of any land—

(a) by the registration of a strata plan or strata plan of subdivision under the Strata Schemes Development Act 2015, or

(b) by any kind of subdivision under the Community Land Development Act 2021.

…

4.2C Boundary adjustments of land in certain zones

(1) The objective of this clause is to facilitate boundary adjustments between lots if the adjustment will result in the lot size of one or more of the lots being less than the minimum lot size shown on the Lot Size Map in relation to that land and the objectives of the relevant zone can be achieved.

(2) This clause applies to land in the following zones—

(a) Zone RU1 Primary Production,

…

(3) Despite clause 4.1, development consent may be granted to subdivide land by adjusting the boundary between adjoining lots if one or more resultant lots do not meet the minimum lot size shown on the Lot Size Map in relation to that land, and the consent authority is satisfied that—

(a) the subdivision will not create additional lots or the opportunity for additional dwellings, and

(b) the number of dwellings or opportunities for dwellings on each lot after the subdivision will be the same as before the subdivision, and

(c) the potential for land use conflict will not be increased as a result of the subdivision.

Background

5. Mr Buckley is the owner of the Land which is zoned RU1 Primary Production under the TLEP and is currently used for agricultural activities. The Applicant is the owner and/or occupier of adjoining land which is also used for agricultural activities of thoroughbred horse breeding.

6. The Land is in an area on the Lot Size Map referred to in cl 4.1 of the TLEP where the minimum subdivision lot requirement is 150ha. The proposal creates two lots:

1. Lot 41 is 20ha, which does not meet the minimum lot size in the RU1 zone; and

2. Lot 42 is 410ha, which exceeds the minimum lot size in the RU1 zone.

7. Due to the size of Lot 41, cl 4.2C(3) of the TLEP is engaged. Accordingly, the Council had to be satisfied that the subdivision would not cause any of the matters set out in cl 4.2C(3) which includes an increase in the potential for land use conflict in subcl (c) before or at the time the Development Consent was granted.

8. On 19 May 2022, the Council purported to grant the Development Consent in respect of the Land for “boundary adjustment and consolidation of eight lots into two Torrens Title lots for use as a residential dwelling and agricultural use” as the development was described in management reports before the councillors. The Development Consent was initially granted to “Gray Surveying”.

9. On 17 August 2022, the Applicant filed a Summons seeking judicial review of the validity of the Development Consent. On 24 August 2022, the Council granted a modified notice of determination amending the applicant for consent to “LM Buckley”. With leave of the Court, on 6 October 2022 the Applicant filed an Amended Summons reflecting the modification to the identity of the consent holder. On 24 April 2023 the Applicant was given leave to rely on a Further Amended Summons filed 13 April 2023. I note any declarations or orders made in these proceedings must apply to the modified Development Consent dated 24 August 2022.

Issues

10. Following discussion in the course of the hearing the parties agreed the following issues for determination:

1. Did the Second Respondent, Snowy Valleys Council, form the positive state of satisfaction required by clause 4.2C(3)(c) of Tumut LEP 2012 that “the potential for land use conflict will not be increased as a result of the subdivision”?

2. Was the development consent validly granted in circumstances in which the resolution of the elected council purported to delegate to the CEO delegation to apply standard conditions of development consent to the notice of determination and the proposed conditions of consent were not before the elected council when it made its determination[?]

Evidence

11. The parties referred extensively to the documentary record of the Council and transcripts of the two meetings of councillors where the First Respondent’s DA (the DA) was discussed. These documents are set out chronologically below. The document paragraphs particularly relied on by the Applicant are numbered in bold square brackets.

24 November 2021

12. The statement of environmental effects (SEE) prepared by Gray Surveyors (engaged by the First Respondent) dated 24 November 2021 stated as follows:

SECTION 1 PROPOSAL

1.1 THE PROPOSAL

…

As any of the lots included in the existing holding may utilise the potential dwelling entitlement as per Council’s advice, three being 20 hectares or below, this proposal is permissible utilising Clause 4.2C(3) of Tumut LEP 2012 which allows the creation of undersized lots while not increasing additional lots or potential for additional dwellings. The dwelling potential opportunities will remain the same as before upon finalisation of this proposal. The potential for land use conflict will not increase as a result of this proposal. [#1]

…

SECTION 2 PLANNING PROCESSES

2.2 LEP AIMS

…

Yes, this proposal meets the above aims and objectives of the Tumut LEP 2012 land use table. The proposal reduces the fragmentation of the subject lots via consolidation and does not diminish continued agricultural production and does not increase the possibility of conflict of land use. [#2]

…

SECTION 3 EP&A Act 1979, Section 4.15

3.1 THE PROVISIONS OF ANY ENVIRONMENTAL INSTRUMENT

…

This proposal is permissible and satisfies the requirements and standards of the relevant Epl’s. This proposal facilitates the orderly economic use and development of lands for intended uses, does not increase the potential for land use conflict and sterilisation of rural land by balancing primary production with residential development. [#3]

8 December 2021

13. Email correspondence from Gray Surveyors to the Council dated 8 December 2021 stated:

Also, as per the attached email to Nicholas Wilton, if Clause 4.2C did not permit a building entitlement to be moved with an existing lot, this clause would not have been introduced.

16 March 2022

14. A letter from the First Respondent (or his representative) to the Council dated 16 March 2022 provided relevantly as follows:

As stated in Council report 11.4 of Snowy Valleys Business paper, Thursday 17^th March, 2022, ‘the proposal is generally consistent with the existing land uses of the area and is not expected to cause unmanageable land use conflict. The site is currently utilised for agricultural activities.’ [Applicant sub]

…

The proposal does not transfer a dwelling entitlement to an unrelated lot to the north. The dwelling entitlement is attached to the existing holding, which will be consolidated and relocated to the north via a boundary adjustment. We do not propose to ‘transfer’ the dwelling entitlement to another unrelated lot, we propose relocating the existing holding and dwelling entitlement to a more suitable location within the applicant’s land by utilising clause 4.2C(3) of Tumut LEP 2012.

…

Tumut LEP 2012 (relevant clauses)

…

4.2   The proposal is contrary to Clause 4.2 as it proposes a resultant subdivision that creates a lot for residential purposes and not for primary production and a lot that denies the efficient use of Lot 739 DP 757291 for agricultural purposes. [#4]

We disagree. Clause 4.2((3) of Tumut LEP 2012 facilitates the proposed development. All existing lots are below the minimum of 150 hectares and this proposal intends to consolidate and achieve two lots, both under the minimum lot size. Proposed Lot 1 with be for rural residential purposes AND agricultural use. Proposed lot 2 is intended for agricultural use only. This proposal does not deny the efficient use of Lot 739 DP 757291 as the isolation of this lot is to remain unchanged. As previously disclosed to Council, the merits of imposing access and service arrangements to Lot 739 would not pass the Newbury Test. We agree this imposition would serve a planning purpose but it does not fairly and reasonably relate to the development for which permission is being given as Lot 739 is not included in this proposal. We also consider it unreasonable to impose a condition on the applicants which increases their financial outlay and burdens their land to offer a benefit to an un-associated lot which is NOT part of the proposal. Compensation would be required to the applicant if this was to occur.

…

Development Control Plans

…

2.   Mechanism for proposal – It is iterated throughout the report that there is not a mechanism within Tumut LEP 2012 to achieve the proposed development. It is our understanding Clause 4.2C(3) was introduced to the LEP to facilitate boundary adjustments of this nature. Our previous submission clarifies the intended use of this clause which confirms this proposal is permissible [within] the bounds of the current Tumut LEP. [#5]

In regards to DA2022/0023, the principles of the proposed development are very similar to DA2021/0106. The intent of the proposal is to relocate an existing holding, which has a dwelling entitlement, to a more suitable location and consolidation of fragmented rural land. The majority of the above comments would also apply to this proposal as the author/assessing officer again refers to the lack of a clause or mechanism in the Tumut LEP 2012 to facilitate the boundary adjustment. Clause 4.2C(3) facilitates this proposal as per information previously provided. [#6]

…

We believe it would be in both the applicants’ best interest if Council apply standard conditions rather than conditions via delegated authority from the Chief Executive office. In all likelihood, the CEO will follow the guidance from the planning department, which we believe this would be detrimental to the applicants due to the negative assessment of the applications and subsequent recommendations of refusal.

…

17 March 2022

15. The management report included in the agenda for the Council meeting on 17 March 2022 stated as follows:

RECOMMENDATION THAT COUNCIL:

…

2. Council determine Development Application 2022/0023 for a boundary adjustment and consolidation of lots into two Torrens Title lots for use as a dwelling entitlement in each lot involving a transfer of an established dwelling entitlement to an unrelated new lot to the north at Lots 16,17,34 of DP 750971 and Lot 156 DP 750972, for the for the following reasons:

a) The proposed development is inconsistent with the objectives of the RU1 Primary Production zone of the Tumut Local Environmental Plan 2012. [Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act, 1979].

b) Pursuant to Section 4.15[(1)](a)(i) of the Environmental Planning and Assessment Act, 1979, the proposal is unsatisfactory in respect to the matters for consideration under Clause 4.1, 4.2, 4.2A, 4.2B, 4.2C of Tumut Local Environmental Plan 2012.

c) Pursuant to Section 4.15[(1)](a)(iii) of the Environmental Planning and Assessment Act, 1979, the proposal is unsatisfactory in respect to Rural Subdivision Part 9.8 of Snowy Valleys Development Control Plan with particular reference to Part 9.8.1, 9.8.4, 9.8.5 and 9.8.6 as the boundary adjustment and consolidation results in a less efficient use of land resources and creates an inappropriate subdivision by the proposed transfer of a holding to an unrelated lot thereby adversely affecting the viability and promoting fragmentation of agricultural land of proposed Lot 41. [#7]

d) The proposed development represents an unacceptable level of impact of the locality. [Pursuant to Section 4.15(1)(b) Environmental Planning and Assessment Act, 1979].

e) The site is considered unsuitable for the proposed development [Pursuant to Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979].

f) The development is not considered to be in the public interest [Pursuant to Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979].

BACKGROUND:

Subject Site and Locality

…

The subject site is located approximately 25km to the east of Tumut, with the surrounding land currently being utilised for primary production, agricultural and rural residential land uses. It is considered that the proposal is generally consistent with the existing land uses of the area and is not expected to cause unmanageable land use conflict. The site is currently utilised for agricultural activities. The site has varying topography and practical access.

…

4.1 Minimum subdivision lot size

…

Proposed Lot	Area	Complies	Comment
41	20 Ha	No	The proposal seeks to use Clause 4.2C to propose lot 41 size less than the minimum lot size required. The proposal is not considered to comply with Clause 4.2C (see below).
42	410 Ha	Yes

…

The proposed Lot 41 does not comply with the minimum lot size as prescribed in Clause 4.1. Clause 4.2C enables for boundary adjustments as a departure to the minimum lot size. An assessment of Clause 4.2C (see below) concludes that the proposal, in its current form, creates a significant departure that is not acceptable.

The proposed subdivision is therefore inconsistent with the objectives in that the boundary adjustment and consolidation results in a less efficient use of land resources and creates an inappropriate subdivision by the proposed transfer of a holding to an unrelated lot thereby adversely affecting the viability and promoting fragmentation of agricultural land of proposed Lot 41. [#8]

…

4.2 Rural subdivision

…

The applicant advised on the 14 November 2021 that "The subject land, including the existing holding, is utilised for agriculture as is the surrounding land. This boundary adjustment will not increase land use conflict due to this fact. We are not introducing a new land use potential, we are utilizing the existing potential, that is the building entitlement attached to the existing holding." [#9]

…

The proposal is contrary to Clause 4.2 as it proposes a resultant subdivision that creates a Lot for residential purposes and not for primary production.

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4.2A Exceptions to minimum lot sizes for certain rural subdivisions

…

Development consent must not be granted for the subdivision of land to which this clause applies unless the consent authority is satisfied that:

…

c. the subdivision will not increase rural land use conflict in the locality

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OPTIONS:

1.   THAT Council determine development application 2022/0023 seeking development consent for a boundary adjustment, consolidation of lots and transfer of a building entitlement to an unrelated allotment by way of approval and delegate to the Chief Executive Officer delegation to apply standard conditions of development consent to the notice of determination.

2.   THAT Council determine development application 2022/0023 seeking development consent for a boundary adjustment, consolidation of lots and transfer of a building entitlement to an unrelated allotment by way of refusal for the reasons as outlined in the recommendations section of this report.

Option 2 is recommended to Council.

…

16. A certified transcript of the Council meeting on 17 March 2022 is extracted relevantly as follows:

Councillor Livermore (03:10): Well, I'd better kick this one off I suppose. This one isn't really quite the same as the other. It's along the lines of it's amalgamating lots, and transferring a building entitlement from a holding that has an entitlement, to another smaller lot on the land. Now, it's why I specifically asked the question, was there still an idea that you would retain a building entitlement on the large residue lot? And it might seem silly in terminology, but the little lot is the focus of this subdivision. The large lot you would consider the residue, even though it's 410 hectares. So, the issue is tied up with, again, the use of this clause 4.2C, which allows boundary adjustments, typically on small lots, and the ability to move a building entitlement from one to another. But the clause is very, very specific in that you cannot create an opportunity for any additional building or dwelling entitlement on the subject land.

(04:35): So, I guess it's an issue for this particular one. If they want to use clause 4.2C, I believe they can, to create that little lot, but they then have to forego the dwelling entitlement on the 410-hectare lot. And I think the surveyor indicated that they are probably aware of that there today. Alternately there's plenty of room there on the land available to do a rural subdivision of two 150 hectare lots, and they've both got a dwelling entitlement, but it depends on what their end result is they want to achieve. Do they want two dwelling entitlements, or do they just want a dwelling entitlement on that small lot?

(05:20): So, whilst you could approve it, there would need to be a condition there, that there would be a Section 88-B instrument created over the residue lot to indicate that there is no dwelling entitlement, or alternately they could subdivide two rural subdivisions of 150 hectares and have two dwelling entitlements.

(05:51): And the other issue there will be, I'd imagine, access, because they've got to come through from Goobarragandra Road over the river, which there's a bridge there I see, on the map, up through a parent bit of land, and then through a section of national park, and so on. So, I'd imagine there'd have to be some license agreement with National Parks to allow access.

(06:22): So, there are some of the little things that would need to be done. Or if they're coming up Little River Road, there's some issues up there that would have to be fleshed out. And that would just have to be made aware to them, because actually constructing a trafficable road into the property...

Mayor Chaffey (06:45): Could be an issue.

Councillor Livermore (06:46): ... could be quite expensive, and relatively difficulty.

Councillor Ham (06:49): And they do say there's an unacceptable level of impact on the locality.

Councillor Livermore (06:56): Yeah. I mean, that probably hasn't been fleshed out greatly.

Councillor Ham (07:03): Mr. Holton, can you speak on that?

…

Nick Wilton (08:04): Yeah. In relation to the actual access and egress from the site, this has been considered as part of the application through council's engineer. It has been considered to be appropriate for this development. Now, internal access arrangements would obviously be a consideration for the developer, or for the proponent, but in terms of access and egress locations to the actual site, it's been considered to be satisfactory on this occasion.

Councillor Ham (08:33): So why in the recommendation that we're not discussing, but it's within there, 2E, the site is considered... No, D, the proposed development represents an unacceptable level of impact of the locality? Environmental Planning and Assessment Act.

Nick Wilton (09:04): To the Chair, in relation to that, I think it relates to the level of clearing that's required in order to provide those accesses, I believe.

…

Councillor Hayes (10:25): So past Elm Cottage and straight up there?

Councillor Armour (10:31): Yeah, straight up there.

Mayor Chaffey (10:33): And that was a reasonable access to get roughly to it?

Councillor Armour (10:36): To get to it, yes, but if you-

Mayor Chaffey (10:38): When you got to it?

Councillor Armour (10:39): I would have thought if you're going to have to build a road for two-wheel drive, or whether a gravel road, you'd be looking at, even though it's a short distance and it's clear of timber, it's going to be very expensive with 20 hectares of steep, timbered country.

Mayor Chaffey (10:55): And I'm not sure under the bush fire zone, don't you have to have two accesses or egresses?

Councillor Armour (11:02): Yeah, but nobody up there has.

Councillor Thomson (11:05): Yes, but that's with the new development I think, even... Sorry-

Mayor Chaffey (11:08): I think there's a requirement under that. But anyway...

Councillor Thomson (11:10): Whatever.

Mayor Chaffey (11:11): Righto, well is there any more information? What's the council's decision? If there's no more debate, we'll go back into open council and discuss the recommendation.

Councillor Hayes (11:23): I think we need know what access they plan, and once again, whether the neighbours, given that it's going to be going... the access to this property is not straight off the Wondalga Road, it's through various people's properties...

…

Councillor Hayes (11:42): I know, but the last one was straight off Wondalga Road.

Councillor Armour (11:44): Oh, yeah.

Councillor Hayes (11:45): This one goes off through people's properties, unfenced roads. So, we've got to be aware of that. So, I don't think there's enough information for me to-

Mayor Chaffey (12:01): Make a decision?

Councillor Hayes (12:02): ... vote in favour of option one, unless I get more information. So, I'd be asking, personally, to defer it and get to come back with more information, and make sure they've got consent to drive through there. And also, the bush fire stuff does worry me. In fact, all of Goobarragandra worries me for bush fire.

Mayor Chaffey (12:27): Righto. Okay, do we wish to have any more discussion? If not, we'll go back into open council. Is there a mover?

…

17. The Council resolved on 17 March 2022:

DA2022/0023 - PROPOSED LOT CONSOLIDATION AND BOUNDARY ADJUSTMENT - 738 GOOBARRAGANDRA ROAD (WALLS CREEK ROAD EAST), GOOBARRAGANDRA

…

Defer consideration of Development Application 2022/0023 in order to seek further information regarding access and fire and consult the adjacent neighbours regarding access.

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CARRIED UNANIMOUSLY

12 May 2022

18. The Applicant lodged a submission dated 12 May 2022 with the Council, which included the following statements:

…

If this subdivision is approved, it will have a significant impact on my primary production as a thoroughbred horse breeder.

Access

In my submission, access is a critical issue. Access would necessitate the use of existing council road and Crown paper road.

The DA is not supported by a survey of either the proposed lots or access roads.

According to a "Map" recently provided to me, Council road ends about one kilometre from the access road to my property.

…

Insofar as there is Crown paper road within the boundaries of my property, I hold an enclosure permit. I appreciate that that permit does not entitle me to lock the gates. However, there will be at least three gates that need to be open and closed to enable the applicant to have access to the proposed new lot.

Section 4.2A Considerations

If this subdivision is approved, it will have considerable impact on my use of the adjoining agricultural land. I cannot lock the gates. If only one gate was left open inadvertently, the consequences would be disastrous for me in the event that horses escaped. I simply could not take that risk and would not be able to use the paddock which is essentiaI to me in the running of my business.

There is also a question of access to water for the horses/stock depending upon where the Crown road is determined to be. Fencing is impractical and would limit the area available for raising of horses to some extent.

There is also the risk of horses, particularly young horses becoming frightened by motor vehicles. This is another factor that would prevent me from continuing to use the paddock.

Whilst I believe that the proposed new Lot is totally unsuitable for the erection of a dwelling, any such dwelling would have to be set well back from the river's edge and close to the boundary of the paddock. The creation of a residential lot is therefore highly incompatible with my existing use.

Furthermore, in the event that the council road does end at the 9.5 km point, there will be a section of Crown paper road across my neighbour, Robert Webb's property to the boundary of my property. That section is adjacent to a dam currently used to [water] free range stock as well as native animals. There is also a risk of damage and of injury to persons. A question of fencing may well arise which would restrict access to the dam. Accordingly, Robert Webb has pointed out to me, the creation of the new lot will significantly impact on his farming activity as any access road will of necessity pass through his property as well. [#10]

16 May 2022

19. A letter from Gray Surveyors to the Council dated 16 May 2022 provided relevantly as follows:

This proposal intends to utilise Clause 4.2C of Tumut LEP 2012. The similarities between this proposal and previous DA2021/0106 (Murray) are quite distinct in the fact they both intend to utilise a boundary adjustment to relocate an existing holding with a dwelling entitlement. As previously discussed with Council, the intention of this clause is to facilitate developments of this nature with evidence provided to support this fact. DA2021/0106 (Murray) gained approval from Council in March, 2022, almost twelve months from the lodgement date. This decision has further strengthened the precedent set by Council in relation to the utilisation of this clause. [#11]

19 May 2022

20. The management report included in the agenda for the Council meeting on 19 May 2022 (the second management report) recommended that the Council refuse the DA for six reasons which included:

a) The proposed development is inconsistent with the objectives of the RU1 Primary Production zone of the Tumut Local Environmental Plan 2012. [Pursuant to Section 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979].

b) Pursuant to Section 4.15(a)(i) of the Environmental Planning and Assessment Act 1979, the proposal is unsatisfactory in respect to the matters for consideration under Clauses 4.1, 4.2, 4.3, 4.2A, 4.2B, 4.2C of Tumut Local Environmental Plan 2012.

c) Pursuant to Section 4.15(a)(iii) of the Environmental Planning and Assessment Act, 1979, the proposal is unsatisfactory in respect to Rural Subdivision Part 9.8 of Snowy Valleys Development Control Plan with particular reference to Part 9.8.1, 9.8.4, 9.8.5 and 9.8.6 as the boundary adjustment and consolidation results in a less efficient use of land resources and creates an inappropriate subdivision by the proposed transfer of a holding to an unrelated lot thereby adversely affecting the viability and promoting fragmentation of agricultural land of proposed Lot 41. [#12]

d) The proposed development represents an unacceptable level of impact of the locality. [Pursuant to Section 4,15(1)(b) Environmental Planning and Assessment Act 1979].

e) The site is considered unsuitable for the proposed development [Pursuant to Section 4.15(1)(c) of the Environmental Planning and Assessment Act 1979].

f) The development is not considered to be in the public interest [Pursuant to Section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979].

21. The second management report also stated:

RISK MANAGEMENT – BUSINESS RISK/WHS/PUBLIC:

…

OPTIONS:

1. THAT Council determine development application 2022/0023 seeking development consent for a boundary adjustment, consolidation of lots and transfer of a building entitlement to an unrelated allotment by way of approval and delegate to the Chief Executive Officer delegation to apply standard conditions of development consent to the notice of determination.

2. THAT Council determine development application 2022/0023 seeking development consent for a boundary adjustment, consolidation of lots and transfer of a building entitlement to an unrelated allotment by way of refusal for the reasons as outlined in the recommendations section of this report.

Option 2 is recommended to Council. [#13]

22. The second management report dated 19 May 2022 contained the same pars from the management report dated 17 March 2022 extracted above in [15] that the Applicant relied on.

23. A certified transcript of the Council meeting on 19 May 2022 provided relevantly as follows:

[Item 11.2]

Councillor Livermore (02:26): I had a number of issues with this one, and they go to the planning report. I think it's very difficult to make a determination in some ways, and I must apologize, I'm putting my planner's hat back on here. I know there's been a lot of conjecture about the use of clause 4.2(c), which is in the Tumut LEP, and has been used in the past for, I won't say exactly the same, but I'll say similar type and applications. I know we did one recently, which I don't believe was the same as this one, not the circumstances of it in terms of the land, and the appropriateness of the use of that clause were much different.

Councillor Livermore (03:27): I see this one that there's a technicality there that you could argue the use of clause 4.2(c), and my disappointment was that clause 4.2(c) has not been addressed in this application or this report. Now interestingly, if you wanted to refuse it, there was probably enough provision in clause 4.2(c), if you really go into it, to actually refuse it under that provision. However, on the face of that, and this is the complicating thing for me when you look at this, I think there's a technical thing there where you could say, Ok, you may legally be able to give approval to this development under that clause.

…

Councillor Livermore (08:53): So, the proposal would be to have a section 88B instrument over that other lot to prohibit the building of a dwelling on. So that's my understanding of the proposal in the nutshell. But if the property that’s there is just going to be cut in half, or a 150-hectare lot taken off, there's not too many issues really, they'd be just rural lots even though they would have dwelling entitlements. But this other small one is, basically, it's a residential lot, and probably not in a good location to have a residential lot.

…

Councillor Larter (09:42): I'd seek some advice through the mayor, but I mean, my understanding here is that we are dealing with a boundary adjustment. There's not actually a DA in regard to approving a building as such. We've been down this pathway before with other lots, and entitlement doesn't necessarily mean that it is going to get the green tick of approval for a building to be constructed. They would then have to comply with the appropriate instruments and council regulations in regard to actually building a dwelling, and that is not a fait accompli when it comes to a building right.

…

Mayor Chaffey (11:54): But what I perceive is the problem is a desire not to end up separating 150 hectares. However, there's another issue that needs to be considered, I believe, and that's access to the block and the impact on the people whose property the access goes through. Are you happy with the way that's been considered?

Mr. Wilton (12:26): Through the mayor. Obviously, at the end of the day, there is a legal and practical access to this site, it has been checked by our development engineers. That access arrangement, in my view would be a four-wheel drive, I don't think that it would be easily accessible by a two-wheel drive vehicle into that location. There may have to be some minor maintenance done on that road, there is some erosion that's occurring around the access and egress. However, it is legal. It can be done.

Councillor Ivill (12:57): Mayor, if this family puts in a development application for a dwelling, could that be covered off in that DA, the access provision and what standard it would need to be? Or it needs to be done beforehand?

Mayor Chaffey (13:14): Correct me if I'm wrong, there are [inaudible 00:13:20] a number of steps before we get to that position, right, and I'll be guided by what you have to say Mr. Wilton insofar as I think the opportunity would exist then if there was an application to build, and it's obviously not going to be for major agricultural-type activity, to put some requirement on the access to that block or lot through from the end of the existing constructed road, would there?

…

Councillor Larter (14:11): I just think we probably need to remind people more generally that a building entitlement doesn't necessarily mean under a merit-based process that they're going to get the boxes ticked. So, access and all these other issues could come up when they submit a development application. A real estate agent selling a block on the basis that it has a building entitlement, doesn't necessarily mean that it's going to be an easy...

…

24. The signed undated minutes of the Council meeting on 19 May 2022 stated as follows:

11.2   DA2022/0023 - PROPOSED LOT CONSOLIDATION AND BOUNDARY ADJUSTMENT - 738 GOOBARRAGANDRA ROAD (WALLS CREEK ROAD EAST), GOOBARRAGANDRA

M154/22 RESOLVED:

THAT COUNCIL:

1. Receive the report relating to DA2022/0023 which seeks consent for a boundary adjustment and lot consolidation at 738 Goobarragandra Road, Goobarragandra.

2. Determine development application 2022/0023 seeking development consent for a boundary adjustment, consolidation of lots and transfer of a building entitlement to an unrelated allotment by way of approval and delegate to the Chief Executive Officer delegation to apply standard conditions of development consent to the notice of determination.

3. Include a condition of development consent that requires a S88E Public Positive Covenant be applied to the consent requiring any future application for a dwelling house on proposed Lot 20 upgrade the access road to Council's standards.

25. The reference in item 3 of the Council resolution dated 19 May 2022 to Lot 20 appears to be an error with the conditions of the Development Consent referring to Lot 41 in condition 5.

26. The notice of determination dated 19 May 2022 was sent to Gray Surveyors. On the 24 August 2022 a modified notice of determination was sent to the First Respondent naming him as the consent holder. The conditions of the Development Consent provided as follows:

SCHEDULE 1 CONDITIONS OF DEVELOPMENT CONSENT

ADMINISTRATION CONDITIONS

1. Development Description

Development consent has been granted in accordance with this notice of determination for the purposes of subdivision of land (Boundary adjustment and consolidation of lots)

Reason: To confirm the use of the approved development.

2. Development in Accordance with Plans and Documents

The development shall be implemented in accordance with the approved plans and supporting documents set out in the following table except where modified by any conditions of development consent.

Plan Title/ Supporting Document	Reference I Version	Prepared By	Dated
Plan of proposed subdivision	20166 Buckley	Gray Surveying	Not dated.
Statement of Environmental Effects	20166 Buckley	Gray Surveying	Not dated

Reason: To ensure the development is carried out in accordance with the approved plans and documentation.

3. Inconsistency between documents

In the event of any inconsistency between the conditions of this consent and the drawings/documents referred to above, the conditions of this consent shall prevail to the extent of the inconsistency.

Reason: To ensure that the development is undertaken in accordance with the submitted plans and documents (as amended).

4. The application identifies that no vegetation shall be removed or is required to be removed for the purposes of undertaking the subdivision of land as outlined under this consent. Should removal of trees or other vegetation be required, then the proponent will be required to lodge a section 4.55 modification application with Council and seek approval for such works prior to any such works commencing.

Reason: To ensure that any tree or vegetation is assessed in accordance with the relevant statutory provisions prior to its removal,

Note: this condition does not affect any approval previously granted for routine agricultural management of land issued by the Local Land Services

5. Prior to the issue of any Subdivision Certificate the proponent shall prepare and submit to Council for approval, a Section 88E instrument under the Conveyancing Act over proposed Lot 41 identifying that no development can occur on the subject allotment until an application is made and relevant approvals are granted by Council under section 138 of the Roads Act 1993, and an application is made to and approved by the Crown of NSW to upgrade the road to Council's standards under AUSPEC.

The instrument shall also identify that no guarantee shall be provided for approval of any application for a dwelling house on the subject allotment and that any proposed future dwelling will be subject to both an application to Council for approval and merit assessment in accordance with section 4.15 of the Environmental Planning and Assessment Act 1979.

Reason: To ensure appropriate access standards and to ensure that future purchasers of the allotment are aware of the merit assessment requirements for any future dwelling.

6. Prior to any issue of any Subdivision Certificate the proponent shall prepare and submit to Council for approval a Section 88E instrument under the Conveyancing Act over proposed lot 42 which restricts any dwellings to be erected on the subject allotment.

Reason: To ensure compliance with the provisions of the Snowy Valleys Local Environment Plan

7. The proponent shall not unreasonably interfere with or impact on adjoining or adjacent rural operations to the proposed subdivision. In the case of where an enclosure permit has been issued by the relevant authority over crown land or part of crown land providing access to the site, the proponent shall also ensure that gates that provide access to the proposed lot 41 via a crown paper road are appropriately opened and closed to prevent the egress of rural stock from the enclosure area.

Reason; To ensure impacts associated with the development are appropriately managed.

8. An application for a Subdivision Certificate shall be lodged with Council or an Accredited Certifier (in accordance with Section 6.15 of the Environmental Planning and Assessment Act 1979) for approval to enable the subdivision plans to be submitted to and registered with NSW Land Registry Services. Should the Subdivision Certificate application be lodged with Council, a final plan of subdivision shall be submitted with 2 copies or shall be submitted by the NSW Planning Portal.

All works specified in Council's development consent and approved Subdivision Works Certificate plans (if required) shall be completed and all development consent conditions complied with prior to issue of the Subdivision Certificate.

The application for a Subdivision Certificate is to be accompanied by supporting documentation outlining how each condition of consent has been complied with.

Reason: To comply with the provisions of the Environmental Planning and Assessment Act 1979.

CONCURRENCE CONDITIONS: Nil

27. The Court viewed a recording of both council meetings when the DA was discussed by the councillors on 17 March and 19 May 2022.

Mr Wilton affidavit dated 21 April 2023

28. The affidavit of Mr Wilton council officer dated 21 April 2023 was read by the Council and stated as follows:

I affirm:

1. I am the Manager of Growth and Activation at Snowy Valleys Council.

2. Unless stated otherwise, I make this affidavit from my own knowledge and from information provided to me. Where I state matters to be from information and belief, I believe such matters to be true.

3. On Thursday 27 January 2022, I attended the induction of the Snowy Valleys councillors at Snowy Valleys Council Chambers, Bridge Street, Tumbarumba.

4. The induction of the councillors involved a series of briefing sessions. The councillors that attended were:

a. Councillor Chaffey;

b. Councillor Thomson;

c. Councillor Armour;

d. Councillor Ham:

e. Councillor Hayes:

f. Councillor Hughes:

g. Councillor Ivill (who departed the briefing at approximately 11am);

h. Councillor Larter; and

i. Councillor Livermore.

5. One of these briefing sessions dealt with planning matters (the Planning Briefing). The Planning Briefing was delivered by Mr Paul Holton who was the Executive Director of Corporate and Community at the time and myself as Manager of Growth and Activation.

6. During the Planning Briefing I recall that Mr Holton and I:

a. advised the councillors to the effect that standard conditions may be applied in determining a development application and that in circumstances where the Council determines a development application by way of approval the councillors may delegate the administrative task of applying these known standard conditions to Council officers.

b. provided examples of how this would work with respect to various applications such as those for new residential dwellings, residential alterations and additions, commercial development and also residential and rural subdivision.

c. engaged in discussion with the councillors as to the types and forms of standard conditions that would be applied. In the course of these discussions I recall that Mr Holton and I provided examples of the types of standard conditions and grouped these into various categories, including administrative conditions, the plans and documentation approved by the development, appointment of a principal certifying authority, application of home owners warranty, requirements to obtain a construction certificate, making of applications for inspections, payment of contributions (where applicable) and the requirement to apply for other approvals such as those under section 68 of the Local Government Act 1993, section 138 of the Roads Act 1993 and also occupation certificates.

d. expressly addressed rural subdivisions where the standard conditions relate to administrative matters, documents approved incorporated into the consent, the requirement to obtain other approvals such as approval under section 68 of the Local Government Act 1993, section 138 of the Roads Act 1993, access arrangements, the requirements to obtain a subdivision works certificate and the need to prepare a deposited plan administrative sheet including any restrictions or covenants.

Oral evidence of Mr Wilton

29. Mr Wilton gave oral evidence before the Court on 24 April 2023, the transcript of which is relevantly extracted below (tcpt pp 36(16)-38(49)):

[CROSS-EXAMINATION BY MS BERGLUND]

Q. … Mr Wilton, in your affidavit sworn last Friday, you noted that you attended a planning briefing with a number of councillors on 27 January 2022. Is that correct?

A. That's correct.

Q. You refer that you had discussions with councillors about types of conditions that might be applied by the council?

A. That is correct.

Q. Did you provide a written document to the councillors setting out the terms of those types of conditions?

A. No. On the - on the - on the day itself there was a number of hardcopies that were - that were provided to the councillors which included the LEP development control plan, and also a, a booklet of standard conditions of consent that we would invariably use for any type of development.

Q. When you say, "The types of standard conditions" is that a document in use in the council which sets out standard conditions?

A. That is correct.

Q. It's a single document?

A. It's a - it's a document within council's approval management system.

Q. When you say that, is it one document or is it a set of conditions that can be chosen from by council staff?

A. That's correct.

Q. Sorry?

A. So, it - it's a - it's a number of conditions that can be chosen from by council staff.

Q. So, there's no one document, "Standard conditions for rural subdivision" for example?

A. They would be contained within that, that actual document itself.

…

Q. When you say it, "Exists within council's operation system" is it a document that can be printed as a single document?

A. Yes.

Q. Was that document printed and handed to the council councillors at that briefing?

A. Yes.

Q. Do you have a copy of that document?

A. Not with me, no.

Q. Would you be able to print a copy of that document and provide it to council solicitors?

A. Yes.

…

Q. You said you had in front of you a copy of the notice of determination in this matter, dated 24 August 2022, which is actually modified consent. Do you have that in front of you?

A. Yes.

Q. Can you please turn to the second page of that document and look at condition 7?

A. Yes.

Q. Just read condition 7 to yourself please if you haven't already had a chance to do so today.

A. Yes, I've read the condition.

Q. Does that condition appear on the council standard conditions of consent?

A. No.

Q. Are there any other conditions in this notice of determination which don’t appear on the standard conditions of consent?

A. Condition 5 would be in my opinion a modification of council standard conditions. Obviously, there's been a requirement of the council resolution to provide a, a restriction on the title. This is obviously a bespoke condition in order to comply with that council resolution.

Q. Any other conditions that are not on the standard conditions document that you're going to provide later?

A. Not that I'm aware of, no.

Q. The document that you have before you, is the document from August, but these conditions were first applied in May when the matter was determined. Were you the person who formulated these conditions?

A. No. The--

Q. Do you know who was?

A. The conditions were, were applied by council's development assessment planner, Mr Bradley Allen(?).

Q. Apologise if this is a repeated question, but I need to be clear on this. You said this briefing to councillors, they had a copy of the LEP, the DCP, and a hardcopy of the standard conditions. Is that correct?

A. So, a hardcopy of those three documents, yes, that was circulated throughout the room.

Q. When you say that the standard conditions exist within council's operating system, they would have been generated as a hardcopy for that occasion?

A. That is correct.

…

[NO RE-EXAMINATION]

30. Following Mr Wilton’s oral evidence, the Council tendered an email from Mr Wilton to the Council’s solicitors dated 24 April 2023 which attached a document of standard conditions of consent for subdivision from the Council’s Tech 1 Approvals Operating System (Ex 1). Mr Wilton was recalled and gave further oral evidence on 24 April 2023 relevantly extracted below (tcpt pp 57(17)-59(08)):

[CROSS-EXAMINATION BY MS BERGLUND]

Q. Just let me know if at any time you can't for any technological or other reason. We have and it's been marked by the Court as exhibit 1 an email which you sent to Mr Shaw and Mr Kingston today which annexed a document if we could call it that entitled "Conditions". Is that the document--

A. That's correct.

Q. --you have in front of you?

A. Yes.

Q. How did you generate that document?

A. That was generated out of council's TechOne operating system which is a computer based system that basically is a approvals generating system which generates consents.

Q. Is this a full set of conditions that you find in that operating system?

A. That's correct but this, this relates to, to subdivisions.

Q. How do I tell from the document that it relates specifically to subdivisions?

A. 'Cause that was the, the inquiry that was run in relation to the, to this document.

Q. So does council have other sets of conditions for other types of development?

A. That is correct.

Q. Was there a search term that you've put into generate these or do they exist in a folder in the operating system?

A. So there's what they call an event within the actual operating system and the event that is run is in relation to subdivisions so basically it generates a notice of dissemination for subdivisions and then essentially all the conditions relating to subdivisions whether it be strata subdivision or whether it be rural type subdivision or any type of subdivision will generate those conditions from a repository.

Q. Can I take you back to - do you have a copy of the affidavit that you swore in these proceedings with you?

A. Yes. Yes I've got that.

Q. Can I just returning to the event that you've described as an induction of Snowy Valleys Councillors which you attended on 27 January 2022?

A. That's correct.

Q. You gave evidence earlier that there were hard copies - I think correct me if I'm wrong but I think you said they were available to the councillors. There were a number in the room of hard copies, was that correct?

A. There was one hard copy that was available of as I mentioned earlier of the Local Environment Plan, Development Control Plans and also a copy of the standards conditions of consent.

Q. So that was one hard copy, were they provided in any other form to the councillors?

A. No, no they were brought to the meeting in hard copy.

Q. Did you generate the hard copy that was taken to the meeting?

A. That's correct yes.

Q. How did you generate that hard copy?

A. I spoke to Council's enterprise systems manager and she basically ran a report for all types of development under the events and that was generated into basically the same as what you see now except for all types of development.

Q. So it would have been a much longer document, is that correct, that was before the council?

A. That is, that is correct yes.

Q. Just returning to the document entitled "Conditions" the one that's exhibit 1. The one that's behind your email if that is an easier way for you to understand it. It just has the heading "Conditions".

A. That is correct.

Q. Do you recall if the copy that was before the councillors was just entitled "Conditions" or did it have another title?

A. No it just said conditions at the top so when you generate these, these types of documents it'll have a notice of determination on the front of it and then it'll be, it says "Conditions" behind it. The notice of determination is just a blank document as what you would see for any type of notice of determination that you issue for any type of development and that's been taken off the front of this and this is the conditions on behind.

Q. Are you aware whether modification, whether these conditions are amended from time to time?

A. Yes they can be amended from time to time. Sometimes they are updated in accordance with legislation changes, some other times they're, they're updated if there's different, if there's changes in standards or council policies.

Q. Do you know whether there were any changes to these subdivision conditions if we can call them that between 22 May 2022 and today?

A. Not that I'm aware of. There are a number of changes made in 2021 as a result of changes in the Environmental Planning Assessment Regulation but I'm not aware of any changes that were made recently in relation to these condition SATS(?) [sic].

[NO RE-EXAMINATION]

Ground 1 failure to form state of satisfaction required by TLEP

31. This ground (posed as a question in issue 1 above in [10]) alleges that the Council failed to form the requisite state of satisfaction required by cl 4.2C(3)(c) of the TLEP that the potential for land use conflict will not be increased as a result of the subdivision before granting development consent.

Applicant’s submissions

32. The elected councillors were not legally obliged to accept the recommendation of the council staff that the application should be refused. It is however relevant that the council staff recommended refusal because the Council cannot rely on the management reports prepared by the council staff as evidence that it considered the requirements of cl 4.2C(3)(c) and formed the requisite view. This differs from other cases in which a council may have been able to establish that a state of satisfaction was formed due to the assessment and conclusions drawn by staff who prepared an assessment report. To the contrary, the management reports concluded that there was a potential for increased land use conflict. In order to have formed the positive state of satisfaction required by cl 4.2C(3)(c), the Council (councillors) must therefore have either considered (a) whether any potential arose for increased land use conflict in its deliberations, or (b) have had before it other evidence supporting the proposition that there was no potential for increased land use conflict. The Applicant submits that there was no such evidence in the material before the Council which informed the substance of the Council’s deliberations at the meeting on 19 May 2022.

33. Clause 4.2C was raised in the Council debate but not in a way which establishes that the Council formed an opinion that there was no potential for increase in land use conflict. The certified transcript of the Council meeting on 19 May 2022 recorded statements made during the course of the debate which included:

a. Councillor Livermore expressed concern that the clause had not been adequately addressed in the application or the report and concern that the smaller lot is “a residential lot, and probably not in a good location to have a residential lot”. [See tcpt of 19 May 2022 at [23] above]

b. Other attendees stated that the application was merely for a building adjustment and that any dwelling house constructed on the lot would need to go through a merit-based approval process.

34. The Applicant referred to a number of documents in evidence (key pars relied on numbered 1 to 13 in bold square brackets above in [12]-[22]) seeking to highlight the absence of consideration of cl 4.2C(3)(c). Particular parts of the documentary record relied on by the Applicant included the SEE dated 24 November 2021, the letter of the First Respondent (or his representative) dated 16 March 2022, the management report dated 17 March 2022 and the second management report dated 19 May 2022. Extracts of the transcript relied on are also extracted above in [16], [23].

35. No councillor argued that the discussion of cl 4.2C in the DA or management reports of the council staff was adequate or that the development of the residential lot in the future would not increase potential for land use conflict (this submission was clarified orally to mean there was an absence of relevant material before the Council to enable it to be satisfied as required). Effectively the councillors satisfied themselves only that the question of actual land use could be deferred to a later stage of development approval being sought for a dwelling on the smaller lot. By so doing, the Council impermissibly deferred an essential precondition to the grant of consent by deferring any assessment of the potential for land use conflict to hypothetical future DAs for each resulting lot rather than at the subdivision stage, which was the application actually before the Council.

36. Although subdivision of land might not be a “use” for some purposes, it is still expressly a form of development pursuant to s 1.5 of the EPA Act. A consent authority obliged to consider a matter before granting development consent is not relieved of that obligation just because the development consent in question is for subdivision.

37. Further, cl 4.2C(3) is a provision which specifically relates to development consents for subdivision. It therefore specifically requires potential for increase in land use conflict to be considered at the subdivision stage. In this case, the effect of the subdivision is to create a lot which may in future be used for a dwelling. Clause 4.2C(3)(c) does not require the consent authority to be satisfied there is no imminent actual conflict in land use. It requires the consent authority to be satisfied that the potential for land use conflict will not be increased as a result of the subdivision. Reconfiguration of lots, including a residential lot, could potentially increase land use conflict and thus the Council was obliged to, and did not, consider whether in fact such a potential arose.

38. Given the absence of any reference to s 4.2C(3)(c) or material relevant to that topic being before the Council leading up to and on 19 May 2022 the necessary state of satisfaction was not arrived at by Council before granting the Development Consent. This case is distinguishable from Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 (Ipp AJA at [67]) (Schroders) and Gee v Council of the City of Sydney (2004) 137 LGERA 157; [2004] NSWLEC 581 at 163-164 (Gee). There is no material on the Council file that indicates an analysis of whether or not there was potential for increased land use conflict was undertaken. Failure to take into account a mandatory consideration can invalidate a consent, see Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 (Kindimindi); Parramatta City Council v Hale (1982) 47 LGRA 319 (Hale).

39. The Applicant relied on Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88 at 201, 204-205 (Weal CA), noting s 90(1) is an earlier version of s 4.15 of the EPA Act. In Weal CA Giles JA (Priestley JA agreeing, Mason P disagreeing) observed that consideration of a critical issue in the exercise of a council’s function could not be deferred as a council must weigh up all relevant matters in determining the development application. The Applicant submits in this case the question of land use impact cannot be deferred by either:

1. The imposition of condition 7 which seeks to place the onus on the consent holder to avoid potential land use conflict; or

2. Deferring analysis to the stage of a DA being lodged for a dwelling in respect of an individual lot, rather than at the stage of approving the subdivision as it appears the Council has done at the meeting of 19 May 2022.

40. Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 (Feldkirchen) identifies factors at 137-138 that indicate a council could be said to have taken into account certain matters. Unlike in this case, the Court of Appeal in Feldkirchen could point to specific references in the material before the decision maker that enabled an inference to be drawn that matters were considered. Feldkirchen considered a mandatory precondition related to a modification application under s 4.55 of the EPA Act.

41. The Council’s submission that the councillors’ approach was to particularly consider whether there would be the same number of dwellings before and after the subdivision as reflected in cl 4.2C(3)(a) cannot satisfy the obligation on the Council in relation to subcl (c).

Council’s submissions

42. The language of cl 4.2C(3)(c) suggests that it seeks to prevent an increase in the potential for land use conflict. Giving normative context to the concept of land use conflict in rural and residential zones, the concept principally seeks to avoid allowing a subdivision to increase the number of dwellings that would otherwise be permissible. The Applicant must prove on the balance of probabilities that the Council did not have that state of satisfaction when it determined the DA. This requires proof of a negative by the Applicant. There is no direct evidence that the Council did not have that state of satisfaction rather the Applicant asks the Court to draw the inference it did not.

43. Cases in the Court and the Court of Appeal have dealt with what material should be inferred to have been in the minds of the councillors constituting the collegiate body of the Council when it made its decision, see Schroders (Ipp AJA at [67]), Gee at 163-164, Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401 (McClellan CJ LEC at 266-267). Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2010) 178 LGERA 411; [2010] NSWCA 353 (Caroona CA) identifies the relevant principles that apply where an applicant for judicial review alleges that a decision maker failed to reach a necessary state of satisfaction at 437-438.

44. Feldkirchen at [104]-[113] applies the principles identified in Caroona and assists in identifying the types of matters the Court will look to in determining whether to accept or reject the proposition that a council failed to reach a state of satisfaction about a pre-requisite matter concerning the grant of the Development Consent for the subdivision of land.

Consideration of ground 1

45. The Applicant seeks to prove a negative, namely that at the time the Development Consent was granted to the First Respondent the councillors were not satisfied as required by cl 4.2(3)(c) of the TLEP. The Applicant accepts that it bears the onus of proving that the Council did not have the necessary state of satisfaction when it determined the DA on the balance of probabilities, essentially that the inference should be drawn that the Council did not form the necessary opinion of satisfaction when granting the Development Consent. A conclusion by a court that a council did not form the required opinion of satisfaction by inference is only to be drawn after ‘anxious consideration’, see Feldkirchen at 134 citing Hale at 345.

46. The Applicant accepts, applying Schroders, the rebuttable presumption that all the material on the Council’s file is presumed to be known to the elected councillors. This would include the Applicant’s letter to the Council dated 12 May 2022.

47. Clause 4.2C Boundary adjustments of land in certain zones provides in subcl (1) that the objective of the clause is to facilitate boundary adjustments between lots if the adjustment will result in the lot size being less than the minimum lot size shown in the Lot Size Map provided the zone objectives can be achieved. This clause applies to the RU1 Primary Production zone, as stated in subcl (2). Clause 4.2C(3) requires satisfaction by the consent authority of the three matters specified when granting the Development Consent for a subdivision of land by boundary adjustments:

1. Under subcl (a) the Council must be satisfied that additional lots or the opportunity for additional dwellings will not be created by the subdivision.

2. Under subcl (b) the Council must be satisfied that the number of dwellings or opportunity for dwellings on each lot will be the same after the subdivision.

3. Under subcl (c) the Council must be satisfied that the potential for land use conflict will not be increased as a result of the subdivision.

48. The Applicant submitted that the Council failed to be satisfied that the potential for land use conflict would not be increased as a result of the proposed subdivision, emphasising that satisfaction about matters under subcl (a) and (b) about which the Council also had to be satisfied did not answer the Council’s obligation under subcl (c).

49. It is necessary to review the entirety of the Council’s consideration of the First Respondent’s DA as found in the documents extracted above at [12]-[22] and the transcript of the two council meetings at which the DA was considered. I consider as follows:

1. The DA for subdivision was supported by a SEE prepared by Gray Surveyors extracted above in [12] and additional correspondence. The SEE stated that there would be no increase in land use conflict in a few lines. Correspondence from the First Respondent (or his representative) extracted above in [14] stated similarly.

2. The management report of 17 March 2022 recommended against approval of the subdivision application for various reasons extracted above at [15]. Particular provisions considered not to be complied with include s 4.15(1) subs (a)(i), (iii), (b), (c) and (e) of the EPA Act, cll 4.1, 4.2, 4.2A, 4.2B and 4.2C of the TLEP and Pt 9.8 cll 9.8.1, 9.8.4, 9.8.5 and 9.8.6 of the Snowy Valleys Council Development Control Plan 2019 (DCP). That report (and the second management report) also stated that ‘the proposal is generally consistent with existing land uses and is not expected to cause unmanageable land use conflict.’

3. The DA came before the councillors twice, firstly on 17 March 2022 when the councillors discussed the application and resolved to defer its determination and sought further information in relation to access. As extracted above in [16] one councillor identified that road access would be through other people’s properties on unfenced roads and wanted to have better information about the access, amongst other issues raised in discussion.

4. The Applicant’s submission dated 12 May 2022 extracted above in [18] identifying difficulties with use of any access road to the proposed smaller residential lot in relation to the opening and closing of gates inter alia was also before the councillors (applying Schroders). That submission raised concern that access is through property occupied by other people including the Applicant who grazes brood mares and foals. This use requires at least three gates to be closed at all times. It appears the access to the residential lot would in part be along a paper Crown road for which the Applicant has an enclosure permit.

5. The second management report dated 19 May 2022 is in similar terms to the 17 March 2022 management report. Both reports stated that the proposal does not comply with cl 4.2C and state this is to be dealt with in a section below. No such section appears in either report. The text of s 4.2C is not set out in the reports. The management report recommended against approval on the basis that s 4.15(1) subs (a)(i), (iii), (b), (c) and (e) of the EPA Act were not satisfactorily complied with or were inconsistent with the development. Clauses of the TLEP and DCP considered not to be complied with in the second management report are identified above in [49(2)].

6. On 19 May 2022 following further discussion by the councillors the Development Consent was granted in accordance with the resolutions set out above in [24].

50. The transcript of the two council meetings was read and video footage of the council meetings on 17 March 2022 and 19 May 2022 viewed. The councillors discussed the DA on both dates, largely focussed on whether there would be any expansion in dwelling entitlements if the subdivision was approved and that approval of the subdivision and transfer of the dwelling entitlement to Lot 41 the smaller lot did not guarantee approval of a dwelling on Lot 41.

51. Discussion about difficulty of road access to any future dwelling on Lot 41 also occurred on 19 May 2022. This discussion apparently resulted in condition 5 which requires a s 88E instrument under the Conveyancing Act 1919 (NSW) over proposed Lot 41 to the effect that before a subdivision certificate can be issued an application must be submitted to the Council and an approval granted for road access upgrades.

52. At the Council meeting on 19 May 2022 the only specific reference by any councillor to impact on other people’s property through which road access would occur to any future dwelling was a question from the mayor as extracted above at [23]: “However, there's another issue that needs to be considered, I believe, and that's access to the block and the impact on the people whose property the access goes through. Are you happy with the way that's been considered?” The response of Mr Wilton council officer focussed solely on the advice of the council’s engineers to the effect that road access was practically achievable. No further information was provided to the councillors on 19 May 2022 in relation to the potential for impact on neighbours through whose properties any road to the proposed smaller lot with a dwelling entitlement would have to traverse and no further discussion occurred on that topic.

53. The transcript records above in [23] references to cl 4.2C generally (I note that the transcript records this as cl 4.2(c)) not in relation to individual subclauses.

54. There is no evidence that the text of cl 4.2C was before the councillors. The absence of the text of subcl (3)(c) being before the councillors in writing or read out orally and the absence of discussion about its subject matter at either Council meeting beyond a brief mention by one councillor at each meeting suggests an absence of the required satisfaction being formed at the relevant time by the councillors. The issue referred to in subcl (3)(c) was identified but that was as far as any reference went. Awareness of an issue alone is insufficient to amount to satisfaction. The need to be satisfied about a statutorily defined matter as a pre-condition to the grant of development consent can be contrasted with the obligation under administrative law to take into account a mandatory relevant matter. A statutory requirement of satisfaction is a markedly more onerous obligation imposed on a decision-maker, see Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-5; Franklins Ltd v Penrith City Council [1999] NSWCA 134 at [28], [35]; Manly Council v Hortis (2001) 113 LGERA 321; [2001] NSWCA 81 at 332. In this case assumed awareness of councillors about the Applicant’s submission of 12 May 2022 is not sufficient on its own to give rise to an inference of a state of satisfaction about the matter required by subcl (c).

55. Should the assumption be made that all the councillors were aware of the text of cl 4.2C(3)(c) in the absence of express reference to it in writing or orally? The Applicant and the Council referred to Feldkirchen at [104]-[113] where the Court of Appeal identified several aspects of the evidence which demonstrated that the relevant councillors were alerted to the requirements in s 4.55 of the EPA Act in approving an application to modify a development consent. One of the factors identified was that the power to modify and the preconditions to its exercise in the EPA Act are long established and commonly invoked by consent authorities including the relevant council to support a finding that the council was satisfied of the required matter. This case concerns a provision in the TLEP which specifies three matters about which the councillors had to be satisfied before development consent for a subdivision by boundary adjustment creating an undersized lot could be granted in a rural zone. Detailed provisions in the TLEP cannot be inferred to have the same ubiquity as the exercise of the function under s 4.55 being the power to modify in the EPA Act. At least one other development consent which seems to have relied on cl 4.2C(3) was referred to in the councillors’ discussion on 17 May 2022 and 19 May 2022 in the context of whether there was an expansion of dwelling entitlement overall and councillors noting that access was from Wondalga Road, a different circumstance to the DA before them. That broad reference does not confirm that the councillors were aware of the specific provisions of subcl (3)(c).

56. The focus of the councillors’ discussion was the required matters of satisfaction in subcll (a) and (b) which are separate from subcl (c). Their discussion gives rise to an inference of their specific awareness of subcll (a) and (b) only. The inference does not arise that all or the majority of the councillors were aware of subcl (c) when they determined to approve the DA contrary to the advice of the council staff on 19 May 2022.

57. The imposition of condition 7 which does purport to address land use conflict where the road access to the smaller lot is through other people’s properties or on land lawfully occupied was relied on by the Applicant as supportive of its case. At the time this submission was made the Applicant was not aware that the Council accepted that condition 7 was not imposed in conformity with the Council’s resolution on 19 May 2022. The Council accepted during the hearing that the condition was impermissibly imposed by a council officer following the Council meeting of 19 May 2023, a matter I discuss below in ground 2. The terms of condition 7 were relied on by the Applicant as these were said to be ameliorative measures addressing a potential land use conflict which subcl (c) required the Council to be satisfied would not result before development consent could be granted at all. Such potential land use conflict could not be dealt with by a development consent condition placing an obligation on the applicant for development to avoid the potential conflict according to the Applicant. The reason identified for imposing condition 7 is “to ensure impacts associated with the development are appropriately managed”. There may be merit in this argument but I do not need to determine that matter for current purposes. The circumstance is not straightforward in that the Council accepts the condition was not imposed by the councillors acting as the approval body. That a council officer considered such a condition was warranted after the Council’s decision on 19 May 2022 cannot inform the collective state of mind of the Council in making the decision to approve.

58. Weighing up the various matters outlined above, particularly the absence of a council officer’s report recommending in favour of approval or specifically addressing the obligations of the Council in cl 4.2C(3), the absence of the express terms of cl 4.2C(3)(c) being before the councillors, the focus of the councillors’ consideration on 12 March and 19 May 2022 being on matters relevant to subcll (a) and (b), I consider the Applicant has established on the balance of probabilities that the inference arises that the Council was not satisfied about the essential matter in cl 4.2C(3)(c) of the TLEP at the time the Development Consent was granted. As that was a pre-condition to the grant of the Development Consent under the TLEP the resolution to approve the DA was legally invalid. The pre-condition to granting approval is fundamental to the validity of the grant of development consent under the EPA Act and the TLEP. The Development Consent is therefore invalid and should be declared so given that fundamental statutory requirement.

Ground 2 validity of exercise of delegation powers

59. Issue 2 asks “was the Development Consent validly granted in circumstances in which the resolution of the elected council purported to delegate to the Chief Executive Officer (CEO) the application of standard conditions of development consent to the notice of determination and the proposed conditions of consent were not before the elected council when it made its determination[?]” As extracted above in [24] item 2 of the Council resolution on 19 May 2022 stated that the Development Consent should be granted with delegation to the CEO to impose standard conditions.

60. The Applicant’s submissions on this issue necessarily evolved in the course of the hearing. Firstly, Mr Wilton’s affidavit evidence arrived late in the preparation for the proceedings. No objection was taken to that evidence and it was read. Mr Wilton’s affidavit evidence extracted in full above in [28] described the induction training for new councillors held in person in January 2022 and that one hard copy of all standard conditions was made available to participants if they wished to see this. Mr Wilton’s oral evidence was that a hard copy of possible conditions located on the Council’s Tech 1 Approvals Operating System when interrogated for subdivision development approval conditions could be produced. Following his initial oral evidence Mr Wilton produced a document identifying a group of conditions as standard conditions to be applied in relation to subdivision approvals (Ex 1). This document was the subject of Mr Wilton’s further oral evidence extracted above in [30]. Consequently, the Applicant’s initial submission that there were no known standard conditions had to be modified.

61. Secondly, the Development Consent was issued subject to eight conditions extracted in full above in [25]. Condition 7 states:

7. The proponent shall not unreasonably interfere with or impact on adjoining or adjacent rural operations to the proposed subdivision. In the case of where an enclosure permit has been issued by the relevant authority over crown land or part of crown land providing access to the site, the proponent shall also ensure that gates that provide access to the proposed lot 41 via a crown paper road are appropriately opened and closed to prevent the egress of rural stock from the enclosure area.

62. The Council accepted during the hearing that condition 7 was not a standard condition and the imposition of condition 7 was beyond the power of the delegation by the councillors to the CEO in the resolution granting the Development Consent subject to conditions on 19 May 2022. The Council submitted that the later imposition of condition 7 by a council officer could not affect the legal validity of the Council’s resolution determining to grant the Development Consent on 19 May 2022. The Applicant appeared to accept these submissions. Condition 7 played no role in the Applicant’s arguments as these finally evolved in the course of the hearing.

63. As will become clear the nature of the Council’s resolution of 19 May 2022 and the response of council staff to it is difficult to analyse and I do not consider the parties were able to fully address that complexity.

Applicant’s submissions

64. When the councillors passed the resolution delegating to the CEO the imposition of standard conditions of development consent in the notice of determination, they needed to understand what the conditions were. The evidence of Mr Wilton does not demonstrate that they did. The induction training took place in January 2022 and the resolution was passed in May 2022. One hard copy of all standard conditions which could be imposed in relation to a wide range of development was made available to councillors on the induction day if the councillors chose to view it. It is legally unclear what is meant by standard conditions in the resolution. Applying standard conditions does not amount to drawing from a suite of standard conditions. Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17 (Aldous) at [20]-[21] is particularly relied on in support of a finding that the principle of indivisibility of function to determine a DA under s 80(1) (now s 4.16) of the EPA Act was not complied with on the facts of this case. While the facts of this matter are less clear cut than the facts in Aldous the same conclusion should be drawn.

Council’s submissions

65. The Council submitted that conditions 1 - 4 were standard conditions as referred to in the Council’s resolution item 2 passed on 19 May 2022. Conditions 5 and 6 reflected the Council’s resolution item 3 passed on 19 May 2022. This ground alleges that the Council delegated part of an indivisible function to its CEO and so the resolution was invalid. In GPT Re Limited v Wollongong City Council (2006) 151 LGERA 116; [2006] NSWLEC 303 (GPT) Biscoe J considered indivisibility at first instance at [24], [29], [39], [47], [55]-[56], affirmed on appeal in Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; [2007] NSWCA 171 (GPT CA) (Tobias JA). The Council’s decision on 19 May 2022 was a three part resolution, of which item 2 is challenged. The decision was to approve conditionally (item 1) and impose both standard conditions applying to a subdivision (item 2) and the s 88E condition (item 3). Relevant principles for interpreting council resolutions are recorded in Benedict Industries Pty Ltd v Sutherland Shire Council [2015] NSWCCA 272 at [18] citing Myer Queenstown Garden Plaza Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504 (Supreme Court of South Australia) at 520.

66. The delegation to the CEO was to apply the standard conditions in the notice of determination, noting Biscoe J in GPT at [55], [56]. The nature of the resolution seems more aligned with the administrative resolution held to be valid in Weal v Bathurst City Council [1999] NSWLEC 132 (Weal LEC) (erroneously cited in GPT) as distinct from the resolution held to be invalid in GPT. The Court would be readily able to find that the Council made an indivisible decision to approve subject to standard conditions and the s 88E condition.

67. The arguments of the Applicant appear to identify a separate point not pleaded that the resolution was invalid for uncertainty or deferred essential conditions, see Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Kindimindi; Aldous at [4], [8], [9], [12], [15], [20], [21]. The essential question for the Court based on Aldous is “at the time resolution was made in this case on 19 May 2022, were there standard conditions for subdivision that were objectively and readily ascertainable?” The Council made a final resolution and delegated the administrative task to the CEO of applying the conditions required by the Council’s resolution. The evidence of Mr Wilton raises a presumption that the councillors were aware of the standard conditions for subdivision when they resolved that they be applied. The Applicant has not rebutted that presumption.

Consideration of ground 2

68. The power of a council to delegate functions is provided in s 377 of the Local Government Act 1993 (NSW) (LG Act), which is drafted by way of exception namely a council may delegate functions under the LG Act or any other Act other than those functions specified in s 377(1)(a)-(u). No issue is raised about the ability of the Council to delegate the approval function in s 4.16 of the EPA Act provided it is delegated as a whole, not in part, consistent with the principle of indivisibility of function. At issue initially was whether the principle has been breached by the Council’s resolution to approve the DA in that part of the resolution (item 2) which delegated to the CEO the imposition of standard conditions. The challenge does not appear to rely on item 3 of the resolution.

69. The Applicant particularly relied on Aldous. In Aldous, the Court resolved to approve a DA subject to appropriate conditions. The resolution was worded as follows:

[8] The council at its meeting on 19 December 2007 adopted the recommendation. The minutes of the meeting record the following:

“(This matter was referred by CM.75 of the Planning Committee meeting on 12 December 2007.)

MOVED Cr West/Hogan ( as per recommendation )

That Council approve development application (802/2007D) subject to appropriate conditions including:

- removal of the ground floor paving that encroaches beyond the coastal impact line,

- landscaping,

- survey certificate,

- footing design,

- stormwater drainage,

- basement drainage,

- bushfire requirements,

- demolition of the existing building.

…

70. A council officer the manager building control Mr Boyce did not have delegated power from the general manager in relation to the DA. That officer formulated a set of conditions in relation to which he had to exercise independent judgment as to the conditions to be imposed and their content. Mr Boyce signed and issued a Notice of Determination of the DA stating that consent was granted subject to 44 conditions, which were not limited to the non-exhaustive matters in the council resolution. The applicant argued the council resolution was void for uncertainty and deferred essential conditions, and the notice of determination was invalid as it was not issued by the council and did not accord with the council’s resolution. One of the issues in Aldous was the scope of the relevant delegation power, which does not arise in this matter.

71. Biscoe J in finding that the approval of the DA by the council was invalid in the circumstances of that case held:

[20] An example of a case in which a purported consent was held not to be final is to be found in Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61, approved in Mison at 740. In Lend Lease, the council resolved to grant development consent for a city building subject to “standard conditions” that were not specified, and several other conditions that were specified. The latter included a condition that the floor space ratio be determined by adding various bonuses to a basic ratio 5.5:1 up to a total limit of 12.4:1 but subject to approval of the city planner. Cripps J held that the development consent was void because (inter alia) (a) it deferred an essential topic of consideration for future determination by the city planner, namely the floor space ratio; and (b) it was subject to “standard conditions” which had not been specified or identified. In the present case, if at the time of the resolution there existed standard conditions of council for a dwelling house which were objectively and readily ascertainable – for example, that had been adopted in an earlier council resolution – then if the council had determined to grant consent on its standard conditions, it would have been merely an administrative act for a council officer to draw up the Notice of Determination incorporating those conditions. That is not what happened in this case. The council did not purport to grant consent on standard conditions, there is no evidence of standard conditions, and Mr Boyce did not set about his task of drafting the conditions – which took him several weeks in consultation with others – by merely adopting standard conditions.

[21] … If Mr Boyce had been given delegated authority to determine appropriate conditions left unresolved by the council resolution, then the development consent would have been granted in part by the council and in part by him. In my opinion, that would have offended the principle of indivisibility of the function to determine a development application under s 80(1) of the EPA Act: Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171, (2007) 153 LGERA 450 at [12] – [15], [30], [56], [59], [73] – [75]; see also Lend Lease Management Pty Ltd v Sydney City Council at 84.

72. The circumstances of this matter are different to those in LendLease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 (Lend Lease), referred to in Aldous above in [20], and those in Aldous. In Lend Lease and Aldous there was no evidence of any standard conditions being known to the councillors or to council staff to address the development purportedly granted development consent. In contrast in light of the evidence of Mr Wilton about standard conditions the extent of discretion conferred on the CEO under the resolution means that the circumstances in Aldous and Lendlease where there were no known appropriate (Aldous) or standard (Lendlease) conditions do not arise. Indeed the circumstances I am considering require different issues to be considered.

73. As the Council submitted the nature of the Applicant’s argument appeared to change focus in alleging that the resolution lacked certainty rather than focussing on the resolution impermissibly delegating in part an indivisible function of the Council. This change in focus is not surprising given the late preparation of the evidence of Mr Wilton which identified for the first time that the council staff had prepared standard conditions inter alia which were the subject of the councillors’ induction program in January 2022.

74. For completeness, I note that GPT dealt with the application of the principle of indivisibility of a council’s functions to approve or refuse development consent. In GPT at 127 the challenged resolution stated:

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

75. In GPT the parties agreed that the resolution was a purported delegation to the general manager and was not a purported grant of consent by the council. The general manager was authorised by the resolution to approve the relevant DA, not to refuse it. The purported grant of development consent made pursuant to the delegation was held to be invalid because the purported delegation in the resolution was invalid. The delegation of function must be indivisible and therefore would include the ability to refuse consent which the resolution did not at 134 (affirmed in GPT CA at 462). No such circumstances arise here.

76. In Weal LEC the scope of delegation to a council officer at [63] was held to be valid (decision overturned on appeal on other grounds). As the precise terms of a delegation must be considered in each case, once again the circumstances here differ from those in Weal LEC and it is therefore of limited assistance.

77. Depending on how the legal issue is posed leads potentially to different conclusions on validity of the Council’s decision. One way of stating the issue is whether in the circumstances of this case the council staff were undertaking an essentially administrative task in giving effect to the Council’s resolution of 19 May 2022 in identifying the conditions of development consent to be imposed. Were the standard conditions to be imposed on this subdivision development objectively and readily ascertainable reflecting Aldousas the Council posed? The question posed by the Applicant has a different focus in asking what the councillors were aware of in relation to standard conditions at the time of the resolution to approve in May 2022, submitting they had to be aware of what the standard conditions were that they were imposing.

78. Based on Mr Wilton’s evidence the conditions of consent 1-4 are considered by the Council to be standard conditions which can be identified in the document in Ex 1. The Applicant accepted this. According to Mr Wilton’s oral evidence the conditions in Ex 1 are what the Council’s Tech 1 Approvals Operating System produced when interrogated in relation to subdivision. The number of conditions in the exhibit are numerous totalling 50 in number. Mr Wilton’s affidavit addressed the induction program for councillors held in January 2022 at which time the existence of standard conditions of development consent in many different categories were identified to the councillors who attended. His affidavit in par 6 identifies the nature of what was referred to in the induction program, including that rural subdivision consents were expressly discussed and what conditions might be routinely imposed on a rural subdivision referred to. His oral evidence on both occasions confirmed that one hard copy of the entire suite of standard conditions available on the Council’s Tech 1 Approvals Operating System to address all types of development applications was available to the councillors in the room at the induction program. This evidence is relied on by the Council as giving rise to an inference about what the councillors were aware of in relation to standard conditions when they resolved as they did on 19 May 2022.

79. Mr Wilton’s evidence confirms that the council staff are aware of what standard conditions exist for subdivision development. The Council submits that I can draw an inference about what the councillors were aware of. The position for individual councillors based on Mr Wilton’s evidence is that an inference can be drawn that they were likely to be aware in a general sense that standard conditions exist for a subdivision DA. The evidence of Mr Wilton does not support an inference that the councillors were aware of what particular standard conditions might be imposed on this subdivision DA. By that observation I am seeking to understand whether it is a sufficiently certain exercise of the delegation of the power to approve a DA subject to standard conditions for councillors to have been told generally that standard conditions exist, as they were in their induction program, or whether they needed to be expressly aware of what those conditions are at the time that the Council granted development consent. I do not have evidence for example of other circumstances where similar development consent conditions have been imposed as standard conditions by the Council in relation to similar development applications or evidence of what the Council’s usual practice is in applying standard conditions in rural subdivision development consents. None of the caselaw addresses this scenario or is of much assistance in resolving the issue.

80. The Applicant no longer relies on the imposition of condition 7 as a basis for invalidity because it is not a standard condition in light of the Council’s concession in this regard. The Applicant accepted that the validity of the Council’s resolution is not affected by the imposition of condition 7 by a development assessment planner after the Council’s resolution approving the DA. That condition is accepted by the Council as beyond the scope of the delegation in the Council’s resolution of 19 May 2022. The condition does seek to address the concerns about conflict with use of the land through which the access road to the smaller lot would pass, as raised by the Applicant in his letter to the Council dated 12 May 2022 by imposing a burden on the First Respondent.

81. The Council submitted that development consent conditions 5 and 6 were underpinned by item 3 of the Council’s resolution, which the Applicant appeared to accept. Condition 6 requiring a s 88E instrument over the larger Lot 42 which restricts any dwelling to be erected on that lot does not in fact reflect item 3. Condition 5 which is directed at upgrading an access road to any future dwelling on Lot 42 does. Condition 6 appears directed to giving effect to cll 4.2C(3)(a) and (b) of the TLEP. It is not the subject of any part of the Council’s resolution. It was the subject of much of the discussion by the councillors and identified as an appropriate condition in the course of that discussion. Nevertheless two conditions of consent were imposed by a council officer after the Council’s resolution on 19 May 2022 which fall outside the terms of the delegation to the CEO. There was passing reference to, but I did not hear argument on, the issue of severance of conditions imposed which lack authority in the context of the Development Consent.

75. As I have upheld ground 1 the basis to declare the Development Consent invalid has been established and that is the order I will make. It is therefore strictly unnecessary to resolve ground 2 which has some complexity in the particular circumstances of this case and in relation to which the evidence evolved during the hearing. I do not consider the matter was fully argued before me. My preliminary finding is that if the correct question to ask is what was the councillors’ understanding of the application of standard conditions in relation to the Development Consent, the evidence of Mr Wilton does not enable an inference to be drawn that the councillors acting collectively were aware of the particular standard conditions that would be imposed. That the council staff are well versed in what standard conditions are can be accepted from Mr Wilton’s evidence of how standard conditions exist on the Council’s Tech 1 Approvals Operating System. I cannot infer the same knowledge of the elected councillors in this case given the evidence of Mr Wilton was limited to advising of what occurred in the induction program for new councillors and Ex 1 contains 50 possible standard conditions for subdivisions.

Costs

83. I did not hear any submissions on costs. The Applicant seeks his costs from the Respondents in the Further Amended Summons. The Applicant has been successful and in Class 4 proceedings costs generally follow the event, suggesting that his costs ought be paid by one or both Respondents in the absence of disentitling conduct, and I am not aware of any. The First Respondent has filed a submitting appearance save as to costs. The attitude of the Council to costs in light of its role in these proceedings is unknown. The Respondents should have the opportunity to make submissions on costs if they choose and a timetable for that will be discussed with the parties.

Declaration and order

84. The Court declares and orders as follows:

1. That development consent DA 2022/0023 granted by the Second Respondent to the First Respondent on 19 May 2022 as amended by Notice of Determination dated 24 August 2022 is invalid and of no effect.

2. Costs are reserved.

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Decision last updated: 21 July 2023