Marnal Pty Limited v Cessnock City Council

[1989] NSWLEC 187

Land and Environment Court

of New South Wales

CITATION:

Marnal Pty Limited v Cessnock City Council & Anor [1989] NSWLEC 187

PARTIES:

APPLICANT
Marnal Pty Limited

FIRST RESPONDENT
Cessnock City Council

SECOND RESPONDENT
Minister for Planning

THIRD RESPONDENT
Neeta Homes Pty Ltd

FILE NUMBER(S):

40214 of 1988

CORAM:

Hemmings J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Parramatta City Council v. Hale, (1982) 47 LGRA 319;
Boulton v. Burwood Municipal Council, (1988) 66 LGRA 131, at 134-5;
Minister for Aboriginal Affairs and Anor v. Peko-Wallsend Limited and Ors;
Hunter Valley Vineyards Association and Anor v. Cessnock City Council and Anor, Land & Environment Court, 7th October 1988 (unreported);
Bentham and Anor v. Kiama Municipal Council and Ors (1986) 59 LGRA 94, at 98;
Bailey v. Forestry Commission of N.S.W., Land & Environment Court, 31st March, 1989 ;
Fuller v. Bellingen Shire Council, Land & Environment Court, 16th June, 1988 ;
Mahony v. Industrial Registrar of NSW [1987] 8 NSWLR 1,;
Zzopardi v. Tasman UEB Industries Ltd [1985] 4 NSWLR 139, at 156;
Randwick Municipal Council v. E. Manousaki, Court of Appeal, 26th September, 1988

DATES OF HEARING:

DATE OF JUDGMENT:

05/02/1989

LEGAL REPRESENTATIVES:

APPLICANT
Mr Ingham

JUDGMENT:

HIS HONOUR: The applicant, Marnal Pty Limited, is the owner/occupier of premises situate within the business centre of the town of Kurri Kurri. The first respondent, the Cessnock City Council ("the Council"), on 28th June, 1988 granted development consent to the third respondent for the development of land Lots 16, 17 and 18, Section 18, Lang Street, for the purpose of a supermarket, specialty shops and car parking facilities. Such consent was granted pursuant to Cessnock Local Environmental Plan No. 56 ("L.E.P. 56"), which was notified by the second respondent ("the Minister") in the N.S.W. Government Gazette of 24th June 1988.

The applicant seeks declarations and orders with respect to the lawfulness of the said development consent and L.E.P. 56.

On 30th January, 1987 the business centre of Kurri Kurri was zoned 3(a) (General Business Zone) pursuant to Local Environmental Plan No. 42 ("L.E.P.42"), and is generally restricted to frontages on Lang Street. The subject land which is located outside that business centre was zoned 3(c) (Centre Support Zone) thereunder.

The Council gave consideration to a development application with respect to the subject land, but because it was of the opinion that the proposed development was prohibited in the said zone, on or about 4th November, 1987 resolved to prepare a Draft L.E.P. to vary L.E.P. 42 to enable such development.

The subject land has an area of approximately 3,000m2 and is situate on the southern fringe of the Kurri Kurri central business district. Erected on the land is an iron/asbestos building, previously used for the sale of electrical appliances. It has a frontage to Lang Street, and a rear service lane on its western boundary. It is adjacent to the Kurri Kurri Primary School and also to a motor showroom and service station. The development as proposed involves a supermarket with a retail area of 1,100m2, storage 200m2, and plant rooms 95m2. There will be two specialty shops of 200m2, and 80m2 of common area.

The approval will permit the establishment of an enterprise known as "Shoeys Pty Ltd", and for a number of years attempts had been made to find a suitable location for such development in Kurri Kurri. It is clear that a strong desire by the Council to satisfy a perceived need for that development was a major factor in the determination to alter the zoning of the subject land.

For the purpose of the making of L.E.P. 42, Council and the Minister received and considered the findings and recommendations of the City of Cessnock Commercial Centre Study which included the business centre of Kurri Kurri. The applicant submits that L.E.P. 42 |CF2.|PSI"gave effect to this study"|CF1.|PSO by the respective zonings in the business centre and the subject land.

Neil Ingham, a town planner, is familiar with the Kurri Kurri shopping centre. The 3(a) zone in L.E.P. 42, in his opinion, represents the area in which retail activities have historically been concentrated. In a town the size of Kurri Kurri, having a total retail floor space at that time of about 7,1002, the subject development proposal represented a major retail attraction itself. In his opinion, the supermarket and shops on the subject land did not, by reference to proper planning principles or the study, constitute a use contemplated by a core or centre support zone. In his opinion, it represented the duplication of a use and one which should be intended for primary business zone. Mr Ingham gave reasons why, in his opinion, the development of the subject land was inconsistent with the recommendations made in that study. In his opinion, given the extent to which the Commercial Centres Study appeared to consider business zoning in the town of Kurri Kurri, and the implications therefor, he is unable to discer

n any planning basis upon which a decision to re-zone the land the subject of L.E.P. 56 from 3(c) (Centre Support) to 3(a) (General Business) could be rationalised. In his opinion:|CF2.|PSI

"If a recent, detailed and apparently rational planning study relating to the provision of business and commercial zones in a particular centre existed and the results and recommendations of that study had been incorporated into a recently made planning instrument regulating development in business zones, then the application of sound planning principles would require that before any amendment effecting a significant zoning change was undertaken, some further study or investigation would be expected to be completed which cogently challenged the applicability of the findings of the earlier study."|CF1.|PSO

Mr Ingham was of the opinion that most of the matters of relevance with relation to the re-zoning of the land which he claimed were not given any real consideration by the Council, apply equally to the proper consideration of the development application. In his opinion, for the same reasons the Council failed to give consideration also to relevant matters with respect to the development application.

The applicant submits that the Council and the Minister "erred in law" for the following reasons:

1. Whilst the need to have a supermarket in the Kurri Kurri shopping centre was relevant to be taken into account, the Council gave it undue weight.

2. There was an "overwhelming" weight of evidence against re-zoning of the subject land for commercial purposes or the approval of the development application.

3. At all relevant times up to the of making of L.E.P. 56 there was no material before the Minister or the Council properly justifying a re-zoning of the land for business purposes or the approval of the development application.

4. The decision to change the zoning of the subject land to 3(a) was manifestly unreasonable because the spot zoning of the subject land could never achieve objects (c) and (d) in the said zoning.

5. For the same reasons the development consent was manifestly unreasonable and therefore void.

6. The Council failed to have any regard to a number of relevant provisions of s.90 of the Environmental Planning and Assessment Act, 1979 ("the E.P.& A. Act") with respect to the subject development application.

The Council and the Minister submit that they properly discharged their respective duties in the making of L.E.P. 56. The Council denies that it did not adopt the draft L.E.P. or consider the development application in accordance with the E.P.& A. Act. The respondents submit that by the time a report was made to the Minister pursuant to s.69 there was a "vast" amount of relevant material available for a proper consideration of the matter. In particular, the Minister considered a Director's report which he submits adequately covered all relevant matters.

The third respondent submits that on the evidence there is no doubt that the objectors raised all matters of relevance, and that these were then considered by the Council. No evidence was called from any person who attended Council meetings to explain what was taken into consideration. Counsel emphasised that Mr Ingham conceded that the nature of the Shoey's development as an alternative supermarket for Kurri Kurri and attempts to find an appropriate site were proper considerations.

The Council gave notice to the Department of Environment and Planning of the resolution to prepare a Draft L.E.P. 56 to re-zone the land by letter of 10th November, 1987. In that notice the Council gave the reason for deciding to prepare the Draft Plan as |CF2.|PSI"to facilitate the land's development for supermarket and specialty shops"|CF1.|PSO. The Council informed the Department that it was of the opinion that an environmental study was not required prior to the preparation of a draft plan. By letter of 11th February, 1988 the Regional Manager advised the Council that the Draft Plan was not inconsistent with any State Environmental Planning Policy, Regional Environmental Plan or with s.117 Direction No.G10, and that Council staff had delegated authority to issue a relevant certificate pursuant to s.65 of the Act. In the same letter the Regional Manager advised:|CF2.|PSI

"Development resulting from the plan may be contrary to the findings and recommendations of the City of Cessnock Commercial Centres Study, 1985. Any future submission would need to clearly demonstrate that the draft plan is consistent with the aims of the Study."|CF1.|PSO

By letter of 8th April, 1988 the Council pursuant to s.68(4) of the E.P.& A. Act provided further information, including a copy of Chief Town Planner's Reports No.33/1988 and 24/1987, copies of submissions received pursuant to s.67 including late submissions, and copies of the relevant statutory authorities' comments and requirements.

In his report pursuant to s.69 the Director informed the Minister that Council had resolved to proceed with the plan notwithstanding adverse comment by its staff. Council had been advised that whilst a major supermarket was desirable from the Kurri Kurri community and commercial centre point of view, in the opinion of the Town Planner the subject land would not meet the aims and objectives of the Commercial Centre's L.E.P. 42, and as such would have a detrimental effect on the remainder of the commercial and retail centre. In the Town Planner's opinion, the site being separated from the existing main commercial retail area by non-retail centre uses it would provide a focus for shoppers removed from the existing shopping centre. To support the re-zoning of this site may provide an immediate short term response to the Kurri Kurri shopping needs, however, in his opinion, it would have a long term detrimental effect on the Kurri Kurri commercial centre as a whole.

However, the Minister was informed that Council was also advised that whilst there are other sites available on 3(a) (General Business) zoned land which would enhance and complement the existing commercial and retail area, they may be more difficult to acquire and more costly to develop. Consideration was also given by the Council to expert opinion submitted by the applicant for re-zoning, and to submissions from the public, together with two substantial petitions, one in favour and one opposed to the proposed re-zoning. The town planner recommended that the Council should not support the re-zoning, and the said consultants offered the opposite view. Public opinion was apparently divided and the Council rejected the town planner's recommendation, and resolved to support the re-zoning application. The Director recommended to the Minister that he make an environmental plan in accordance with the draft submitted by the Council. The Minister obviously accepted such recommendation and thereafter made L.E.P. 56.

The application ultimately approved by the Council did not involve all of the land originally proposed for the development. The City Health and Building Surveyor, City Engineer and City Town Planner recommended approval of the development application subject to a number of conditions. The traffic and parking requirements of the development were considered by the Traffic Advisory Committee which made a report and its comments were submitted to the Council for consideration. The engineer reported that the development could be accommodated if certain works were undertaken by the developer to improve and upgrade existing infrastructure in the general vicinity of the site. These works relate to the upgrading of the rear lane, drainage, footpaths, and reconstruction of road works in Lang Street to provide car parking access. In the assessment of car parking requirements, the Planning Committee resolved to utilise the lower figure of the Traffic Authority of N.S.W. guidelines because the project is located in a frin

ge commercial area.

The development application was comprehensively assessed by the Chief Town Planner and his report recommended approval, subject to conditions. The Council was informed that the proposal conflicted with the objectives of the 3(c) (Centre Support Zone), and that upon re-zoning to 3(a) (General Business) it would have the power to approve the application. It was the opinion of the town planner that the development would create employment for thirty people upon completion and that employment opportunities exist for local tradesmen during construction. In his view, a positive economic effect would result from the development if it proceeded. The Town Planner recommended that the Council approve the development subject to the provision of sixty-eight spaces comprising on-site and kerb-side parking in Lang Street. The conditions of consent imposed by the Council incorporate such requirements, including works required for the upgrading of Lang Street to facilitate access and street parking.

The proof of the invalidity of the said decisions must be borne by the challenger and, for that purpose, the collegiate mind of the Council as a group must be determined by the Court. Except for the Minutes, there is no evidence as to what actually took place at the Council meetings, or the nature or extent of debate or consideration. In these proceedings the Court is asked to infer from available written material that the Council did not properly address matters said to be relevant to each determination. A similar submission is made with respect to the Minister. However, it is well settled that in such circumstances the Court must conclude that there has been a breach of statutory duty by way of inference only after "anxious consideration"; Parramatta City Council v. Hale, (1982) 47 LGRA 319; Boulton v. Burwood Municipal Council, (1988) 66 LGRA 131, at 134-5. In my opinion, the Council or the Minister was under no duty to set out in writing all that which was taken into account when making any of the relevan

t determinations.

The making of L.E.P.56 by the Minister, the adoption of the draft and the approval of the development application by the Council are each the determination of matters of fact in the exercise of a statutory power vested by the E.P.& A. Act. The exercise of such function is valid if it is within the purview of the provisions which confer the power. It is important to heed the warning of the High Court in Minister for Aboriginal Affairs and Anor v. Peko-Wallsend Limited and Ors (supra); i.e. this Court must be "vigilant" not to exceed its supervisory role by reviewing an administrative decision on its merits.

The question whether it is for the Court to substitute its own assessment for that of the Council in order to determine the lawfulness of a development approval did not need to be determined by Cripps C.J. in Hunter Valley Vineyards Association and Anor v. Cessnock City Council and Anor, Land & Environment Court, 7th October 1988 (unreported). He did, however, state that he adhered to opinions previously expressed in other cases and, whilst not necessary to decide that matter, did "adopt" the approach of Stein J. in Bentham and Anor v. Kiama Municipal Council and Ors (1986) 59 LGRA 94, at 98. After a consideration of all of the authorities, I came to a similar conclusion in Bailey v. Forestry Commission of N.S.W., Land & Environment Court, 31st March, 1989 (unreported), i.e. that in a review of the lawfulness of a decision made pursuant to Part V of the Act it is not the function of this Court to substitute its opinion for that of the determining authority which was reasonably open to it. I took the view that

the legislature had clearly vested the determination of matters of fact in that body. In my opinion, the test must be the same to determine the lawfulness of the decisions in this case.

The Council in its consideration of the matters had not only the opinion of its servants, but submissions from the public and the applicant. Each member of Council brought to the debate individual expertise and local knowledge. The Council considered a consultant's report which contended that the existing business centre was adversely affected by loss of patronage to other localities. This loss was said to arise from the closure of a major store in the business centre and the inability to find a suitable site for replacement. It appears to be common ground between the experts that the subject site was the "cheapest and easiest" to develop for that purpose. It was in the one ownership, adjoined the business area, had a frontage to Lang Street, and provided a sufficiently large area of flat land. Alternative sites apparently involved not only substantial costs in building on sloping sites and excavation on rock, but were said to be inappropriate due to a necessity to construct ramps or escalators.

In my opinion, it was open to the Council to determine that already being in receipt of a comprehensive study for all commercial centres, including Kurri Kurri, together with other submissions, it had adequate information which relieved it of the necessity to require a further study. The Council's opinion was shared by the Director. In any event, an environmental study, if required, is, in my opinion, designed to serve a similar purpose to that of an environmental impact statement or a statement of environmental effects. It is well settled that such a document is not a decision making end in itself, it is designed to serve the ultimate decision making process, not to replace it. It is a tool to assist the Council, together with all other material obtained by it, in the discharge of its obligations in the proper determination of the matter; see Fuller v. Bellingen Shire Council, Land & Environment Court, 16th June, 1988 (unreported). I am satisfied that, together with other material, the Council gave proper co

nsideration to the City of Cessnock Commercial Centres Study not only in respect to L.E.P. 42, but also in respect to the subject amending instrument and the development application. I can discern no error of law in the making of such decision by the Council or the Director.

In my judgment, in these proceedings Mr Ingham's evidence is of little assistance. He is merely of a different opinion, on the same facts, from that of other experts and that which was ultimately determined by the Council. Whilst the question of whether facts, including opinion, could reasonably be found to fall within a statutory description is one of law, it is a question of fact whether they did fall therein. Likewise, it is an error of law if the fact or opinion is necessarily within or outside that statutory provision; Azzopardi v. Tasman UEB Industries Ltd [1985] 4 NSWLR 139, at 156. Whilst the Council had the benefit of the Study, and reports and recommendations of experts, it was not bound to accept any or all of them. Nor was it required to make decisions consistent with the findings in that study or expert opinion. The Council's decision might appear to others to be surprising or even perverse or unreasonable, but that does not constitute an error of law unless in a "rather special situation" of the

type considered in Mahony v. Industrial Registrar of NSW [1987] 8 NSWLR 1, at 5. Counsel for the applicant ultimately conceded that all of the matters referred to by Mr Ingham as being relevant to a proper consideration by the Council were dealt with in reports by the Chief Town Planner. Counsel conceded that each relevant matter was considered by the Council and therefore the challenge was only that such consideration was inadequate. It is well settled that in the absence of any statutory indication it is for the decision maker and not the Court to determine the appropriate weight to be given to the matters which are to be taken into account in exercising a statutory duty pursuant to the E.P.& A. Act; Randwick Municipal Council v. E. Manousaki, Court of Appeal, 26th September, 1988 (unreported).

In my judgment, the challenge to the lawfulness of L.E.P.56 is misconceived. The Minister made the environmental planning instrument, and did so on the advice of the Director and in accordance with a draft submitted by the Council. The Council only had the function and power to initiate and take procedural steps necessary to enable the making of such an instrument. For that purpose the Council has mandatory duties imposed by the E.P.& A. Act. In my opinion, there was no breach of such duties and, even if there was, such does not necessarily vitiate the Minister's determinations or deprive the Draft L.E.P. of validity for the purposes of a report by the Director pursuant to s.69. I am completely satisfied that the Director properly performed his duty and reported on a valid Draft L.E.P. submitted by the Council. I have no hesitation in concluding that the Minister discharged his duties and properly exercised his discretion pursuant to s.70 of the E.P.& A. Act to make L.E.P. 56.

The decisions to re-zone the subject land and approve its development for retail purposes may be controversial but, in my opinion, not invalid. A close examination of all of the steps taken by the Council and the Minister to make the relevant determinations, in my judgment, discloses no failure to comply with the obligations pursuant to the E.P.& A. Act. The applicant is therefore not entitled to the orders it seeks.

The orders of the Court are:

1. Application dismissed.

2. Exhibits may be released.

3. The applicant to pay the respondents' costs.