Marshall Rural Pty Limited v Hawkesbury City Council and Ors

[2015] NSWLEC 197

Land and Environment Court

New South Wales

Medium Neutral Citation:	Marshall Rural Pty Limited v Hawkesbury City Council and Ors [2015] NSWLEC 197
Hearing dates:	10, 11 and 20 November 2015; written submissions on owner’s consent by 11 December 2015
Decision date:	16 December 2015
Jurisdiction:	Class 4
Before:	Moore AJ
Decision:	At [260] to [268]
Catchwords:	DEVELOPMENT CONSENTS - challenge to validity - whether correct consideration of time limit in clause in Local Environmental Plan - whether failure to consider sufficiently or at all a relevant mandatory consideration - whether objector denied procedural fairness - whether consideration of an irrelevant matter infected the Council’s decision - whether owner’s consent validly given - whether the Council failed to deal with the need for a building application appropriately prior to granting development consent - Council failed to consider relevant mandatory matter - no valid owner’s consent - development consents void.
Legislation Cited:	Corporations Act 2001 (Cth) Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Local Government Act 1993 Hawkesbury Local Environmental Plan 2012
Cases Cited:	Bismag Limited v Amblins (Chemists) Limited [1940] 1 Ch 667 Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; 111 LGERA 446 Dibbins v Dibbins [1896] 2 Ch 348 Ireland v Cessnock (1999) NSWLEC 153; 103 LGERA 285 Jones v Dunkel (1959) 101 CLR 298 Prime Constructions Pty Ltd v Westbridge Investments Pty Ltd (2004) 22 ACLC 1390 Project Blue Sky Limited v The Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
Category:	Principal judgment
Parties:	Marshall Rural (Applicant) Hawkesbury City Council (First Respondent) Basscave Pty Ltd (Second Respondent) Argosy Agricultural Group Pty Ltd (Third Respondent)
Representation:	Counsel: Mr A Galasso SC/Mr S Fitzpatrick (Applicant) Submitting appearance (First Respondent) Mr C Leggat SC/Ms J McKelvey (Second and Third Respondents)   Solicitors: Hall & Wilcox (Applicant) Pikes & Verekers (First Respondent) Doyle Wilson Solicitors (Second and Third Respondents)
File Number(s):	40644 of 2015
Publication restriction:	No

Contents

Introduction

The approved developments

The nature of these proceedings

The civil enforcement proceedings

The bases for the challenge to the development consents

Chronology

Hawkesbury Local Environmental Plan 2012

The Council’s process

Marshall Rural's evidence

Basscave’s evidence

Ground 1: Term of the development consents

Ground 2: Incorrect consideration of a mandatory requirement

The acoustic information supplied to the Council

The acoustic conditions

The Council’s acoustic testing and assessment

Objections to the Polo Barn application

Objections to the Sunnybrook Barn application

The material put to the Council and the assessment reports

The Sunnybrook Barn application

Acoustic impacts raised at the Council meeting

Legal submissions to the Council meeting

The nature of the cl 2.8 tests

The fundamental fault in the Council process

An additional comment concerning the Sunnybrook Barn determination

Ground 5: Having regard to an impermissible consideration

Ground 6: Denial of procedural fairness

Introduction

Was the councillor briefing “a meeting” within the meaning of Local Government Act 1993?

Marshall Rural was not excluded from the briefing

Was it a quorate gathering?

Conclusion on Ground 6

Ground 7: The building certificate issue

Additional ground – Owner’s consent

Introduction

The next steps

Leave to amend should be granted

The terms of the letters

The matters arising concerning validity of owner’s consent

The Higgins’ evidence on signing

The Sunnybrook Barn owner’s consent consequence

The basis asserted to the Council of authority to sign for Basscave

Retrospective validation?

Conclusion on owner’s consent

Conclusion

Form of proposed orders

Judgment

Introduction

1. Richmond Lowlands is the description given to a locality on the Hawkesbury River a little downstream from the North Richmond Bridge. It is, as the name implies, on the flat riverine plain adjoining the river and extending a little into the hinterland across that plain.

2. This element of the riverine plain is divided into a range of rural landholdings, a number of which have polo fields on them. These proceedings are judicial review proceedings, brought by Marshall Rural Pty Limited (Marshall Rural), a company that owns one of the agricultural landholdings hosting polo and related activities, concerning two development consents granted to two corporate entities associated with a multi-allotment adjoining landholding that also hosts polo and related activities. The two corporate entities are, in effect, one interest - the first, Basscave Pty Limited (Basscave) owns the land, and the second, Argosy Agricultural Group Pty Limited (Argosy), is the operator whose activities, for the purposes of these proceedings, are carried out pursuant to the two development consents.

3. As Basscave and Argosy are entities with the same guiding minds, Mr and Mrs Higgins, I will refer to the companies in combination as Basscave unless there is some reason to distinguish between them.

4. Richmond Lowlands are located within the local government area of Hawkesbury City Council (the Council). The Council is the First Respondent in these proceedings but, on 16 October 2015, filed a submitting appearance save as to costs. The Council is the body that has granted the two challenged development consents.

The approved developments

5. Development Applications 156 and 157 of 2015 (seeking approval for temporary use as a “function centre” of the buildings known as the Polo Barn and the Sunnybrook Barn, respectively), were lodged with the Council in March 2015. Each of the Development Applications was approved, subject to conditions, by resolution of the Council on 30 June 2015.

The nature of these proceedings

6. Marshall Rural has commenced these proceedings pursuant to s 123 of the Environmental Planning and Assessment Act 1979 (the Planning Act) challenging the validity of each development consent on a variety of grounds set out below. The substantive orders sought by Marshall Rural in the Summons commencing these proceedings are in the following terms:

1   A declaration that the grant of development consent No DA 156/15 and 157/15 made by the First Respondent on 30 June 2015 be declared invalid and be set aside.

2   An order that the Second and Third Respondents, by themselves, their servants or agents, be restrained from relying on the said grants of development consent.

7. The development of the conditions of consent, and the Council's processes in amending the conditions of consent recommended by the staff of the Council, require detailed consideration later as the conditions and the process are said to be foundational to several grounds of Marshall Rural’s challenges to the two consents.

8. Each of the challenged development consents permits the temporary use of a structure (located on nominated allotments owned by Basscave in the relevant development application) as a “function centre”. Each of the consents was granted pursuant to cl 2.8 of the Hawkesbury Local Environmental Plan 2012 (the LEP), a provision that permits the Council to grant development consent to an activity that would otherwise be prohibited in the applicable zone.

9. If I find that either or both of the development consents are invalid, questions then arise for consideration as to whether or not I should make any discretionary order pursuant to s 25B of the Land and Environment Court Act 1979 (the Court Act). As I have concluded that each of the development consents is invalid, the question of the exercise of discretion pursuant to the Court Act will be dealt with separately.

The civil enforcement proceedings

10. Argosy, through the trading name Sydney Polo Club, had been conducting wedding receptions and other events at the two buildings since late 2012. Marshall Rural has commenced separate Class 4 civil enforcement proceedings concerning these activities. It is unnecessary, in the context of these proceedings, to do more than note that that has occurred.

The bases for the challenge to the development consents

11. Each development consent is challenged by Marshall Rural on the same range of grounds. Those grounds are:

1. The development consents are not authorised under the LEP because use of land as a “function centre” is prohibited in Zone RU2 Rural Landscape, and the consents were for a period exceeding the maximum allowed by sub-cl 2.8(2) of the LEP.

2. In granting the development consents, the Council failed to consider, properly, preconditions to the exercise of the power under sub-cl 2.8(3) of the LEP, specifically the issue of whether or not there was any adverse impact on adjoining land or the amenity of the neighbourhood.

3. In the alternative to (2), if the Council was satisfied in respect of the matters referred to in (2), that satisfaction was unreasonable in the circumstances.

4. In the further alternative to (2), if the Council was satisfied in respect of the matters in (2), that satisfaction was invalidly reached by taking into account conditions of the grant of consent, which were not aspects of the development applications, or were matters of which the Council had no knowledge.

5. The Council took into account an irrelevant consideration, being a purported and/or possible future planning proposal.

6. The Council failed to accord procedural fairness to Marshall Rural by receiving a briefing in camera without public notice, in the absence of a resolution pursuant to s 10 of the Local Government Act 1993 (the Local Government Act), and taking into account that briefing without advising objectors of the matters briefed; and

7. The Council invalidly deferred a matter that should have been determined prior to the development applications being considered by instead imposing a condition requiring a building certificate pursuant to s 149D of the Planning Act before the issuing of an occupation certificate for each barn.

12. Marshall Rural also sought leave to add a further ground (discussed later). This ground concerned the terms of the “owner’s consent” provided for each application.

13. I later address Grounds (1), (2), (5), (6), (7) and the terms of the “owner’s consent” ground in detail. Given that Marshall Rural has succeeded on Ground (2), it is not necessary to deal with Grounds (3) and (4) as they were pleaded as alternatives to Ground (2).

Chronology

14. To understand what follows, it is appropriate to reproduce a short chronology of relevant matters. This chronology is adapted from the chronologies provided by Marshall Rural and Basscave. The relevant dates/time periods are:

Date	Event
May 2014	Marshall Rural lodged a complaint to Council concerning noise from functions held on the Land, and raised issues in respect of the unauthorised use of the Land as a function centre.
September 2014	Council issued “Stop Orders”, and Basscave requested that Council hold the “Stop Orders” in abeyance until 1 March 2015, referring to planning applications that had been made that would make functions permissible, and the fact that 36 specific functions were booked prior to the issuance of the orders.
November 2014	Council commenced noise monitoring of events on Basscave’s land.
22 March 2015	On 22 March 2015, Development Applications for the temporary use of the Polo Barn and the Sunnybrook Barn for the purpose of function centres were lodged by Montgomery Planning Solutions on behalf of Basscave. DA156/15 relates to the use of the Polo Barn. DA 157/15 relates to the use of the Sunnybrook Barn.
31 March 2015	Council resolved to seek amendment of the LEP to modify cl.2.8 so as to increase the number of days a property can be used for a “temporary use” in any one year (from 28 to 52), and to alter the permissible uses under the LEP, including to allow for “function centres” to be approved in Zone RU2 Rural Landscape.
April 2015	The DAs were publicly notified between 8 April 2015 and 22 April 2015 (Polo Barn) and 7 April 2015 and 21 April 2015 (Sunnybrook Barn).
22 April 2015	On 22 April 2015, Marshall Rural lodged objections to the DAs. There were 5 objections received in relation to the Polo Barn DA and 3 objections received in relation to the Sunnybrook Barn DA.
12 May 2015	A meeting of Council was scheduled at which the DAs were on the agenda, and a Business Paper was published recommending their approval. However, discussion of the DAs was referred to a “Councillor Briefing Session”, with consideration of the DAs deferred to a later Council meeting.
2 June 2015	On 2 June 2015, the DAs were discussed at a Councillor briefing session.
10 June 2015	A revised consolidated joint acoustic report lodged
30 June 2015	The DAs were again considered at a meeting of Council. Updated Development Assessment Reports were prepared for this meeting. The DAs were again recommended for approval and the Council resolved to approve the DAs with conditions.
3 July 2015	The operative date for the two Development Consents under challenge.

Hawkesbury Local Environmental Plan 2012

15. The LEP is a modern local environmental plan founded on the standard instrument template. Only a limited range of its provisions are relevant in these proceedings. They are:

1. The relevant extract from the Land Use Table for the zone within which both Marshall Rural’s and Basscave’s landholdings are located primarily (and within which are located the buildings for which Basscave has been granted development consent); and

2. The terms of cl 2.8 – Temporary use of land – pursuant to which these consents have been granted.

16. The relevant zone is the RU2 Rural Landscape Zone – the fact that a portion of Basscave’s landholding in the immediate riparian zone of the river is in an environmental zone plays no part in these proceedings.

17. The relevant extract from the LEP’s Land Use Table for the RU2 Rural Landscape Zone is in the following terms:

Zone RU2   Rural Landscape

Objectives of zone

•     To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

•     To maintain the rural landscape character of the land.

•     To provide for a range of compatible land uses, including extensive agriculture.

•     To minimise the fragmentation and alienation of resource lands.

•     To minimise conflict between land uses in the zone and land uses in adjoining zones.

•     To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways.

•     To ensure that development retains or enhances existing landscape values including a distinctive agricultural component.

•     To preserve the river valley systems, scenic corridors, wooded ridges, escarpments, environmentally sensitive areas and other features of scenic quality.

•     To ensure that development does not detract from the existing rural character or create unreasonable demands for the provision or extension of public amenities and services.

2   Permitted without consent

Bed and breakfast accommodation; Environmental protection works; Extensive agriculture; Home occupations

3   Permitted with consent

Agriculture; Animal boarding or training establishments; Boat sheds; Building identification signs; Business identification signs; Cemeteries; Charter and tourism boating facilities; Crematoria; Dual occupancies (attached); Dwelling houses; Educational establishments; Entertainment facilities; Environmental facilities; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Funeral homes; Helipads; Home-based child care; Home industries; Jetties; Landscaping material supplies; Moorings; Places of public worship; Plant nurseries; Recreation areas; Restaurants or cafes; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers’ dwellings; Water recreation structures; Water storage facilities

4   Prohibited

Any development not specified in item 2 or 3

18. As can be seen from (4) of the land use table for the zone, as “function centres” are not permitted by either (2) or (3), they are a prohibited use in this zone.

19. The second provision in the LEP that has a prominent role in these proceedings is that contained in cl 2.8, the provision that permits development consents to be granted for a temporary use when that use would otherwise be prohibited as a consequence of the Land Use Table for the particular zone for which an application might be made. That clause is in the following terms:

Clause 2.8 Temporary use of land

(1)   the objective of this clause to provide for the temporary use of land if the use does not compromise future development of the land, or have detrimental economic, social, amenity or environmental effects on the land.

(2)   Despite any other provision of this Plan, development consent may be granted for development on land in any zone for a temporary use for a maximum period of 28 days (whether or not consecutive days) in any period of 12 months.

(3)   Development consent must not be granted unless the consent authority is satisfied that:

(a)   the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument, and

(b)   the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and

(c)   the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land, and

(d)   at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use.

20. In each of the development consents subject to these challenges, the temporary use for which approval has been given is as a “function centre”, a term that is defined in the dictionary to the LEP. The definition is in the following terms:

Dictionary

…

function centre means a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres and reception centres, but does not include an entertainment facility.

The Council’s process

21. The process by which the Council considered each development application is sought to be impugned by Marshall Rural on the bases earlier set out.

22. Before turning to consider those grounds of challenge, it is appropriate to amplify, a little, on the Council process skeletally outlined in the earlier set out chronology.

23. Each of the development applications was reported to an Ordinary Meeting of the Council held on 12 May 2015.

24. Each development application was the subject of an assessment report prepared by Council staff and, in each instance, there was a recommendation made for approval subject to conditions set out as part of the assessment report.

25. The assessment reports are, in general terms, similar in content. Each dealt with the fact that a building certificate would be required pursuant to s 149D of the Planning Act before consent could be granted for temporary use of the Polo Barn or Sunnybrook Barn as a “function centre”. The requirement for such a certificate was proposed to be dealt with by way of a condition imposed pursuant to s 80A of the Planning Act in each consent.

26. This meeting of the Council did not, however, determine either development application at this May meeting. Each development application was deferred, with the deferral being recorded in the minutes of the meeting (Exhibit 2, tab 12, folio 111) in the following terms:

In the absence of the Mayor, the Deputy Mayor, Councillor Porter, in accordance with Section 369(1) of the Local government Act 1993, acted as Chairperson.

The Deputy Mayor advised that items 67 and 68 were to be dealt with concurrently and requested the General Manager read to the meeting a letter that had been received from the applicant requesting that the applications be deferred.

…

111 Resolution

RESOLVED on the motion of Councillor Rasmussen, seconded by Councillor Creed.

That items 67 and 68 be deferred to a Councillor Briefing Session.

27. A briefing for councillors was subsequently held, as noted at the May Council meeting would be the case. It was held on 2 June.

28. The nature of this briefing of councillors (in both a statutory and functional sense) is a matter of controversy pressed by Marshall Rural and requiring subsequent, more detailed consideration. It is sufficient, at this time, merely to note that the briefing took place.

29. The matter next came before the Council at its Ordinary Meeting on 30 June 2015. A further assessment report prepared by the officers was submitted for each application. The relevant significant difference between the May and June assessment reports arose as a consequence of a revised, combined acoustic report being submitted on behalf of Basscave in substitution for the individual acoustic reports that had been discussed in the earlier assessment reports. This acoustic report, prepared by Mr Stephen Cooper of The Acoustic Group, was dated 10 June 2015. This report will need to be considered in some detail later. The replaced reports had also been prepared by Mr Cooper.

30. The assessment reports presented to the 30 June meeting each recommended that consent be given although, as in May, there were some differences in the assessment and in the recommended outcomes.

31. A transcript of the meeting on 30 June was prepared for Marshall Rural from a recording of what occurred at the meeting. It will be necessary to quote from or refer to that transcript in the context of understanding several of the issues pleaded by Marshall Rural as warranting declarations of invalidity of the development consents granted following the Council meeting on 30 June. The transcript came into evidence as an annexure to the affidavit of Ms Cheryl Fender, an affidavit read on behalf of Marshall Rural without objection.

32. The minutes of the Council for that meeting record that the first motion (it concerning the Polo Barn application) put to the meeting was in the following terms (Exhibit 1 Tab 12 folios 326/1 and 326/2):

That Council as the consent authority pursuant to Clause 80(1)(b) of the Environmental Planning and Assessment Act 1979 refuse development application No. DA0156/15 for the temporary use of the land for functions on Lot 25 DP 663770, known as 1 Powells Lane, Richmond Lowlands, for the following reasons:

1   There is insufficient noise control/mitigation measures to the existing buildings to control the noise from the proposed use to a satisfactory level that will not create an adverse impact on adjoining and surrounding residents.

2   The existing road system in the Lowlands is inadequate to cater for the proposed traffic generated from the proposed temporary uses.

3   The proposed temporary uses in this locality are not in the public interest.

33. This motion was defeated. It plays no further part in this narrative. A further resolution was then put to the meeting proposing approval and this resolution was adopted. The terms of this resolution were:

That Council as the consent authority pursuant to Clause 80(1)(b) of the Environmental Planning and Assessment Act 1979 approve Development Application No. DA0156/15 for the temporary use of the land for functions on Lot 25 DP 663770, known as 1 Powells Lane, Richmond Lowlands, subject to the following conditions:

34. The conditions are not here set out but the process for adopting and terms of the conditions require later examination.

35. After further discussion giving rise to amendments to the proposed resolution concerning the Sunnybrook Barn application, a resolution was carried approving that development application. This resolution was in the following terms:

That Council as the consent authority pursuant to Clause 80(1)(b) of the Environmental Planning and Assessment Act 1979 approve Development Application No. DA0157/15 for the temporary use of the land for functions on Lot 27 DP 566434 and Lot 1 DP 797310, known as 106 Ridges Lane, Richmond Lowlands, subject to the following conditions:

36. This resolution was also accompanied by conditions that are not now set out but, as with the Polo Barn approval, the process for adopting and terms of the conditions also require examination.

37. As is ordinarily the case when there is a vigorously contested development application before a council, those opposing and those supporting the development (being who had expressed a wish to be heard by the councillors before a decision was made) were afforded an opportunity so to speak either for or against the proposal.

Marshall Rural's evidence

38. The affidavits of Marshall Rural’s lay witnesses were read after the resolution, for a number of them, of a range of specific objections to elements in them. In addition, Mr Legatt SC for Basscave made a broad objection to material in a number of the affidavits read by Mr Galasso SC for Marshall Rural. That broad objection was put in the alternative that, first, the objected to material was not relevant but, second, if not rejected on that basis, the prejudice to Basscave was outweighed by the potential probitive value of that material.

39. As I was of the view that I would not be able to rule on this more general objection until I was aware of the nature of the submissions that Mr Galasso might wish to make founded on the material objected to by Basscave, I deferred making that ruling until it became appropriate to deal with the objection. Mr Leggat accepted that as an appropriate course.

40. The affidavit evidence on behalf of Marshall Rural was given by:

Witness	Affidavit date
Bloore, Anthony	4 September 2015 and 29 October 2015
Bloore, Katherine	4 September 2015
Fender, Cheryl	4 November 2015
Knott, Ron	22 September 2015
Kondilios, Stan	10 September 2015
Van Gestel, Marcel	24 September 2015
Wilson, Mark	21 September 2015

41. Three folders of documents were exhibited to Mr Wilson's affidavit, becoming Exhibits B, C and D. Folios that had become inappropriate to remain in these exhibits (as a consequence of rulings on objections) were removed prior to the formal admission of the folders as evidence.

42. It is unnecessary to deal with the objections to the factual evidence given on behalf of Marshall Rural as I do not need to have regard to any of it for the purposes of determining these matters. Had I, for example, taken into account, in my following consideration, the factual matters concerning acoustic impact in the evidence, written and oral, on behalf of Marshall Rural (except to the extent that some of the written material had been provided to the Council as objections to the development application – and then only to consider such material in an examination of the Councils processes in assessing and determining the two development applications), I risked falling into the trap of undertaking an impermissible consideration of the merits of Basscave’s development applications. As a consequence, particularly with respect to Ground 2, I have taken no heed of such material – save to the limited extent that it is appropriate – without trespassing on a merit assessment.

Basscave’s evidence

43. Evidence was given for Basscave by the following:

Witness	Affidavit date
Higgins, Peter	19 October 2015 and 18 November 2015
Higgins, Rebecca Meta	19 October 2015 and 18 November 2015
Isbester, Emmanuel Peter	19 October 2015
Le, Linda	20 October 2015
Owens, Peter Matthew	19 October 2015

Ground 1: Term of the development consents

44. Marshall Rural says that the term for which each of the development consents has been granted is in breach of the maximum period permitted by cl 2.8(2) of the LEP. This provision is in the following terms:

2.8   Temporary use of land

…

(2)  Despite any other provision of this Plan, development consent may be granted for development on land in any zone for a temporary use for a maximum period of 28 days (whether or not consecutive days) in any period of 12 months.

45. The alleged breach was pleaded by Marshall Rural in its Points of Claim in the following terms:

31 In granting the consents, the First Respondent acted beyond the terms of the power permitted by clause 2.8(2) of the HLEP 2012.

Particulars

(a) The grant of consents was for a period exceeding the maximum period set out in Clause 2.8 of the HLEP 2012.

46. In essence, the position advanced by Mr Galasso in his written and oral submissions was, effectively, that if a consent were to be granted for such a temporary use as the Council resolved to do on 30 June 2015, that temporary use could only validly be permitted to run for 12 months from the operative date of the issued consent (3 July, in each current instance).

47. As a matter of fact, as earlier observed, each of the temporary use consents challenged in these proceedings have operative periods that extend well beyond the expiry of 12 months from that first operative date. In the case of the Polo Barn, the temporary use consent runs until 31 December 2016, whilst that for the Sunnybrook Barn extends until 30 June 2017.

48. The initial written submissions for Marshall Rural supported this approach in the following terms:

Consents exceed the maximum period of temporary use under cl.2.8(2) of the HLEP

17.     As noted above, use of the Land as a function centre is prohibited under the HLEP, and it is only by the operation of sub-clause 2.8(2) of the HLEP that the Council can allow an otherwise prohibited use of land. However, such use must be limited to “temporary use for a maximum period of 28 days (whether or not consecutive days) in any period of 12 months”. In purported reliance on that provision, the Council granted Consents which operate for 18 and 24 months respectively and allow the “holding of functions on the land” on “[n]o more than 28 days within a 12 month period” (see Condition 32 of each of the Consents).

18.     The Applicant submits that the terms of the Consents exceed the scope of the exception to prohibited development under sub-clause 2.8(2) of the HLEP, and are therefore invalid and should be set aside.

19.     By its terms, sub-cl.2.8(2) of the HLEP can only provide “for a temporary use … in any period of twelve months” (emphasis added). The Consents, although providing for a per annum quote (“[n]o more than 28 days within a 12 month period”), extend beyond 12 months from their grant on 30 June 2015 – the Consent for the “Polo Barn” was for 18 months (until 31 December 2016), and that for the “Sunnybrook Barn” was for 24 months (until 30 June 2017). The Consents therefore do not comply with sub-cl.2.8(2) of the HLEP; they grant permission for than a “12 month period”.

20.     In addition, there is the issue that the Consents do not provide for “a … period” of use that would otherwise be prohibited. Rather, the Consents provide a license to use the Land for an otherwise prohibited purpose on 28 individual days. True it is that the sub-cl.2.8(2) for the temporary use period to comprise “not consecutive days”, however there must still be “a” defined “period” of temporary use, not an allowance for 28 separate “periods” scattered across a 12 month term. No “temporary use … period” has in fact been defined in the Consents. Rather, Council has provided the landowner with a discretion to use the Land for the otherwise prohibited purpose of holding functions on 28 days of its own choosing. (Alternatively, the Consents should be construed to impermissibly provide for temporary use periods of 18 and 24 months respectively during which the Respondents are able to conduct business on their own terms, with the limited constraint as to the number of functions that can be held).

21.     As a practical matter, the effect of the Consents is to re-zone the Land to permit use as a function centre for their durations (contrary to Part 2 of the HLEP). Allowing up to 28 days on which functions can be held (which can mean more than one function per day, per site) at each of the “Polo Barn” and the “Sunnybrook Barn” allows for disruption to the amenity of neighbouring properties every weekend day of the spring and summer months (the obvious peak seasons for wedding events). Or, when the effect of the two Consents is combined, the Polo Barn and Sunnybrook Barn can be operated as a year-round weekend function facility. That is not “temporary use” as properly understood under the HLEP.

49. The written submissions on Basscave’s part resisting this approach dealt with this ground as follows:

Ground 1: Construction of Clause 2.8 of HLEP

36. The Applicant’s first ground of challenge relates to the proper construction of clause 2.8 of the HLEP, which provides:

2.8   Temporary use of land

(1)  The objective of this clause is to provide for the temporary use of land if the use does not compromise future development of the land, or have detrimental economic, social, amenity or environmental effects on the land.

(2)  Despite any other provision of this Plan, development consent may be granted for development on land in any zone for a temporary use for a maximum period of 28 days (whether or not consecutive days) in any period of 12 months.

(3)  Development consent must not be granted unless the consent authority is satisfied that:

(a) the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument, and

(b)  the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and

(c)  the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land, and

(d)  at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use.

(4)  Despite subclause (2), the temporary use of a dwelling as a sales office for a new release area or a new housing estate may exceed the maximum number of days specified in that subclause.

(5)  Subclause (3) (d) does not apply to the temporary use of a dwelling as a sales office mentioned in subclause (4).

37.     The Applicant contends that the Consents are not authorised under the HLEP because the Consents were for a period exceeding the maximum allowed by subclause 2.8(2) of the HLEP

38. This ground ought to be rejected on the basis that the Applicant has misconstrued the constraints on Council set by clause 2.8.

39.     The High Court held in Federal Commissioner of Taxation v Consolidated Media holdings (2012) 250 CLR 503 that the exercise of statutory construction starts and ends with a consideration of the text and takes into account the text in its context (at [39]). This has also been described as “literal in total concept”: per Spigelman in R v Young (1999) 46 NSWLR 681 at [13].

40. The Respondents agree with the Applicant’s submission that part of the context in which clause 2.8 of the HLEP must be construed is that it is an exception to a prohibition that would otherwise apply on the Basscave Land by virtue of the zoning table. However, the Applicant has disregarded the context provided by clause 2.8 itself in the construction exercise, and has, as a result, misinterpreted the language of the clause.

41. The context here includes the expressive objective of clause 2.8(1). The objective is to “provide for the temporary use of land” on the proviso that the land the subject of the temporary use is not compromised for future use or otherwise detrimentally effected. It makes no reference to other land, time limits or what might otherwise be considered to be the “temporary use of the land”. Rather it suggests that clause 2.8 is to be interpreted as beneficial and facultative.

42. Clause 2.8(2) permits development that is:

a)     a temporary use;

b)     for a maximum period of 28 days (whether or not consecutive days)

c)     in any period of 12 months.

The Applicant (at [4] of its Reply) accepts these three requirements must be met but differs on their application.

43.     “Temporary use” is not defined. The Macquarie dictionary (Fifth Edition) relevantly defines “temporary” as “Lasting, existing, serving, or effective for a time only; not permanent”. This definition suggests but does not fix as temporal limit to the thing being described. Whether a use is temporary is a matter [of] fact and degree in all the circumstances.

44.     Relevant factors determining whether a use is a “temporary use” will include the nature of the temporary use, the nature of the permanent underlying use and the nature of a permissible subsequent use (see subclause 2.8(3)(a)). For example, a development site that is used temporarily for car parking while redevelopment for a permanent use (home units to a shopping centre, etc.) is being pursued could be in place for 6 months or 2 years and still maintain its temporary quality.

45.     Condition 2 of the Polo Barn Consent provides:

The temporary use is limited in time and shall expire on 30 June 2016 (Council Bundle, Vol. 1, p. 331)

As a consequence, the Polo Barn Consent has a maximum operating time of 18 months from the date of consent.

46.     Condition 2 of the Sunnybrook Barn Consent provides:

The temporary use is limited in time and shall expire on 30 June 2017 (Council Bundle, Vol. 2, p. 146)

As a consequence the Sunnybrook Barn Consent has a maximum operating time of two years from the date of consent.

47.     The limitation imposed demonstrates that the use is not permanent. The Consents will be operative “for a time only” to use the language of the Dictionary definition. In the Respondent’s submission, the shortness of time is relevant to the determination that the use proposed in the DAs is a temporary one.

48. The Applicant contends that a logical extension of this argument is that a use could be authorised for 100 years so long as the use was “limited to a maximum of no more than 28 days within any 12 month period”. The Respondents do not accept that this is a logical extension of the argument at all but rather submits that the argument by the Applicant is a logical fallacy and ought to be rejected. The Applicant’s argument ignores the requirement of clause 2.8(2) that a use have a temporary character first. Clause 2.8(2) then prescribes the maximum frequency of the temporary use, it does not define whether the use itself is temporary but has the effect of ensuring that the use is limited. Any use that is proposed to occur, even if limited in frequency, for a period of 100 years could not be said to be temporary and the Respondents do not suggest otherwise in the application of clause 2.8(2) of the HLEP.

49. The temporary uses permitted by the Consents are also limited in frequency and, as a consequence, meet the remaining criteria established in clause 2.8(2) of the HLEP. Condition 32 of the Consents each provide that:

No more than 28 days within a 12 month period shall be issued for the holding of functions on the land.

50. It is said against the Respondents that the Consents do not authorise “a…period” as required by clause 2.8(2). The Applicant suggests that the subclause requires the identification or nomination of particular times that a temporary use will be used. Such a submission should be rejected. The Respondents reiterate their submission that language of the subclause does not require such a nomination, it merely sets a maximum number of days when the temporary use may be carried out. The Applicant (in [6] of its reply submissions) has suggested that this submission “seeks to write out of the subclause most of its terms, and reverse the role of the consent authority and applicant”. With respect, The Applicant’s submission seeks to insert words into the subclause that are simply not there and to impose a gloss on the provision that neither the words, nor their context, warrants.

51. The primary submission of the Applicant relates to the third criterion in 42(b) above. The Applicant submits that clause 2.8(2) limits the period for which consent may be given to 12 months. Again, the plain reading of the subclause does not lead to such a construction. Had the intention been to limit the length of any consent in the way suggested, it would be expected that the word “a” would have been used rather than the word “any”. The word “any” clearly contemplates circumstances where a consent may be for multiple years but the use would nonetheless be limited to a maximum of 28 days within each 12 month period. Further there is nothing in the words of the objective in clause 2.8(1) that supports the Applicant’s construction.

52.     The Applicant’s construction leads to the absurd consequence that if two development applications for temporary is are lodged simultaneously, one for temporary use in 2015 and one for temporary use in 2016 then consent can be granted validly, but if one development application is brought for the same temporary use in 2015 and 2016 then consent cannot be granted validly. Further, the Applicant’s construction ignores the requirement for the use for which consent is sought to be a temporary use in the first place.

53.     Ground 1 ought to be rejected.

50. The written submissions were rounded out by those in reply for Marshall Rural, dealing with this point as follows:

Construction of sub-cl.2.8(2) of the HLEP

2.     At RS [28], the Respondent argues a ground not raised by the Applicant. As stated in AS [14], a “temporary” exception applies to the prohibition on the grant of approval to uses not otherwise provided for Zone RU2 Rural Landscape. However, that exception must be applied on its terms, and its nature as an exception should inform its construction. That is, part of the “context” in which the “literal” interpretation of a sub-cl.2.8(2) resides is a scheme by which operation of a function centre was prohibited on the Land, and the constraints imposed on a consent authority’s ability to depart from that position should therefore be strictly constructed (cf RS [31]).

3.     As to those constraints, RS [32] proposes a construction of sub-cl.2.8(2) of the HLEP by which three “requirements” must be met. The Applicant accepts that position but differs on the application of those requirements.

4.     As to the length of the periods for which the Consents were granted 18 and 24 months respectively), the Applicant maintains (for the reasons stated in AS [19]) that consents for periods longer than 12 months were not authorised under sub-cl.2.8(2) of the HLEP.

5.     By logical extension of the Respondent’s contrary argument, a “temporary use” could be authorised for 100 years, so long as the use was “limited to a maximum of no more than 28 days within each 12 month period” (see RS [39]). That is plainly not within the proper understanding of “temporary use” under sub-cl.2.8(2) of the HLEP. The role of the expression “in any period of 12 months” is to define the outer limited of the length of the period which qualifies as “temporary”. That interpretation is, contrary to the submission at RS [39], entirely consistent with (and indeed supportive of) the objective stated in sub-cl.2.8(1)) to “not compromise future development of the land”.

6.     The Applicant also maintains its emphasis on the fact that under sub-cl.2.8(2) it is for the consent authority to provide approval of a temporary use for “a temporary use…period” within the “12 months”, and not for the landowner to select for itself when it will exercise its 28 days’ worth of permission to engage in otherwise prohibited use (AS [20]). The Respondent’s only submission in support of its position on that issue is that “[t]he language of the subclause does not require such a nomination, it merely sets a maximum number of days when the temporary use may be carried out” (RS [38]). That, with respect, seeks to write out of the subclause most of its terms, and reverse the role of consent authority and applicant.

7.     This ground should be upheld.

51. The oral submission for the parties reflected those submissions set out above.

52. In essence, the position advanced by Marshall Rural may be summarised as saying that not only is a limited continuous use able to be countenanced by the provision (that being the reason for the limitation imposing a maximum of 28 operational days) but that the overall span during which the use may be undertaken must also be understood to be temporary - that being limited to a consent which runs for a maximum of a 12-month period.

53. The proper way to approach such a statutory construction issue was set out by the High Court in Project Blue Sky Limited v The Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 where the plurality said, at [69]:

The primary object of statutory construction is to construe the relevant provision so that is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that:

The context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.

Thus, the process of construction must always begin by examining the context of the provision that is being construed.

54. I now turn to consider the relevant elements in cl 2.8(2) of the LEP.

55. First, the interpretation advanced by Mr Galasso concerning the operative effect of the words “maximum period of 28 days” is not contested by Mr Leggat. The proposition that these 28 days of temporary use can be taken in a fashion and at a frequency to suit the convenience of the person who has the benefit of the temporary use consent is, as accepted, clear from its terms.

56. The controversy arises from the approach to be taken to the words “in any period of 12 months”.

57. The contest, here, lies between the interpretation advanced by Mr Galasso that, in effect, the words “in any” should be construed as if they meant “for a” (thus imposing a second-step limitation in the provision) and that advanced by Mr Leggat that there is no ambiguity in the words “in any” and that, as a consequence, subject to the 28-day restriction, a consent granted pursuant to cl 2.8 could be either for any nominated limiting period (as is here the position for each consent) or, indeed, be open-ended.

58. The position advanced by Mr Galasso is simply untenable. I am not here considering a provision of such “fuliginous obscurity” (to use the expression adopted by MacKinnon LJ in Bismag Limited v Amblins (Chemists) Limited [1940] 1 Ch 667 at 687) so as to render the provision incapable of an ordinary coherent meaning from the terms of its clear and unambiguous language.

59. An ordinary reading of the expression makes it clear that there is no such hidden, second limitation to be found from a reading of the entrails of the provision. Consistent with the instructions the High Court has given for such interpretation, the ordinary, obvious reading of a provision is to prevail over anything where the language of a provision needs to be strained in order to accommodate the alternative meaning advanced for it.

60. Mr Galasso’s submission is contrary to the ordinary, unstrained reading of the provision and is to be rejected.

61. This ground fails.

Ground 2: Incorrect consideration of a mandatory requirement

62. Marshall Rural complains that, in its merit assessment of these two development applications, the Council's consideration of the requirements of cl 2.8(3)(b) miscarried so as to render the consents invalid. The provision upon which this complaint is founded is in the terms repeated below.

63. Marshall Rural’s ground can be understood to be:

In granting the development consents, the Council failed to consider, properly, preconditions to the exercise of the power under sub-cl 2.8(3) of the LEP, specifically the adverse impact on adjoining land or the amenity of the neighbourhood.

64. It was pleaded as:

32 In granting the consents, the First Respondent failed to take into account considerations which operate as a precondition to the exercise of the power in clause 2.8 of the HLEP 2012.

Particulars

(a)   Detrimental social, amenity and environmental effects as reflected in material before the First Respondent.

33 In granting the consents, the First Respondent failed to be satisfied that the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood in accordance with the terms of Clause 2.8.

34   In granting the consents, the First Respondent failed to be satisfied that the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land.

65. Marshall Rural says that the Council's consideration of the acoustic impacts of each development application was undertaken by applying the wrong test (whether there was an unacceptable acoustic impact on nearby properties and how any impact might be ameliorated to be made acceptable) and, in doing so, failed to address the correct test - this being the test mandated by cl 2.8(3)(b) of the LEP (requiring that there be no adverse impact on any adjoining land or the amenity of the neighbourhood).

66. Marshall Rural says that such acoustic assessments as have been either provided to or undertaken by the Council are based on the wrong technical assessment basis, that being criteria that do not deal with an absolute issue, namely, that there be no adverse impact, but rather with a more evaluative process, namely, that where there is an impact, is that impact acceptable or not within the regulatory criteria applied to the assessment.

The acoustic information supplied to the Council

67. Separate acoustic assessments prepared by Mr Stephen Cooper of The Acoustic Group were originally provided to the Council - one with each development application.

68. After the Council meeting on 12 May deferred the two applications, Mr Cooper prepared a revised consolidated acoustic report dealing with both proposed developments. This document, dated 10 June 2015, was provided to the Council and proposed, for each of the two locations, separate conditions of consent which Mr Cooper considered would be adequate to address the noise levels he had measured during occasions when functions were being conducted in one or both of the barns. The conditions he recommended are set out later.

69. This ground raises the proposition where Marshall Rural says that these two development consents should be set aside because the Council's consideration of cl 2.8(3)(b) of the LEP miscarried. Although I have earlier set out the whole of the terms of cl 2.8, it is convenient to repeat the element that requires consideration in dealing with this ground of invalidity pressed by Marshall Rural. The provision is in the following terms:

Clause 2.8 Temporary use of land

…

(3)   Development consent must not be granted unless the consent authority is satisfied that:

…

(b)   the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and

…

70. I have added emphasis to the particular words in the provision that are said by Marshall Rural to be the foundational point for my consideration of whether or not this ground is made out.

71. In essence, the proposition advanced by Marshall Rural is that Mr Cooper's acoustic assessments do not address the test about which the Council was required to be satisfied before it could validly grant consent.

72. Further, Marshall Rural says that the assessment report put to the Council on 30 June also provided advice to the councillors based on its own acoustic testing in a fashion that caused the councillors to turn their minds to the incorrect question and did not inform them in a fashion that would have caused them to turn their minds to the correct question.

73. It is, therefore, necessary to set out extracts from Mr Cooper's 10 June report and a range of extracts from the assessment reports submitted to the June meeting.

74. The relevant material contained in Mr Cooper's report was:

60 In relation to noise emission from Licensed Premises the former NSW Liquor Administration Board (“LAB”) imposed a more stringent set of noise criteria to that normally imposed by the EPA. Compliance with the OLGR noise criteria will automatically mean compliance with the EPA noise criteria.

61   The same noise criteria (as the LAB) have been adopted by the Office of Liquor, Gaming and Racing, being the government department that replaced the LAB.

…

84   On viewing the objections that have been submitted to Council it would appear that in the majority of cases the objections relate to the audibility of noise from the Sunnybrook Barn and not the matter of acoustic compliance.

85   It is necessary to note that the EPA criteria, the Council noise criteria, and the OLGR criteria for the period before midnight, permit measurable increases above the ambient background level whether recorded by way of the A-weighted value or individual octave bands. The concept of inaudibility from licensed premises does not come into effect until after midnight.

86   The objectors may take the view that inaudibility should be the appropriate criteria but that is not the case in terms of policies and limits issued by the subject Council, the EPA and the Officer of Liquor, Gaming and Racing.

87   With respect to the Sunnybrook Barn that has been identified as the source of disturbance to a resident in proximity to location 3, the restriction of the music to that set out in the Day Design report would easily achieve compliance with the relevant criteria, or even changing the 80 dB(A) limit to a sound pressure level rather than a sound power level.

Conclusion

88   An acoustic assessment provided by Day Design with respect to the operation of the Polo Barn and the Sunnybrook Barn as restaurants indicated acoustic compliance would be achieved by restricting the level of music that would occur in both spaces.

89   In my view the use of 80 dB(A) as a sound pressure level in the Sunnybrook Barn is satisfactory for acoustic compliance.

75. Marshall Rural's position is that, by employing the criteria for acceptable noise impacts described above, Mr Cooper was applying a more permissive test based on the concept of “acceptable impact” rather than the test that Marshall Rural says is required by the terms of cl 2.8(3)(b) of the LEP.

76. There was also some disagreement as to what should be regarded as the appropriate background noise for the purposes of assessing noise impacts (at whatever might be the standard to be applied). However, in light of the discussion below and the reasons that follow from it, this disagreement needs no further discussion.

The acoustic conditions

77. Mr Cooper's report of 10 June proposed a series of conditions that he recommended were appropriate to be imposed in order to address the question of potential acoustic impacts of each of the proposed uses. The conditions were in differing terms, being tailored to reflect the differing spatial relationships between the two sources of potential noise and the possibly impacted receivers of such noise. The conditions he proposed (Exhibit 1, tab 9, folio 14) were in the following terms:

94   As a result of testing using functions occurring on site the following acoustic controls/restrictions should apply:

Sunnybrook Barn

•     The provision of entertainment is to be restricted to inside the barn

•     All amplification of music should utilise an in-house sound system with a noise limiter to restrict the level to 80 dB(A) inside the barn when assessed as an average maximum sound level.

•     Farewells to bridge and groom should occur inside the barn or on the eastern side of the barn.

Polo Barn

•     The provision of entertainment is to be restricted to inside the barn

•     All amplification of music should be via power points under the control of a sound cut out limiter (similar to the Technology, Sound & Vision Sound Monitor – with the sensing microphone inside the barn near the southern entrance door.

•     When the entertainment is provided the eastern and northern doors on the Polo Barn are to be closed. Under that scenario the limiter shall be set for a limit of 98 dB(A) 1 metre inside the southern door opening.

•     Contactors shall be installed on the northern and eastern doors of the Polo Barn such that if the doors are open the threshold level on the monitor is to be reduced by 10 dB(A).

•     If entertainment is to be provided at a higher level than 98 dB(A) the northern operable doors to the Polo Barn are to be acoustically upgraded. For the provision of 13mm plasterboard over studs fixed to the inner face of the northern doors the limiter threshold level could be increased to 101 dB(A).

78. It is unnecessary to set out, in detail, the relevant acoustic conditions incorporated in the Council's development consent granted to either the Polo Barn or Sunnybrook Barn. Detailed consideration of the conditions would only arise if Marshall Rural were to have been unsuccessful on this, its second primary ground. As a consequence, as Grounds 3 and 4 (pleaded as alternatives to Ground 2) were those requiring specific consideration of the conditions of consent, it is unnecessary to address them further. It is sufficient, in my assessment, to note that these conditions were based on advice to the Council about (and the Council's consideration of) the incorrect question requiring to be addressed by cl 2.8(3)(b).

The Council’s acoustic testing and assessment

79. Mr Isbester gave oral evidence in addition to providing a short affidavit. Mr Isbester is an environmental health officer and building surveyor employed by the Council. He had had responsibility, under supervision by his direct manager (who did not give evidence in the proceedings) and Mr Owens, the Director of City Planning, for acoustic testing near Basscave’s land (at a Marshall Rural dwelling) on a number of occasions over the period between November 2014 and March 2015 to enable the Council to have an understanding of noise levels arising from functions held at Basscave’s premises.

80. There are two observations to be made. First, although Mr Isbester’s formal professional qualifications for his role are a bachelor’s degree in environmental science, he had been provided with short-course training by the Council (using qualified external presenters) in acoustic matters (including operation of the data-logging monitoring device utilised in this instance) to a sufficient level to render him competent to conduct those activities and give evidence about what he had done in the field; how he had used his computer and software to prepare analytical material derived from the logged data; and, then, to interpret the outcomes of that computer analysis.

81. Second, his evidence was given clearly and concisely and, I am satisfied, in an entirely truthful fashion.

82. Mr Isbester understood that the initial impetus for the testing arose as a result of complaints made to the Council (transcript, 11 November 2015, page 30, lines 32-39). After the first testing (between 6 and 10 November 2015), Mr Isbester was instructed to prepare a formal compliance direction that was given to Basscave (affidavit of Peter Matthew Owens, 19 October 2015, Annexure F, folios 39-41). That direction was given despite the fact that his initial testing had not revealed any breaches of what he considered to be the applicable sound power limits (not more than five decibels above the background noise level at the boundary of the receiver or, after midnight, no audible function noise in any habitable room of the dwelling) (transcript, 11 November 2015, page 39, lines 21-28).

79. Analysis by him of the further testing undertaken on five separate occasions over subsequent months until March 2015 did not disclose, after his consideration of the data taken by the sound logger, any exceedances of these criteria (transcript, 11 November 2015, page 54, lines 21-25 ).

80. Mr Isbester confirmed that these criteria had been adopted by him as being derived from the requirements of the Office of Liquor, Gaming and Racing and from the Environment Protection Authority’s (the EPA) Industrial Noise Policy. The only other document to which he had had regard for this purpose was an EPA guide to neighbourhood noise issues (transcript, 11 November 2015, page 67, lines 18-23).

81. Mr Isbester was the author of a condition, common to the two development consents in these proceedings, imposing requirements based on these criteria. That condition was in the following terms:

36   The noise emitted from the development must not exceed more than 5 dB(A) above background noise levels in any Octave Band Centre Frequency (31.5Hz-8kHz inclusive) prior to midnight at the boundary of any affected residence. The noise from the development shall not be audible within any habitable room in any residential premises after midnight.

86. It was Mr Isbester's evidence that this was an idiosyncratic condition in form rather than one which was part of the Council's standard suite of conditions of consent ordinarily applied to development applications where noise was an issue (transcript, 11 November 2015, page 60, lines 7-40). It was his evidence that he had particularly included the specific details of the noise ban encompassed by the condition in order to make it clear that the condition covered the full range of potentially emitted sounds from heavy bass music to cheering and clapping (transcript, 11 November 2015, page 60, lines 22-28).

87. The Council's consideration of this aspect of each development application needs to be noted in four separate contexts. These are:

1. The material submitted to the Council in each assessment report dealing with acoustic impacts of the proposed developments and the test posed by cl 2.8(3)(b) of the LEP;

2. the extent to which the Council was made aware of acoustic concerns by objectors through the material contained in the assessment reports;

3. the extent to which acoustic impacts were raised by objectors speaking against the development applications during the course of the Council meeting on 30 June 2015; and

4. submissions made to the councillors during the meeting on 30 June 2015 by the legal representatives of Basscave and Marshall Rural.

Objections to the Polo Barn application

88. The written objections lodged with the Council were tendered in Exhibit 1 behind Tab 11. There were objections from five individuals (in varying degrees of detail - unnecessary to be further explored) where the issue of acoustic impact was specifically raised in each objection. For the purposes of this discussion, noting this position is sufficient to transition to considering that which was set out in the assessment report concerning this aspect of the objections. This material, set out in Exhibit 1 Tab 12 folio 313, was in the following terms:

•     The use of the ‘Polo Barn’ building for functions will adversely impact adjoining land with particular respect to noise generation.

•     The application does not propose any sound proofing measure to the building.

•     Two versions of the acoustic review were submitted with the application, and these reports contradict each other.

Comment:   As previously discussed, it has been demonstrated that the activity can be operated to comply with the relevant requirements. Conditions have been included within the Recommendation of this Report to monitor the development to ensure this compliance.

As mentioned previously in this report, the applicant submitted a consolidated acoustic report that clarifies the apparent discrepancies in the previous reports and clarifies the recommendations. The revised report does not appear to contain any new information or measurements and as such was considered to be clarification as part of the application assessment and did not require to be renotified.

It is considered that noise generated by increased traffic within the locality can be managed via the proposed consent conditions and would be short lived. However, noise associated with the arrival and departure of guests has the potential to cause a nuisance. Management practices can be employed to minimise noise resulting from patrons. In this regard a Patron Management Plan will be required as a condition of any consent.

89. Amongst the five written submissions earlier noted, one of them, from W Advisers Pty Limited on behalf of Marshall Rural, sets out, at folio 283/4, matters concerning cl 2.8(3)(b) with respect to noise (attaching affidavits from Mr Van Gestel and Mr Bloore raising such matters).

90. There is no mention in the assessment report dealing with these objections that specifically addresses the “not adversely impact” test in the provision of the LEP.

Objections to the Sunnybrook Barn application

91. The commentary in the assessment report concerning the Sunnybrook Barn application and acoustic impacts is contained in Exhibit 2, Tab 13 at folio 126/7. The comment in this assessment report is in identical terms to that set out above concerning the Polo Barn with the only change being substituting the words “Sunnybrook Barn” for the words “Polo Barn” in the first of the three introductory elements to the commentary from the assessing officer.

92. Three objections were raised - two of them being from persons who objected to the Polo Barn application, with the third being from an individual objector who did not write concerning the Polo Barn application. All three of the objections raised issues concerning the acoustic impact. As with the Polo Barn, the letter from W Advisers Pty Limited on behalf all of Marshall Rural provided detailed material concerning cl 2.8(3)(b) of the LEP (Exhibit 2, Tab 10, folios 93-95).

93. As with the Polo Barn assessment report, there is nothing contained in the material submitted to the Council relating to the objections that traverses, specifically, the complaints concerning non-compliance with the provision of the LEP.

The material put to the Council and the assessment reports

94. It is appropriate to commence the setting out of the material put to the Council in the assessment report for the Polo Barn by quoting from the relevant portion of the executive summary. These comments (Exhibit 1, Tab 12, folio 299 and 300) were in the following terms:

Since the report to Council, the Applicant has provided an amended Acoustic Report prepared by The Acoustic Group, to clarify and consolidate the previous information submitted with the application. In addition a request has been received for the reconsideration of proposed conditions in relation to the construction of car parking areas and certificateion from public authorities. Council has also received an application for a Building Certificate.

Clause 2.8 of Hawkesbury Local Environmental Plan 2012 permits land to be used for any purpose as a temporary use subject to certain requirements, including Council’s satisfaction that the use will not adversely impact on the environment or the amenityof the neighbourhood. This Clause only allows the use to be carried out for a maxcimum of 28 days within any 12 month period.

The application was publicly notified from 8 April 2015 to 22 April 2015. Five submissions were received objecting to the development. A summary of the matters raised in the submissions are as follows:

•     the ‘Polo Barn’ building has been modified without development consent, and no Building Certificate has been obtained.

•     the use of the ‘Polo Barn’ building for functions will adversely impact adjoining land with particular respect to noise generation;

• The building is not compliant with the Building Code of Australia;

•     The application does not propose any sound proofing measure to the building;

•     Two versions of the acoustic review were submitted with the application, and these reports contradict each other.

•     The application does not provide event details;

•     The proposed development will have an adverse impact from increased traffic

From the assessment of the application there is no objection, in principle, to the proposed use of the building for functions if that use does not adversely impact on the environment and the amenity of surrounding properties, especially in respect to noise. In this regard the matters raised in the submissions are relevant. However, these matters can be resolved through conditions of consent.

95. The assessment report then dealt with acoustic issues in some detail at a number of locations within the assessment report. These are set out below:

Exhibit 1 Tab 12 folios 306-307

An amended Acoustic Report prepared by The Acoustic Group and dated 10 June 2015 was received at Council on 11 June 2015.

The amended Acoustic Report does not contain any additional information or measurements and provides clarified recommendations for the operation of the development. In this regard the following recommendations are supported and will be ensured through conditions of consent:

•     The provision of entertainment is to be restricted to inside the barn

•     All amplification of music should be via power points under the control of a sound cut out limiter … … with the sensing microphone inside the barn near the southern entrance door.

•     When entertainment is provided the eastern and northern doors on the Polo Barn are to be closed. Under that scenario the limiter shall be set for a limit of 98 dB(A) 1 metre inside the southern door opening.

It is considered reasonable that monitoring of the activity be undertaken to confirm that the above measures will ensure that noise levels meet the relevant legislative requirements. In this respect Condition 6 has been included in the Recommendation of this Report.

The recent monitoring of events by Council officers has demonstrated that the premises can be operated so that the noise emitted from the development does not exceed more than 5 dB(A) above background noise levels in any Octave Band Centre Frequency (31.5Hz-8kHz inclusive) prior to midnight at the boundary of any affected residence.

It is also acknowledged that the management of the activity will also play a role in mitigating any adverse impacts on the amenity of the locality. The success of management of the activity is event since the issue of the Direction to Take Preventative Action issued for the site in November 2014. Since the issue of that Direction Council’s noise monitoring has not identified any non-compliances with that Direction. In this regard, an operation management plan will also be required as a condition of any consent.

Exhibit 1 Tab 12 folios 311-312

(b)   The likely impacts of that development, including environmental impacts on both the natural and built environments and the social and economic impacts in the locality

Context and Setting

Surrounding development within the Richmond Lowlands generally comprises of agricultural land, polo fields and limited numbers of rural residential properties. Land on the opposite side of the Hawkesbury River comprises a steep escarpment with residential properties located at the top of that escarpment along Terrace Road.

It is considered that the proposed development will have no unreasonable impacts on the locality in respect to overshadowing, loss of views or vistas, or loss of visual or acoustic privacy given the size of the property, the location of the development on the land, and the presence of existing vegetation and landscaping.

As previously discussed, noise generated by the development has the potential to adversely impact the locality, however it has been demonstrated that the activity can be operated to comply with the relevant requirements. These requirements will be enforced via appropriate consent conditions should the application be approved.

Exhibit 1 Tab 12 folio 312

(c)   Suitability of the site for the development

…

The site is located within a rural area subject to low background noise levels. However, this is not considered to be prohibitive to the development as mitigation measures (as has been demonstrated in recent months via Council’s noise monitoring) can be undertaken to achieve compliance with relevant noise controls.

96. The conclusion of the assessment report dealt with cl 2.8 of the LEP in the following terms relating to the test in cl 2.8(3)(b) at Exhibit 1 Tab 12 folios 314/315:

Conclusion

…

In relation to the permissibility of the Temporary use, Clause 2.8 of the HLEP 2012 permits the use for a ‘maximum period of 28 days (whether or not consecutive days) in any period of 12 months.” Clause 2.8(3)(a-d) outlines the matters to which Council must be satisfied prior to approval. In this regard, whilst the unapproved use of the land may have adversely impacted on adjoining land, the approved use as proposed and conditioned, meets the provisions of this Clause as follows:

a)   The temporary use will not prejudice the subsequent carrying out of development on the land as permitted by the LEP,

b)   For the reasons outlined previously in this report and the imposition and enforcement of the proposed consent conditions, the approved temporary use will not adversely impact on adjoining land or the amenity of the neighbourhood,

…

It is further considered that potential noise impacts from the development can be mitigated by management practices in the short term rather that physical mitigation measures. This is demonstrated by pervious noise monitoring of the site by Council. In this regard conditions can be imposed in any consent requiring submission of a patron management plan for approval and regular noise monitoring as directed by Council at the expense of the applicant (see proposed condition No.6 of the recommendation of this report).

97. It is to be noted that the final paragraph quoted above refers to “mitigation measures” for acoustic impacts not to their elimination.

98. For completeness, I should note that the proposed conditions 6 and 36 (condition 36 being adverted to in condition 6) were set out at Exhibit 1 Tab 12 folio 315 and 318.

The Sunnybrook Barn application

99. With the exception of noting the fact that there were only two [sic] objections rather than five in the case of the Polo Barn, the executive summary in the assessment report for the Sunnybrook Barn development application is in identical terms to that for the Polo Barn (see Exhibit 2, Tab 13, folios 113/114).

100. The detailed analysis in the assessment report concerning acoustic aspects arising from cl 2.8 of the LEP is in identical terms to that in the Polo Barn assessment report save for the fact that the differing specific conditions proposed in Mr Cooper's report for the Sunnybrook Barn are substituted for the specific ones from Mr Cooper's report set out in the Polo Barn extract (see Exhibit 2, Tab 13, folios 119/120).

101. The comments earlier reproduced from folios 311/312 of the Polo Barn application are reproduced in identical terms for the Sunnybrook Barn assessment (Exhibit 2 Tab 13 folios 124/125). The relevant extract from the conclusion of the Polo Barn assessment report reproduced above concerning acoustic impacts is in identical terms to that contained in the Polo Barn assessment report earlier reproduced (see Exhibit 2 Tab 13 folio 128).

102. It is to be noted that the final paragraph in this portion of the Sunnybrook Barn assessment report also refers to “mitigation measures” for acoustic impacts not to their elimination.

103. For completeness, I note that conditions 6 and 36 of the proposed conditions of consent for the Sunnybrook Barn application are in identical terms to those proposed for the Polo Barn application (see Exhibit 2, Tab 13, folios 129 and 132).

Acoustic impacts raised at the Council meeting

104. A number of people spoke for and against the two development applications during the course of the Council meeting. Prior to the determination of the Polo Barn application, an objector, Mr Ron Knott, spoke concerning noise impacts (Council meeting transcript page 7, line 28 to page 8 line 12). Councillor Paine also spoke during the course of the Polo Barn discussion, recounting the comments made to him during door-knocking along Terrace Road where people had pressed concerns about noise. These comments were at Council meeting transcript page 15 lines 1 to 24.

105. The amendments to the Polo Barn resolution (raised by Councillor Lyons-Buckett and discussed in the context of Ground 5) then proceeded prior to the resolution to approve the Polo Barn application subject to amendments. The Council meeting then moved to the Sunnybrook Barn application, with Mr Knott repeating his noise concerns and, in this instance, Mr Van Gestel speaking against the recommendation for approval of the Sunnybrook Barn application. Mr Van Gestel addressed cl 2.8 of the LEP in the context, amongst other things, of the noise impact. Mr Van Gestel said (Council meeting transcript, page 36 line 42 to page 37 line 11):

MR VAN GESTEL: I need to speak against the recommendation for Sunnybrook. What I said earlier for item 87 applies equally to Sunnybrook, and I would like to take the opportunity to clarify and re-affirm what the previous speaker just said. You should read the clause 2.8 very careful. It says any impact. Any impact. And, if you look at the report, there’s heaps and heaps of admittance that they – there is an impact or may be an impact, so why this debate can even go forward and why the amendment was carried, I got no idea. In any court of law, you’re going to get laughed out of a court because it says “any”.

And on the basis of noise it says here ..... that’s interesting. It is noting of the compliance with the directions ..... has not identified any non-compliance. Well, let me tell you, I was there 90 per cent of the times they had a function on. I walked every night between 8 and 9 and I saw nobody there and on every time – every occasion they were ..... the noise level. Sometimes it’s slamming door; sometime it’s blowing the horns, sometimes it’s – you have cars revving up. So any condition and I invite anybody ..... come and measure it where I stand on the corner next – on Powells Lane there. It’s – it can’t be done.

106. Mr Van Gestel’s speech followed on from the address by Marshall Rural's solicitor, Mr Kondilios, discussed below.

Legal submissions to the Council meeting

107. There were two submissions made by legal representatives of the parties to the Council meeting on 30 June. The first was made by Mr Doyle, solicitor for Basscave. His submission was followed by one from Mr Kondilios on behalf of Marshall Rural. To the extent that either of them addressed the question of cl 2.8 of the LEP, it is necessary to set out the relevant matters shown in the transcript of the Council’s meeting.

108. First, Mr Doyle addressed the Council saying, relevantly, as follows (Council meeting transcript, page 28 line 7 to page 29 line 13):

MR DOYLE: Good evening, again, Councillors. The – at the risk of being repetitive, a lot of what I've got to say will be similar to what I said in relation to the last application because they are the same. They are to be determined on the same sorts of legal parameters as the last application. It’s an application for consent for temporary use of land as a function centre and the purpose of my speaking is to assist Council in arriving at a legally correct decision having regard for the relevant provisions of the Hawkesbury Local Environmental Plan concerning temporary use, and that provision is found in section – in clause 2.8.

In this clause, subsection (3)(b) and (c), it is stated that:

The consent authority must be satisfied, amongst other things, that the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and the temporary use and location of any structures related to the use will not adversely impact the environmental attributes and features of the land or increase the risk of natural hazards that may affect the land.

1. if I am wrong in this conclusion for the reasons set out, there is a separate basis upon which I conclude that no valid owner’s consent was given to the development application for the Sunnybrook Barn.

220. Marshall Rural’s written submissions on the question of granting leave to amend were in the following terms:

Futility and discretion

7   The Respondents submit that the proposed amendment should be refused because it was futile, and because of the delay in making the application for leave.

8   First, the Applicant rejects the suggestion that the proposed amendment is futile. It is uncontroversial that the sole director of the Second Defendant did not sign the relevant consents, and the absence of landowner’s consent is fatal to the DAs. The only thing that can save the DAs is the existence of a valid authority from Mr Higgins to Mrs Higgins in respect of the documents the Second Defendant submitted to Council.

9   When that issue was put squarely into focus, it was met with evidence from Mr and Mrs Higgins that is uncorroborated by any document or any independent witness. The Court should have pause in accepting that position, particularly given:

a.   the absence of any evidence from Mr Montgomery, who is said to have been privy to the arrangement and could have given evidence in support of the Second Respondent (his client); and

b.   the need to give the Higgins’ evidence a generous interpretation that would cover the consents signed by Mrs Higgins on both 13 and 19 March 2015.

10   Second, as to the discretionary question of delay (which, as the Respondent notes, was frankly conceded by the Applicant: see RFS [15]), that delay has not occasioned any prejudice to the Respondents.

11   Since the issue of the absence of landowner’s consent was raised in the proceedings, the Second Respondent has:

a.   Had the benefit of an adjournment of the hearing to prepare its evidence on the issue in the form of the affidavits of Mr and Mrs Higgins;

b.   Had an opportunity to re-call Mrs Higgins to supplement her affidavit evidence orally;

c.   Had the opportunity to address the issue in oral submissions before the Court; and

d.   Taken the opportunity to make further submissions in writing.

12   Delay unaccompanied by any uncured or incurable prejudice is of little moment.

Leave to amend should be granted

221. I have concluded that leave to amend should be granted and I set out, in the following section, my reasons for reaching this conclusion.

222. The requirement for owner’s consent to be provided to a body determining a development application arises from the requirements contained in cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Planning Regulation), a provision in the following terms:

49 Persons who can make development applications

(cf clause 46 of EP&A Regulation 1994)

(1)    A development application may be made:

(a)    by the owner of the land to which the development application relates, or

(b)    by any other person, with the consent in writing of the owner of that land.

(2)-(5)   …

223. The position that has consistently been adopted (see list of cases cited by Stein JA at [5] in Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; 111 LGERA 446 at 449) is that such consent must be provided to the consent authority prior to its determination to grant approval to a development proposal. If a consent authority purports to grant approval to a development and there is no valid owner’s consent at that time, the consequence is that there is no valid development consent granted to the proposal (as explained by Stein JA in Botany Bay v Remath at [6]).

224. This is a fundamental element in the statutory process for granting development consent.

225. Mr Galasso candidly admitted that the Marshall Rural interests had been aware that Mr Higgins was the sole director of Basscave since at least the date (11 November 2015) that Mr Wilson, Marshall Rural’s then legal representative had written to Mr Higgins in that capacity (Wilson Affidavit at [23]). He also acknowledged that Marshall Rural’s legal representatives had had access to the Council's files for each development application since at least 16 July 2015 and that, in the case of Polo Barn, the letter from Mrs Higgins purporting to provide owner’s consent to the Polo Barn application had been served on Marshall Rural’s current solicitors as part of the Council's bundle of documents that had become Exhibit 1 (Tab 5).

226. It is clear that, although a consent authority has a discretion to process a development application up to but not including the stage of determining to approve the application in the absence of owner’s consent (see Rose Bay Marina Pty Ltd v Minister for Urban Affairs & Planning [2002] NSWLEC 123; 122 LGERA 255 per Pearlman CJ at [24]), such process cannot proceed to the final step of approval absent consent pursuant to cl 49 of the Planning Regulation. The final step of determination cannot be taken in favour of an application unless and until such valid owner’s consent is available.

227. Because a failure to have such owner’s consent is so fundamental and its absence renders any purported development consent invalid, I am satisfied that it is appropriate to grant leave to amend. However, as will later need to be dealt with, such leave is subject to the usual costs requirement to compensate Basscave for being put to additional work as a consequence of dealing with such leave being sought.

The terms of the letters

228. There is no doubt, from my examination of the terms of each of the letters signed by Mrs Higgins, that, if she had the authority to give consent validly, as at the date she executed each of them, the operative terms of each letter were sufficient for the purposes of giving owner’s consent pursuant to cl 49(1) of the Planning Regulation.

The matters arising concerning validity of owner’s consent

229. However, the question of validity hinges, in my assessment, on the consideration of three factors. These are:

1. First, the extent (temporal or otherwise) of any authority given to Mrs Higgins for signing any owner’s consent document and the consequences arising from this;

2. Second, the basis of the authority upon which Mrs Higgins actually purported to give owner’s consent;

3. Third, and finally, whatever the basis upon which Mrs Higgins purported to execute the two letters of owner’s consent in March 2015, were those owner’s consents capable of retrospective validation if they were otherwise invalid.

The Higgins’ evidence on signing

230. Mr and Mrs Higgins each provided an additional affidavit on the issue of the owner’s consent documents. The affidavits were read without objection and Mr Higgins was not required for cross-examination on this topic.

231. Before turning to Mrs Higgins’ oral evidence on the issue of owner’s consent, it is convenient to set out the terms of each of their affidavits concerning the circumstances giving rise to Mrs Higgins signing the documents purporting to give owner’s consent.

232. Mr Higgins’ affidavit (dated 18 November) said, relevantly to this point:

3   On Monday, 9 March 2015 my wife Rebecca and I had a meeting with our legal team and our town planners regarding the Development Applications the subject of these proceedings. One matter discussed at that meeting was getting the Development Applications lodged.

4   After the meeting on Monday I had a conversation with Rob Montgomery, one of our town planners during which I said to him words to the effect: “Rob these development applications must be lodged as soon as possible. Get Rebecca to sign them she is authorised to sign them.”

233. Mrs Higgins’ affidavit (also dated 18 November) said, relevantly to this point:

2   I understood from a meeting with the lawyers and town planners on Monday 9 March 2015 that the development applications by Basscave Pty Ltd for temporary use of The Premises for function centres were to be lodged soon. During that week I had a conversation with my husband Peter, a director of Basscave Pty Ltd, in which he said to me words to the effect “please sign the documents that Rob Montgomery gives you for the DA’s. I won’t be around on Friday”. Rob Montgomery is our town planner.

3   I did not regard this as being unusual nor did I have any concern about it as I sign a lot of documents for Peter including documents for Basscave Pty Ltd, Argosy Agricultural Group Pty Ltd and Sydney Polo Club Pty Ltd. I have authority to operate two of Basscave’s bank accounts with National Australia Bank. I regularly have dealings with tradesmen and architects regarding Basscave’s properties and have signed contracts and other documents for work to be done on these properties, all of which have been with Peter’s authority.

4   On 13 March 2015 and on 19 March 2015, as authorised by Peter, I signed the letters e-mailed to me by Rob Montgomery, on behalf of Basscave Pty Ltd. Copies of the letters are annexed and marked “A”.

234. The letter signed by Mrs Higgins concerning the Polo Barn was dated 13 March 2015, that being the Friday upon which her husband was absent from the property. The second letter, for Sunnybrook Barn, however, was dated 19 March 2015. Mrs Higgins gave an explanation for this (an explanation based on an electronic transmission malfunction) during the course of her oral evidence. Although this evidence was recorded as being on a voire dire basis, the parties have subsequently confirmed that it should be treated as evidence in the proceedings proper.

235. Mrs Higgins’ oral evidence was in the following terms (transcript 20 November 2015 page 9 line 18-page 10 line 22):

LEGGAT

Q.   I provide you with a copy of your affidavit sworn 18 November 2015.

A.   Thank you.

Q.   Can I direct your attention to the annexure which refers in the second paragraph to lot 25 DP663770, do you see that copy of a letter?

A.   What page are you referring to?

Q.   This is one which has—

HIS HONOUR

Q.   The second last page.

LEGGAT

Q.   The second last page. It has your signature—

A.   That’s correct.

Q.   --and a date, 13 March 2015, and do you see next to it there’s a copy of another letter dealing with lot 27, and we see that from the first paragraph of that letter.

A.   Yes.

Q.   It bears the date 19 March 2015.

A.   Yes.

Q.   Can you describe to his Honour the circumstances in which you signed those letters, in particular the date when each of those letters were signed please.

A.   Certainly. On the 13th I signed both these letters, and I scanned them back to Rob Montgomery, who was going to lodge the DAs. I scanned them from our office. I then went back to my computer and sent the forms to him. I thought that I had actually sent them both back to him because that went in the same file. However, they didn’t seem to go in the same file and I was unaware of that. I didn’t pay any more attention to it until the 19th, and I’m not quite sure, it might have been the day before or the 19th, he said, “We need to get that second DA lodged, we’re lodging it tomorrow, and would you re-sign”, or no, he didn’t say re-sign, he said, “Would you sign the paperwork.” Now, I was confused because I’d actually signed them both on the same day, however obviously I didn’t email those attachments through to him. So what I did, rather than having to go back through all my emails, because going back through all the scanned list in my computer is laborious, I just downloaded the document again, went to – signed it, went to the scanner, scanned it and then flipped it straight to him.

Q.   The last two pages of your affidavit comprise the two landowners’ consents, the ones that Mr Leggat just asked you about?

A.   Yeah.

Q.   As I understand your evidence, the very last page of your affidavit, that is the landowner’s consent that has the date 19 March 2015 is a document that you signed on 19 March 2015, correct?

A.   That’s correct.

236. Mr Leggat’s submission in reply to Marshall Rural’s further submissions on this point said:

At paragraph 9 of its further submissions the applicant asserts that the evidence of Mr and Mrs Higgins “is uncorroborated by any document or any independent witness”. The submission about documentary corroboration is wrong in fact – the fact of signed letters of owner’s consent is evidenced by the documents signed by Mrs Higgins and contained on Council’s files; and the fact of ratification is evidenced by written resolution by Basscave. The submission about an independent witness is also wrong in law – it carries the unstated premise that such evidence must be corroborated by every person who may be able to give evidence on an event. Such premise misunderstands an important aspect of the Jones v. Dunkel principle. It is not the case that it is necessary for a party to call every available witness: Manly Council v. Byrne [2004] NSWCA 123 at [60]-[67] (Campbell JA). Here there is consistent evidence from both the donor and donee of an authority. No occasion arises where it is necessary for Mr Montgomery to also be called, and no inference could or should be drawn from him not being called. (There was also nothing to prevent the applicant calling Mr Montgomery).

237. I accept Mr Leggat’s submission on the issue of this evidence. I certainly do not draw any inference of a Jones v Dunkel (1959) 101 CLR 298 nature in connection with the issue.

238. Mr Galasso’s written submissions concerning the two documents executed by Mrs Higgins are set out below. In effect, these submissions propose that, even if I am satisfied that Mrs Higgins purported to sign the letters as agent for Basscave, that agency was limited in time so that the document executed on 19 March was ineffective. Although, in [9] of Mr Galasso's written submissions earlier quoted, there is an inference that I should be cautious in accepting the evidence of Mr and Mrs Higgins, I am satisfied that, accepting this evidence as given, there is a sufficient and proper basis to consider whether or not valid owner’s consent was given for both development applications or, as proposed by Mr Galasso, in the alternative, whether the Sunnybrook Barn application was invalid as lacking owner’s consent.

Authority

3   The Respondents submit that “the evidence does not support the (illogical) finding that the authority to sign on behalf of Basscave was limited as to the time of its exercise or only in respect of one development application, but not the other” (RFS [10]). The premise for that submission is the clear evidence that the two owners consent letters that were submitted to Council were signed on different days:

a.   The documents bear the dates 13 and 19 March 2015 for the Polo Barn and Sunnybrook Barn, respectively (see Annexure “A” to Mrs Higgins’ 18 November 2015 affidavit); and

b.   Mr Higgins confirmed that those were the dates on which she signed the two documents (Tr. 20 November 2015 at 9:44-10:11).

4   Contrary to the Respondents’ submission quoted above, the evidence extracted at RFS [9] clearly establishes the narrow scope and purpose of the alleged authority, specifically for Mrs Higgins to execute documents in circumstances where Mr Higgins (the sole director, and otherwise the only person able to bind the Second Respondent) “won’t be around on Friday” March 13th (in Mrs Higgins’ words) because he was “in meetings with lawyers in the city” (in Mr Higgins’ words). That is, the authority was provided to deal with the specific occasion of Mr Higgins’ unavailability on Friday, 13 March 2015.

5   There is nothing illogical about the Applicant’s position that the authority was limited in time. In circumstances where Mrs Higgins does not have a power of attorney or other general authority to deal with the business of the Second Defendant, the inference to be drawn is that Mr Higgins had not previously, and would not on this occasion have, given an open-ended authority for Mrs Higgins to execute documents on behalf of the company.

6   In that regard, there was no evidence (either in the affidavits filed or in Mrs Higgins’ further oral evidence on 20 November 2015) to the effect that the period of the authority was extended by Mr Higgins to deal with the circumstance that one of the letters did not make it to Mr Montgomery on 13 March 2015. The Respondents’ strained construction of the evidence should be rejected with the effect that, at a minimum, the DA for the Sunnybrook Barn should be found to be defective.

239. There is no dispute between the parties that “a properly authorised agent can provide consent on the part of a landowner seeking development approval” (Marshall Rural’s further submissions at [2]).

240. However, to the extent that the question of agency is relevant, I am satisfied on a correct understanding of the evidence of Mr and Mrs Higgins earlier set out that the authority to sign an owner’s consent as an agent of Basscave was given on a temporally limited basis as Mr Higgins would not be available to execute such a document on Friday 13 March 2015. There is nothing in either affidavit nor in Mrs Higgins’ oral evidence that suggests that, either at the time of making the request initially or at any subsequent time, Mr Higgins extended the authority either for a further specific period of time or generally.

241. I am satisfied that Mr Higgins appointed Mrs Higgins with authority to act as Basscave’s agent for 13 March 2015 to enable her, as Basscave’s agent, to give owner’s consent to the two development applications.

The Sunnybrook Barn owner’s consent consequence

242. I am satisfied that the reason giving rise to the request for Mrs Higgins to sign (Mr Higgins’ absence from the property) was of a temporally limited nature.

243. However, even accepting Mrs Higgins oral evidence for the reason why the owner’s consent document for the Sunnybrook Barn application was executed by her on 19 March, there is no basis for concluding that her authority to sign had been extended to encompass that later date nor is there any explanation as to why, on that later date, Mr Higgins might have been unable to sign the document.

244. I therefore conclude, on the basis of the giving of agency to Mrs Higgins, that that agency was not operative on 19 March 2015 and that, as a consequence, on this basis the owner’s consent document for the Sunnybrook Barn application was not valid.

The basis asserted to the Council of authority to sign for Basscave

245. Although the terms of each letter addressed to the General Manager of the Council differed (in that each dealt with the necessary property descriptors for the relevant application and the letters were differentially dated as elsewhere discussed), the signature elements and descriptors are identical for each letter. An image of the relevant portion of the Polo Barn letter appears below:

246. I now turn to consider whether or not Mrs Higgins’ letters to the General Manager of the Council were properly understood to be letters executed as agent for Basscave when, in terms, that status is not claimed in the letter and a different status is asserted (entirely without foundation) as being the basis pursuant to which each of the documents was executed.

247. As can be seen from the image, Mrs Higgins asserts that she is the owner of Basscave, when she has no such status. In this context, I need to consider whether this is a deficiency of substance or one of form. Had Mrs Higgins signed as agent for Basscave, this issue would not arise. However, there is no issue of any representation being made by either Mr or Mrs Higgins of actual or ostensible authority as an agent, merely the assertion by Mrs Higgins that she is the owner of the Basscave.

248. It is self-evident that the Council has accepted, at face value, this assertion and has not made any enquiry of the basis upon which Mrs Higgins has purported to give owner’s consent. The fact that it is uncontroversial in the proceedings that, despite her absence of formal status with Basscave, Mrs Higgins acts in a variety of important functional roles for the company does not invest her with the right, in any general and unalloyed sense, to exercise plenitentiary functions as the “owner” of the company. Whilst this may be a convenient intrafamilial arrangement, it provides no basis for holding out to the world, generally, or to the Council in particular in the circumstances arising in these proceedings, that Mrs Higgins has such a legal status with respect to the company when, in fact, she does not have such status.

246. Given the specific requirement in cl 49 of the Planning Regulation that the consent has to be given by the owner of the land, Mrs Higgins holding herself out to have that status, when in circumstances she did not but could have, accurately, described herself as an agent on behalf of the owner, is not merely a slip in terminology but is holding herself out as having a status which she knew that she did not have.

247. This has the effect, in my view, of rendering the two letters ineffective to give owner’s consent to the two development applications.

248. In such circumstances, I am satisfied that each of the documents purporting to be owner’s consent executed by Mrs Higgins describing herself as the owner of Basscave do not effectively give owner’s consent for the purposes of cl 49 of the Planning Regulation and, as a consequence, neither of the development applications had been completely and validly made as at the date the Council purported to determine them by the granting of development consent as “function centres” for each of the Polo Barn and Sunnybrook Barn.

Retrospective validation?

252. In Mr Higgins’ affidavit of 18 November 2015, in addition to setting out the circumstances under which he had requested Mrs Higgins to execute owner’s consent documents in March 2015, he also described the steps he had taken since becoming aware of matters relating to the owner’s consent letters. He said, in his affidavit, at [7]:

I was recently made aware by Basscave’s lawyers of an issue about the letter consenting to the lodgement of the Development Applications. To resolve any doubt about the issue, on 18 November 2015, in my capacity as sole director of Basscave, I resolved to ratify Rebecca’s authority to sign the letter of owner’s consent. Annexed and marked “A” is a copy of the resolution.

253. The minutes of the meeting of Basscave that he held on 18 November 2015 record him convening the meeting of directors, with he being present as the sole director. The minutes have appended to them an initialled copy of the letters of 13 and 19 March 2015 earlier described. The resolutions of the meeting are recorded as being in the following terms:

Resolved:

1   To ratify the authority for Rebecca Meta Higgins to execute and to ratify the execution of letters, providing owner’s consent dated 13 March 2015 and 19 March 2015 on behalf of Basscave.

2   For the purposes of identification a copy of the letters providing owner’s consent dated 13 March 2015 and 19 March 2015, initialled by me are annexed to these minutes.

254. I have earlier referred to the submissions made on behalf of Basscave that there was a common law entitlement in agency that would permit me to regard the owner’s consent as being validly given. For the reasons earlier explained, I do accept the proposition that such documents can be executed by agents but not that the “consents” in either instance here were so executed.

255. However, in Basscave’s further submissions, I was referred to the decision in Prime Constructions Pty Ltd v Westbridge Investments Pty Ltd (2004) 22 ACLC 1390. In his decision, Young CJ in Equity said, at [25]:

25   Ordinarily, ratification relates back to the time when the original act was done. There is an exception where what is to be done has to be done within a limited time; see Dibbins v Dibbins [1896] 2 Ch 348. However, that line of cases only seems to apply where time is of the essence. Here, although it may well be argued that there was only a reasonable time in which the deed could be signed and proffered, time was not of the essence, and the acts of the defendant precluded the formal document being proffered, and as the defendant never saw it, it never realised that the deed was not properly executed.

256. A reading of Dibbins does not lead to the conclusion that it stands for the proposition that a time limitation only applies where “time is of the essence”. It is clear from the discussion by Chitty J that it was not an issue of “time being of the essence” in that decision but merely that there had been an express temporal limitation on the exercising of a right set out in the document that gave rise to the right and the attempt to ratify, after the expiration of the time limitation, the action that had earlier invalidly been carried out within time (purporting to exercise of an option to purchase an interest in a partnership).

257. Whilst the circumstances of this case concern a differing type of exercise of authority, I am of the view that the principle in Dibbins is relevant and applicable. In this case, the temporal limitation arose from the operative date of the document issued by the Council purporting to grant development consent in each of the instance of the Polo Barn and Sunnybrook Barn. If there was no valid owner’s consent on that date, I am satisfied, applying Dibbins, once that time has passed, any attempted ratification of the earlier invalid purported owner’s consent is a futility.

Conclusion on owner’s consent

258. As a consequence of that which is set out above, I find that:

1. Mr Higgins gave Mrs Higgins valid authority operative on and confined to 13 March 2015 to sign owner’s consents as agent for Basscave to accompany development applications for use of the Polo Barn and Sunnybrook Barn as “function centres”;

2. Mrs Higgins purporting to sign owner’s consent documents as owner of Basscave was a material difference in substance rather than merely a matter of form. The consequence of this is that each of the owner’s consent documents signed by Mrs Higgins in that nominated capacity was not a valid giving of owner’s consent to either development application;

3. if I am wrong in this conclusion, I am satisfied that the agency given by Mr Higgins was in confined terms so as to operate solely during the period of Mr Higgins’ absence attending to matters in the Sydney CBD on Friday 13 March 2015 and was not some form of agency at large; and

4. for the reasons set out, the purported ratification by Basscave of Mrs Higgins’ purported giving of owner’s consent in March 2015 is of no effect as the Council’s notice of determination of each development application provided an absolute limiting time by which valid owner’s consent was required to be in the hands of the Council.

259. It follows that the letters signed by Mrs Higgins dated 13 and 19 March 2015 did not give valid owner’s consent to the development applications for temporary use of the Polo Barn and Sunnybrook Barn as “function centres”. Therefore, the Council had no proper basis to grant development consent to either application as purporting to do so was in breach of cl 49(1) of the Planning Regulation and that each of the purported development consents is therefore void.

Conclusion

260. I earlier set out the seven bases upon which Marshall Rural initially submitted that the development consents for the use of the Polo Barn and Sunnybrook Barn as “function centres” should be declared to be invalid. For the reasons earlier set out, Marshall Rural has been permitted to add an additional ground (failure to provide valid owner’s consent for either development application) to these initially pleaded grounds.

261. I have concluded that Grounds 1, 5, 6 and 7 ought be rejected.

262. I have concluded that Ground 2 should be upheld with the consequence that Grounds 3 and 4 (being pleaded as cascading alternatives to Ground 2) do not require to be dealt with. If incorrect in my general conclusion on Ground 2, there is a distinct and sufficient reason under this ground to conclude that the Sunnybrook Barn application fails for the reasons raised by this ground.

263. I have also concluded that, for each development application, owner’s consent was not validly provided to the Council prior to the Council's purported determination to grant approval to those development consents. The consequence of that is that, on that separate basis, each development consent is invalid.

264. Finally, if I am incorrect in my primary basis for concluding that there was no valid owner’s consent for either development application, I have separately also concluded that there was no valid owner’s consent for the development application seeking approval for the use of Sunnybrook Barn as a “function centre”.

Form of proposed orders

265. The orders that I propose should be made would be in the following form:

1. Declare that the First Respondent, by granting development consent for the use of the Polo Barn located at 1 Powells Lane, Richmond Lowlands (Lot 25 DP 663770) for the purposes of a “function centre” did so in breach of the Environmental Planning and Assessment Act 1979;

2. Order that, from [date to be inserted], the Second and Third Respondents and their servants or agents are restrained from using the Polo Barn for the purposes of a “function centre”;

3. Declare that the First Respondent, by granting development consent for the use of the Sunnybrook Barn located at 106 Ridges Lane, Richmond Lowlands (being Lot 27 DP 566434 and Lot 1 DP 797310) for the purposes of a “function centre” did so in breach of the Environmental Planning and Assessment Act 1979;

4. Order that, from [date to be inserted], the Second and Third Respondents and their servants or agents are restrained from using Sunnybrook Barn for the purposes of a “function centre”;

5. The exhibits, other than Exhibit A, are returned; and

6. Costs are reserved.

266. As can be observed, I have not incorporated any operative date in proposed orders (2) and (4). These have been left blank as it is now appropriate that the parties have the opportunity to address me on whether or not I should exercise discretion pursuant to s 25B of the Court Act in setting the dates for cessation of use (whether or not differentially framed for the two facilities) and, if I should do so, on what basis and for how long.

267. It is appropriate that this occur prior to the end of the law term as holding over would effect a de facto moratorium on cessation of activities of one or both facilities without any exploration by me of whether such a moratorium was appropriate or not for either facility.

268. In light of the success by Marshall Rural being on only one of the grounds originally pleaded coupled with the ground of owner’s consent permitted to be pleaded by amendment during the course of the proceedings, costs will be reserved. I will hear the parties on any costs application in the new law term.

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Decision last updated: 16 December 2015