Jessop v WRA Willcocks Pty Ltd

[1988] NSWLEC 156

Land and Environment Court

of New South Wales

CITATION:

Jessop v WRA Willcocks Pty Ltd & Ors [1988] NSWLEC 156

PARTIES:

APPLICANT
Jessop

FIRST RESPONDENT
W.R.A. Willcocks Pty Ltd

SECOND RESPONDENT
Hastings Municipal Council

THIRD RESPONDENT
Minister For Planning

FILE NUMBER(S):

40209 of 1988

CORAM:

Bignold J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hastings Local Environmental Plan 1987

CASES CITED:

George v. Secretary Of State For The Environment (1979);
Geoffrey Twibill v. Warringah Shire Council (1983)

DATES OF HEARING:

DATE OF JUDGMENT:

12/23/1988

LEGAL REPRESENTATIVES:

JUDGMENT:

Bignold J.: On 19th September, 1988 the Applicant commenced class 4 proceedings seeking a declaration that "Hastings Local Environmental Plan 1987 (Amendment No. 4)" gazetted on 12th August, 1988 is invalid, null and void and of no effect. A copy of the impugned plan (which is hereafter referred to as "Amendment No. 4 Plan" is annexed hereto)

The Applicant also claimed interlocutory relief restraining the 2nd Respondent from processing or approving any development application pursuant to the aforesaid Plan.

The claim to interlocutory relief came before the Duty Judge late in October but was not determined. Instead the Duty Judge ordered that the substantive action be expedited and the hearing was specially fixed for 13th to 15th December, 1988.

In its amended points of claim the Applicant alleges four separate grounds (two involving procedural ultra vires and two involving substantive ultra vires) for invalidity of the aforesaid plan. The allegations of procedural ultra vires are -

(i) the 2nd Respondent failed to comply with s.66 of the Environmental Planning and Assessment Act 1979 by failing to display with the draft local environmental plan (ie Amendment No. 4) a copy of the North Coast Regional Environmental Plan 1988 and Directions under s.117(2) of the Environmental Planning and Assessment Act; and

(ii) the 2nd Respondent failed to comply with s.68 of the Environmental Planning and Assessment Act by failing to properly consider a request for a public hearing and failing to hold a public hearing into the draft plan.

The allegations of substantive ultra vires are -

(iii) the 3rd Respondent failed to comply with s.7 and s.70 of the Environmental Planning and Assessment Act by taking into account when making the Amendment No. 4 plan an irrelevant consideration, namely the agreement by the 3rd Respondent (in his capacity as corporation sole created by s.8 of the Environmental Planning and Assessment Act) to acquire by purchase from the 1st Respondent an area of some 236 hectares known as North Brother Mountain being land adjoining the land (containing some 12ha and also owned by the 1st Respondent) to which the Amendment No. 4 plan applied; and

(iv) Amendment No. 4 plan was repugnant to the requirements of cl.29(b) and cl. 29(e) of the North Coast Regional Environmental Plan 1988.

The relevant facts concerning the history of the making of Amendment No. 4 Plan are set out in the extensive affidavit sworn by Mr. Anthony McNamara, the 2nd Respondent's Town Planner. I do not need to

refer to them in any detail here. It is sufficient to note that the 1st Respondent, as owner of the relevant land, including the land known as North Brother Mountain, had been seeking a rezoning of the foothills of the mountain for some time prior to the making of Amendment No. 4 Plan, at the same time as he had been negotiating with the Department of Environment and Planning for the sale to the Department of the majority of the Mountain land which had been identified for acquisition as part of the State's Coastal Lands Protection Scheme.

During these negotiations with the Department the 1st Respondent was seeking to make out a case for the rezoning of the foothills as part of the consideration for the sale of the Mountain land. However I am satisfied on the evidence that the Department resisted the 1st Respondent's urging or pressure that the rezoning of the foothills be part of the consideration for the sale to the Department of the Mountain land. The evidence establishes that the 3rd Respondent in his capacity as Corporation sole on 8th March, 1988 entered into a contract to purchase from the 1st Respondent the Mountain land (containing an area of some 236ha) for the consideration of $200,000. I am also satisfied on the evidence that both the Department and the 2nd Respondent deliberately determined that any action initiated by the 1st Respondent to obtain any rezoning of the foothills land should be judged on its planning merits and proceed separately from any action by the Department to acquire the Mountain land.

In the Director's s.69 report to the 3rd Respondent on the draft Amendment No. 4 Plan there is express reference to the fact "that the remaining parts of the Mountain area are in Crown ownership, including a significant area (236ha) recently purchased by the Department from Mr. Willcocks under the Coastal Lands Protection Scheme" (para. 9 of Exhibit E/3).

In my opinion the Applicant has totally failed to sustain his attack on the actions of the 3rd Respondent. I find on the evidence that in his decision pursuant to s.70 of the Environmental Planning and Assessment Act to make Amendment No. 4 Plan the 3rd Respondent did not take into account, as an irrelevant consideration, the fact that the bulk of the Mountain land had already been acquired by the 3rd Respondent from the 1st Respondent.

The Applicant's argument that Amendment No. 4 Plan is invalid because of its repugnance to cl. 29(b) and (e) of North Coast Regional Environmental Plan 1988 in my opinion is untenable both as a matter of law and on the proven facts.

Clause 29 which is headed "Plan preparation in natural areas and water catchments" provides in paras. (b) and (e) as follows:-

"29. A local environmental plan shall -

(b) not alter or remove existing environmental protection zonings or controls within them, without undertaking a detailed analysis to determine whether there will be adverse environmental effects resulting from such action;

(e) not alter or remove existing zonings or identification of land for scenic protection areas or escarpment preservation areas."

Assuming that the zoning of the subject land (ie the Mountain and its foothills) under Hastings Local Environmental Plan 1987 prior to the making of Amendment No. 4 Plan is a zoning falling within the ambit of cl. 29(b) and cl. 29(e) I accept Mr. McNamara's evidence that the requirement for the "detailed analysis" required by cl. 29(b) was satisfied by the documents prepared by and on behalf of the 1st Respondent and submitted to the 2nd Respondent in support of the request for rezoning.

So far as cl. 29(e) is concerned I find that nothing in Amendment No. 4 Plan 'alters or removes' existing zonings. The effect of Amendment No. 4 Plan is to retain the existing zoning of the land to which it applies. Although it authorises development (not previously authorised) it does so subject to obvious environmental constraints as set out in cl. 52. Some support for Mr. McNamara's opinion is found in the fact that the s.69 report to the 3rd Respondent stated in para. 10:-

"The proposal raises no inconsistencies with State Policies the North Coast REP or section 117 directions ..........."

These factual findings are sufficient to dispose of the Applicant's attack based upon the provisions of the North Coast Regional Environmental Plan.

However the attack is unsound as a matter of law because there is nowhere to be found in Part III of the Act any support for the legal proposition that a draft local environmental plan cannot contain provisions inconsistent with another existing environmental planning instrument including a regional environmental plan - see in particular ss. 36, 68(4)(d)(iii), 69, 70 and 74. The current position is to be contrasted with s. 61(e) as originally enacted considered in Geoffrey Twibill v. Warringah Shire Council (1983) 51 LGRA 73, but since repealed.

Although the Applicant properly disavowed any reliance on the provisions of the Environmental Planning and Assessment Act 1979 in support of its attack based upon the provisions of cl. 29 of the Regional Plan, the provisions of the Act that I have cited implicitly deny any validity to the Applicant's argument. Indeed if cl. 29 of the Regional Plan had the operation ("an absolute prohibition" on changing the relevant existing zonings) contended for by the Applicant it would be clearly repugnant to the provisions of the parent Act and especially s. 74 thereof.

Accordingly this attack on the validity of the Amendment No. 4 Plan fails.

The Applicant's attack based upon the 2nd Respondent's alleged failure to comply with s. 66 of the Environmental Planning and Assessment Act involves the resolution of some conflicting evidence as to what was publicly exhibited at the Laurieton office of the 2nd Respondent, although as was suggested in argument, it is possible to harmonise the evidence apparently in conflict.

Section 66(1) relevantly provides:-

"Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall ............

(a) give public notice ........... of the place at which, the dates on which, and the times during which ........... the draft local environmental plan may be inspected by the public;

(b) publicly exhibit at the place, on the dates and during the times set out in the notice -

(i) a copy of that ........... draft local environmental plan;

(ii) a copy of any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft local environmental plan is intended to apply."

Mr. Yates, an active member and spokesman of the Camden Haven Protection Society (of which group the Applicant is Treasurer and on whose behalf the present proceedings were brought) stated that when he called at the Laurieton Office of the 2nd Respondent on 15th April, 1988 he did "not see exhibited or displayed anywhere the North Coast Regional Environmental Plan ......." He did see displayed on the Notice Board 4 type written pages and map which pages contained a copy of the draft Amendment No. 4 Plan (2 pages plus accompanying map) and 2 pages of prefatory and explanatory notes issued by the 2nd Respondent. The first page of the exhibition included the following:-

"The content and operation of the draft local environmental plan are substantially governed by any State Environmental Planning Policy, Regional Environmental Plan or relevant direction under section 117 of the Act, applying to the subject land.

In this case the policies, plans or section 117 directions of particular relevance are:

North Coast Regional Environmental Plan:

Part 2, Division 4 - Rural Housing;

Part 3, Division 1 - The Natural Environment.

A copy of all relevant policies, plans and directions are contained in the book titled "Controls over content and operation of draft local environmental plans", located on the counter and forms part of this exhibition.

Any person may inspect the draft plan and supporting material and make written submissions (having regard to the relevant policies, plans and directions) on the draft plan until Thursday 21st April, 1988. A submission may request that Council arrange a public hearing with regard to the issues raised in that submission. A hearing may be held where Council considers that the issues raised are of enough significance."

Mr. Yates said that he spoke to the Council servant in attendance, Mrs. Jennifer Roberts (whom he knew) and asked whether there was anything else which went with what was on the notice board. He said "She indicated that what was on the notice board was all there was".

In her affidavit Mrs. Roberts deposed to placing the supporting documents (including the Regional Plan) on the office counter and to observing it there throughout the 14 day exhibition period and to collecting it and returning it (together with the displayed material) to the 2nd Respondent's principal office at Port Macquarie.

During the exhibition period Mrs. Roberts recalled seeing both the Applicant and Mr. Yates looking at the material displayed on the notice board but did not recall either person requesting her to show them the supporting material placed on the counter.

The 2nd Respondent called evidence from another resident of Laurieton who had inspected the relevant material at the Laurieton Office of the 2nd Respondent, which evidence, though not entirely convincing, adds some corroboration to the evidence of Mrs. Roberts.

A feature of Mr. Yate's evidence that creates a considerable doubt in my mind is the fact that despite his obvious knowledge, skills and interest in planning matters and procedures under the Environmental Planning and Assessment Act he did not query Mrs. Robert's response to his enquiry on the strength of the statement on the first page of the exhibition:-

"A copy of all relevant policies, plans and directions are contained in the book titled "Controls over content and operation of draft local environmental plans" located on the counter and forms part of this exhibition."

In the circumstances I find it difficult to resist the conclusion that Mr. Yates deliberately chose to "remain ignorant" (because he sensed therein some advantage) of the presence in the Laurieton Office of the 2nd Respondent of the supporting material.

On the state of the evidence I find that the supporting material was available for public inspection at the Laurieton office of the 2nd Respondent in the manner deposed to by Mrs. Roberts.

Accordingly on the facts I find there to be no breach of duty by the 2nd Respondent in relation to s. 66(1)(b) of the Act.

Even if I had otherwise found, on the facts, that there was a failure on the part of the 2nd Respondent to exhibit at the Laurieton office all the required supporting material, I would not have held the failure to be fatal so as to invalidate the Amendment No. 4 Plan. There are a number of reasons for so concluding. Firstly I would not regard a failure to comply with s. 66(1)(b)(ii) as involving a breach of the overall duty imposed by s. 66(1)(b). As the heading to the section states the section is concerned with the 'public exhibition of the draft local environmental plan'. This is obviously the principal object of the section and the material referred to in s. 66(1)(b)(ii) is clearly ancillary and subsidiary material. In these circumstances as a matter of construction I would not interpret the section in a manner that visited non-compliance with s. 66(1)(b)(ii) with invalidity. Alternatively I would regard the exhibition of the material referred to in s. 66(1)(b)(i) even if unaccompanied by relevant materia

l referred to in s. 66(1)(b)(ii) as a substantial compliance with the duty imposed by the section, particularly in a case such as the present, where there is unchallenged evidence (which I accept) that there was total compliance in respect of s.66 in the exhibition of materials at the 2nd Respondent's principal offices in Port Macquarie.

Finally on the basis that there is no evidence that the Applicant suffered any prejudice I would have withheld relief by way of judicial review on discretionary grounds cf. George v. Secretary of State for the Environment (1979) 38 P & CR 609.

This brings me to the final ground of attack, namely that the 2nd Respondent has breached its duty under s.68 in failing to arrange for a public hearing in respect of the submission made by the Camden Haven Protection Society.

Section 68(1) provides as follows:-

"68. Consideration of submissions. (1) Where -

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

(b) the council considers that the issues raised in a submission are of such significance that they should be the subject of a hearing before the council decides whether and, if so, what alterations should be made,

the council shall, in the prescribed manner, arrange a public hearing in respect of the submission."

The evidence clearly establishes that the submission made by the Camden Haven Protection Society was made outside the period allowed by s.67. It was some 7 days late. The Society had originally requested an extension of the exhibition period. Apparently this request was ignored. In its submission the Society objected to the proposal on specified grounds and concluded by requesting a public hearing "should Council still intend to proceed with the rezoning". (Exhibit 2).

Mr. McNamara in his report to the 2nd Respondent recommending that it proceed with the draft Amendment No. 4 plan (with suggested amendments) referred to the receipt of the final submission from the Society. However he did not circulate it to the Alderman in the business paper. Nor did he specifically mention the grounds of objection. Nor did he mention the request for a public hearing. In his oral testimony he said that he regarded the submission as being 'out of time' and hence not capable of supporting a request for a public hearing. In any event he considered each of the grounds of objection had been adequately dealt with in his report to the 2nd Respondent.

Also relevant to the attack based upon the alleged breach of s.68 is the evidence given by a number of the witnesses including Mr. Yates the Mayor and Mr. McNamara of what occurred at the meeting of the 2nd Respondent held on 30th May, 1988 to discuss Mr. McNamara's report on the draft Amendment No. 4 Plan at which meeting Mr. Yates addressed the Council. In the course of his address he requested the Council to hold a public meeting into the Society's submission.

I am satisfied from the varying versions of what occurred at that meeting that the request for the holding of a public hearing was discussed and debated by some 7 Aldermen and that the 2nd Respondent's decision, though not formally announced or recorded, clearly was to refuse the request on the grounds that the matters raised had been previously ventilated in the Council and were adequately dealt with by Mr. McNamara's report. It was said that Alderman King, who had interjected during Mr. Yates' address, claimed that the requested public hearing would only cost the Council a lot of time and money and was unnecessary.

Whereas on the evidence I am satisfied that the Aldermen were not aware of the request by the Society in its submission for a public hearing I am satisfied that this lack of awareness was overcome and cured by what occurred at the Council meeting held on 30th May, 1988 when Mr. Yates renewed the request.

In my opinion the Applicant has not established any breach of duty by the 2nd Respondent under s.68, even assuming that the request was a valid request within the meaning of the section ie assuming that the expression "a person making a submission" (which obviously refers back to s.67) includes a person whose submission is made outside of the period allowed by s.67. The 1st and 2nd Respondents submitted that s.68(1) should not be so interpreted but should be interpreted only to include a person who had made a submission within the period prescribed by s.67. I am prepared to interpret s.68 more generously so as not to disqualify the Society's submission.

However though the request for the public hearing made in its submission was not considered by the 2nd Respondent its request was considered aliunde ie at the meeting of the 2nd Respondent held on 30th May, 1988. Thus the failure (through lack of awareness by the Aldermen) to consider the request for the submission was cured by the 2nd Respondent's consideration of the same request made by Mr. Yates at its meeting held on 30th May, 1988.

It is possible to argue that Mr. McNamara's consideration of the Society's submission was relevantly the consideration of the 2nd Respondent. However I do not so hold since in any event, he regarded the request as 'incompetent' because the submission had been made out of time.

Even if the duty under s.68(1) required the 2nd Respondent to consider the request in the context of the submission (and was not, contrary to my conclusion, cured by the 2nd Respondent's consideration of the request at its meeting on 30th May, 1988) I would again withhold relief by way of judicial review, assuming a case was otherwise made out, on account of the lack of prejudice suffered by the Applicant cf. George v. Secretary of State.

However in order to succeed on its s.68 argument the Applicant has to go further than merely establishing a relevant request. She must prove to activate the duty that "the Council considers that the issues raised ......... are of such significance that they should be the subject of a hearing ........" The Applicant has not adduced any evidence that would support such a finding. Indeed the evidence is very clear that at its meeting held on 30th May, 1988 the 2nd Respondent was of the clearest contrary opinion, an opinion I would add, that is supported by the opinion and testimony of Mr. McNamara.

It follows that the Applicant has failed to prove any relevant breach by the 2nd Respondent of s.68 of the Environmental Planning and Assessment Act.

The Applicant having failed on each of its grounds of attack it follows that the application must be dismissed and I so order.

Exhibits to be returned.