Kindimindi Investments Pty Ltd v Lane Cove Council
[2005] NSWLEC 398
•19 August 2005
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Kindimindi Investments Pty Ltd v Lane Cove Council and Anor [2005] NSWLEC 398
PARTIES:
Kindimindi Investments Pty Ltd
Lane Cove Council
Fabcot Pty Limited
CASE NUMBER: 40405 of 2005
CATCH WORDS: Administrative Law
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 ss 79C(1), 80(1), 80(3), 80A(4), 96(1A), 96(4)
Land and Environment Court Act 1979 s 25B
Lane Cove Local Environmental Plan 1987 cl 19F(2)(a), (c), (h)
State Environmental Planning Policy No 1 - Development Standards
CORAM: Cowdroy J
DATES OF HEARING: 21/06/2005, 22/06/2005, 28/06/05, 29/06/2005, 30/06/2005, 01/07/2005
DECISION DATE: 19/08/2005
LEGAL REPRESENTATIVES
APPLICANT
I Hemmings
SOLICITORS
Hones Lawyers
FIRST RESPONDENT
M Craig QC
SOLICITORS
Wilshire Webb
SECOND RESPONDENT
J Ayling SC with R Lancaster
Mallesons Stephen Jaques
J Ayling SC
SOLICITORS
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Cowdroy J
19 August 2005
40405 of 2005
KINDIMINDI INVESTMENTS PTY LTD
Applicant
LANE COVE COUNCIL
First Respondent
FABCOT PTY LIMITED
Second Respondent
JUDGMENT
Cowdroy J : In these proceedings the applicant seeks a declaration that a development consent granted by the first respondent (“the Council”) to the second respondent (“Fabcot”) is void and seeks consequential orders.
Facts
The proposed development
On 20 December 2004 the Council granted consent subject to conditions (“the original consent”) to Development Application 246/04 (“the DA”) in respect of premises known as 24-28 Lane Cove Plaza, otherwise described as 1-7 Austin Street, Lane Cove (“the site”). The proposed development (“the development”), known as “the Lane Cove Market Square Development” is described in the original consent as:-
Demolition of existing structures (except the original Lane Cove Library building) and construction of a mixed use development comprising a multi level carpark, supermarket, library extension, retail plaza and CBD housing Building Code of Australia Building Classification: Class 9b Library; Class 6 Retail; Class 7a carpark; Class 2 Residential; Class 5 Office
Although there is no direct evidence of the precise relationship, it is apparent that Fabcot is a company associated with Woolworths Ltd.
The site of the development consists of approximately 25 allotments, and involves both Council-owned and privately-owned land located in close proximity to Lane Cove Public School (“the school”). The site is zoned under the Lane Cove Local Environmental Plan 1987 (“the LEP”). Fabcot lodged with the DA objections under State Environmental Planning Policy No 1 – Development Standards (“SEPP 1”) in respect The site of the development consists of approximately 25 allotments, and involves both Council-owned and privately-owned land located in close proximity to Lane Cove Public School (“the school”). The site is zoned under the Lane Cove Local Environmental Plan 1987 (“the LEP”). Fabcot lodged with the DA objections under State Environmental Planning Policy No 1 – Development Standards (“SEPP 1”) in respect of three restrictions contained in the LEP. Clause 19F(2)(a), required a 5 m building line to Austin Street, cl 19F(2)(c) required a 10 m set back to the eastern boundary of such premises and cl 19F(2)(h) required internal access over such premises to be available at all times between an existing shopping centre known as Lane Cove Plaza and Austin Street. The Council upheld each of Fabcot’s objections when it granted the original consent.
History of the development application
Fabcot submitted a development proposal involving land owned by both it and the Council in December 2002 and various negotiations took place between February 2003 and March 2004. During this period the Council extensively considered the proposal and variations. The Mayor, Mr Ian Longbottom, deposed that he attended numerous meetings involving Councillors, Council staff and representatives from Fabcot together with commercial organisations, community organisations and members of the public.
The initial plans and specifications for the development had been completed by March 2004, shortly before the Council elections. The outgoing Council had resolved to recommend strongly to any incoming Council that the new Council accept the terms of the commercial transaction documents for Woolworth’s proposal. On 20 March 2004 a new Council was elected and from that time until 20 June 2004 the new Council considered Fabcot’s proposal and negotiated several changes. On 21 June 2004 the Council resolved to accept the commercial terms of the Fabcot offer and accordingly on 6 July 2004, a deed was entered into between the Council, Fabcot and Woolworths Ltd (“the deed”).
Under the deed, Fabcot assumed certain obligations, subject to a “satisfactory development consent” being granted for the development. A “satisfactory development consent” was defined in the deed to be a consent which authorised a development generally in accordance with the DA. The initial plans and specifications for the development, contained in Annexure A to the deed, make provision for works in Austin Street, adjacent to and within the school. The work proposed on the school land comprised a new pedestrian entry, waiting area, pathway, landscaping and fencing. By cl 30 of the deed, Fabcot was not strictly required to carry out works within the school. However, a bond of $92,694 was required to be paid to the Council, which is to be repaid only in the event that works within the school grounds are carried out. The deed also requires Fabcot to use all reasonable endeavours to procure th Under the deed, Fabcot assumed certain obligations, subject to a “satisfactory development consent” being granted for the development. A “satisfactory development consent” was defined in the deed to be a consent which authorised a development generally in accordance with the DA. The initial plans and specifications for the development, contained in Annexure A to the deed, make provision for works in Austin Street, adjacent to and within the school. The work proposed on the school land comprised a new pedestrian entry, waiting area, pathway, landscaping and fencing. By cl 30 of the deed, Fabcot was not strictly required to carry out works within the school. However, a bond of $92,694 was required to be paid to the Council, which is to be repaid only in the event that works within the school grounds are carried out. The deed also requires Fabcot to use all reasonable endeavours to procure the approval of the school for works within its grounds.
Following the execution of the deed, Fabcot lodged the DA with the Council on 23 July 2004. Since the development was to occur partly on Council owned land, the Council appointed an independent assessor, Hansen Partnership Pty Limited (“Hansen”), to consider the development. Hansen produced a report known as the Environmental Services Division Report 148 (“the Hansen report”) containing its recommendations and draft conditions for consent.
To assist Hansen in relation to pedestrian safety issues, Christopher Stapleton Consulting Pty Limited (“Stapleton”) prepared a report known as the “Market Square Pedestrian Access and Safety Review” (“the Pedestrian Safety Review”). Parsons Brinckerhoff Australia Pty Ltd (“Parsons Brinckerhoff”) was engaged by Hansen as the traffic and transport specialist.
The expert reports considered the changes to the availability of parking in Austin Street as a result of the development. The Pedestrian Safety Review referred to the fact that between 50 and 260 schoolchildren currently use Austin Street or the existing car park in Austin Street. It noted that a new roadway to serve the development known as the new link road and a proposed roundabout and service vehicle access point would result in the reduction of kerbside accessibility for depositing and collecting school children. The Pedestrian Safety Review noted that a pick-up/set down facility for schoolchildren (“the drop off facility”) was proposed to compensate for such loss. The drop off facility was to comprise approximately 10 temporary parking spaces. The Pedestrian Safety Review and the Parsons Brinckerhoff report assumed that the drop off facility would form part of the development.
Drawings SK13A and SK13B are incorporated in the deed and show plans for the drop off facility and new entrance arrangements for the school.
The Pedestrian Safety Review also considered the provision of an entry level pedestrian path between Austin Street and the development. It noted certain shortcomings in the existing design and recommended the provision of a path with safe sight distances at the egress point from the entry level car park. The Hansen report referred to the need to provide a safer pedestrian environment in the vicinity of the new link road especially improved sight distances between the pathway and the car park entry.
The Hansen report referred to the need to revise the appearance of the western wall and the plaza façade, and observed that such matters had been resolved by a plan dated 25 November 2004 (later known as SK13) (see at p 82 of the Hansen report).
Additionally, the Hansen report referred to the appearance of the CBD housing roof form at its eastern end, where the edge of the roof was close to the Lane Cove plaza parapet. The Hansen report recommended (at p 89) that the roof form should be split and/or set back further to the east so that it would be less visible above the parapet.
The Hansen report also referred to the need to fit the ground and lower levels of the proposed car park with perforated screens and/or panels to improve the streetscape on the southern and western sides.
The Hansen report referred to two draft State Environmental Planning Policies (SEPPs) which had been exhibited but not made, namely draft State Environmental Planning Policy (Application of Development Standards) 2004 (“draft SEPP 1”) and draft State Environment Planning Policy 66 – Integration of Land Use and Transport (“draft SEPP 66”). The Hansen report stated that on the basis of the transitional provisions, the draft SEPPs were not relevant to the consideration of the DA.
On 2 August 2004 the Council resolved that the General Manager arrange for the Council staff to compare the DA with the plans attached to the deed and report any differences to the Council. On 16 August 2004 the Council considered and adopted a report from the General Manager concerning the DA. The report noted that the plans lodged were consistent with the deed and that there were no material variations.
Because of the nature of the development, there was considerable public interest in and comment upon the proposal. The Mayor attended a public information night on 30 September 2004 convened for the purpose of informing members of the public about the development. All Councillors, except Councillor Freedman who was away at that time, attended the meeting. Representatives of Woolworths attended with their experts and answered questions concerning the development proposal.
Following the lodgement of the DA and prior to its determination the Mayor received numerous submissions concerning the development which were forwarded to Council staff.
On 17 December 2004 the Mayor received a letter from Woolworths which suggested various amendments to certain proposed conditions. On the afternoon of 20 December 2004 the Mayor met with Council staff to discuss the amendments proposed by Woolworths to the Council’s draft conditions. At the Mayor’s request Council staff prepared a summary of the proposed amendments to the draft conditions of consent (“the summary of amendments”).
The Council meeting occurred on the evening of 20 December 2004. The meeting opened at 6.30 pm and the first item of business was the resolution by the Council to suspend the standing orders to enable members of the public to address the Council in respect of the development. Various speakers then spoke until approximately 8.05 pm. Following the representations from the public gallery, the Councillors considered the Hansen report and the summary of amendments which had been prepared by the Council staff that afternoon. Shortly before 9.27 pm the Council resolved (by a vote of five to four) to approve Fabcot’s development application.
From 9.40 pm the Council considered a number of other items until the close of the meeting at 11.53 pm. During such period the Council considered a rescission motion in respect of the resolution to grant consent to the development application. The rescission motion was defeated.
Conditions attached to the original consent
Relevantly, Conditions B, 1(a), 1(b), 1(e), 2(m), 3 and 21 were incorporated in the original consent together with the “advice” contained in Condition E.
Condition B of the original consent provided:-
Development Application 246/04 be approved for the demolition of existing structures (except the original Lane Cove Library building) and construction of a mixed use development comprising a multi level carpark, supermarket, library extension, retail plaza and CBD housing be approved, subject to conditions. The conditions included with the report reflect:
(a) Changes required to the architectural plans identified as a consequence of the independent assessment.
(b) Changes to the architectural plans agreed by Fabcot Pty Ltd during the course of the independent assessment .
(c) General conditions.
Condition 1 relevantly provided:-
The architectural plans prepared by BN Group Pty Ltd shall be altered to include the following modifications identified as necessary as a consequence of the independent assessment:
a) The CBD housing roof form, at its eastern end, is to be split or setback, to reduce its visibility from Lane Cove Plaza.
b) Enclosure of the open sections of the car park to the west and south with facades providing visual relief and interest. Materials with a degree of transparency, to permit ventilation, are acceptable.
…
e) Amend the design to provide a safe pedestrian path between the Link Road and entry level access lobby area and existing commercial tenants in accordance with the Pedestrian Access and Safety Review.
Condition 2 relevantly provided:-
The architectural plans prepared by BN Group Pty Ltd development shall be altered to include the following modifications as agreed by the proponent in the letter from APP Corporation Pty Ltd dated 15/11/04 and the submission from BN Group Pty Ltd dated 25/11/04:
…
m) The western wall of the CBD housing shall be consistent with details shown in design sketch SK 13.
Condition 3 provided:-
A complete set of revised plans, addressing the matters in conditions 1 and 2 above, to the satisfaction of Lane Cove Council, shall be submitted to Council PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE. The development shall be completed generally in accordance with the plans approved to satisfy this condition except as otherwise modified by this Notice.
Condition 21 provided:-
A minimum of 6 spaces shall be provided as a “pick up/set down area” area within the car park. These spaces shall be located as close as possible to the pedestrian pathway connecting to Austin Street Wombat crossing. These 6 spaces shall be signposted as being “15 minute parking only”.
Condition E provided:-
Advice
Any separate Development application of the construction of the lower Austin Street set down and pick up area for Lane Cove Public school shall address and have regard to the recommendations in the Pedestrian Access and Safety Review prepared by Christopher Stapleton Consulting Pty Ltd dated November 2004.
No condition was incorporated into the consent requiring the creation of a drop off facility.
Modification of consent
On 23 May 2005 the Council, pursuant to s 96 of the Environmental Planning & Assessment Act (“the EP&A Act”) issued a Notice of Determination of Development Application D246/04 (“the modified consent”) which modified the original consent. Condition 1(a) of the original consent was substituted by the following provisions:-
(a) The CBD housing roof form shall be in accordance with drawing SK03A, dated 19 November 2004, prepared by BN Group Pty Ltd.
Condition 3 of the original consent was also modified to included a schedule of the architectural drawings prepared by BN Group Pty Ltd. Beneath the schedule in condition 3 of the modified consent, the following notation appears:-
The approved plans are further amended by all matters in conditions 1 and 2 above.
A complete set of revised architectural plans, satisfying conditions 1-3, and to the satisfaction of Lane Cove Council, shall be submitted to Council for stamping and issue PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE.
The development shall then be completed generally in accordance with the stamped plans approved to satisfy this condition, and any supporting information received with application, except as may otherwise be amended by this Notice:
Applicant’s submissions
Uncertainty
The applicant submits that the original consent did not expressly or impliedly incorporate any architectural drawings (“the plans”) and was therefore uncertain. The applicant relies upon Mison & Ors v Randwick Municipal Council (1991) 73 LGRA 349; Winn v Director-General of National Parks and Wildlife and Ors (2001) 130 LGERA 508; Ryde Municipal Council v The Royal Ryde Homes & Anor (1970) 19 LGRA 321; Tip Fast Pty Ltd v South Sydney City Council (2002) 120 LGERA 292; Halglide Pty Ltd v PT Ltd (1990) 71 LGRA 215. The applicant says that the letter of Woolworths dated 16 December 2004 suggested that the list of plans be incorporated in the original consent. Since the Council did not incorporate the list, the applicant says that the implication should be drawn that the Council did not wish to incorporate the list of plans and that the plans cannot be impliedly incorporated.
The applicant submits in the alternative that even if the Court finds that the plans were incorporated into condition 1, such condition left open the possibility that the final development could be significantly different to that applied for and it deferred for later decision an important aspect which could alter the development in a fundamental respect. It says that condition 3 specifically envisaged the preparation of fresh plans for the development which were to be approved by the Council, and which required fundamental changes. Accordingly the original consent did not finally determine the development application.
The applicant says it must follow that the original consent is void in accordance with the principles of Mison. The applicant acknowledges that the provisions of the EP&A Act have been amended since Mison , but says that condition 1 was neither a deferred commencement condition as provided by s 80(3) of the EP&A Act, nor did it satisfy the requirements of s 80A(4) of the EP&A Act.
Impact on School
The applicant submits that the Council failed to consider the impact of the development upon the school and was in error in accepting Hansen’s conclusion that the drop off facility did not form part of the DA. The applicant submits that it was necessary to impose a condition requiring construction of the drop-off facility and that the advice in condition E of the original consent is inadequate. The applicant submits that the Council’s failure to consider such issue demonstrates that Council did not give proper, genuine and realistic consideration to the development application and relies upon Weal v Bathurst City Council and Anor (2000) 111 LGERA 181 per Mason P at 185; Centro Properties Limited v Hurstville City Council and Anor (2004) 135 LGERA 257.
The applicant submits that Council’s failure to impose any conditions for the traffic arrangements at the school constitutes unreasonableness in the sense referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Failure to consider draft environmental planning instruments
The applicant submits that the Council gave no consideration to draft SEPP 1 and draft SEPP 66, both of which it submits were mandatory considerations under s 79C of the EP&A Act. The applicant says that the provisions in the draft SEPPs were significant and accordingly the failure of Council to consider them constitutes a material error. It relies upon Parramatta City Council and Anor v Haleand Ors (1982) 47 LGERA 319 at 335, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 and Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138.
Failure to consider the development application
The applicant submits that the Council was required to give real, proper and genuine consideration to the development application and to any reports relating to the proposed conditions of consent. The applicant submits that no reasonable opportunity was given to the Councillors to consider the development application and the relevant reports.
Consequences of Modification
The applicant submits that the Council’s purported modification of the original consent is of no effect. It submits that the defects in the original consent render it void and that they cannot be remedied by the subsequent attempt to modify that consent. It relies on The applicant submits that the Council’s purported modification of the original consent is of no effect. It submits that the defects in the original consent render it void and that they cannot be remedied by the subsequent attempt to modify that consent. It relies on Hollis v Shellharbour City Council [2002] NSWLEC 83. The applicant submits that Lloyd J’s obiter remarks in MLC Properties & Anor v Camden Council and Ors (1997) 96 LGERA 52, wherein his Honour held a subsequent modification could validate an earlier invalid consent, were erroneous. The applicant also relies upon the observations of the Full Federal Court in Telstra Corporation Ltd and Ors v Seven Cable Television Pty Ltd and Ors (2000) 102 FCR 517 wherein the Full Federal Court observed that a purported exercise of a statutory power which did not accord with the statute is of no effect.
Discretion
The applicant submits that because of Council’s failure in the assessment of the DA the Court should not exercise its discretion under s 25B of the Land and Environment Court Act 1979.
Respondents’ submissions
The finality of the consent
The respondents submit that the Council’s obligation was to determine the DA in accordance with s 80(1) of the EP&A Act so that the conditions imposed did not leave open the possibility of a significantly different development or alter the development in a fundamental respect. They refer to Transport Action Group Against Motorways Inc v Roads and Traffic Authority and Another (1999) 46 NSWLR 598 and Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84. The respondents submit that the conditions of the original consent are to be considered in the context of the whole of the original consent which include the stamped approved plans and documents referred to in the consent. The respondents rely upon Auburn Municipal Council v Szabo and Anor (1971) 67 LGRA 427, Tip Fast v South Sydney City Council,Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth of Australia (1994) 85 LGERA 37 and submit that when read in context, the conditions are not uncertain.
Impact on school
The respondents submit that the test of proper, genuine and realistic consideration of a relevant consideration is inapplicable to proceedings for judicial review, and rely upon the observations of Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 and the Court of Appeal in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11 at [138]. The respondents submit that in judicial review proceedings, the Court should not review the merits of a decision: see McClellan J in Centro Properties v Hurstville City Council at 266. The respondents submit that when such principle is applied, no basis exists for the Court to consider the impact of the development upon the school.
The respondents submit in the alternative that even if such a ground of challenge were available, the existence of the deed provides a complete answer to the applicant’s claim, as it contains binding obligations on Fabcot to create the drop off facility within the road reserve, adjacent to the school, and to provide a bond in relation to future works within the school. The respondent submits that this clearly establishes the Council’s consideration of the impact of the development on the school.
Failure to consider draft environment planning instruments
The respondents submit that the Council was not required to consider the draft SEPPs as the draft SEPPs comprised a class of considerations which were relevant but not mandatory. They rely upon the observations of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 which were subsequently referred to in numerous authorities including Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors (1986) 162 CLR 24; Foster v Minister for Customs and Justice (2000) 200 CLR 442; Minister for Local Government and Anor v South Sydney City Council (No 2) [2002] NSWCA 317; Noble and Anor v Cowra Shire Council (2001) 114 LGERA 440 and Holt and Anor v Cox (1997) 23 ACSR 590 at 597.
Additionally the respondents submit that neither draft SEPP 1 nor draft SEPP 66 could have applied to the DA. By virtue of cl 14 (in each of draft SEPP 1 and draft SEPP 66), each of the draft SEPPs did not apply to development applications lodged before the draft SEPP had commenced. The respondents submit that on this basis the draft SEPPs could have had no application and accordingly that they were not a relevant consideration for the Council.
The respondents submit in the alternative that even if the draft SEPPs did require the consideration of the Council, the Council did in fact consider each of the draft SEPPs. Although the Hansen report concluded that the draft SEPPs were not relevant to the assessment of the application, the substantive provisions of each draft SEPP were contained in material before the Council when it made its decision to grant consent. As such the Council must be taken to have considered them: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 31; Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74.
Findings
Were the plans incorporated into the original consent?
To determine whether the plans were incorporated into the original consent, it is necessary to consider several authorities of the Court of Appeal and of this Court.
In Auburn Municipal Council v Szabo, Hope J said (at 433-4):-
It is apparent from these decisions that in determining what a council has approved one primarily looks at the document constituting the approval, and construes it … it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. The terms of another document may be incorporated in the development approval either expressly or by necessary implication, but I do not think that it is possible otherwise to go to documents outside the formal approval in order to determine what has been approved.
In Halglide Pty Ltd v PT Ltd (1990) 71 LGRA 215 the Court determined that it was permissible in certain circumstances to have regard to plans accompanying a development application. Hemmings J said at 218:-
However, even before the EP&A Act and as early as 1971, the question of the implied incorporation of details of the development application in a subsequent consent had been considered, but unfortunately not reported until 1989: Auburn Municipal Council v Szabo (1971) 67 LGRA 427. Whilst Hope J accepted that primarily one looks at the document of consent to construe it, nevertheless it was held that where a Council did no more than approve the application, then by necessary implication the terms of the application must be incorporated in the approval. [emphasis in original]
Hemmings J then held (at 219):-
In line with authority, in appropriate circumstances this Court will go beyond the written notice of determination to ascertain the nature and extent of the consent. Without express reference thereto in such notice, plans accompanying the development application are most often taken into consideration and included as part of the approval. There are many examples, but see Baulkham Hills Shire Council v Hall 29 June 1990 (unreported) and Skyline Australia (Finances) Pty Ltd v Pluteus (No 301) Pty Ltd (31 August 1990, unreported).
Support for such a proposition can also be found in Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council[No 2] (1993) 78 LGERA 404 where Handley JA said at 407:-
As a general rule development consents, being public documents operating in rem for the benefit of successors in title, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it: see Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44 at 50; see also Wyre Forest District Council v Secretary of State for Environment (at 370-371). However reference may properly be made to documents incorporated expressly or implication into the consent.
In reaching his decision Handley JA also relied upon the observations of Hope J in Auburn Municipal Council v Szabo.
In Stebbins and Anor v Lismore City Council (1988) 64 LGRA 132 the Court of Appeal, in interpreting the consent granted by the respondent, took into consideration the plan attached to the development application and a notation made on such plan by a Council officer. A similar approach was again adopted by the New South Wales Court of Appeal in Woolworths Ltd v Campbells Cash and CarryPty Ltd (1996) 92 LGERA 244. Sheller JA said at 249:-
Development approvals operate for the benefit of subsequent owners and other occupiers of land and denote the consent authority’s unilateral act, not a bilateral agreement between the parties. Generally, if the terms of the approval are clear, it is not permissible to look to the application or to the other documents which accompany the application to qualify or contradict its terms. But if the approval incorporates the application, the two must be read together; see generally Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632; (1972) 27 LGRA 102; Stebbins v Lismore City Council (1988) 64 LGRA 132 and Hubertus Schuetzenverein Liverpool Rifle Club Ltd v Commonwealth (1994) 51 FCR 213; 85 LGERA 37 where, beginning at 219; 43, Wilcox J has reviewed the cases.
Since the determination of Woolworths Ltd v Campbells Cash and Carry , this Court has followed the same principles: see Loreto Normanhurst Association Inc v Hornsby Shire Council (2002) 122 LGERA 347. In Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Ltd [2004] NSWLEC 551 the Court adopted Halglide and had regard to the development application to interpret the consent. In doing so Lloyd J said:-
In accordance with settled principles in interpreting what is the subject of this consent it is not permissible to look at any other document other than a document either expressly or impliedly referred to in it. In this case it is permissible to look at the plan referred to in condition 20 as forming part of that consent.
The above authorities indicate that in appropriate circumstances it is permissible to have regard to the both the development application and accompanying plans to determine the full extent of the consent. Whilst a list of architectural plans was not incorporated in the conditions attaching to the consent, condition B specifically refers to the DA, which included plans. The Council stamped the plans accompanying the DA on 22 December 2004. By cl 100 of the Environmental Planning and Assessment Regulation 2000, a development consent is required to include any relevant plans endorsed by the consent authority. The fact that the list of plans was not explicitly incorporated in the original consent as per Woolworths suggestion does not prevent them from being impliedly incorporated into the original consent. In these circumstances, the Court finds that such plans are incorporated with the development application in the consent.
Challenges to conditions of the original consent
The test for uncertainty in respect of conditions of consent has been clearly established by the New South Wales Court of Appeal in Mison and more recently in Winn. In Mison the Court of Appeal considered a grant of development consent for a house. The consent contained a condition which provided that the overall height of the house was to be reduced “to the satisfaction of Council’s chief town planner”. Priestley JA said at 352:-
There was considerable discussion in the course of argument of the question of the extent to which the Council’s chief town planner might require reduction of the overall height of the house, still leaving it containing the rooms and floors shown in the specified plans. No consensus was reached on the figure, but it emerged that on any view the height reduction within those constraints would be significant. More importantly, however, when the plans were considered together with the nature of the site, a sloping one, it became apparent that it would be possible to develop the site generally in accordance with those plans, with significant variation to the positioning and height of the building. This consideration, taken with the earlier one, left the position so fluid that, in my opinion, it could not be said that the actual application made by the second respondent, and no other, had, as a matter of fact, and consequently, in the circumstances of the present case, of law also, been consented to.
At 351 his Honour said:
In my opinion if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application. It does not seem to me to be necessary to consider the different and harder to establish test that compliance with the condition will make the application an “entirely different development”.
The decision in Mison was referred to in Scott and Ors v Wollongong City Council and Anor (1992) 75 LGRA 112 at 118, Samuels AP said:-
However, it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision.
In Winn v Director-General of National Parks and Wildlife and Ors (2001) 130 LGERA 508 Stein JA said at 546 ([207]):-
In essence, the principle is that where a condition has the effect of significantly altering the development or to leave open the possibility that the development carried out in accordance with the condition will be significantly different to that applied for, then it is not a consent to the application. If the consent leaves for later decision an important aspect of the development which will alter it in a fundamental respect, the consent cannot finally determine the application: see in particular the judgments of Priestley JA and Clarke JA.
The above authorities are pertinent to the issues arising in these proceedings. It follows that if the applicant is able to establish that any of the conditions would permit a development which is substantially different to that for which development consent was sought, the consent may be invalid.
Condition 1(a)
Condition 1(a) is set out at [24] above. It required the roof form in the CBD housing portion to be altered at its eastern end, to reduce its visibility from Lane Cove Plaza. The roof form proposed in the DA is set out in plans nos DA09E, DA13E and SK03A, each of which was stamped on 22 December 2004 and formed part of the original consent. The actual alterations to the building required by condition 1(a) are not shown on the plans.
Mr Dickson, the applicant’s town planning expert, believed that the Council required specific details of the alterations before it could grant development consent. He opined that the details of the building envelope in relation to its bulk and scale viewed from the Lane Cove Plaza was “fundamental to the assessment of this development”. Mr Dickson considered that the condition did not define the extent of the modification required and that that both the internal amenity and external appearance of the units in the eastern portion of the development could be affected.
Mr Blaxland, Fabcot’s architectural expert, provided affidavit evidence that there were three possible means of achieving the result imposed by condition 1(a), each of which would have Mr Blaxland, Fabcot’s architectural expert, provided affidavit evidence that there were three possible means of achieving the result imposed by condition 1(a), each of which would have “a minor effect on the internal amenity or external appearance” of the residential units and said that the section of roof affected was visible from only a small area of Lane Cove Plaza, namely the north-eastern portion. Mr Blaxland considered that the work required by the condition was not significant in the context of the development as a whole. In his oral evidence, Mr Blaxland said that the existing roofline had already been split and set back and would not be visible from Lane Cove Plaza because of trees. On this basis Mr Blaxland considered that condition 1(a) was already substantially satisfied by the existing plans, as shown in SK03A.
Condition 1(a) of the original consent does not specify the extent of any alteration required and drawing SK03A does not show any proposed redesign. In fact, in final submissions both the Council and Fabcot submitted that the condition 1(a) of the original consent was otiose since drawing SK03A already indicated the required setback. It is apparent that the precise amendments required by the condition are not clear. Condition 1(a) therefore involves some degree of uncertainty. However the Court accepts Mr Blaxland’s evidence that the visibility of the CBD housing roof form from the Lane Cove Plaza was negligible, and that any redesign of the roof form would be limited. On this basis the Court is not satisfied that any amendment to the drawings as proposed by condition 1(a) would enable a development which is fundamentally different to that for which consent was sought, and accordingly does not infringe the principles referred to in Mison and Winn.
Condition 1(b)
Condition 1(b) is set out at [24] above and required enclosure of two sides of the car park which would provide visual relief and interest.
Mr Dickson considered that the design of all facades should be considered by the consent authority and stated that the appearance of both facades was fundamental to the development application. He considered that the relationship of the development to surrounding properties was significant and that condition 1(b) provided no specific details of the size, level of articulation and colours of the required enclosures.
Mr Blaxland stated that the requirement of condition 1(b) would not materially alter any aspect of the development other than to provide a slightly more attractive façade to Austin Street and the link road. Its enclosure would not be prominent because the condition related only to a short length of the car park fa Mr Blaxland stated that the requirement of condition 1(b) would not materially alter any aspect of the development other than to provide a slightly more attractive façade to Austin Street and the link road. Its enclosure would not be prominent because the condition related only to a short length of the car park façade.
The Court observes that no structural alteration is proposed by the condition, but rather the installation of screening of the floors of the car park. Whilst the appearance of the building is important, as indicated by Mr Dickson, having considered the expert opinions, the Court considers that condition 1(b) relates only to the appearance of a small portion of the development. Such a requirement could not lead to the possibility of a substantially different development.
Condition 1(e)
Condition 1(e) is set out at [24] above and requires that a safe pedestrian path between the new link road and entry level access lobby area be provided in accordance Pedestrian Safety Review.
Mr Dickson considered that the minimisation of potential conflicts between pedestrians and vehicles was fundamental and that the Council had provided no indication of “safe”. He believed that there was insufficient detail contained in condition 1(e).
Mr Blaxland considered that the recommendations contained in the Pedestrian Safety Review provided guidance and the recommendations it made provided standards against which compliance could be measured and defined the necessary works.
The Pedestrian Safety Review is incorporated into the original consent because condition 1(e) expressly refers to it. The Pedestrian Safety Review deals extensively with the requirements to ensure safe access. Although there is no evidence of the final design amendments, the Court is satisfied that the Pedestrian Safety Review adequately identifies the deficiencies in the existing proposals and makes recommendations to rectify these deficiencies. In light of the Pedestrian Safety Review, condition 1(e) does not leave open the possibility of a fundamentally different development.
Condition 2(m)
Condition 2(m) is set out at [25] above and requires that the western wall of the CBD housing to conform to the details shown in drawing SK13. Drawing SK13 is a drawing with notations showing the proposed final treatment of the western wall of the residential portion of the development. The sketch was stamped by Council on 22 December 2004.
Mr Dickson considered that SK13 being a hand-drawn sketch, was inadequate to show the provision of appropriate architectural details including finished Relative Levels (RLs), materials, finishes and shadow impacts.
Mr Blaxland deposed that SK13 was provided only to indicate an enhanced level of material finishes to the western façade and did not make any change to the RLs, materials, finishes and shadow impacts.
Drawing SK13 does not propose any structural alteration but instead merely shows aesthetic enhancements of the western wall, for the purpose of minimising its visual bulk. The Court does not accept that condition 2(m) could significantly alter the development or that the development would be significantly different to that applied for.
Condition 3
The provisions of condition 3 set out in [26] above merely foreshadow that revised plans, reflecting the requirements of conditions 1 and 2, would need to be provided before a construction certificate could issue. The development is still to be completed generally in accordance with the approved plans which were stamped by the Council. There is no scope for any fundamental departure from the approved development. Accordingly the Court rejects the submission that condition 3 is void for Mison uncertainty.
Section 80A(4)
Neither party made extensive submissions in relation to the operation of s 80A(4) of the EP&A Act. Section 80A(4) relates to conditions expressed in terms of outcomes and objectives and provides:-
(4) A consent may be granted subject to a condition expressed in a manner that identifies both of the following:
(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,
(b) clear criteria against which achievement of the outcome or objective must be assessed.
The Court is satisfied that s 80A(4) is applicable to conditions 1(a), 1(b), 1(e) and 2(m) of the original consent. For the reasons referred to above, conditions 1(b), 1(e) and 2(m) satisfy the requirements of this subsection. Condition 1(a), however, does not provide any criteria against which the extent of the modification to the building is to be assessed. On this basis the Court finds that condition 1(a) of the original consent does not comply with s 80A(4).
Failure to consider the impact of the development on the school
A Statement of Environmental Effects prepared by JBA Urban Planning Consultants Pty Ltd dated July 2004 (“the SEE”) accompanied the DA. The statement considered access, parking, transport and traffic. It specifically addressed the drop off facility and the impact of changed traffic arrangements on the school.
The DA was also accompanied by a traffic report prepared by Masson Wilson Twiney dated July 2004 which assessed the need for appropriate arrangements for the drop off and collection of school children in relation to the proposed development.
The Hansen report to Council contains the following comment in relation to the drop off facility:-
Comment
The drop off/pick up zone is not a part of this application although it has been assessed. The Pedestrian Access and Safety Review is generally supportive of the facility, subject to nominated recommendations. Similarly, the independent traffic assessment raises no objection.
The Parsons Brinckerhoff report considered that the provision of the drop off facility in conjunction with car spaces to be provided in the car park was satisfactory. The original consent included condition 21 which is set out at [27] above. The Parsons Brinckerhoff report concluded, inter alia:-
The DA has no outstanding issues relating to traffic and transport that would justify rejection of the application. The development is recommended for approval on traffic ground subject to the suggested consent conditions.
No condition was imposed in the original consent for the inclusion of the drop off facility. As stated in the Hansen report:-
No conditions are imposed regarding the lower Austin Street drop off facility as it does not form a part of this application. Note however that this does not prevent the creation of a suitable setdown area, within the road reserve (and not involving school land) if required as a temporary measure.
However, the Hansen report noted that the applicant had assumed obligations under the deed to make appropriate provision for the drop off facility.
The original consent included condition E which stated that any future development application to construct the drop off facility should have regard to the recommendations of the Pedestrian Safety Review.
The Hansen report contained a summary of public submissions concerning the proposed development, including submissions concerning traffic arrangements and the drop off facility.
The transcript of the Council meeting indicates that the Council was aware of the obligations contained in the deed. The Council, when making its decision, was entitled to have regard to agreements on matters relating to the subject matter of the decision, namely the construction of the drop off facility. In Friends of Hinchinbrook Society Inc v Minister for Environment and Ors (1997) 95 LGERA 229 per Hill J at 264 the Court found that the Minister was entitled to take into consideration matters contained in an agreement which was not specifically the subject of his decision.
It is necessary to consider whether Council gave “real consideration” to the relevant matters: see Centro Properties Limited v Hurstville City Council and Anor (2004) 135 LGERA 257; Weal v Bathurst City Council . In view of the extensive investigation of the provisions for the school as contained in the reports, the deed and the discussions of the Council, the Court finds that the Council gave appropriate consideration to the impact of the development upon the school.
The Court cannot conclude that the failure to include a condition in the original consent requiring the provision of the drop off facility constitutes Wednesbury unreasonableness. The drop off facility did not form part of the development and arrangements in the deed provided for its construction. The permission of the Department of Education was not required for the construction of the drop off facility itself and, provided development consent was granted to Fabcot, the deed obliged Fabcot to construct it. Only the provision of the new entranceway to the school required the approval of the Department of Education.
Failure to consider draft environmental planning instruments
Pursuant to s 79C of the EP&A Act, a consent authority is required to consider several matters when determining a development application. Section 79C(1) of the EP&A Act relevantly provides:-
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) …
(ii)
any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the Consent Authority.
(iii) …
(iv) …
that apply to the land to which the development application relates …
The Hansen report identified each of the draft SEPPs and stated:-
8.6 Draft State Environmental Planning Policy (Application of Development Standards) 2004
This Draft Plan was exhibited from 10 May 2004 until 18 June 2004 and consequently must be considered by this assessment having regard to Section 79C of the Environmental Planning and Assessment Act.
It is intended that this Draft Policy will replace the current SEPP 1. The intent of the new Policy is to maintain flexibility in the application of the development standards. However, this Draft Policy shifts the onus onto the applicant to show:
(a) How their proposal would result in a better environmental planning outcome than would otherwise have been achieved had the development strictly satisfied the standard, and,
(b) That the development is in the public interest by being consistent with the objectives of the standard and the zone that applies to the site.
Notwithstanding the above, the savings and transitional provisions of the Draft SEPP are such that it is not relevant in the assessment of this application.8.7 Draft State Environmental Planning Policy 66 - Integration of Land Use and Transport
This Draft Plan was exhibited from 14 September 2001 until 14 December 2001 and consequently must be considered by this assessment having regard to Section 79C of the Environmental Planning and Assessment Act.
This draft plan applies to a range of land uses including retail development with a gross floor area exceeding 1000m 2 .
This draft plan aims to ensure that urban structure, building forms, land use locations, development designs, and the layout of subdivisions and streets to help to achieve the following planning objectives, where applicable:
·
Improving accessibility to housing, employment and services by walking, cycling and public transport· Improving the choice of transport and reducing the dependency on cars for travel
· Moderating growth in the demand for travel and the distances travelled, especially by car
· Supporting the efficient and viable operation of public transport services
· Providing for the efficient movement of freight
Notwithstanding the above, the savings and transitional provisions of the Draft SEPP are such that it is not relevant in the assessment of this application.
Clause 14 of draft SEPP 1 contains a savings and transitional provision as follows:-
14 Savings and transitional provisions
(1) A reference, made before the commencement of this Policy, in an environmental planning instrument to State Environmental Planning Policy No 1 – Development Standards is taken to be a reference to this Policy.
(2) A development application:
(a) made under clause 6 of the former Policy before the date of commencement of this Policy and that was not finally determined before that date, or
(b) made within 28 days after the date of commencement of this Policy and that could have been made under clause 6 of the former Policy if that Policy had not been repealed by this Policy,
is to be determined in accordance with the former Policy as if the former Policy had not been repealed by this Policy.Draft SEPP 66 also contains transitional provisions, contained in clause 14 thereof, as follows:-
14 Transitional provisions
This Policy does not apply to:
(a) a draft State environmental planning policy the preparation which commenced before the commencement of this Policy, or
(b) a draft regional environmental plan the preparation of which commenced before the commencement of this Policy, or
(c) a draft local environmental plan for which a certificate has been issued under section 65 of the Environmental Planning and Assessment Act 1979 before the commencement of this Policy, or
(d) a development application that has been made but not finally determined before the commencement of this Policy.
In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 the Court of Appeal affirmed the requirement of a Court pursuant to s 79C(1)(a)(ii) of the EP&A Act to give proper regard to draft instruments that had been exhibited. On appeal the unsuccessful appellant contended inter alia that a draft LEP and draft SEPP could not be considered at all, since s 79C confined the consent authority to consideration of “matters of relevance”. The appellant contended that none of the provisions were relevant or applicable as a result of the respective transitional provisions. Mason P held (at 206-7):-
A blunt variant of the appellant’s submission on ground (i) was the contention that LEP 2000 could not be considered at all in light of the stipulations in s 79C confining the consent authority to consideration of “matters of relevance” and provisions of draft environmental planning instruments “that apply to the land to which the development relates”. The argument was that none of LEP 2000 was relevant or applicable under the transitional provision. This submission fails to recognise the second part of the transitional provision, or the stream of caselaw forming the background against which its terms are properly to be construed. The transitional provision requires LEP 2000 to be taken into account, albeit on the basis that it is not to be regarded as A blunt variant of the appellant’s submission on ground (i) was the contention that LEP 2000 could not be considered at all in light of the stipulations in s 79C confining the consent authority to consideration of “matters of relevance” and provisions of draft environmental planning instruments “that apply to the land to which the development relates”. The argument was that none of LEP 2000 was relevant or applicable under the transitional provision. This submission fails to recognise the second part of the transitional provision, or the stream of caselaw forming the background against which its terms are properly to be construed. The transitional provision requires LEP 2000 to be taken into account, albeit on the basis that it is not to be regarded as “made”. This cannot be read as a self-referential, self-defeating indication that only the transitional provision itself is to be taken into account. The obvious intent is that the consent authority may look at those provisions of LEP 2000 that are pertinent to the zone and the proposed development.
In view of the express terms of s 79C and of Terrace Tower , the conclusion of the Hansen report that the draft SEPPs were not relevant is erroneous. Pursuant to the savings and transitional provisions, the draft SEPPs did not apply to the DA (as distinct from the land), because they were not in force at the time the DA was lodged. Nevertheless they remained a relevant matter for consideration by the Council, albeit a consideration of little weight.
The respondents claimed that the draft SEPPs were relevant but not mandatory considerations. In Sean Investments v MacKellar Deane J said at 375:-
The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of power to decide.
Section 79C of the EP&A Act provides that “In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance” (emphasis added). The Court is satisfied that this provision renders consideration of the draft SEPPS mandatory.
In Weal, Giles JA said (at 201):-
Taking relevant matters into consideration call for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation sufficient to warrant the description of the matters being taken into consideration ( Parramatta City Council v Hale (at 335-336, 339); King v Great Lakes Shire Council (at 384); Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-375
The inference can be drawn that Council did not consider the draft SEPPs because of the stated conclusion in the Hansen report that the draft SEPPs were irrelevant. Nonetheless, information concerning the draft SEPPs was before the Council when it made its decision. The effect of each draft SEPP was clearly stated. Additionally the Council had before it the SEE, which referred to the requirements of draft SEPP 1, and also the letter from JBA Urban Planning Consultants dated 25 October 2004 which contains a detailed summary of the compatibility of the development with the requirements of draft SEPP 66.
On the basis of this information, the Court is satisfied that the Council would not have made a different decision had the draft SEPPs been considered as required by s 79C.
Was the collegiate mind of the Council applied to the decision?
At the Council meeting held on 20 December 2004 two Councillors, namely Councillor Freedman and Councillor Tudge, announced to the Council meeting that they had insufficient time to absorb all of the material which had been supplied to them. On this basis, the applicant submits that the Council did not apply its collegiate mind to the decision to grant the original consent.
In Parramatta City Council v Hale , Street CJ at 335 said:-
The absence of a reasonable opportunity for a council to understand the significance of the decision about to be made in relation to the mandated matters, followed by a decision which, in material respects leaves important aspects virtually at large, will go far towards establishing objectively that the council, as a group, did not take those mandated matters into consideration as required by the law.
Moffitt P said at 345:-
A conclusion by a court finding a breach of s. 90 [now s 79C] by way of inference is one to be come to only after anxious consideration, but when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has drawn.
The agenda papers for the meeting, including the Hansen report, were distributed on Monday 13 December 2004 and the attachments to the Hansen report were distributed on Tuesday 14 December 2004. A letter from Woolworths to the Council dated 16 December 2004 seeking amendments to the draft conditions recommended in the Hansen report was forwarded to Councillors on Friday 17 December 2004. The report and the attachments supporting the report were voluminous.
On the night of the meeting namely 20 December 2004, a summary of the amendments to the proposed conditions to the consent was provided to each Councillor. The summary largely reflected the changes sought by Woolworths in its letter dated 16 December 2004. The summary outlined proposed changes to several of the recommended conditions but generally did not describe the effect of the changes proposed.
Councillor Freedman testified that at the time she did not recognise the correlation between the summary of amendments and Woolworths letter of 16 December 2004. During the meeting she could not comprehend the substance of the changes which were proposed by the summary of amendments because of the need to refer to several different documents. Under cross-examination she said she had not formed a concluded view on the DA because of the lack of time. Councillor Freedman acknowledged that she did not ask any questions of the Mayor at the meeting, but instead made a statement.
The transcript of the Council meeting on 20 December 2004 records that Councillor Freedman expressed her opposition to the motion because of the inadequate time allowed in which to consider the material provided by the Hansen report, and the issues raised by it. She said she had forwarded a list of questions to a Council officer at 1 am on the day of the meeting but had received no response before the meeting. She urged the Councillors to defer the decision until February 2005.
Councillor Tudge deposed that he had no time to consider the content of the summary before the Council meeting and no real opportunity to ask questions in relation to it. Councillor Tudge also addressed the meeting on 20 December 2004 and said that he had tried to read the material, including 135 submissions, over the weekend, and that he had wished to ask a number of questions of various people concerning the Hansen report but had been denied the opportunity. He also questioned the Mayor’s acceptance of the changes to the draft conditions proposed by Woolworths.
The transcript of the meeting also records that another Councillor supported a postponement of the Council resolution concerning the DA. The Councillor referred to having read approximately 750 pages of material but said that it had not been possible properly to assess the DA in the time allowed.
The Court considers that the provision to the Councillors of the agenda papers and the Hansen report provided little time for consideration of the DA. However, the development was not something new to the Council. A proposal had been considered over several years and the current Council had entered into the deed in July 2004, in anticipation of the DA being lodged. The SEE comprehensively described the development and was available for inspection by Councillors during the months preceding December. The Hansen report did not recommend any changes which made the development substantially different to that described in the SEE. A public meeting had also been held, which was attended by all Councillors except one. Accordingly the documentation in support of the DA received by the Councillors in the week preceding the meeting had already been the subject of discussion and debate. In view of this history, the Court finds that the time allowed for the consideration of the DA was adequate.
The summary of amendments was explained by the Mayor at the meeting, as recorded by the transcript. The proposed amendments contained in the summary of amendments included conditions relating to hours of trading and signage. Other amendments included the removal of a set back along the western elevation at the library level, the removal of a draft condition proposing a 1.5 m landscape strip along the western edge of Link Road, the removal of a draft condition which proposed the reconstruction of a portico and windows to outside the library building, provisions concerning the construction of a wombat crossing and the alteration of hours of access to the plaza and residential units. These changes to the proposed conditions were relatively minor and were not such as to substantially alter any aspect of the development. All but one of the changes accorded with the amendments proposed in Woolworths letter dated 16 December 2004.
Moffitt P in Parramatta City Council v Hale (at 347) considered that a council’s decision may be impugned:-
… if there were some element of surprise, as where for some time there had been before council members, as such, a detailed recommendation involving a particular set of s 90(1) considerations and there were sprung on the meeting a resolution for consent on a basis which was fundamentally different and would involve different s 90(1) considerations. The consideration would not be that of the collegiate body, in passing the resolution on the ground that a majority may have known about what was to happen and it was only a minority who were kept in the dark.
Unlike the facts in Hale , the summary of amendments proposed only minor changes. Given the nature of the amendments proposed, the Court is not satisfied that the amendments required different s 79C considerations or proposed a fundamentally different development. Accordingly, this challenge fails.
The modified consent
Section 96(1A) of the EP&A Act empowers a consent authority, upon application, to modify a development consent if the consent authority is satisfied that the proposed modification is of minimal environmental impact (s 96(1A)(a)) and that the development under the modified consent is “substantially the same development” as the development under the original consent (s 96(1A)(b)). Section 96(4) of the Act provides:-
The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
By letter dated 23 May 2005 the Council notified Fabcot that the DA had been replaced by a modified consent of the same number, pursuant to s 96 of the EP&A Act.
Validity of the modification
There have been numerous decisions of this and other Courts which establish that a consent is valid until declared void: see Swadling and Anor v Sutherland Shire Council and Ors (1994) 82 LGERA 431; MLC Properties and Anor v Camden Council and Ors (1997) 96 LGERA 52; Hillpalm Pty Ltd v Tweed Shire Council and Anor (2002) 119 LGERA 86; see also the Court of Appeal decision in F Hannan v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306 at 326 per McHugh J and the House of Lords decision in Smith v East Elloe Rural District Council and Ors [1956] AC 736.
The applicant, however, submits that the above cases are no longer good law, and challenges the validity of the modification of the original consent on the ground that the original consent was void, and therefore purported modifications under s 96 are ineffectual. The applicant relies upon Hollis v Shellharbour City Council [2002] NSWLEC 83.
In Hollis the Council had granted a consent on the basis that a development was not a designated development. As a result the decision-making process for the development consent was governed by different provisions than it would have been if the development had been properly classified as a designated development. Pain J found that as a question of fact, the development was a designated development. As this was a fundamental error with respect to a jurisdictional fact, her Honour found that there was no decision at law and accordingly, there was no decision to be modified under s 96 of the EP&A Act.
The decision in Hollis followed the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. In Bhardwaj, Gaudron and Gummow JJ said at [51]:
There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further there is a certain illogicality in the notion that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.
There is a distinction to be drawn between determinations made in the absence of jurisdiction and determinations which are made within jurisdiction, but which are challenged because of some failure of procedure or error of decision-making principle. This is consistent with Hollis , where the decision was impugned by reason of a jurisdictional fact.
The concept of jurisdictional fact was recognised by the High Court in Corporation of the City of Enfield v Development Assessment Commission and Anor (2000) 199 CLR 235. It has now been applied to development consents in cases such as Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 46 NSWLR 55. As a consequence earlier decisions of the Court of Appeal such as F Hannan v Electricity Commission can no longer be regarded as good law in respect of the consideration of facts going to jurisdiction.
The concept of jurisdictional fact, and the distinction between a jurisdictional error and a non-jurisdictional error, has now been comprehensively reviewed by the New South Wales Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd and Anor (2004) 61 NSWLR 707. The issue in this case was whether a proposed development was of a type which was prohibited or permissible with consent under the local planning instrument. The trial judge had determined that the proposed development did not satisfy the requisite definition and was prohibited.
Handley JA at 734 said:
In my judgment … there is a fundamental distinction between a finding that a consent can be granted, and a finding that it should be. This consent could not lawfully be granted unless the proposed development was characterised as permissible with consent. This threshold enquiry is naturally and intrinsically jurisdictional. It is only if the proposed development is so characterised that the decision-maker can consider the application on its merits and exercise its discretionary power to grant consent with or without conditions.
Spigelman CJ considered indicators of jurisdictional fact and indicators against jurisdictional fact. His Honour said at 719:
... an environmental planning instrument may require the assessment of a wide range of matters of considerable complexity involving the formation of value judgments. Such a decision-making process is unlikely to involve a jurisdictional fact …
The decision to grant consent, which is based on a wide range of broadly stated considerations set out in s 79C of the [EP&A] Act, is a decision of that character.
In the present proceedings the challenge to the original consent is not predicated upon an alleged jurisdictional error. The challenges to the original consent are on the ground of uncertainty, based upon value judgments made by the Council in the assessment process under s 79C of the EP&A Act, rather than to a question of the power of the Council to grant the original consent. The failure of condition 1(a) to comply with s 80A(4) of the EP&A Act (see at [77] above In the present proceedings the challenge to the original consent is not predicated upon an alleged jurisdictional error. The challenges to the original consent are on the ground of uncertainty, based upon value judgments made by the Council in the assessment process under s 79C of the EP&A Act, rather than to a question of the power of the Council to grant the original consent. The failure of condition 1(a) to comply with s 80A(4) of the EP&A Act (see at [77] above) does not constitute a jurisdictional error. In the absence of a jurisdictional challenge to Council’s decision of 20 December 2004, the consent remains valid until declared otherwise. It follows that at the time of the modification of the consent on 20 May 2005 there existed a valid consent which could be modified.
Challenge to the conditions of the modified consent
The applicant challenges the same conditions in the modified consent as in the original consent. All of the challenged conditions are identical to the conditions contained in the original consent, with the exception of condition 1(a) and condition 3 of the modified consent. It is unnecessary for the Court to consider the challenges to the corresponding conditions in the modified consent, as these have already been considered in relation to the original consent.
Condition 1(a) of the modified consent provides:-
(a) The CBD housing roof form shall be in accordance with drawing SK03A, dated 19 November 2004, prepared by BN Group Pty Ltd.
Drawing SK03A referred to in condition 1(a) of the modified consent is the same drawing which was before Council at the time the original consent was granted. It is apparent from the evidence that Hansen, between the date of the original consent and the modified consent, accepted that the modifications anticipated in the original condition 1(a) were unnecessary, and that the design as shown in drawing SK03A was appropriate. The modified consent specifically identifies the intended design and leaves no scope for uncertainty. The applicant’s challenge to this condition therefore fails.
Condition 3 of the modified consent states:-
The development shall be completed strictly in accordance with the following drawings except as may be otherwise amended by this Notice:-
Thereafter follows a list of plans identified by number and author. Condition 3 then continues as follows:-
The approved plans are further amended by all matters in conditions 1 and 2 above.
A complete set of revised architectural plans, satisfying conditions 1-3, and to the satisfaction of Lane Cove Council, shall be submitted to Council for stamping and issue PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE.
The development shall then be completed generally in accordance with the stamped plans approved to satisfy this condition, and any supporting information received with application, except as may otherwise be amended by this Notice.
The list of drawings is identical to those drawings which were stamped by Council on 22 December 2004. The amendment merely expressly includes a reference to the plans in the modified consent. In view of the Court’s finding above that such plans were incorporated in the original consent, condition 3 to the modified consent makes no substantive alteration to the modified consent.
It follows that the challenges to the modified consent fails.
Discretion of the Court
The Court has determined that two aspects of the Council’s determination are deficient, namely condition 1(a) of the original consent and the Council’s failure, based upon the Hansen report’s recommendation, to consider the implications of draft SEPP 1 and draft SEPP 66.
Condition 1(a) was subsequently rectified by the modified consent and accordingly no exercise of the Court’s discretion is required. Condition 1(a), in its original form, contained no specification or criteria as required by s 80A(4) but because the deficiency would have had a minor effect upon the whole development, the Court would have exercised its discretion and determined that the condition did not invalidate the consent.
The Hansen report drew the Council’s attention to the mandatory requirement to consider the draft SEPPs but thereafter determined that they were irrelevant to the development. In fact they were relevant even though they did not apply to the DA because of their transitional provisions. However the Court is satisfied that the draft SEPPs would have been accorded little weight and that the Council would not have reached a different conclusion if they had been considered to be relevant. The Court therefore exercises its discretion in favour of the Council with the consequence that the modified consent is not invalid by reason of the failure to consider the draft SEPPs. The Hansen report drew the Council’s attention to the mandatory requirement to consider the draft SEPPs but thereafter determined that they were irrelevant to the development. In fact they were relevant even though they did not apply to the DA because of their transitional provisions. However the Court is satisfied that the draft SEPPs would have been accorded little weight and that the Council would not have reached a different conclusion if they had been considered to be relevant. The Court therefore exercises its discretion in favour of the Council with the consequence that the modified consent is not invalid by reason of the failure to consider the draft SEPPs.
Orders
It follows that each of the applicant’s challenges to the validity of the DA fails. Accordingly the proceedings will be dismissed. As costs have not been argued the Court will make the usual order as to costs but allow 21 days in the event that any party seeks a different order. The orders are:-
Application dismissed.
The applicant to pay the respondent’s costs unless within 21 days of the date of this order an application is made for a different order.
The exhibits be returned.
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