Lane Cove Council v Minister for Urban Affairs and Planning

Case •

[2003] NSWLEC 205

•

11/27/2003

No judgment structure available for this case.

>

Land and Environment Court


of New South Wales


CITATION: Lane Cove Council v Minister for Urban Affairs and Planning [2003] NSWLEC 205
PARTIES:

APPLICANT
Lane Cove Council

RESPONDENT
Minister for Urban Affairs and Planning
FILE NUMBER(S): 40133 of 2003
CORAM: Cowdroy J
KEY ISSUES: Planning Instruments :- amendment to State environmental planning policy - publication of draft amendment - amendments made to draft by Minister following publication and consultation with other Ministers - gazettal of amended policy without further publication - extent of discrepancy between draft policy and final policy - whether Minister acting within power.
LEGISLATION CITED: Environment Planning and Assessment Act 1979, Pt 3 Div 2, Pt 3 Div 3, Pt 3 Div 4, s 4(8), s 34(3), s 36(4), s 37, s 38, s 39, s 47, s 66, s 74
Interpretation Act 1987, s 48
Lane Cove Local Environmental Plan 1997
State Environmental Planning Policy No. 53 - Metropolitan Residential Development
State Environmental Planning Policy No. 53 - Metropolitan Residential Development (Amendment No 5)
State Environmental Planning Policy No. 53 - Metropolitan Residential Development (Amendment No. 6)
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
CASES CITED: Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186;
Ervin Mahrer and Partners v Strathfield Council (No 2) (2001) 115 LGERA 259;
John Brown Lenton and Co Pty Ltd v Minister for Urban Planning and Ors (1999) 106 LGERA 150;
Leichhardt Municipal Council v Minister for Planning and Director of Planning (1992) 78 LGERA 306;
Leichhardt Municipal Council v Minister for Planning [No. 2] (1995) 87 LGERA 78;
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd and Others (1996) 91 LGERA 31;
Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734;
Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd and Others (1991) 25 NSWLR 541;
R v Connell: ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407;
Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33
DATES OF HEARING: 08/09/2003
09/09/2003
19/09/2003
01/10/2003
07/10/2003
DATE OF JUDGMENT:
11/27/2003
LEGAL REPRESENTATIVES:


APPLICANT
Mr T. Robertson SC

SOLICITORS
Pike Pike & Fenwick

RESPONDENT
Mr B. Preston SC
Ms J. Jagot (Barrister)

SOLICITORS
Department of Planning


JUDGMENT:

IN THE LAND AND


ENVIRONMENT COURT


OF NEW SOUTH WALES

                          40133 of 2003

                          Cowdroy J

                          27 November 2003
Lane Cove Council
                                  Applicant
      v
Minister For Urban Affairs And Planning
                                  Respondent

Judgment



      Facts

1 Lane Cove Council (“the council”) seeks a declaration that State Environmental Planning Policy No. 53 – Metropolitan Residential Development (Amendment No. 6) made by the respondent (“the Minister”) and gazetted on 8 November 2002 (“gazetted Amendment No. 6”) is void and of no effect.

2 Gazetted Amendment No. 6 applies to land known as 1-16 Duntroon Avenue, St Leonards, being lot 1 and lot 2 in deposited plan 567316 and lot 3 to lot 16 in deposited plan 7650 (“the subject land”). The subject land is affected by the provisions of the Lane Cove Local Environmental Plan 1997 (“the LEP”).

3 Gazetted Amendment No. 6 amends State Environmental Planning Policy No. 53 – Metropolitan Residential Development (“SEPP 53”) which became operative on 26 September 1997. SEPP 53 applied to thirteen local government areas including Lane Cove local government area. Such policy sought, inter alia, to encourage councils to develop residential development strategies with the object of creating a variety of residential development styles and to use existing infrastructure and services more efficiently. In particular councils were encouraged to identify sites suitable for medium to high density development in locations where ready access to public transport was available.

4 The council sought to develop its own residential housing strategy without the imposition of controls provided by SEPP 53. As a result of discussions between the Minister and the council, the Minister agreed to exempt the Lane Cove local government area from SEPP 53. Such exemption was conditional upon the council and the Department of Urban Affairs and Planning (“DUAP”) reaching a consensus in respect of the appropriate design and density for the area known as the St Leonards precinct, which included the subject land. Upon this understanding Lane Cove local government area was omitted from Sch 1 of SEPP 53 by State Environmental Planning Policy No. 53 – Metropolitan Residential Development (Amendment No 5) which was gazetted on 13 November 1998. Schedule 1 of SEPP 53 specifies the local government areas to which SEPP 53 applies: see cl 4 of SEPP 53. As a consequence, SEPP 53 had no application to the Lane Cove local government area.

5 The council, with the Minister’s agreement, considered higher density for the subject land rather than for the entire St Leonards precinct. The subject land is physically separated from the remainder of the St Leonards precinct and residents supported higher density on such land. Accordingly in mid 2001 the council resolved to rezone the subject land to “Residential 2C” under the LEP with a floor to space ratio (“FSR”) of 0.9 and an additional FSR of 0.75 if the separate lots comprising the subject land were consolidated as one development site.

6 Subsequently DUAP decided that the council’s proposed controls for the subject land were inadequate. DUAP considered that if the council’s proposals were implemented the opportunity to redevelop the subject land to its maximum potential would be lost and would undermine the basis for the exemption of Lane Cove local government area from SEPP 53. Consequently DUAP made recommendations to the Minister relating to the subject land in four separate reports prepared for his approval. One report was dated November 2001, another was dated March 2002 and the latter two reports were undated. The Minister respectively approved each report on 20 December 2001, 19 April 2002, 4 June 2002 and 3 November 2002. Each report recommended that a draft State environmental planning policy was required to achieve higher residential density on the subject land.

7 For convenience a State environmental planning policy will be referred to as a SEPP.


      Statutory provisions for SEPPs

8 Part 3 Div 2 of the Environment Planning and Assessment Act 1979 (“the EP&A Act”) contains provisions for the making of SEPPs. Section 37(1) of the EP&A Act authorises the Director General of DUAP to prepare a draft SEPP for submission to the Minister relating to matters which the Director General believes are “of significance for the environmental planning for the State”. Section 37(2) of the EP&A Act provides:-

          s 37(2) The Minister may, after consultation with such Ministers as the Minister determines, cause to be prepared by the Director-General for submission to the Minister a draft State environmental planning policy with respect to any matter specified by the Minister, being a matter which is, in the opinion of the Minister, of significance for environmental planning for the State.

9 Section 38 of the EP&A Act provides that the format, structure and subject matter of a SEPP or draft SEPP shall be as determined by the Minister.

10 Section 39 of the EP&A Act provides:-

          s 39 Making of State environmental planning policies by the Governor
              (1) The Minister may, on the submission to the Minister by the Director-General of a draft State environmental planning policy, recommend to the Governor the making of a State environmental planning policy:
                  (a) in accordance with that draft State environmental planning policy submitted to the Minister, or
                  (b) in accordance with that draft State environmental planning policy with such alterations as the Minister thinks fit, or the Minister may decide not to make that recommendation.
              (2) The Minister shall take such steps, if any, as the Minister considers appropriate or necessary to publicise a draft State environmental planning policy and to seek and consider submissions from the public before the Minister makes such a recommendation.
              (3) The Minister may not make such a recommendation except with respect to such matters as are, in his or her opinion, of significance for environmental planning for the State.
              (4) The Governor may make a State environmental planning policy in accordance with a recommendation made under this section.
              (5) A State environmental planning policy shall apply to the State or such part of the State as is described in the policy.

      Critical events

11 On 20 December 2001 the Minister approved a report prepared by DUAP which recommended that the Minister instruct the Director General to prepare an amendment to SEPP 53 pursuant to s 37(2) of the EP&A Act “to remove Lane Cove Council’s exemption from the SEPP” and specifically to “introduce Lane Cove Council into Schedule 1 and Schedule 3 of this SEPP”. Schedule 3 of SEPP 53 specifies the areas exempted from Pt 3 of SEPP 53: see cl 16 of SEPP 53. Part 3 makes provision for dual occupancies on a single allotment of land.

12 On 19 April 2002 the Minister approved another report of DUAP which supplemented and confirmed the recommendations approved by the Minister on 20 December 2001. The later report recommended that the Minister, pursuant to s 37(2) of the EP&A Act, should instruct the Director General to prepare a draft amendment to SEPP 53 to introduce Lane Cove local government area into Sch 1 and into Sch 3 of SEPP 53, to include the subject land in Sch 4 of SEPP 53, and to identify appropriate zoning and development standards for the subject land. Schedule 4 of SEPP 53 specifies the land which is subject to Pt 4 of SEPP 53: see cl 23 of SEPP 53. Part 4 of SEPP 53 makes provision for the redevelopment of specific sites for multi-unit housing. The Minister also approved two other recommendations of DUAP, namely that the Minister consult with the Premier and the Minister for Transport pursuant to s 37(2) of the EP&A Act in relation to the proposed draft amendment to SEPP 53, and that the amendment, when drafted, be publicised for public comment pursuant to s 39(2) of the EP&A Act.

13 Attached to the report approved on 19 April 2002 is a signed request of the Minister asking the Director General to prepare and submit a draft SEPP to him pursuant to s 37(2) of the EP&A Act in accordance with the recommendations contained in this report.

14 Pursuant to the Minister’s request a draft SEPP (“draft Amendment No. 6”) was duly prepared to implement the recommended amendments to SEPP 53.

15 A further DUAP report was submitted to the Minister and approved by him on 4 June 2002. Such report sought the Minister’s approval for the public exhibition of draft Amendment No. 6 for a period of 28 days pursuant to s 39(2) of the EP&A Act. Attached to the report was the opinion of Parliamentary Counsel that draft Amendment No. 6 could be legally made, and correspondence from the Premier and Minister for Transport which raised no objection to draft Amendment No. 6.

16 As part of the advertising process 500 households were notified of draft Amendment No. 6 and 303 submissions were received. Following the consideration of the public submissions and consultation with the Premier and the Minister for Transport, a further but undated report was prepared for the Minister and approved by him on 3 November 2002 (“the November 2002 report”). Such report outlined proposed “refinements” to draft Amendment No. 6. It also referred to the Minister’s requests to the Director General to prepare an amending SEPP to remove the council’s exclusion from SEPP 53 and to include the relevant development standards for the subject land in Sch 4 of SEPP 53.

17 The November 2002 report recommended, inter alia, that the Minister form an opinion pursuant to s 39(3) of the EP&A Act that the amending policy was one reflecting matters of significance for environmental planning for the State. It was also recommended that the Minister note advice from Ministerial colleagues; that the Minister consider submissions made in response to the publication of draft Amendment No. 6 and of DUAP’s review of such submissions and refinements to draft Amendment No. 6. DUAP also recommended that the Minister:-

          (iv) determine (for the purposes of s. 38 of the Act) that the format, structure and subject matter of State Environmental Planning Policy No 53 – Metropolitan Residential Development (Amendment No 6) are to be as set out in the draft amending SEPP (tagged “A”);

      The reference to “tagged ‘A’” is a reference to gazetted Amendment No. 6, and not draft Amendment No. 6.

18 Following the approval of the November 2002 report gazetted Amendment No. 6 was duly approved by the Executive Council on 6 November 2002 and was published in the New South Wales Government Gazette on 8 November 2002.


      The council’s submissions
      Breach of s 39 of the EP&A Act

19 The council alleges that a breach of s 39 of the EP&A Act has occurred because gazetted Amendment No. 6 is not identical to draft Amendment No. 6. The council submits that since gazetted Amendment No. 6 was not placed on public exhibition, the procedural requirements for the making of a SEPP have not been fulfilled as required by Pt 3 Div 2 of the EP&A Act.

20 The council submits that upon receipt of a draft SEPP the Minister may recommend the making of a SEPP either in accordance with “that” draft (see s 39(1)(a) of the EP&A Act) or in accordance with “that” draft with such alterations as the Minister deems fit: see s 39(1)(b) of the EP&A Act. The council says that the reference to “that” draft SEPP is a reference to the same policy prepared by the Director General and submitted to the Minister pursuant to s 37(2) of the EP&A Act, which has also been the subject of public exhibition under s 39(2) of the EP&A Act.

21 The council relies upon Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734 in support of its submissions. In that decision the New South Wales Court of Appeal held that a consent was not a consent pursuant to the extant s 91 of the EP&A Act because one of its conditions had the effect of substantially altering the development. Accordingly the purported consent was not a consent to “that application”.

22 The council concedes that the Minister was not obliged to exhibit draft Amendment No. 6. However the council submits that once the Minister decided to exhibit draft Amendment No. 6 the Minister was obliged to make the policy as exhibited. The council submits that the final SEPP must be the result of the processes contained in Pt 3 Div 2 of the EP&A Act. The council alleges that because the Minister did not re-exhibit draft Amendment No. 6 he was bound to recommend that the Governor make only that SEPP.

23 In support of this proposition the council relies upon John Brown Lenton and Co Pty Ltd v Minister for Urban Planning and Ors (1999) 106 LGERA 150, Leichhardt Municipal Council v Minister for Planning and Director of Planning (1992) 78 LGERA 306 and Leichhardt Municipal Council v Minister for Planning [No. 2] (1995) 87 LGERA 78. In Leichhardt Municipal Council [No 2] the Court determined that a regional environmental plan made by the Minister contained so many discrepancies compared to the draft, that the plan was thereby rendered invalid. By analogy the council maintains that the Minister in these proceedings was bound to ensure that the process of public participation provided by s 39 of the EP&A Act was observed.

24 As a further basis for invalidity, the council submits that whilst the Minister made the necessary direction pursuant to s 37(2) of the EP&A Act to instruct the Director General to make draft Amendment No. 6, no such direction was recommended nor made in the November 2002 report. Accordingly the council submits that an essential step is absent, namely a direction by the Minister pursuant to s 37(2) of the EP&A Act to make the SEPP which became gazetted Amendment No. 6.

25 The council also submits that it is evident from the November 2002 report that draft Amendment No. 6 was never abandoned. The council claims that such report reveals the Minister determined to adopt draft Amendment No. 6 with alterations. Accordingly there was never a decision or determination to prepare a new draft SEPP by the Minister.


      Differences between draft Amendment No. 6 and gazetted Amendment No. 6

26 The council submits that the following variations establish that gazetted Amendment No. 6 is substantially different from draft Amendment No. 6.


      (a) Amendment of the LEP rather than SEPP 53

27 Draft Amendment No. 6 proposed to include the subject land in Sch 4 of SEPP 53, thereby subjecting it to the controls contained in SEPP 53. Instead of amending Sch 4 of SEPP 53, gazetted Amendment No. 6 amends the LEP by inserting a new schedule in SEPP 53 entitled “Schedule 6 Amendment of Lane Cove Local Environmental Plan 1997”. Schedule 6 amends the LEP by incorporating a new clause, namely cl 19I (“cl 19I of the LEP”). Clause 19I of the LEP replaces the detailed controls which draft Amendment No. 6 would have incorporated in Sch 4 of SEPP 53. Clause 19I introduces comprehensive requirements for multi unit housing relating to internal and external amenity, parking, acoustics, minimum floor space areas and heights. As a consequence of gazetted Amendment No. 6, the relevant development controls for the subject land are incorporated solely in the LEP instead of being contained in two instruments, namely the LEP and SEPP 53.

28 The council submits that gazetted Amendment No. 6 has achieved an alteration to a local environmental plan, thereby circumventing the strict requirements contained in Pt 3 Div 4 of the EP&A Act for the making of local environmental plans.


      (b) Land to which the policies apply

29 Draft Amendment No. 6 was to apply to “land within the local government area of Lane Cove” (see cl 3 of draft Amendment No. 6), whereas gazetted Amendment No. 6 applies only to the subject land. Clause 3 of gazetted Amendment No. 6 provides:-

          3. Land to which Policy applies
              This Policy applies to land within the local government area of Lane Cove known as 1-16 Duntroon Avenue, St Leonards, and being lots 1 and 2, DP 567316, and lots 3-16, DP 7650.
      The council submits that gazetted Amendment No. 6 did not apply SEPP 53 to the whole of the Lane Cove municipality but instead only to the subject land.

30 Draft Amendment No. 6 contained an “inconsistency clause”, the effect of which was to ensure that the development controls proposed for inclusion in Sch 4 of SEPP 53 took priority over development controls in the LEP as follows:-


          [5] Schedule 4
          Omit the Schedule. Insert instead:

          Schedule 4 Amendments allowing multi unit housing
          1. Land at 1-16 Duntroon Avenue, St Leonards
              …
                  (3) Any local planning controls that apply to the subject land continue to have effect with respect to the carrying out of development for the purposes of residential flat buildings on the subject land but, to the extent to which they are inconsistent with the special development standards, are altered to the extent necessary to remove the inconsistency.
                  (4) For the purposes of subclause (3), a local planning control is inconsistent with a special development standard if it deals with the same subject-matter as that standard.

31 Clause 1(3) of the proposed Sch 4 in draft Amendment No. 6 defined “special development standards” as follows:-

          (3) The development standards set out in subclauses (5)–(9) (the special development standards ), apply to the erection of residential flat buildings on the subject land.

32 Draft Amendment No. 6 also included a definition of “local planning control” to mean “any provision of a local environmental plan, deemed environmental planning instrument or development control plan” which controls development.

33 The council submits that the effect of cl 3 and cl 4 of Sch 4 would have been to render inoperative a “local planning control” to the extent of the inconsistency with the “special development standards”, but that otherwise such “local planning control” would still apply.

34 The inconsistency clause in gazetted Amendment No. 6 instead renders nugatory any inconsistent planning controls. In gazetted Amendment No. 6 the following provision was inserted in the LEP as cl 19I(4):-


          19I Development of certain land –Nos 1-16 Duntroon Avenue, St Leonards
          …
              (4) If, in relation to the land to which this clause applies, a special development standard differs in any respect from a development standard that deals with the same subject-matter and is contained elsewhere in this plan (a local development standard) , the special development standard replaces the local development standard and the local development standard ceases to apply to the land to which this clause applies.
      “Special development standard” is similarly defined in cl 19I(3) of the LEP.
      (d) Operation of Pt 5 of SEPP 53

35 Part 5 of SEPP 53 is entitled “Design requirements” and formulates a process and criteria which to encourage good design in residential development: see cl 27 of SEPP 53. Draft Amendment No. 6 proposed to incorporate the subject land in Pt 4 of SEPP 53 by including it in Sch 4: see cl 23 of SEPP 53. Part 4 cl 25(1) of SEPP 53 provides “[d]evelopment allowed by this Part may be carried out only with the consent of the relevant consent authority”. Part 5 cl 28 of SEPP 53 provides that such Part only applies to “development that is allowed to be carried out with development consent by this Policy”. The council submits that Pt 5 of SEPP 53 would have applied to the subject land had draft Amendment No. 6 been adopted.

36 The council submits that gazetted Amendment No. 6 fails to apply the provisions of Pt 5 of SEPP 53 to the subject land since the design controls are contained in Sch 6 to gazetted Amendment No. 6. That is, by virtue of the gazetted Amendment No. 6, Pt 4 of SEPP 53 and consequently Pt 5 of SEPP 53 have no application to the subject land. The council contends that draft Amendment No. 6 clearly intended to incorporate the design requirements of Pt 5 of SEPP 53 and to apply them to the subject land, but gazetted Amendment No. 6 fails to do so.


      (e) Aims of draft Amendment No. 6 and of gazetted Amendment No. 6

      The council submits that there is a difference between the aims of each policy. The aims of draft Amendment No. 6 provided:-
          2 Aims of Policy
              This Policy aims to amend State Environmental Planning Policy No 53 – Metropolitan Residential Development so as:
              (a) to include Lane Cove as a local government area to which that Policy applies, and
              (b) to apply certain provisions of that Policy to specified land in the local government area of Lane Cove, being 1-16 Duntroon Avenue, St Leonards, so as to facilitate the erection of well-designed residential flat buildings on that land, and
              (c) to ensure that development standards set out in Schedule 4 to that Policy override not only the development standards contained in any local environmental planning instrument but also the development standards contained in any local development control plan.
      In contrast, gazetted Amendment No. 6 does not amend SEPP 53, but instead, the LEP. The aim of gazetted Amendment No. 6 states:-
          2. Aims of Policy

              This Policy aims to amend State Environmental Planning Policy No. 53-Metropolitan Residential flat building on certain land at St Leonards.

      Accordingly pursuant to draft Amendment No. 6 land in the Lane Cove local government area would have been subject to the strictures of SEPP 53, but by gazetted Amendment No. 6 the Lane Cove local government area remains exempt from SEPP 53 except to the extent that gazetted Amendment No. 6 amends the LEP.
      (e) Alleged consequences of alteration

37 The council submits that the alterations to draft Amendment No. 6 renders it a different policy to gazetted Amendment No. 6. The council concedes that formulation of SEPPs are not subject to the same statutory procedural requirements which apply to the making of regional environmental plans and local environmental plans. The council also acknowledges that the Court cannot review the Minister’s decision to make a SEPP, but can only consider whether the Minister made an error of law in making the SEPP. However the Council maintains that the Minister was bound to re-publicise the final draft policy by virtue of s 39 of the EP&A Act before its submission to the Governor.


      Respondent’s submissions
      No mandatory requirement to exhibit a SEPP

38 The respondent primarily submits that the EP&A Act does not impose a mandatory requirement that the Minister publicly exhibit gazetted Amendment No. 6 before its referral to the Governor. The respondent says that s 39(2) of the EP&A Act grants the Minister a discretion to publicly exhibit a draft SEPP in contrast to the requirements for public exhibition for the making of a draft regional environmental plan or of a draft local environmental plan. The latter plans are required to be publicly exhibited pursuant to s 47 and s 66 of the EP&A Act respectively. The respondent says that the principle that a regional environmental plan must be a “proper product” of the provisions under Pt 3 Div 3 of the EP&A Act (see Leichhardt Council v Minister for Planning [No 2] at p 88) (which also applies to the making of a local environmental plan) does not apply to the making of SEPPs. Public exhibition is mandatory for regional environmental plans and local environmental plans, but that there is no similar requirement for the making of a SEPP.

39 The respondent submits that in the absence of a mandatory requirement to publicly exhibit a draft SEPP, s 48 of the Interpretation Act 1987 (“the Interpretation Act”) is relevant. Section 48 of the Interpretation Act provides:-


          s 48 Exercise of statutory functions
              (1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires.
              (2) If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned.

      Accordingly the respondent submits that the Minister is free to exercise his or her power under s 39 of the EP&A Act “from time to time”. The respondent contrasts the requirements for the making of a SEPP with those for the making of draft regional environmental plans and draft local environmental plans. With respect to the latter, the capacity for relevant persons and officers to exercise their functions “from time to time” is constrained by the mandatory requirements to discharge their obligations under the EP&A Act and to exhibit such plans.

      Pt 3 Div 2 of the EP&A Act does not impose a strictly linear sequence

40 The respondent submits that the text of Pt 3 Div 2 of the EP&A Act, which is comprised of s 37, s 38 and s 39 of the EP&A Act, does not impose a strictly linear sequence of obligations. That is, there is no staged process contained in the EP&A Act which requires a decision to prepare a SEPP; submission of a draft SEPP to the Minister; a decision whether or not to publicise it; and a decision to recommend it to the Governor. The power provided by s 37(2) of the EP&A Act which empowers the Minister to give a direction to the Director General to prepare a draft SEPP may be exercised “from time to time” pursuant to s 48 of the Interpretation Act. Such direction may be amended any time by the Minister under s 4(8) of the EP&A Act which provides:-


          (8) A power, express or implied, to give a direction under this Act includes a power to revoke or amend the direction.

41 In further support of its submission that the council is in error in submitting that s 37(2) of the EP&A Act has not been satisfied, the respondent submits that the council has overlooked the presumption of regularity. The presumption of regularity is provided by s 34(3) of the EP&A Act as follows:-

          s 34(3) It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of an environmental planning instrument have been complied with and performed.

42 The respondent submits that pursuant to s 38 of the EP&A Act the Minister may determine the format, structure and subject matter of a SEPP or a draft SEPP at numerous stages in the process of creating a SEPP. Such determination may arise when the Minister directs the Director General pursuant to s 37 of the EP&A Act to prepare a draft SEPP with a particular format, structure and subject matter. Alternatively the Minister may exercise such function when he or she determines that in order to form an opinion under s 39(3) of the EP&A Act the format, structure or subject matter of the draft SEPP shall be as the Minister requires. Thirdly, when considering whether it is appropriate or necessary to publicise the draft SEPP and when considering submissions the Minister may exercise the power provided by s 38 of the EP&A Act to assess the format, structure and subject matter of the proposed policy. Finally the Minister may exercise s 38 of the EP&A Act when the Minister is considering making a recommendation to the Governor in accordance with s 39(1) of the EP&A Act.

43 The respondent submits that s 39(2) of the EP&A Act provides the Minister with power to consider whether publication of a draft SEPP is appropriate or necessary, and with power to publicise a draft policy if he or she so determines. Such function operates in respect of “a” draft SEPP, not “the” or “that” draft SEPP. The respondent submits that the provisions of s 39(2) of the EP&A Act demonstrate that a power is vested in the Minister which can be exercised “from time to time” in accordance with s 48 of the Interpretation Act.


      The Minister has acted in accordance with Pt 3 Div 2 of the EP&A Act

44 The respondent submits that the Minister has acted in accordance with the provisions in Pt 3 Div 2 of the EP&A Act. On 19 April 2002 the Minister determined to cause the Director General to prepare a draft SEPP with a particular format, structure and subject matter. In making such determination the Minister formed an opinion pursuant to s 39(3) of the EP&A Act that the draft SEPP proposed was one “with respect to such matters as are, in his or her opinion, of significance for environmental planning for the State.” Simultaneously the Minister determined that the proposed draft SEPP was to be publicly exhibited under s 39(2) of the EP&A Act. On 4 June 2002 the Minister approved the recommendation to place draft Amendment No. 6 on exhibition.

45 The respondent submits that on 3 November 2002 the Minister determined that the draft policy which became gazetted Amendment No. 6 should have a certain format, structure and subject matter. The respondent submits that the subject matter remained the same as draft Amendment No. 6, since the rezoning and introduction of development standards for the subject land did not change. Only the format and structure differed. The Minister then determined that it was unnecessary to exhibit gazetted Amendment No. 6 under s 39(2) of the EP&A Act.

46 The respondent submits that on 3 November 2002 the Director General provided to the Minister with a draft SEPP for the purpose of recommendation to the Governor as referred in s 39(1) of the EP&A Act. The Minister then determined to recommend to the Governor the making of gazetted Amendment No. 6 in accordance with such policy. Accordingly the respondent says that no power was exercised under s 39(1)(b) of the EP&A Act to make a recommendation of a draft SEPP with alterations as the Minister thinks fit, since gazetted Amendment No. 6 as attached to the DUAP report approved on 3 November 2002 is the same policy which was finally gazetted.

47 The respondent submits that the fact that the Director General provided the Minister with draft Amendment No. 6 does not lead to the conclusion that draft Amendment No. 6 was for “the submission to the Minister by the Director-General of a draft State environmental planning policy” within the meaning of s 39(1) of the EP&A Act. The respondent says that it is clear from the first paragraph of DUAP’s report approved on 4 June 2002 by the Minister that the provision of draft Amendment No. 6 was for the purpose of s 39(2) of the EP&A Act and not s 39(1) of the EP&A Act. Such paragraph states, inter alia:-


          Summary
          This submission recommends under s39(2) of the Environmental Planning and Assessment Act 1979 (the Act), the Minister place on public exhibition for comment draft State Environmental Planning Policy No 53 – Metropolitan Residential Development (Amendment No 6) to:..
      Accordingly the respondent submits that draft Amendment No. 6 was submitted to the Minister solely to allow him to make a decision under s 39(2) of the EP&A Act to exhibit such policy. The respondent submits that at 4 June 2002 when draft Amendment No. 6 was prepared, no submission was made to the Minister pursuant to s 39(1) of the EP&A Act.

48 The respondent also submits that the fact that the Minister chose to exercise power under s 39(2) of the EP&A Act in respect of draft Amendment No. 6 does not fetter a subsequent exercise of the Minister’s power under s 39(2) of the EP&A Act to dispense with the exhibition of gazetted Amendment No. 6. The exhibition of draft Amendment No. 6 does not prevent the Minister deciding whether it was appropriate or necessary to publicise another draft, being gazetted Amendment No. 6. There were two independent decisions made under s 39(2) of the EP&A Act. Firstly the Minister opined that it was appropriate to exhibit draft Amendment No. 6. Later the Minister, acting on advice of DUAP as contained in the November 2002 report decided it was inappropriate or unnecessary to exhibit gazetted Amendment No. 6. The respondent submits both decisions were within power and the decision with respect to gazetted Amendment No. 6 cannot be characterised as “arbitrary, capricious, irrational or not bona fide” (see R v Connell: ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at p 432).

49 Alternatively the respondent submits that even if draft Amendment No. 6 constituted a submission to the Minister in accordance with s 39(1) of the EP&A Act, the power enshrined in s 39(1) of the EP&A Act is one which the Director General can exercise “from time to time” pursuant to s 48 of the Interpretation Act. Accordingly the Minister exercised his power under s 39(1) of the EP&A Act for a second time on 3 November 2002 with respect to gazetted Amendment No. 6.

      Abandonment

50 The respondent submits that the council’s submission that the Minister did not decide to abandon draft Amendment No. 6, but instead to adopt it, is misconceived. The respondent says that it is irrelevant that there is no express abandonment of draft Amendment No. 6 by the Minister. Section 39(1) of the EP&A Act does not compel the Minister to do any act, including formally abandoning a proposed draft. The respondent submits that the proper test is to ask whether the draft SEPP which the Minister recommended to the Governor be made is the same draft SEPP submitted to the Minister by the Director-General; or the same draft SEPP with such alterations as the Minister thinks fit. There is no breach if either question is answered affirmatively. It is immaterial that the Director General submitted another draft SEPP to the Minister.


      Differences between draft Amendment No. 6 and gazetted Amendment No. 6

51 The respondent submits that if the Court accepts its submissions concerning the valid exercise of the power provided to the Minister under Pt 3 Div 2 of the EP&A Act, it is unnecessary for the Court to consider the differences between draft Amendment No. 6 and gazetted Amendment No. 6. However the respondent makes the following submissions in the event that the Court finds that the Minister was required to recommend the exhibited draft SEPP.

52 In answer to the council’s submission that gazetted Amendment No. 6 amends the LEP, the respondent says that the subject matter of both draft Amendment No. 6 and gazetted Amendment No. 6 is consistent. There is only a difference of format and structure between the two policies and not a difference of substance. The respondent maintains that the development controls stipulated in both draft Amendment No. 6 and gazetted Amendment No. 6 are the same in their operation.

53 The respondent submits that the Minister has power to amend any environmental planning instrument by a SEPP. The relevant provisions are s 36(4) and s 74(1) of the EP&A Act. Section 36(4) provides:-


          s 36(4) Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved.

      Section 74(1) of the EP&A Act provides:-
          s 74(1) An environmental planning instrument may be amended in whole or in part by a subsequent environmental planning instrument whether of the same or a different type.

      Accordingly, the respondent submits that there is no hierarchy of environmental planning instruments other than a later environmental planning instrument prevailing over an earlier environmental planning instrument: see s 36(1)(b) of the EP&A Act.

54 The respondent submits that the council’s submissions concerning the inconsistency provisions are also misconceived. The respondent submits that cl 3 and cl 4 of draft Amendment No. 6 are to be read together and have been redrafted to become one clause, namely cl 19I(4) of the LEP as amended by gazetted Amendment No. 6. The respondent submits there is no difference in effect between the inconsistency clauses in both amending policies.

55 The respondent additionally maintains that the aims of draft Amendment No. 6 and gazetted Amendment No. 6 disclose no difference of substance. The substantive aim of both are to facilitate properly designed residential flat buildings on the subject land.

56 In answer to the council’s submissions concerning the application of Pt 5 of SEPP 53 relating to the design of buildings, the respondent states that when draft Amendment No. 6 was prepared State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (“SEPP 65”) was not in force. SEPP 65 commenced on 26 July 2002 and was therefore operative when the Minister approved the recommendation to submit gazetted Amendment No. 6 to the Governor on 3 November 2002. Accordingly there was no utility in repeating the terms of Pt 5 of SEPP 53 in gazetted Amendment No. 6 given that SEPP 65 provides the current requirements for design quality of residential flat development. The respondent says that it is for this reason that cl 19I(11) of the LEP as formulated in gazetted Amendment No. 6 expressly provides that SEPP 65 is not limited by cl 19I of the LEP.

57 The respondent finally submits that if the Court found that there were substantial differences between draft Amendment No. 6 and gazetted Amendment No. 6, such amendments were made within the Minister’s power of alteration under s 39(1)(b) of the EP&A Act. The respondent provides the Court with the definition of “alter” from the Macquarie Dictionary (3rd ed) as follows:-

          1. to make different in some particular; modify…3. to become different in some respect.

      Additionally the word “modify” is defined in the Macquarie Dictionary (3rd ed) to mean:-
          1. to change somewhat the form or qualities of: alter somewhat… 6. to change; to become changed.

      The respondent relies upon the decision of Bignold J in Ervin Mahrer and Partners v Strathfield Council(No 2) (2001) 115 LGERA 259 at p 284 in which His Honour held that extensive amendments to a proposed development “did not result in a change to the essential character of the proposed development and did not result in an alteration to the proposed development so as to radically transform it.”
      Findings
      Making of a SEPP and recommendation pursuant to s 39(1) of the EP&A Act

58 Section 39(1) of the EP&A Act empowers the Minister to recommend to the Governor the making of a SEPP. As a condition to the exercise of such power, the Director General must have submitted a draft SEPP to the Minister and the recommendation must be in accordance with such draft (see s 39(1)(a)); or in accordance with such draft, as altered by the Minister: see s 39(1)(b). These are the only mandatory provisions which the Minister must satisfy before making a recommendation pursuant to s 39(1) of the EP&A Act .


      Draft SEPP submitted to the Minister

59 To satisfy the first requirement of s 39(1) of the EP&A Act it is essential that the Director General submit a draft SEPP to the Minister. Such draft SEPP is formulated by the Director General following a decision or direction made under s 37 of the EP&A Act.

60 On 20 December 2001 the Minister approved the recommendations in the DUAP report dated November 2001 which contained the following recommendation:-

          It is recommended that the Minister:

          (a) cause the Director General of Urban Affairs and Planning to prepare a draft amendment to State Environmental Planning Policy 53 to introduce Lane Cove Council into Schedule 1 and Schedule 3 of this SEPP;

      Although the extracted recommendation did not refer to s 37(2) of the EP&A Act, such section is mentioned in the introductory paragraph of this report as follows:-

          Introduction

          This submission recommends that under s37(2) of the Environmental Planning and Assessment Act 1979 (the Act), the Minister instructs the Director-General to prepare an amendment to State Environmental Planning Policy (SEPP 53) – Metropolitan Residential Development to remove Lane Cove Council’s exemption from the SEPP.

      Accordingly the purpose of this report was to recommend to the Minister that he make a direction under s 37(2) of the EP&A Act, and the Minister’s approval of the report constitutes the necessary direction.

61 Thereafter DUAP prepared a second report dated March 2002 which was approved by the Minister on 19 April 2002, recommending him to instruct the Director General to prepare an amendment to SEPP 53 pursuant to s 37(2) of the EP&A Act. The relevant recommendations provided:-

          It is recommended that the Minister:

          (a) form an opinion based on this submission and confirm his opinion based on the submission he approved on 20 December 2001 that a draft amendment to State Environmental Planning Policy No 53 – Metropolitan Residential Development as outlined above is to be in respect to matters of significance for environmental planning for the State under s37(2) of the EP&A Act;

          (b) cause the Director-General of the Department of Planning to prepare a draft amendment to State Environmental Planning Policy 53 to introduce Lane Cove Council into Schedule 1 and Schedule 3, include land in Duntroon Avenue in Schedule 4, identify appropriate zoning and development standards for the site; by signing the attached request tagged A.

      Such recommendations caused the Minister to make the following request of the Director General:-
          Under s 37(2) of the EP&A Act I request the Director-General of the Department of Planning to cause a draft State environmental planning policy (‘the amending SEPP’) to be prepared and submitted to me to amend State Environmental Planning Policy No 53 – Metropolitan Residential Development to:

· remove Lane Cove Council’s exemption from the SEPP (which was granted in 1998);


· apply the provisions of Part 4 of the SEPP to land in Duntroon Avenue St Leonards and identify appropriate zoning and development standards for the site;


· identify the Minister for Planning as the consent authority for certain future development applications for sites to which Part 4 applies and


· exempt Lane Cove Council from the SEPP provisions on integrated housing and dual occupancy.


      This specific request constituted another direction made under s 37(2) of the EP&A Act.

62 There is a difference between the s 37(2) direction made in December 2001 and the s 37(2) direction made in April 2002. The former direction required the Director General to prepare a draft SEPP to include the subject land in Sch 1 and Sch 3 of SEPP 53. The latter direction additionally proposed to include the subject land in Sch 4 of SEPP 53. The DUAP report of 19 April 2002 stated that following legal advice DUAP considered it appropriate to include the application of Pt 4 of SEPP 53 in the draft SEPP instead of amending SEPP 53 a second time to achieve this objective.

63 The report approved on 3 November 2002 recited the directions made on 20 December 2001 and 19 April 2002 and attached the previous reports containing those recommendations. Accordingly the DUAP report of 3 November 2002 confirmed such directions, and no further direction pursuant to s 37(2) was either sought from the Minister in the November 2002 report nor made by him. Such report did not implicitly make any revocation or amendment pursuant to s 4(8) of the EP&A Act as claimed by the respondent.


      Recommendation in accordance with that draft SEPP

64 Section 39(1) of the EP&A Act empowers the Minister to recommend the making of a SEPP only in accordance with the draft submitted to him or her from the Director General (see s 39(1)(a)); or in accordance with such draft, as altered by the Minister: see s 39(1)(b). The draft policy submitted to the Minister as a consequence of the s 37(2) direction made on 19 April 2002 was draft Amendment No. 6.

65 The validity of gazetted Amendment No. 6 is dependent on a finding either that it is draft Amendment No. 6 with such alterations as the Minister thought fit as provided by s 39(1)(b) of the EP&A Act, or that a new draft SEPP was submitted by the Director General with the November 2002 report, and that such SEPP was adopted by the Minister pursuant to s 39(1)(a) of the EP&A Act. Since there is no evidence that a direction was made by the Minister under s 37(2) of the EP&A Act when he approved the November 2002 report, the Court rejects the respondent’s submission that gazetted Amendment No. 6 was created as an entirely new SEPP.

66 To resolve the issue whether gazetted Amendment No. 6 is “that draft State environmental planning policy” submitted to Minister from the Director General “with alterations”, the Court has considered the various DUAP reports. The November 2002 report shows that draft Amendment No. 6 was the genesis of gazetted Amendment No. 6. The following extract from such report is relevant:-


          The Proposed Amendment
          The publicly exhibited draft amendment sought to apply the provisions of SEPP 53 to the subject site by:
          (1) including Lane Cove within SEPP 53 (via schedule 1 of the SEPP);
          (2) exempting Lane Cove from the dual occupation provisions of the SEPP (schedule 3); and
          (3) applying new development controls to the Duntroon Avenue site under the auspices of Part 4 of the SEPP.

          The practical effects of changes (1) & (2) to the SEPP would have been negligible. Rather than introducing the new development controls referred to in (3) via Part 4 of the SEPP the current version of the proposed SEPP amendment will introduce all relevant controls directly into the Lane Cove Council LEP 1987. This means that all controls relating to the site will now be found in the relevant LEP. This should increase accessibility to the controls. The effect of these development controls is substantially the same as those in the publicly exhibited SEPP. Changes to the controls after exhibition are discussed below.

          As a result re-exhibition is not required.

      The references to gazetted Amendment No. 6 being the “current version” of draft Amendment No. 6 and the fact that DUAP opined that the “effect of the development controls” in gazetted Amendment No. 6 are “substantially the same as those in” draft Amendment No. 6, raises the inference that gazetted Amendment No. 6 is merely a later form of draft Amendment No. 6. Accordingly the November 2002 proceeds upon the assumption that gazetted Amendment No. 6 is merely draft Amendment No. 6 “with alterations”: s 39(1)(b) of the EP&A Act. The specific direction made under s 37(2) of the EP&A Act in April 2002 authorised the preparation of draft Amendment No. 6. A further direction by the Minister was not required in respect of the “current version” which became gazetted Amendment No. 6.

67 The Court has considered the meaning of “alteration” to ascertain to what extent changes can be deemed merely “alterations” as permitted by s 39(1)(b), or instead constitute a new SEPP. Kirby P (as he then was) in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd and Others (1991) 25 NSWLR 541 stated at p 551:-

          The word “alteration” must take its meaning from the context in which it appears. The word imports notions of degree of change. A point will be reached where an “alteration” of the thing being altered is so radical as to create a new thing and to destroy that upon which the “alteration” was attempted.

68 To understand the meaning of “alteration” in the context of s 39(1)(b) of the EP&A Act the Court has considered the observations of Pearlman J in Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186 where Her Honour said at p 199:-

          It is also clear from the relevant sections that the Minister might change the scope of the draft SEPP during the process envisaged by div 2 of Pt3. The process that arises is that the Minister makes a request to the Director to prepare a draft State environmental planning policy (s 37(2)), and then he determines its format, structure and subject matter under s38. Section 38 implies that the Minister can alter the draft even in respect to the subject matter from that prepared by the Director.

          But the possibility of alteration does not stop at s38. Section 39(1)(b) expressly recognises that the Minister may make alterations to the draft before recommending its making to the Governor or he may decide not to proceed at all with making the State environmental planning policy. Furthermore, it is implicit in s39(2) that the Minister may make alterations to the draft following upon his consideration of submissions made in response to the public exhibition of the draft. These matters show that the process is a developmental process. Changes may take place, but, in the final stage, they must result in a SEPP which deals with a matter which is of significance for environmental planning for the State (s 39(3)), and which must describe that part of the State to which it applies (s 39(5)).
      The Court adopts Pearlman J’s observations that a draft SEPP may be altered at various stages of its making, including alterations made after consideration of submissions in response to its public exhibition. Additionally it is evident from Her Honour’s observations that changes to the format, structure and subject matter are permitted alterations to a draft SEPP by virtue of s 38 of the EP&A Act.

69 The Court therefore concludes that if a draft SEPP has been altered it must still be identifiable as the original draft SEPP submitted to the Minister to comply with s 39(1)(b) of the EP&A Act.

70 The council has contended that DUAP was incorrect in stating in the November 2002 report that the “effect of these development controls is substantially the same as those in the publicly exhibited SEPP”. The council claimed that a comparison of the two policies shows that gazetted Amendment No. 6 is of a different nature to the draft Amendment No. 6 and that it could not be said that the policy recommended to the Governor by the Minister is “in accordance” with draft Amendment No. 6 or “in accordance” with draft Amendment No. 6 with alterations. A comparison of draft Amendment No. 6 and gazetted Amendment No. 6 is undertaken below to ascertain the significance of the differences between them.


      Differences between draft Amendment No. 6 and gazetted Amendment No. 6
      (a) Amendment of the LEP rather than SEPP 53

71 The development controls sought to be introduced by gazetted Amendment No. 6 have been implemented, not by way of an amending schedule to SEPP 53 as proposed by draft Amendment No. 6 but rather by way of an amendment to the LEP. Clause 1(2) of Sch 4 in draft Amendment No. 6 provides that the development standards applicable to the erection of residential flat buildings on the subject land are set out in cl 1(5) to cl 1(10) of Sch 4. Such subclauses contain development standards that are the same as the development standards set out in cl 19I(5) to cl 19I(10) of the amended LEP, notwithstanding minor differences. Accordingly the deletion of Sch 4 to draft Amendment No. 6 and the incorporation of Sch 6 in gazetted Amendment No. 6 resulted in identical controls being applied to the subject land. The means by which the development standards have been created is different to that originally proposed by draft Amendment No. 6. However such difference is merely an exercise of the Minister’s power under s 38 of the EP&A Act to determine the format, structure and subject matter of a draft SEPP, and to make alterations under s 39(1)(b).

72 Gazetted Amendment No. 6 is permitted to amend the LEP. Section 74(1) of the EP&A Act allows a local environmental plan to be amended “in whole or in part by a subsequent environmental planning instrument whether of the same or a different type.” Section 74(2) of the EP&A Act provides that a “subsequent environmental planning instrument shall be made in accordance with the provisions of this Part”, namely Pt 3 of the EP&A Act subject to two exceptions which are not relevant to these proceedings. Provided a subsequent environmental planning instrument is made in accordance with the relevant statutory requirements for its making, its provisions may substitute the provisions of an earlier environmental planning instrument. The fact that the desired controls have been implemented by way of amendment to the LEP, rather than to SEPP 53, is not a difference which makes gazetted Amendment No. 6 a different SEPP to draft Amendment No. 6.

73 The Court’s finding is consistent with the observations of Cole JA in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd and Others (1996) 91 LGERA 31 at p 75 where His Honour said:-

          Once it is recognised that an existing environmental planning instrument may be amended, altered, varied or replaced by a subsequent environmental planning instrument, as s74 and s36(b) explicitly provide, much of the basis for Rosemount’s contention upheld by Stein J disappears. That is particularly so when it is appreciated that a different regime is specified for the generation, consultation, advertising and consideration of submissions in relation to environmental planning instruments of different types. It seems to me not possible, against that background, to uphold the view that a planning instrument prepared in accordance with its designated statutory regime suffers the blight of unreasonableness because it alters a pre-existing environmental protection instrument created under a different statutory regime in the same Act, where such alteration is, in specific terms, permitted by that Act.
      (b) Land to which the policies apply

74 Clause 3 of draft Amendment No. 6 intended to apply that policy to “land within the local government area of Land Cove.” However one of the aims of draft Amendment No. 6 made it apparent that the policy was to apply certain provisions of SEPP 53 to the subject land. Gazetted Amendment No. 6 applies to the subject land. This difference does not render gazetted Amendment No. 6 a new SEPP.


      (c) Inconsistency clauses

75 The inconsistency provisions contained in cl 1(3) and cl 1(4) of Sch 4 contained in draft Amendment No. 6 differ compared to the equivalent inconsistency provision contained in cl 19I(4) of Sch 6 of gazetted Amendment No. 6. It is essential to read cl 1(3) and cl 1(4) of Sch 4 together to give appropriate effect to the inconsistency clause. So construed there is no significant difference in their operation, since each provide that the development standards being introduced by the amending SEPP are to prevail over existing standards when the two conflict.


      (d) Operation of Pt 5 of SEPP 53

76 For the reasons provided by the respondent in its submissions concerning the operation of Pt 5 of SEPP 53, the Court accepts that there would have been no utility for making provision of the application of Pt 5 in view of the operation of SEPP 65. There is a difference between draft Amendment No. 6 and gazetted Amendment No. 6, but the practical effect of both clauses are the same.

(e) Summary

77 It is evident that there are differences between draft Amendment No. 6 and gazetted Amendment No. 6. When those differences are examined they are essentially matters of form and not of substance, in the sense that the principal objectives of draft Amendment No. 6 are achieved by gazetted Amendment No. 6. The goal of each SEPP was to increase the residential density and extend the range of permissible housing types on the subject land. The draft of the policy which became gazetted Amendment No. 6 is in a format, structure and contains the subject matter as determined by the Minister in the exercise of the power bestowed upon him by s 38 of the EP&A Act. Accordingly gazetted Amendment No. 6 can be described as draft Amendment No. 6 with alterations. Gazetted Amendment No. 6 was made pursuant to s 39(1)(b) of the EP&A Act and is therefore valid.


      Was the Minister obliged to publicise gazetted Amendment No. 6?

78 The final issue for the Court to resolve is whether the Minister was required to re-publicise gazetted Amendment No. 6. DUAP’s report approved by the Minister on 4 June 2002 included a recommendation pursuant to s 39(2) of the EP&A Act that the draft attached be exhibited. The report states:-

          Background
          On 19 April 2002 the Minister considered the background to the proposed amending SEPP and its significance for environmental planning for the State, and requested the Director General prepare an amending SEPP (Tag 1). The draft amendment has now been prepared and it is ready for public consultation (Tag 2).

      “Tag 2” is draft Amendment No. 6. The November 2002 report specifically advised the Minister that re-exhibition was not required.

79 Section 39(2) of the EP&A Act empowers the Minister to take such steps, if any, which he or she considers appropriate or necessary to publicise a draft SEPP, and to consider submissions from the public. The discretion provided to the Minister by s 39(2) of the EP&A Act is absolute. There is no mandatory obligation imposed upon the Minister to publicise a draft SEPP. Accordingly the Minister’s decision to publicise draft Amendment No. 6 was made in the exercise of his discretion pursuant to s 39(2) of the EP&A Act.

80 The Court’s finding on the application of s 39(2) of the EP&A Act accords with Beazley JA’s observations in Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at p 54 where Her Honour said:-

          That leaves only the question of s 39(2). It can be dealt with as shortly as was done in the submissions. The decision to publicise a draft SEPP is one left to the consideration of the Minister. There was no challenge to the bona fides or reasonableness of the Minister’s decision not to publicise the SEPP. In my opinion, notwithstanding the almost universal application of the principle of procedural fairness to statutes affecting rights, there is nothing in s 39(2) which imports such a requirement. Nor was there any legitimate expectation that publicity would be given to the draft SEPP.

81 The Court accepts the council’s submission that s 39(2) of the EP&A Act is a step in the process in the making of a SEPP. Pearlman J made this clear in Darling Casino at p 199 as extracted above at par 68. However there is no suggestion in s 39(2) or any other provision of the EP&A Act that the Minister may or must re-exhibit the draft SEPP submitted to him or her following alterations made to it.

82 The principle that a draft environmental planning instrument should be re-exhibited if substantially altered was developed in reference to regional environmental plans and local environmental plans. The decisions of John Brown Lenton and Co Pty Ltd v Minister for Urban Planning, Leichhardt Municipal Council v Minister for Planning and Director of Planning and Leichhardt Municipal Council v Minister for Planning [No. 2] were concerned with local environmental plans and of regional environmental plans, which are subject to different requirements for their making and their public exhibition: see Pt 3 Div 3 and Pt 3 Div 4 of the EP&A Act. These provisions ensure that regional environmental plans and local environmental plans are a “proper product” of the processes of Pt 3 of the EP&A Act: see Leichhardt Council v Minister for Planning [No 2] at p 88. There is no similar requirement in respect of the making of SEPPs, and accordingly the authorities do not assist the council. To hold otherwise would impose a fetter on the Minister’s discretion under s 39(2).


      Conclusion

83 For these reasons the Court concludes that State Environmental Planning Policy No. 53 – Metropolitan Residential Development (Amendment No. 6) is valid. It follows that the application must be dismissed.


      Orders

84 The Court orders that:-


      1. The application be dismissed;
      2. The applicant pay the respondent’s costs unless an application is made to vary such order within 21 days of the date of this order;

3. The exhibits be returned.

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