Lomas v Gold Coast City Council
[2007] QPEC 43
•31 May 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Lomas v. Gold Coast City Council [2007] QPEC 043
PARTIES:
BRENDA MAURICEEN LOMAS
Applicant
and
GOLD COAST CITY COUNCIL
Respondent
FILE NO:
Appeal No 2051 of 2006
DIVISION:
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:
31 May 2007
DELIVERED AT:
Brisbane
HEARING DATE:
3 May 2007
JUDGE:
Skoien SJDC
ORDER:
As per application.
CATCHWORDS:
Application to Council to proceed with self-assessable development under superseded planning scheme. Jurisdictional error; error of law; failure to consider relevant matters.
COUNSEL: D.R. Gore Q.C. with S. Fynes-Clinton for applicant
C.L. Hughes S.C. with M. Williamson for respondentSOLICITORS:
DLA Phillips Fox for applicant
McDonald Bland & Associates for respondent
The applicant by her originating application challenges a decision of the Council to refuse her request to proceed with development of land as if it were self assessable development under the 1995 Albert Shire superseded planning scheme. Instead the decision was that it should be assessed under the 2003 Gold Coast IPA planning scheme. She seeks a declaration under s.4.1.21 of the Integrated Planning Act 1997 (“IPA”) that the decision was wrong in law and of no legal effect. She also seeks consequential relief under s.4.1.22 of IPA.
The applicant, as trustee, is the owner of land at 85 Pacific Highway, Pimpama, described as Lot 601 on RP148433, containing 19.07 hectares.
The salient chronology of events giving rise to the present application is:
(a) As at 6 March 1997, the 1995 Albert Shire planning scheme (“the superseded scheme”) applied to the land;
(b) On 6 March 1997, the Planning and Environment Court made an Order by consent granting a rezoning approval (“the rezoning approval”) to exclude the land from the Rural Zone under the superseded scheme and include it in the Special Facilities (College and Associated Uses) Zone, subject to conditions; the rezoning was gazetted on 2 May 1997;
(c) Development of the land for a college and associated uses, after the rezoning approval, required no further land use approval under the superseded scheme. Upon the commencement of IPA, when the superseded scheme became a transitional planning scheme, it was “self assessable development” as defined in s.6.1.1 of IPA;
(d) No development of the land for a college and associated uses (or for any other use) has occurred since the gazettal of the rezoning approval;
(e) On 6 June 2003 the Council adopted the 2003 Gold Coast Planning Scheme (“2003 scheme”), which is an IPA scheme, and which remains in force as the Council’s current planning scheme;
(f) Under the 2003 scheme:
(i) The land is included in the Emerging Communities Domain;
(ii) The land is also included in the Inter-Urban Break Structure Plan and is designated Open Space/Landscape Protection.
(iii) Development of the land for a college and associated uses (ignoring the approval under the superseded planning scheme by the rezoning approval) would be assessable development requiring impact assessment;
(g) On 3 June 2005 the applicant lodged with the Council a development application (superseded scheme) in respect of the land. In that application she advised the Council that she proposed to carry out development of the land for a college and associated purposes as authorised under the superseded planning scheme by the rezoning approval;
(h) The Council did not issue an acknowledgement notice in response to the application within the acknowledgement period as required by s.3.2.5 of IPA;
(i) On 5 January 2006, the Mayor and the Chief Executive Officer (“CEO”) of the Council, acting under delegated authority (pursuant to s. 472 of the Local Government Act 1993) purported to decide that a development permit would be required for the application, that is, that the Council:
(i) Would not agree to the applicant proceeding as if the development were to be carried out under the superseded scheme as self-assessable development; but
(ii) Instead required the application to be assessed anew under the 2003 scheme as assessable development requiring impact assessment.
(j) On 10 January 2006, this decision was communicated by letter from the Council to the applicant. In that letter the Council gave the following reasons for the decision:
“1. The proposed land uses have the potential to undermine the intent of the Emerging Communities Domain and the Inter-Urban Break Structure Plan of the current “Our Living City” Gold Coast Planning Scheme.
2. Approval for the Development application (superseded planning scheme) to be assessed under the superseded Albert Shire Planning Scheme does not accord with established business rules, as the use triggers impact assessment under the current “Our Living City” Gold Coast Planning Scheme”.
(k) On 15 June 2006 (after the commencement of the present proceedings) the Council issued an acknowledgement notice containing a statement, purportedly made as required by s.3.2.5(1)(b), that the Council had elected to assess the application under the 2003 planning scheme, with the relevant part of that notice adopting to the delegated decision of 5 January 2006.
The basis of the challenge
The applicant submits that the decision of 5 January 2006 and, to the extent that it constitutes or evidences any further or additional decision, the decision to require the applicant to obtain a development permit under the 2003 scheme communicated by the acknowledgement notice of 15 June 2006, was bad in law and of no legal effect because of jurisdictional error. It was submitted that the Council:-
(a) Failed to take into account, or give real and genuine consideration to, matters relevant to the decision which it was bound to take into account;
(b) Took into account irrelevant considerations;
(c) Exercised (or purported to exercise) its power improperly, by applying the Council’s “established business rules” as an inflexible rule or policy without regard to the merits of the particular case;
(d) Committed a decisive error of law interpreting the Table of Development for the Emerging Communities Domain as it applies to the development proposal; and
(e) At all events, and by the cumulative effect of the above matters made a decision for which there is no logical basis, and which was therefore unreasonable in the relevant administrative law sense.
There is a further ground that the purported exercise of power by the delegates of the Council was a complete nullity in any event, or was void, because it involved no real and genuine consideration of any matter by the decision makers, the terms of the delegation giving the substantive decision-making power to a nominated third person who was not legally authorised to accept the delegation. In those circumstances it is alleged that the two purported delegates were in fact mere ciphers.
Applicable law – Jurisdictional Error
The general principles on what constitutes “relevant considerations” and “irrelevant considerations” in an administrative review context were articulated by Mason J (with whom Gibbs CJ and Dawson J agreed) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. At pages 38-40, His Honour set out certain propositions established by a number of decided cases. In summary, those relating to the failure to take into account relevant considerations (omitting references to authorities) are as follows:
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision;
(b) The scope of factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion;
(c) If the relevant factors are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the empowering statute;
(d) Where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that the decision maker is bound to do so is to be found in the subject-matter, scope and purpose of the Act;
(e) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law; a factor might be so insignificant that the failure to take it into account could not have materially affected the decision.
In Craig v State of South Australia (1994-5) 184 CLR 163 at 179, the High Court put it thus:-
“… if such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistake in conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
The statutory source of the power to make the decision of which the applicant complains is s.3.2.5 of IPA. Subsection 3.2.5(1) is the relevant provision where, as here, proposed development would have been self-assessable under the superseded scheme. That subsection confers upon a local government the power and the obligation to respond to a development application of the type made by the applicant by giving an acknowledgement notice which must state either:
(a) That the applicant may proceed as proposed in the application as if the development were to be carried out under the superseded planning scheme; or
(b) That a development permit is required, that is, that the application will be assessed under the current planning scheme
and in this case, obviously, the Council adopted option (b).
Section 3.2.5 itself contains nothing express to identify the scope of factors the Council is bound to consider in making the decision, so conformably with the Peko-Wallsend principles, that matter must be determined by implication from the subject-matter, scope and purpose of the relevant legislative scheme. Once it is determined that a consideration is a relevant consideration (i.e. a consideration bound to be taken into account), in the absence of any statutory indication to the contrary, it is generally for the decision-maker, and not the Court, to determine the appropriate weight to be given to those matters (see Peko-Wallsend at 41).
In the context of considering the weight that should or should not be given to a relevant consideration, it must be remembered that such an enquiry is one which cannot stray into the area of merits review. Justice Mason in Peko-Wallsend (at 42) gave this warning:
“… so too in the context of administrative law, a Court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.”
The applicant also alleges that the Council’s decision is unreasonable in the Wednesbury sense (i.e. Associated Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223). That case, and others which follow it, establish that:-
(a) to prove a case of the Wednesbury kind requires the demonstration of something overwhelming;
(b) there is a need to proceed with care when considering a challenge based upon Wednesbury unreasonableness. There is always a danger that the court will be drawn into a merits review rather than focusing, as it should, upon the legality of the decision; and
(c) any Council election must be accepted unless the applicant can demonstrate that it is one that no reasonable Council would have made – the decision must be “indefensible” or, to use the words of Lord Greene “so absurd that no sensible person could ever dream that it lay within the powers of the authority”.
(See Lyons v Misty Morn Developments Pty Ltd & Anor (1998) QPELR 268 and the cases referred to at p272).
The preferred ground for challenging the legal validity of a decision where the weight given to a certain fact is in dispute is that of unreasonableness in the Wednesbury sense (see Peko-Wallsend at 41). The applicant’s written submissions correctly concede that the hurdle for a challenge, based on Wednesbury unreasonableness is a high one.
At the relevant time the Council had resolved, having regard to the time frames in IPA, to create a special delegation to enable some Council decision to be made during recess periods. It is in these terms:-
“That the Mayor and the Chief Executive Officer be delegated the authority to jointly determine Integrated Planning Act 1997 decisions during recess periods. This is conditional upon the decision being in accordance with the written recommendation of the Director Planning, Environment and Transport, and where IPA time constraints are an issue, and after reasonable attempts have been made to consult with the relevant Divisional Councillor. A report detailing those decisions made under this delegation must be submitted to the first relevant Planning Committee meeting after the recess period.”
The decision of the council (see para [3](j)2) contains a reference to “established business rules” (EBR). This can only relate to the contents of a document entitled “Proposed New Procedure No 1 ‘Superseded Scheme’ Applications” which begins:-
“This is a procedure for a new IPA application option to be provided by Gold Coast city Council to users of the new gold Coast Planning Scheme. The service is an initial phase of the IDAS process that is made available under IPA when a new IPA Planning Scheme is introduced. IPA requires Council to respond to a request for a superseded scheme assessment within 30 working days.
And is expected to commence on 18 August 2003”.
Much of the document is concerned with “housekeeping” matters, that is fees, forms, procedures etc. but two matters of substance were referred to by the applicant’s counsel:-
“Step 3:
The Strategic Planning Action Officer undertakes the review of the superseded scheme request. The following general business rules are suggested:
(a)….
(b) All major developments will be recommended for consideration under the superseded planning scheme, except where the subject approval has been inactive for 7 years or more; or where the development is determined as having the potential to undermine or obstruct an important strategic objective of the new IPA planning scheme.
(c)….
(d) All major developments considered to be undesirable to proceed under the superseded planning schemes will be further assessed by the Strategic Planning Action Officer in terms of the likely compensation risk to Council.”
The subject approval had indeed been inactive for more than 7 years but the Council deliberations did not refer to this, nor do the pleadings. I therefore ignore the point.
Counsel for the Council submit first, that the EBR is an internal procedures document which does not enjoy the status even of a formal policy and second, that it was not a matter to which the Council officers were bound to have regard. I agree with those submissions.
It is permissible for a statutory decision-maker to adopt internal administrative policies which contain guidelines for decision-making, and to have regard to such policies as part of the decision-making process. (Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) FCR 189, at 205-6). But leaving aside cases where the statute itself recognises or provides for the making of policies and their use in the decision-making process, a policy is not a document which can, in itself, lawfully steer the decision maker in one direction or another. In this context, the only document which can direct the decision maker is the statute under which it is empowered to make the decision in question. (Pattansri v Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169, at 175)
While a policy such as EBR is a useful aide memoire for Council officers, a matter which is decided adversely to the applicant because it is “contrary to policy” is decided improperly if the decision maker has relied upon the policy as the justification for the decision. (Falc Pty Ltd v State Planning Commission (1991) 74 LGRA 68, at 70-72, and the cased therein cited. See also “The exercise of discretion according to policy guidelines”, P Bayne, (1993) 67 ALJ 214).
The material before the Council in arriving at the conclusion under review was:
(a) the common material as defined in IPA, which included the consent order of 6 March 1997;
(b) the superseded scheme;
(c) the 2003 scheme, particularly the provisions dealing with:
(i) the emerging Communities Domain;
(ii) the Inter-Urban Break Structure Plan; and
(iii) the subject land’s designation as Open Space/Landscape Protection; and
(d) the Recommendation for refusal by the Development Assessment Review Team (DART) dated 19/12/2005;
(e) the report of the Council’s Implementation and Assessment Branch comprising the Co-ordinator Planning Assessment and the Director Planning Environment and Transport (“the Director”), the latter being expressly referred to in the Council resolution (see para [13]).
Presumably on the basis of that material, the Mayor and the CEO, with the concurrence of the Director made the decision to refuse the application.
IPA Provisions
As to the applicant’s Application (Superseded Planning Scheme), that is, to proceed with the development under the superseded scheme where no further land use approval was necessary, see the definition of “development application (superseded planning scheme)” in Schedule 10 of IPA. The Council was bound by s.3.2.5 to issue an acknowledgement notice which had to approve the application or notify that a development permit was required. The effect of the latter would be to make the applicant go through the impact assessment procedure under IPA and the 2003 Scheme. Obvious consequences of the latter were the consumption of time, money, and potentially a result disadvantageous to the applicant. It was the latter course which the Council delegates determined to apply.
Section 3.2.3 laid down times within which the Council was required to issue the acknowledgment notice. For an application under the superseded planning scheme that was 30 business days. The Council did not comply with that but, apart from the delay, nothing material turns on that failure.
Relevant Provision so the 2003 Scheme
The relevant intent of the Emerging Communities Domain (in which the land now lies) is stated in Part 5, Division 2, Chapter 18, s.10 of the 2003 Scheme to be:-
“To provide for the development of suitable non-urban land for park living, urban residential, commercial or industrial purposes
…
Development of any land for park living, urban residential, commercial or industrial users within the Emerging Communities Doman will be conditional upon Council adopting a Structure Plan for the neighbourhood, either prepared on its own initiative or in partnership with others.”
The purpose of the Inter-Urban Break Structure Plan (which was prepared pursuant to that statement of intent) within the Emerging Communities Domain (Part 5, Division 2, Chapter 18, s.14.1) is correctly stated in the report relied upon by the decision makers as being:-
“To preserve an area of land with scenic, landscape and environmental qualities with the objective of providing a break in and visual relief to the merging urban corridor. To contribute also to the achievement of a viable Citywide nature conservation network, through the protection of the Pimpama-Wongawallan Major Linkage.
And there follows a list of seven objects of the Structure Plan which, it is sufficient to say could be used to argue in favour of, or against, the use of the land for the purposes currently authorised by the rezoning under the superseded scheme.
Also relevant is the statement of purpose in Part 5, Division 2, Chapter 18, s. 14.5.1 for the Open Space and Landscape Protection precinct within that Structure Plan, being the precinct in which the subject land is included:-
“The primary purpose of the Open Space and Landscape Protection Precinct is to maintain, enhance and rehabilitate those areas with an open landscape rural character which are visible from the major transport routes and/or have nature conservation values worthy of protection.”
Provisions of the Superseded Scheme
Relevant provisions include:-.
“Open space areas are those parts of the Shire which are generally not intended for building development and should be left predominantly in either a natural, a rural or recreational state. This is because of the value of these areas for reasons of ecology, soil conservation, water quality or landscape quality, or because the best use of the area is for recreation.”
“Rural areas include and protect cane land, agriculture areas and areas intended to be used for rural pursuits. It may also include land which is flood prone, physically difficult to develop, has significant environmental value, and/or is relatively remote from urban services.” (s.2.6.4.10(1))
“The landscape protection designation forms an overlay to other designations and includes the flood plains of rivers and creeks, and areas with slopes of 20% or greater. The landscape protection designation also includes other areas for reasons of their high visibility or environmental value. The designation is intended to implement a further level of control over the underlying Preferred Dominant Land Use. The designation seeks to ensure that any development occurs in a manner which maintains or enhances the visual and/or environmental characteristics of a site.” (s.2.6.4.12(1)).
The approved development under the rezoning approval:-
(i) relates to undeveloped rural land with an area of 19.07 hectares;
(ii) involves 9,000 square metres of floor area;
(iii) involves active development of about 3.5 hectares of the site for the buildings and surrounds, leaving the balance land untouched.
The conditions of approval impose a tight regime to maintain the rural amenity and scenic qualities of the land. Particular reference may be made to:-
(i) condition 1 which ties the development to a plan of development which identifies and limits the location and extent of buildings;
(ii) conditions 24 and 31 requiring building materials and colours to harmonise with the existing rural amenity;
(iii) conditions 26 to 28 which control vegetation clearing;
(iv) condition 29 requiring a 15 metre buffer strip along the Pimpama River.
Delegates’ Consideration of the Application
In cases such as these, where no detailed reasons are given by the decision makers, the Court is in a difficult position. It is faced with the task of concluding what the delegates did consider (usually, as here, there is some statement, for example, in the actual decision) which provides evidence of that. Then, a failure in the actual decision to refer to other clearly relevant facts or to relevant law may at least give rise to the suspicion that those facts or that law were not adverted to and that is an easier conclusion to draw if those facts or the law are clearly contrary to the decision. Finally it may be that the decision contains a patent error of fact or law and in that case the question is the effect which the error demonstrably had (or must have had) on the decision.
2003 Scheme Potentially Undermined?
Although some of the terms used in the two planning schemes differ, a reading of each set of development controls which I have cited demonstrates that what each scheme intended for the land is more than generally similar, it was remarkably similar. Indeed it is difficult to see any material distinction between them. I consider that it is most likely that this was also the view of the Council officer who recorded in the document headed Superseded Scheme Considerations “Council would be able to address areas of concern if use is approved under the superseded scheme”. To me that can only mean that when the author (it being, it appears, his recommendation to DART) wrote that, he saw nothing to indicate that new appraisal under the 2003 scheme was called for to ensure that the proposed development was compatible with the provisions of the 2003 scheme.
In the light of that it is more than surprising that the officer recommended that the application to apply the superseded scheme should be:
“Refused – the application be assessed under the Gold Coast Planning Scheme 2003”,
a recommendation endorsed by DART, without comment, on 19 December 2005.
It is common ground that the Mayor and CEO referred to the “Superseded Planning Scheme” document because the DART recommendation endorsed on that document. Despite the lack of any detailed reasons for decision (other than those set out in the decision itself) it must be assumed that they knew of the existence of relevant provisions of both the superseded scheme and the 2003 scheme. They must also have been aware that the existing approval was subject to conditions.
These scheme provisions and the conditions of development were central to the question raised by the application to Council. They related to the vital question which in my view was raised:-
“Does the 2003 scheme raise material considerations of real importance which are different from the superseded scheme and in any event is there something in the existing approval for the land which omits or cuts across material considerations of real importance in the 2003 scheme?”
In my opinion if the Mayor and CEO did not advert to this question they failed to apply the first test laid down by Mason J in Peko Wallsend. They would have thereby failed to take into account a relevant consideration which was clearly raised by the subject-matter, scope and purpose of IPA and the 2003 scheme and was by no means of insignificant importance. See paras (c) and (e) of para [6] above.
I am conscious that my discussion of the similarities between the two schemes and the contents of the approved conditions of development may appear to involve a merits judgment. It is difficult not to fall into that error, and whether a reviewing judge has done so can be a very nice point. But my purpose in seeking to demonstrate the planning scheme similarities and the stringent nature of the conditions of development, is simply to set out matters which I consider to be so germane to the decision of the delegates that they ought to have been considered. They are necessary to be considered because of the “subject matter, scope and purpose” of IPA, which clearly provides for a mechanism whereby in a proper case, land may be developed under an existing pre-IPA approval despite the advent of an IPA scheme.
I have referred in para [31] and [32] to one document which was considered. Despite the recommendation expressed by DART in that document a reasonably astute reader would question the conclusion because of the discussion leading up to it which the document contains. That discussion should logically lead the delegates to answer the critical question [para 33] favourably to the applicant or at the very least, should prompt a search for reasons to disagree with the statement contained in the discussion that areas of concern could be addressed under the superseded scheme.
The material before me does not disclose that any attention was given by the two delegates to possible material differences in approach to development of the land by the application of the two schemes, that is the question I pose in para [34]. As I have said the relevant parts of the scheme, arguably at least, establish that such differences do not exist. One would expect, if such attention had been given, that somewhere there would be a record of it or at least a statement such as “notwithstanding the similarity of some relevant passages in the two schemes there are the following important differences ….” and “notwithstanding the conditions of approval, in some respects they are not what the 2003 scheme requires”. Again I stress that the delegates are not necessarily required to justify their decision by setting out, in reasons, their consideration of these matters. But it should comfortably appear that they have adverted to them and given them real and genuine consideration. The absence of any such statement makes me suspect that no attention was given to the material similarities. In SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9; Besanko J, sitting as a member of the Full Federal Court, hearing an appeal from a judicial review decision in an immigration matter by a Federal Magistrate, in para [26] put the matter this way:-
“In terms of the content of the obligation to have regard to the charge sheet and its contents, the Magistrate referred to it as an obligation to have ‘meaningful regard’ to these matters. Different expressions have been used in the cases and the precise expression used does not appear to be decisive. In Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212 at 220 [23] North and Madgwick JJ referred to whether the Magistrate had really examined a particular matter and in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at 93 [212] Madgwick J referred to the need to give a matter real and genuine consideration. I would put the matter in the following way. In a case where a matter is mentioned by the decision-maker, the Court’s assessment of the nature and quality of the decision-maker’s reasons and of the importance of the particular consideration or matter in the context of the case may nevertheless lead the Court to conclude that the decision-maker has not given the matter genuine consideration and therefore has failed to have regard to it. (See also Centro Properties Ltd v Hurstville City Council (2004) 1345 LGERA 257 at [37] per McLellan CJ, summarising the principles drawn from the NSW Court of Appeal decision in Weal v Bathurst City Council (2000) 111 LGERA 181.)
Given the matters I have discussed I consider that the decision of the delegates, and therefore the Council, that “the proposed land uses have the potential to undermine the intent of [relevant provisions of the 2003 scheme] as set out in my para [3](j)1, failed to take into account relevant considerations which should have been weighed.
For these reasons I would hold that the Council’s decision is impugnable under the principles enunciated in Peko. See para [6]. But a further compelling reason emerges for that result, to which I now turn.
Error of fact and law
A four page document emanating from the Implementation and Assessment Branch was undoubtedly before the delegates. In the first two paragraphs it correctly summarises relevant matters until, in the second paragraph it says:-
“In accordance with the Emerging Communities Domain, the proposed land use triggers impact assessment as the uses are not listed in the table of development.” (my emphasis)
The emphasised clause is plainly wrong. It is common ground that the proposed use is listed in the table of development, section A. Section 4.6.1 of the 2003 scheme provides that all uses listed in section A may be considered as appropriate for the Domain to which the table applies, subject to each use meeting the relevant assessment criteria. Under the superseded planning scheme, if development were permitted under that scheme, the development would be self assessable (i.e. not impact assessable). See IPA s.6.1.1. If the use were not listed in section A, it would then be regarded as undesirable or inappropriate in the domain and thus require impact assessment.
This error is repeated in the body of the document and in the conclusion. It is a very serious error because it causes anyone who reads it to believe that the proposed use, being undesirable or inappropriate “triggers”, that is, automatically calls up impact assessment. That effectively requires the applicant to re-start the approval procedure from scratch. That the two delegates were misled in that way is patently apparent from a reading of their decision.
The decision also, on its face, demonstrates a second error of law, that the application should fail because it “does not accord with” the EBR. As discussed in paras [18]-[19], that is not permissible. It is not absolutely clear whether the purported effect of the EBR alone was thought by the delegates to trigger impact assessment or whether it was the proposed use that had that effect. A reading of the decision suggests the latter as the more likely. Ultimately either interpretation reveals an illegality. In my opinion it is probable that the reference to the EBR is an example of confused thinking by the delegates or those officers who reported to them.
These errors vitiate the Council decision. See Craig at para [7] above.
Other Grounds
It is not necessary for me to go into detail on the other grounds argued. They involve matters of law only, on which a conclusion can be arrived at without reference to any reasons of mine.
Conclusion
The applicant is entitled to the relief sought in her application.
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