Lane Cove Council v the Minister for Urban Affairs and Planning

NEW SOUTH WALES COURT OF APPEAL

CITATION: Lane Cove Council v The Minister for Urban Affairs and Planning [2005] NSWCA 122

FILE NUMBER(S):
41227/03

HEARING DATE(S): 2 September 2004

JUDGMENT DATE: 20/04/2005

PARTIES:
LANE COVE COUNCIL (Appellant)
THE MINISTER FOR URBAN AFFAIRS AND PLANNING (Respondent)

JUDGMENT OF: Santow JA McColl JA Campbell J

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40133/03

LOWER COURT JUDICIAL OFFICER: Cowdroy J

COUNSEL:
T F ROBERTSON, SC (Appellant)
B J PRESTON, SC/ J M JAGÔT (Respondent)

SOLICITORS:
Pike Pike & Fenwick (Appellant)
Ms Christine Hanson, General Counsel, Legal Services Branch, Department of Planning (Respondent)

CATCHWORDS:
ENVIRONMENTAL LAW - PLANNING - validity of State environmental planning policy (SEPP) - gazetted SEPP different from earlier publicised draft SEPP - interpretation of ss37 and 39 Environmental Planning and Assessment Act 1979 - whether gazetted SEPP was invalid since not a new SEPP which the Minister caused to be prepared by the Director-General pursuant to s37(2) - onus of proof of compliance with s37 - whether gazetted SEPP invalid because different to earlier draft SEPP, and so not made in accordance with "that draft State environmental planning policy submitted to the Minister" under s39(1)(a) - whether differences between gazetted SEPP and earlier draft SEPP so substantial that it was not made in accordance with "that draft State environmental planning policy with such alterations as the Minister thinks fit" under s39(1)(b) - whether gazetted SEPP invalid because not exhibited for public submission, when earlier draft SEPP so exhibited - whether discretion pursuant to s39(2) not to publicise a draft SEPP constrained by course of conduct - whether plenary power to cause a draft SEPP to be prepared.

LEGISLATION CITED:
Environment Planning and Assessment Act 1979 s13; s34; s37; s39; s74
Interpretation Act 1987 (NSW) s3; s45

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41227/03
LEC 40133/03
SANTOW JA
McCOLL JA
CAMPBELL J
20 APRIL 2005

LANE COVE COUNCIL v THE MINISTER FOR URBAN AFFAIRS AND PLANNING

Judgment

SANTOW JA:
INTRODUCTION
The central issue in this appeal is whether, as the appellant’s counsel contends, Amendment No. 6 to SEPP 53, gazetted on 8 November 2002, is void and of no effect, contrary to the determination of the trial judge, Cowdroy J in the Land and Environment Court of New South Wales. In broad terms, that SEPP amendment purported to subject a particular part of Lane Cove, being a development site at St Leonards, to the overriding policy of SEPP 53 which aims “to facilitate the erection of well-designed flat buildings on that land”. That would, if effective, amend the local environment plan (“LEP”) for Lane Cove so as, in effect, to give the development site a “spot zoning” to facilitate increased housing densities.
SEPP is the acronym for “State Environment Planning Policies”. These, when promulgated in accordance with the Environment Planning and Assessment Act 1979 (“EPA”) override the local environment plan or LEP. I shall refer in this judgment to the gazetted SEPP amendment under challenge as the “gazetted Amendment”. I do so to distinguish it from an earlier draft SEPP Amendment No. 6 (“the draft Amendment” or “draft SEPP”). It, unlike the gazetted Amendment, was exhibited for public submission. That circumstance is relied on by the appellant, Lane Cove Council, for one basis of its challenge to the validity of the gazetted Amendment. That basis is that the Minister thereby subjected himself to a constraint on his statutory discretion to publicise a draft SEPP under s39(2) of EPA. That constraint is said to have required the Minister to exercise his discretion by exhibiting the gazetted Amendment for public submissions and not just the earlier draft.
For convenience I quote the relevant provisions of EPA below:
“Decision or direction to prepare draft State environmental planning policy
37 (1) The Director-General may, after consultation with such public authorities as the Director-General determines, prepare a draft State environmental planning policy with respect to such matters as are, in the opinion of the Director-General, of significance for environmental planning for the State, and may submit it to the Minister.
(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.
Format of State environmental planning policies
38Subject to this Act and the regulations, the format, structure and subject-matter of a State environmental planning policy or draft State environmental planning policy shall be as determined by the Minister.
Making of State environmental planning policies by the Governor
39 (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.”
By way of a broad overview, the appellant’s challenge to the validity of the gazetted Amendment relies first upon the extent of differences between it and the earlier draft Amendment. These are said to take it outside the Minister’s statutory power to promulgate that SEPP under s39(1(b) EPA, contrary to the trial judge’s conclusion to the contrary. The draft Amendment is said never to have been formally abandoned. It was then contended that, because the earlier draft SEPP had never been formally abandoned, and because of the extent of the alterations, the gazetted Amendment no longer met the statutory description in s39(1)(b) of EPA of “that draft state environmental planning policy with such alterations as the Minister thinks fit” so as to lose its necessary statutory basis.
The trial judge rejected the availability of a self-standing plenary power on the Minister’s part to trigger the making of a State Environment Planning Policy by the Governor pursuant to s39(4). He concluded that s37(1) but not s37(2) applied in the events that happened, as there needed to be a “direction” by the Minister (causing the Director-General to prepare for submission to the Minister a draft SEPP) to satisfy s37(2). No such direction was in evidence. Accordingly, the trial judge concluded that the gazetted Amendment could find a statutory basis of support only in s39(1)(b) and not in s39(1)(a) or in some self-standing plenary power.
The further basis of challenge was that, because the draft SEPP was exhibited for public submission, the later gazetted Amendment, being an altered version of the earlier and never abandoned draft Amendment, should likewise have been exhibited for public submission. While s39(2) of the EPA Act confers a discretionary power in the Minister whether to publicise a draft SEPP, “as the Minister considered appropriate or necessary”, the appellant contended that once a decision to publicise a draft SEPP has been carried out, that constituted a fetter on the Minister’s power to refrain from publicising any altered version of that draft. In so doing, it was said to convert a discretion whether to publicise into an obligation on the Minister to do so.
The respondent takes issue with each of these bases of challenge, as I explain. In addition it submits by Notice of Contention that, even if the Minister were in fact exercising a power to make an alteration to the earlier draft Amendment when that power was not available, or even if the alterations were so extensive as in effect to extinguish that draft Amendment, the Minister nevertheless had a plenary power to cause a new draft SEPP to be prepared. Accordingly, any mistake as to the source of power could work no invalidity. Moreover, says the respondent, the Minister retained a plenary power to make such alterations to a draft SEPP submitted to the Minister as the Minister thought fit.
SALIENT FACTS
The salient facts are not in dispute and follow.
The subject land is known as 1-16 Duntroon Ave, St Leonards (1-2/DP7650). The land is controlled by a developer, Australand.
SEPP No.53, “Metropolitan Residential Development” currently applies to thirteen local government areas. Its aims are to be achieved by encouraging Councils:
“to prepare and adopt residential development strategies and supporting local environmental plans and policies that will achieve those aims [of encouraging the provision of housing in metropolitan areas by various means] and by allowing local government areas to be exempted from the whole or parts of this policy when those strategies and plans are in place.” Cl 3(2)(c) of SEPP No. 53.
Lane Cove local government areas were exempted from SEPP 53 by Amendment No. 5 to SEPP 53 (gazetted on 13 November 1998), as a result of negotiations between the Minister and the Council. The exemption was conditional on the Council and the Department of Urban Affairs and Planning (“DUAP”) reaching a consensus in respect of the appropriate design and density for the St Leonards precinct (including the subject land).
In mid 2001 the Council resolved to rezone the land “Residential 2C” under the Lane Cove LEP 1997, to which the land is subject. DUAP considered the Council’s proposed controls for the land were inadequate and would undermine the basis for the exemption of the Lane Cove local government area from SEPP 53.
In December 2001, the Minister approved recommendations in a DUAP report (dated November 2001) (“the November report”) to prepare an amendment to SEPP 53. Thereafter, DUAP prepared a second report, dated March 2002 (“the March 2002 report”).
On 19 April 2002, the Minister approved the second report and requested the Director-General of DUAP pursuant to s37(2) EPA Act to prepare and submit a draft SEPP to remove the Council’s exemption from SEPP 53. The Minister also determined that the SEPP, when drafted, should be publicised for public comment under s39(2) EPA Act.
On 4 June 2002, the draft SEPP was submitted to the Minister, and between 12 June and 10 July 2002 it was publicly exhibited, advertised in the SMH and North Shore Times, notified to 500 households and the Council, and was the subject of a public meeting convened by the Council. The Minister received 303 submissions, mostly objecting to the Draft SEPP on the grounds of scale, density and design.
On 3 November 2002, the Director-General proposed in a submission to the Minister (“the November 2002 report”) some “refinements” to the exhibited Draft SEPP and recommended an amended draft SEPP. The Minister approved the submission and recommended making the “refined” Amended Draft SEPP that which went to the Governor with the Minister’s recommendation.
This version of the SEPP (SEPP No. 53 (Amendment No. 6) was gazetted on 8 November 2002. It effected a “spot rezoning” by amending the Lane Cove LEP in relation to the development site at St Leonards, rather than by bringing Lane Cove itself under SEPP 53.
On 6 February 2003, the Council commenced proceedings in the Land and Environment Court seeking a declaration that SEPP No. 53 (Amendment No. 6) was void, because:
(a)it failed to satisfy the requirements of s39 EPA Act as the gazetted Amendment No. 6 is not identical to Draft Amendment No. 6 but was altered from the earlier draft SEPP as follows:
(i)in amending Lane Cove’s LEP, rather than Sch 4 of SEPP 53,
(ii)the policy aims were different
(iii)in that the urban design standards of Amendment No. 6 differed substantially from those in the earlier draft SEPP, because those in Amendment No. 6 were taken from less stringent ones in another SEPP made in the interim (SEPP 65).
(b)since the gazetted Amendment was not placed on public exhibition though the earlier draft had, the procedural requirements for making a SEPP in Pt 3 Div 2 EPA Act have not been fulfilled by reason of the Minister’s discretion thereby miscarrying or being exceeded.
DISPOSITION OF APPEAL
The trial judge proceeded on the basis that the only mandatory provisions which the Minister must satisfy before making a recommendation to the Governor that a SEPP be made are to be found in the alternative provisions of subparagraph (a) of s39(1) or subparagraph (b). These subparagraphs deal with the pre-condition for the Minister to make a recommendation to the Governor which in turn triggers the Governor’s power to make a State environmental planning policy or SEPP in accordance with s39(4). Thus far the trial judge’s reasoning proceeds on the basis that there is no extrinsic other power than that to be found in s39(1) and in particular no plenary power outside its ambit, permitting the Minister to make the necessary recommendation.
In order to satisfy subparagraph (a), a draft SEPP must be formulated by the Director General. The trial judge added that such a draft SEPP required “a decision or direction” made under s37(2) EPA (Judgment [59]). He did so, though the language of s37(2) had no express provision in those terms. Rather s37(2) is expressed in terms of “The Minister may … cause to be prepared by the Director-General for submission to the Minister a draft State environmental planning policy …” [emphasis added]
The trial judge then concluded that in this case a direction was given by the Minister under s37(2) to prepare the November 2001 report and the draft SEPP, but not to prepare the gazetted amendment.
The trial judge then reasoned that the Minister’s recommendation, to satisfy s39(4), must either be in accordance with the draft State environmental planning policy submitted to the Minister (subparagraph (a)) or in accordance with “that draft State environmental planning policy” with such alterations as the Minister thinks fit (subparagraph (b)).
The trial judge then reasoned that the validity of the gazetted Amendment is dependent on a finding either that:
(a)a new draft SEPP, being the gazetted Amendment, was submitted to the Director General with the later November 2002 report, and that such SEPP was adopted by the Minister pursuant to subparagraph (a) of s39(1); or
(b)the gazette amendment is that actual draft Amendment and has not ceased to retain that character though incorporating alterations as the Minister thought fit, within subparagraph (b) of s39(1).
The trial judge then concluded that subparagraph (a) of s39(1) could not be applicable “[S]ince there is no evidence that a direction was made by the Minister under s37(2) of the EP & A Act when he approved the November 2002 report” so that “the Court rejects the respondent’s submission that gazetted Amendment No 6 was created as an entirely new SEPP”; Judgment [65].
With respect, the judgment at this point places an unjustified gloss on the words of s37(2), in construing the phrase “the Minister may … cause to be prepared”, as actually requiring a “direction” from the Minister.
A powerful reason for concluding otherwise is the fact that s4(7) of EPA makes clear that “a reference in this Act to a direction is a reference to a direction in writing”.
Thus if in s37(2) the word “cause” were construed as synonymous with “direction”, one would have to assume that the Minister would have to cause the Director General by direction in writing to submit a draft State environmental planning policy before s37(2) was satisfied. The Minister would need, on this construction, to issue a written direction to the Director General stating in express terms “I hereby direct you to submit a draft SEPP as to …”.
Moreover, so artificial an outcome sits incongruously with s13(2) of EPA. It provides that “the Director General shall, in the exercise of any function conferred upon the Director General by or under this Act … be subject to the control and direction of the Minister”.
Thus, such a construction would involve the absurd consequence that a mere oral direction, or mere request in either case by the Minister to the Director General would not suffice. This is despite the fact that “cause” in such a context as s13(2) connotes calls for no such formality. The dictionary meaning of “cause” (as a noun) does not require more than that there be “a person or thing that occasions something” (Australian Concise Oxford Dictionary).
Moreover, in construing the word “cause”, one needs to look at the statutory context. Thus in Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 Lord Hoffman explains how that process is necessary to give a commonsense answer to a question of causation, for example to attribute responsibility. Here, the statutory context encompasses not only the provisions to which I have referred earlier but also s34(3) of EPA. It provides that
“[I]t 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”.
A SEPP is of course an environmental planning instrument.
Thus, in a statutory context where there is a presumption of validity, corresponding to s45 of the Interpretation Act 1987 (NSW), and where the Director General is subject to the control and direction of the Minister so that his or her actions would ordinarily be expected to result from the exercise of that authority, the word “cause” is broad enough to encompass a situation where the Minister has initiated a process which produces a report that comprehends a draft SEPP and then with the Minister’s concurrence goes through a serious of alterations about which the Minister is informed. But even if the word “cause” were to be construed more narrowly to encompass only a draft report that is instigated in its original form by the Minister, the presumption in s34(3) still leaves the onus upon the appellant challenging validity to demonstrate non-fulfilment of the condition or preliminary step of causing the draft SEPP to be prepared. Absence of evidence of a direction, upon which the trial judge relied (at [65]) is no substitute for satisfying that onus. This the appellant clearly has not done.
Conclusion
It follows that, contrary to the conclusion of the trial judge, the draft Amendment can be taken to have been prepared in accordance with s37(2) of EPA. Equally, since the provisions are not mutually exclusive, that draft Amendment may also have to be taken to have been prepared pursuant to s37(1) of EPA.
It would follow that s39(1)(a) is satisfied, on the basis that the gazetted Amendment which eventuated from this process, can be taken to have been adopted by the Minister when the Minister recommended to the Governor the making of a SEPP in accordance with that (later) SEPP. So characterised, it necessarily supplants the earlier draft amendment so that the issues posed by the nature of the alterations made to that earlier draft as arise where only s39(1)(b) is depended upon, do not arise.

It follows that I do not strictly need to consider whether s39(1)(b) was satisfied. Nor do I need to consider whether the Minister had plenary power, aside from subparagraphs (a) or (b) of s39(1), to recommend a SEPP to the Governor so as to trigger the Governor’s making of a SEPP pursuant to s39(4).
Were it necessary to form a view on plenary power, I would conclude that there was no such separate power. To my mind, there is no warrant for such a construction given the apparent exhaustiveness of s39(1).
Nor do I consider that the alterations to the draft SEPP were of such extent as to preclude satisfaction of the requirements of s39(1)(b). In particular I would so conclude taking into account the alterations made to the draft SEPP as are noted in [18] above, recognising that only the third category of difference was seriously pressed. That latter requires that the urban design standards of the gazetted Amendment be compared to those of the draft Amendment. This is to ascertain whether the alterations made were so radical as in effect to extinguish an earlier version of something: compare Kirby P (as he then was) in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd & Others (1991) 25 NSWLR 541 at 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.”
But that was not the case here, for reasons which I elaborate below. The starting point is the process to be followed in altering a draft SEPP. On this, the trial judge adopted the reasoning and observations of Pearlman CJ in Darling Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186 at 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 SEPP (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 SEPP. 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)).”
I agree that the test applied is that the Court must be able to conclude that, if a draft SEPP has been altered, it must still be identifiable as the original draft SEPP submitted to the Minister, in order to comply with s39(1)(b) of EPA. Thus in terms of s39(1)(b), the question is whether after the alterations, the resultant gazetted Amendment is still in substance “that draft State environmental policy”, albeit “with such alterations as the Minister thinks fit”. Those concluding wide words of s39(1)(b) amplified as they are by s38, are contrasted with the more qualified power of Ministerial alteration in s70(1)(a)(ii). It refers to a power of the Minister to “make a local environmental plan … with such alterations as the Minister thinks fit relating to any matter which in the opinion of the Minister is of significance for State or regional environmental planning”. “Alteration” is itself a word of potentially wider ambit than “modify” where as Provincial Insurance recognised, one is dealing with matters of degree.
I turn now to the specific differences which were pressed by the appellant on appeal. They were originally in three categories noted in [18] above, but correctly, only the third category appears now to be pressed. The three categories of alterations originally identified by the appellant, and using the summary description employed by the respondent in its written submissions, were as follows:
(a)the direct amendment of the LEP point: in that the earlier draft SEPP introduced a schedule into SEPP 53 itself, whereas the SEPP submitted on 3 November 2003 and as then made inserted a schedule into SEPP 53 which amended the Lane Cover LEP;
(b)the different aims point: in that the earlier draft SEPP contained one set of aims, which were expressed in supposedly different terms in the SEPP as submitted on 3 November 2003 and as then made; and
(c)the design requirements point: in that the earlier draft SEPP contained certain design requirements which had did not appear in the SEPP as submitted on 3 November 2003 and as then made, because such requirements were incorporated by cross-reference to another SEPP which had been made in the interim, SEPP 55.
The third of these, the design requirements point, was said to involve a bright line difference, by applying what were said to be “radically different” urban design standards. These were said to have rendered the gazetted Amendment or SEPP so radically different “as to create a new thing and to destroy that upon which the ‘alteration’ was attempted”, rendering the original draft Amendment submitted to the Minister no longer identifiable as such.
The first difference relied upon by the appellant was found in the contrast between clause 32 of the draft Amendment compared to clause 30 of the gazetted Amendment. It was submitted that the former amounted to a jurisdictional fact or condition precedent for the granting of consent, in terms of satisfaction of the urban standards then laid down, whilst the latter consisted merely in matters “to be taken into consideration”.
However, clause 32 of the draft Amendment is expressed in terms that hardly comport with such distinction:
“Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles: …” [emphasis added]
Indeed clause 30 of the gazetted Amendment in subclause (2) similarly provides:
“In determining a development application for consent to carry out residential flat development, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration) …”
Whether either presage jurisdictional fact need not be decided. Each do share one characteristic pointing, though not invariably, against jurisdictional fact of the kind identified by Spigelman CJ in Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 at 64:
“[42]Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker - "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: see Craig, Administrative Law, 3rd ed (1994) at 368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 198C. Where such words do not appear, the construction is more difficult.”
They also share another characteristic, though in more ambivalent form, whose potential significance Timbarra again explains in the judgment of the Chief Justice:
“[44]The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions.”
The pointers against jurisdictional fact in clause 32 of the draft Amendment also include the fact that it is to be found in Part 5 where it is provided that:
“This Part requires certain design aspects to be taken into account when a consent authority considers an application for a consent for the carrying out of development to which this Part applies.” [emphasis added]
The expression “taken into account” is essentially indistinguishable from the expression in clause 30(2) “take into consideration”.
Clause 32 is expressed in terms of the consent authority being “satisfied” that the proposed development demonstrates that adequate regard has been given to what are described as “principles”. To refer to being “satisfied” is again to invoke a subjective requirement, albeit requiring the consent authority to direct its mind to the relevant matters. To refer to “principles” one is directed to matters of generality rather than specificity.
Clause 30 for its part refers to “matters”, so the connotation is similarly general.
Finally, when it comes to the particular “principles” referred to in clause 32, they are themselves internally qualified further reducing their stringency.
Thus each of paragraphs (a) through (h) are expressed in terms merely of “should” with the latter further qualified by the words “where possible” in subparagraphs (a)(ii), (c), (d), (e), and (g). Moreover, in subparagraph (b) the requirement is merely to “consider” the visual and acoustic privacy of neighbours in the vicinity and residents by … “ensuring acceptable noise levels in internal and living and sleeping areas of new buildings”. [emphasis added]
Subparagraphs (f) and (h), while they do not use the expression “where possible” use instead the similar expression “where appropriate”.
Furthermore, paragraph (c) dealing with solar access and design for climate invokes a principle that the proposed development should “involve” site planning, hardly a stringent requirement. Then for stormwater in sub-paragraph (d) the proposed sub-development invokes the principle that, where possible, it should “control and minimise the disturbance and impacts of stormwater runoff”. Finally, sub-paragraph (f) when dealing with accessibility uses the broad expression “attractive” in referring to environments for pedestrians, cyclists, etc.
Comparing this to clause 30, I agree with the respondent’s submission that there is in reality no bright line difference in terms of the stringency of the requirements or degree to which they constrain the consent authority in terms of the matters to be taken into account, when compared to clause 32.
Finally, it is fallacious to treat the requirement in clause 30 as allowing Council merely to pay lip service to a relevant matter. As was determined by the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181, that matter has to receive proper, genuine and real consideration.
Conclusion
It follows that insofar as s39(1)(b) was required to provide the statutory basis for the Governor to make State environmental planning policy in terms of the gazetted Amendment, it has done so, and in particular the gazetted Amendment does not so alter the draft amendment as effectively to extinguish it.
Is there constraint on Minister’s power to decline to advertise gazetted Amendment having earlier advertised draft amendment?
The final challenge to the gazetted Amendment is based upon a supposed constraint on the Minister by reason of the Minister having made an earlier decision to advertise the draft amendment. The appellant contends that in those circumstances the Minister is bound by that decision having never revoked it. This it submits has the result that the original decision to advertise the draft amendment thereafter controls the extent to which public participation is an essential predicate of the validity of the gazetted Amendment, in terms of satisfying s39. It is conceded that s39(2) confers a discretion upon the Minister “as the Minister considered appropriate or necessary” both to publicise a draft State Environmental Planning Policy and to seek and consider submissions from the public before the Minister makes such a recommendation. But because the Minister embarked on the publicising process and received submissions from the public on the draft amendment it is said to be bound to do so thereafter in relation to any exercise by the Minister of his power pursuant to s39(1)(b) of EPA.
The short answer to that submission is that the Minister was equally entitled to rely upon s39(1)(a), for the reasons earlier explained. Thus even if there were such a constraint, it is not invoked by s39(1)(a).
It is therefore not strictly necessary for me to express a view as to whether, were s39(1)(b) the statutory basis, a different result might follow. In particular I do not need to consider whether the situation is analogous to that dealt with in Smith v Wyong Shire Council (2003) 132 LGERA 148, as pressed by the appellant. In that case, the Minister had made a direction to the local council pursuant to s117 EPA concerning a draft Local Environment Plan that was exhibited by that council. The exhibited plan did not include that direction nor a statement to the effect that directions potentially governed the content and operation of the draft plan pursuant to s66(1)(b)(ii) of EPA. Those omissions were held to render misleading what was exhibited. The appellant then relies on what it describes as the fundamental significance of the public exhibition provisions, citing Smith v Wyong Shire Council (supra) and the cases to which it refers.
The respondent for its part correctly contends that the situation here in question operates in the very different statutory scheme of Division 2 of Part 3 of EPA. Whatever obligation there may be to afford procedural fairness in the case of decisions directly affecting particular individuals, no such considerations here arise in relation to exhibition to the public at large. The respondent cites the distinction made in Save the Showground for Sydney Inc v the Minister of Urban Affairs and Planning (1997) 95 LGERA 33 at 39 per Gleeson CJ and at 51-3 per Beazley JA.
Assuming s39(1)(b) were the basis of the Minister making the necessary recommendation, I would conclude that there was no such obligation on the Minister to publicise the gazetted plan for the purpose of public submissions. I consider that s39(2) provides no warrant for implying such a constraint on the Minister merely by reason of his having publicised an earlier draft amendment and received submissions on it. This is not a case where what was publicised was rendered misleading by the omission of a critical document pertaining to it or affects the rights of particular identified persons.
OVERALL CONCLUSION
I consider that the appeal fails and would propose orders as follows:
(1) Appeal dismissed.
(2) Appellant to pay respondent’s costs.
McCOLL JA: I agree with the orders Santow JA proposes.
The facts and legislation are set out in Santow JA’s judgment, a draft of which I have read. I shall only repeat or expand upon those matters sufficiently to explain my reasons for agreeing with the orders Santow JA proposes.
This case concerns the question whether State Environmental Planning Policy No 53 - Metropolitan Residential Development (Amendment No 6) gazetted on 8 November 2002 (“Amendment No 6”) should be set aside on the basis that it is void and of no effect.
Amendment No 6 applies to land known as 1 - 16 Duntroon Ave, 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”).
Amendment No 6 purported to effect a spot rezoning of the subject land by inserting a new schedule in SEPP 53 entitled “Sch 6 - Amendment of Lane Cove Local Environmental Plan 1997”. Schedule 6 amended the LEP by inserting a new clause, cl 19I which introduced comprehensive requirements for multi unit housing on the subject land relating to internal and external amenity, parking, acoustics, minimum floor space areas and heights. As a consequence of Amendment No 6, the relevant development controls for the subject land were incorporated solely in the LEP instead of being contained in two instruments, namely the LEP and SEPP 53.
Section 74 (1) of the Environmental Planning and Assessment Act 1979 (NSW) (the “EPA Act”) enables an environmental planning instrument to be amended in whole or in part by a subsequent environmental planning instrument whether of the same or a different type. Section 74 (1) was the source of the power to use the amendment to SEPP 53 to amend the LEP.
In my view the appeal should be dismissed because of the point raised in the respondent’s Notice of Contention, namely that given the terms of the Director-General’s report to the Minister dated 3 November 2002, the Minister had caused the Director-General to prepare the draft State environmental policy attached to the November 2002 report which became Amendment No 6.
The primary judge rejected that submission, holding (Lane Cove Council v Minister for Urban Affairs and Planning [2003] NSWLEC 205; (2003) 129 LGERA 424 at [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.” (emphasis supplied)
The respondent’s Notice of Contention point turned on the proposition that the validity of Amendment No 6 was not affected by the events antecedent to the publication of the draft Amendment (as Santow JA has described it). He argued that a draft SEPP was submitted to him as part of the Director-General’s 3 November 2002 report, that he decided it was neither appropriate nor necessary to publicise the draft (cf s 39(2), EPA Act) and that he then recommended to the Governor that the draft SEPP be made (cf s 39(1) (a), EPA Act).
The respondent submitted that the fallacy in the primary judge’s reasons was found in his rejection of this argument on the basis that there was no evidence that a direction was made by the Minister under s 37(2) of the EPA Act when he approved the November 2002 report. The appellant contended that the primary judge was correct to reject the Notice of Contention argument for the reasons his Honour gave.
The respondent argued that the powers available under s 37 of the EPA Act enabling the Director-General and/or himself to prepare draft SEPPs could be exercised from time to time (s 48(1) Interpretation Act 1987 (NSW)). Accordingly, he contended, contrary to the appellant’s submission, it was not necessary that he “abandon” the process previously put in train which had led the publication of the draft Amendment.

The respondent also argued that s 37(2) of the EPA Act did not require that he give a “direction”, merely that he “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”.
I agree with Santow JA that “cause” in s 37(2) was not synonymous with “direction”, particularly having regard to the express provisions concerning directions in ss 4(7) and (8) of the EPA Act.
It is also not to point that there was no evidence that the respondent had caused the Director-General to prepare the draft of Amendment No 6.
Section 34(3) of the EPA Act provides that 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. Further, SEPP 53 is a statutory instrument (Interpretation Act 1987 (NSW), s 3). Accordingly it is subject to the presumption of regularity in s 45 of the Interpretation Act. The primary judge did not refer to either of these provisions.
Section 34(3) of the EPA Act is a statutory expression of the common law presumption that all acts are presumed to have been done rightly and regularly (omnia praesumuntur rite et solenniter esse acta). Speaking of that presumption, McHugh JA said in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164:
“The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled…. A particular application of the maxim … is stated in Broom's Legal Maxims, 10th ed (1939) at 642 as follows:
‘... where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases the ordinary rule is omnia praesumuntur rite et solenniter esse acta donec probetur in contrarium - everything is presumed to be rightly and duly performed until the contrary is shown.’ ”
It was incumbent upon the appellant to displace the presumption arising from the operation of s 34(3) that the respondent had caused the Director-General to prepare the draft of Amendment No 6. The appellant did not point to any material which would displace that presumption.
In my view the primary judge erred in rejecting the respondent’s Notice of Contention argument.
CAMPBELL J: I agree with Santow JA.
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LAST UPDATED: 27/04/2005

[2005] NSWCA 122

20 April 2005