Monaro Acclimatisation Society v The Minister for Planning

[1989] NSWLEC 164

Land and Environment Court

of New South Wales

CITATION:	Monaro Acclimatisation Society & Anor v The Minister for Planning & Anor [1989] NSWLEC 164
PARTIES:	APPLICANT Monaro Acclimatisation Society RESPONDENT The Minister for Planning & Anor
FILE NUMBER(S):	40187 of 1987
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act
CASES CITED:	Burns Philp v. Wollongong City Council ((1983) 49 LGRA 420); Devon v. Lake Macquarie Council (Land and Environment Court, McClelland J. 27 July 1984); CSR v. Yarrowlumla Shire Council (Land and Environment Court, Unreported 2 August 1985); Broomham v. Tallaganda Shire Council Land and Environment Court, Unreported 31 October 1986); Jessop v. W.R.A. Willcocks Pty. Ltd. (Land and Environment Court, Unreported 23 December 1988); Hunter Resources v. Melville ((1987) 77 ALR 8); Scurr v. Brisbane City Council (1973) 133 CLR 242 at 255).
DATES OF HEARING:
DATE OF JUDGMENT:	03/02/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: On 12 September 1985 Teerman Newton lodged a development application on behalf of Planned Rural Resources Pty. Ltd. (the secondnamed respondent) with the Snowy River Shire Council. The application was accompanied by a report entitled "Muzzlewood Station : A planned rural development". The proposal was to create a consolidated holding to be operated as a single agricultural enterprise; to provide 125 residential strata lots and to establish a holiday village on the shores of Lake Eucumbene. The application acknowledged that the relevant Snowy River Local Environmental Plan No. 4 would require amendment since the minimum subdivision size under the plan is 100 hectares. Additionally, the LEP would have to be amended to permit the holiday village, comprising holiday cabins, caravan and camping facilities, a shop and various tourist facilities relating to boating and fishing on the Lake. The Muzzlewood property comprises some 750 hectares and is zoned partly Rural 'A' and partly Rural Environmental Pro

tection (Water Catchment Area) 7(C) under the LEP No. 4.

On 22 January 1986 the Council resolved to prepare a draft local environmental plan to permit the development. It also resolved that "a local environmental study is required". By letter of 7 February 1986 it advised Teerman Newton, acting on behalf of the developer, of these decisions and listed 5 matters to be covered by the study. Pursuant to s.74(2)(b) of the Environmental Planning and Assessment Act the Director of the Department of Environment and Planning directed the Council that a study was required and that sections 57 and 61 of the Act shall apply in the preparation of the draft plan. The study should address the issues nominated by Council and 3 additional matters relating to access to the holiday village, bushfire risk and the feasibility of water oriented recreation facilities. Within the Council Mr. McCarthy, the Chief Health and Building Surveyor and Town Planner, had conduct of the matter. He telephoned Mr. Teerman later in February 1986 and told him that the Council wanted a local environment

al study, that the Council was short-staffed and the study could not be prepared in-house. He asked if Teerman Newton knew of any consultant. There was some further discussion concerning the cost of the study and the availability of relevant material.

The evidence does not disclose that anything else transpired until early June 1986. Certainly the Council took no step to prepare the study nor did it seek to engage anyone to prepare it on its behalf. However, sometime early in June Mr. Rannard, a planning consultant engaged by Teerman Newton, delivered a document to Mr. McCarthy entitled "Muzzlewood Station Local Environmental Study". He asked Mr. McCarthy to look at it. In short Mr. McCarthy says he examined the document and adopted it as the Local Environment Study of the Council. The only alteration made to the document by Mr. McCarthy before it was placed on public exhibition was to delete an attachment which dealt with a legal opinion on the status of the access road. He did this because he did not agree with the opinion.

On 18 July 1986, as delegate of the Director, Mr. McCarthy signed a s.65 certification to the effect that although the draft LEP was inconsistent with Directions G8 and G12 made under s.117 of the Environmental Planning and Assessment Act, the inconsistency was justifiable and otherwise the draft plan was consistent with the Act. The Council caused advertisements to be inserted in the Cooma Monaro Express on Tuesday, 22 July 1986 and Tuesday, 5 August 1986. The advertisements referred to a draft local environmental plan being available for public inspection at the Council chambers from 25 July 1986 to 11 August 1986.

The second advertisement (5 August 1986) was in the following form:-

"SNOWY RIVER SHIRE COUNCIL

DRAFT LOCAL

ENVIRONMENTAL PLAN

Notice is hereby given pursuant to section 66 of the Environmental Planning and Assessment Act, 1979, that a draft local environmental plan, concerning the matters referred to in the following schedule, will be available for public inspection at the Council Offices, Berridale during normal office hours from Friday, July 25, 1986 to Monday, August 11, 1986.

All submissions shall be made in writing to the undersigned prior to 4.30 pm on Monday, August 11, 1986.

P.L. Lyon Council Offices

Shire Clerk Berridale, NSW, 2628

Schedule

Muzzlewood Station

Being portions 3, 4, 14, 23, 24, 25, 26, 37, 43, 44, 49, 66, 80, 92, 93, 109, 110, 111, 112, 129, 59 and part portions 73, 130, lots 1 and 2 in deposited plan 591234 and registered plan 23/34 and lakefront land abutting lots 1 and 2 in deposited plan 591234.

The Plan aims: To permit the carrying out of development which will provide:

1. A consolidated rural holding to be managed and operated as a single agricultural enterprise.

2. Separate rural strata lots, each having a minimum area of 0.75 hectare, for 125 rural weekenders and,

3. To establish a holiday village comprising lakeside cabins, caravan and camping facilities general store and coffee lounge, managers flat and office and fishing and boating facilities to take advantage of the property's 2 kilometre frontage to Lake Eucumbene."

The first advertisement was in the same terms except that it omitted to state the aims of the plan and also to whom submissions should be made. It is apparent that both notices failed to refer to the Local Environmental Study.

The public exhibition required by s.66(1)(b) of the Act took place in the following manner. The Council's file or files relating to the draft plan and development application were bundled together. The draft plan and local environmental study were within these files. The relevant s.117 Directions (G8 and G12) were not within the files as required by s.66(1)(b)(ii), nor was a statement complying with s.66(1)(b)(iii) - that the directions substantially govern the content and operation of the draft plan and any submission made pursuant to s.67 should be made having regard thereto. The files were kept under the counter at the Inquiry desk at the Council offices. Nowhere was there displayed any notice or sign drawing attention to the exhibition of the draft plan and/or study or indicating where one might inspect them. If a member of the public came to the counter and inquired about the plan Mr. McCarthy would discuss the matter and extract the documents from the file. On one occasion he says that he left the file

with an inquirer for perusal.

On 1 June 1987, and published in the Government Gazette of 5 June 1987, the Minister made the Plan - Snowy River Local Environmental Plan No. 35 permitting the development to be carried out.

The applicants claim that the plan is invalid. In the amended points of claim the applicants allege invalidity on a number of alternative bases:-

1. The local environmental study required by s.57 was not prepared by or on behalf of the Council but rather on behalf of the second respondent developer.

2. The notices placed in the newspaper did not comply with s.66(1)(a) because they failed to refer to the fact that the local environmental study would be placed on exhibition together with the draft plan.

3. That no public exhibition of the plan and study took place as required by s.66(1)(b).

4. The exhibition failed to comply with s.66(1)(b)(i) in that insufficient documentation was exhibited.

5. That contrary to s.66(1)(b)(ii) relevant s.117 directions (G8 and G12) were not exhibited.

6. That contrary to s.66(1)(b)(iii) no statement to the effect that the relevant directions substantially govern the content and operation of the draft plan and any submission made pursuant to s.67 should be made having regard thereto, was exhibited.

7. That the Council failed to carry out the consultation required by s.62.

Because of my conclusions on 2 and 3 above it is unnecessary to determine the issue of whether the Council adopted the local environment study as its own and thereby complied with ss.57 and 61. Suffice to say that I have severe doubts that it did in fact adopt the study bearing in mind what is said in Burns Philp v. Wollongong City Council ((1983) 49 LGRA 420) and Devon v. Lake Macquarie Council (Land and Environment Court, McClelland J. 27 July 1984). However, I expressly do not determine the factual issue involved because it is unnecessary for me to do so.

Relevantly section 66(1) of the Environmental Planning and Assessment Act provides:-

"Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall, after complying with any condition subject to which the certificate was granted and subject to the regulations -

(a) give public notice, in a form and manner determined by the council, of the place at which, the dates on which, and the times during which, the environmental study prepared by the council under section 57 of the land to which the draft local environmental plan applies and the draft local environmental plan may be inspected by the public;

(b) publicly exhibit at the place, on the dates and during the times set out in the notice -

(i) a copy of that environmental study and draft local environmental plan;

(ii) a copy of any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft local environmental plan is intended to apply; and

(iii) if such a policy, plan or direction does so apply - a statement to the effect that the policy, plan or direction referred to in subparagraph (ii) substantially governs the content and operation of the draft local environmental plan and that any submission made pursuant to section 67 should be made having regard thereto;"

Where there is a study s.66(1)(a) clearly requires that public notice is to be given of the place, dates and times during which it (and the draft LEP) may be inspected by the public. The second respondent (generally supported by the first respondent Minister) denies any breach of s.66(1)(a) for the following reasons:-

(a) The "form and manner" of giving public notice is as "determined by the Council" and the Court ought not interfere with Council's discretion.

(b) Council's obligation to advertise is "subject to the regulations" and regulation 8 does not require that the notice refer to both the LES and the LEP.

(c) An astute reader of the advertisement would understand the full effect of the notice when he reads the reference to s.66 of the Act, i.e., he would know that he would be able to inspect a copy of the study.

(d) Even a naive, ill informed or ignorant reader would have been fully informed by the advertisements.

(e) No member of the public would be deterred by the omission to refer to the study because they would be completely alerted to the subject matter of the proposal and could inspect the study.

(f) The study is subsidiary and subservient to the draft plan and the requirement to include the study in the notice is directory and not mandatory. Accordingly, failure to refer to the study in the advertisement does not lead to a nullity for there has been substantial compliance.

Let me deal with each of these submissions:-

(a) The "form and manner" discretion in s.66(1)(a) relates essentially to the place, dates and times of public exhibition of the Local Environmental Study and draft Local Environmental Plan. The provision cannot mean that the Council may decide not to include any reference to the study when giving public notice of the study and plan. The words of the section are plain on their face - the notice must refer to the draft plan and the local environmental study, where there is one. No matter of discretion is involved except as to place, dates and times of the exhibition of the documents.

(b) Regulation 8 is irrelevant in that it refers to the period of exhibition only and not the content of the public notice. It is noted that the regulation specifically refers to the public exhibition of the draft LEP and environmental study for a period of 14 days.

(c), (d) and (e). These propositions only have to be stated to appreciate their vacuity. Even an astute reader of the newspaper does not carry around a copy of the Environmental Planning and Assessment Act and even if he or she did, how could he or she know from the advertisement that there was a study? The mind boggles how it could possibly be stated that a naive, ill informed or ignorant reader would have been fully informed by the notice. But I am here concerned with a reasonable member of the public. The omission of the notice to refer to the environmental study would have failed to alert him or her to the existence of the study and thereby the significance of the draft plan. The first advertisement did not even state the aims of the plan. An environmental study of the land is a significant and important matter. Before the amendments to the Act in 1985, (taking effect early in February 1986), the environmental study had to be exhibited separately and in advance of the draft plan. The amendments allowed si

multaneous exhibition. More importantly, an environmental study is only required in limited circumstances, in particular when one is directed to be prepared by the Director under s.74(2)(b), as is here the case. The importance of an environmental study of the land to which the draft plan is intended to apply was emphasised by McClelland J. in Burns Philp, see in particular pp.432-433. In my opinion, following the amendments, the Study assumes greater significance when the Council has been directed to prepare it by the Director From the situation of the land, the zoning and the nature of the proposed development it is obvious that an environmental study of the land to which the draft plan applied was regarded as a matter of importance. A reference in the notice to the public exhibition of the environment study could well have better alerted members of the public to the proposal than a reference only to the draft plan.

(f) In my opinion a reading of Division 4 of Part III of the Act does not lead to the conclusion that an environmental study is subsidiary and subservient to the draft plan so as to make the requirement to include a reference to the study in the notice directory only (rather than mandatory). In particular the language, scope and contents of ss.57, 61, 62, 63 and 66 make the significance of an environmental study, where one is prepared, of fundamental importance to the making of a local environmental plan. The two go together and "you can't have one without the other". In my opinion the requirement in s.66(1)(a) to give public notice of the environmental study is clearly a mandatory one, as is the requirement to give notice of the draft LEP. No question of substantial compliance arises.

In CSR v. Yarrowlumla Shire Council (Land and Environment Court, Unreported 2 August 1985) Cripps J. had to rule on whether a failure to indicate the name of the applicant in a notice required to be given under s.84 of the Act and cl.39 of the Regulation leads to invalidity or not. He said:-

"Clause 39(d) requires that the notice state the name of the applicant. There can be no question of substantial compliance with that requirement. There was no compliance at all. On behalf of the Council and the developer it was submitted that because no rational explanation can be advanced for the inclusion of such a requirement, the Court should not hold that compliance with it is a condition precedent to a consideration of the development application by the Council. I am unable to agree with this submission. The identity of a developer about to undertake designated development having potentially significant environmental impact could be a matter of considerable concern to potential objectors. The Act and the Regulation make clear the importance of advertising development."

While the case involves a different requirement to the present one it seems to me that similar considerations apply (see also Broomham v. Tallaganda Shire Council Land and Environment Court, Unreported 31 October 1986). The respondents place some reliance on Jessop v. W.R.A. Willcocks Pty. Ltd. (Land and Environment Court, Unreported 23 December 1988) where Bignold J. held that material referred to in s.66(1)(b)(ii) was clearly ancillary and subsidiary material and that non-compliance with the requirements were not visited with invalidity. However, this in no way detracts from the requirement in s.66(1)(a) to give public notice of the environmental study and draft local environmental plan.

In my opinion the requirement to give public notice of the study and plan are mandatory requirements where strict compliance is necessary. Nothing in Hunter Resources v. Melville ((1987) 77 ALR 8) leads me to a different conclusion.

The importance of giving public notice of a proposal by advertising has been stressed by the High Court in Scurr v. Brisbane City Council (1973) 133 CLR 242 at 255). The words of Stephen J.,although in a different context, are nevertheless very worthy of repetition:-

"I have already referred to the important part played by the advertising of the making of an application and to the extent to which the working of the statutory provisions depends upon its adequacy; there can, I think, be no doubt but that it is mandatory that there must be a giving of public notice by means of advertisements and that those advertisements must contain some particulars of the application. The legislation employs mandatory language, makes the giving of public notice a condition precedent to any consideration of the application by the council and the section is wholly dependant upon the giving of public notice for the attainment of its objects."

Further His Honour remarked at p.257-8:-

"The fact that once an appeal is instituted by an objector the Court assumes from the council the task, initially the council's, of considering an application and the objections to it raises a strong inference that the Court should, in undertaking that task, be directly concerned to assure itself that all the requirements of the giving of public notice in due form have been complied with. Their non-observance will effectively prejudice the Court's proper consideration of the matter in a number of respects; first, it will result in it having before it a council proposal to which it would no doubt ordinarily wish to pay some regard as to the expression of the views of the responsible planning authority but which it will know has been arrived at without necessarily having benefited from a proper presentation to the council of objectors' views; this is an aspect to which I have already referred. Secondly, it will know that there may be persons who might have objected but who have, by reason of defective public no

tice, been deprived of the opportunity of qualifying as objectors. Thirdly, it will be aware of the fact that the objections which have been lodged come in response to a defective public notice of the application and may accordingly be misconceived in their grounds or in the facts and circumstances set out in support of those grounds."

In my opinion failure to give public notice of the environmental study and its availability for public inspection visits invalidity upon the plan subsequently made.

The next claim of the applicants is that there was no public exhibition at all as required by s.66(1)(b). The documents were all under the counter without any notice or sign drawing attention to the availability of the documents for exhibition or directing members of the public to the counter to ask to see the documents. Neither the Act nor Regulation define 'public exhibition'. Relevant dictionary definitions of exhibit and exhibition stress the exposing or holding up to view or inspection, to place on show, to publicly display, to present something to public view. To my mind the addition of the word 'publicly' before exhibit only serves to stress the concept of displaying or exposing the thing exhibited to members of the public for them to see. Whether particular documents are publicly exhibited will obviously involve questions of fact. This is demonstrated in the decision of Tinn v. Cunningham ((1938), 82 Sol.Jo.435) where Branson J. said:-

"I see no escape from the conclusion that, when the statute and that regulation said that the form was to be exhibited, they were using 'exhibited' in the ordinary sense of that word. I think it impossible to hold that a form was exhibited which was included with a number of other forms in a folder and hung up behind a door in circumstances in which it could not be seen or read without opening the folder and when the form had to be found amongst other forms in order that it might be read."

Were the documents, in particular the requirements of s.66(1)(b)(i) relating to the study and plan, publicly exhibited, when they were in a folder, (along with Council's files on the development and rezoning applications), placed beneath the counter? In my opinion common sense demands that the question be answered 'No'. This conclusion is assisted by the fact that there does not appear to have been any notice or sign anywhere in the vicinity of the counter directing attention to the 'exhibition' or telling people who are interested in inspecting the draft plan (and study) to ask to see the documents at the counter. Even then, it appears that Mr. McCarthy was selective in the documents he produced for inspection. It rather depended upon what Mr. McCarthy concluded were the concerns of the inquirer. By no stretch of the imagination can what occurred be described as a public exhibition as required by s.66. That Council did not place the plan and study on the counter or on a display board because, in the past, pa

ges of documents had been torn or removed, does not detract from the clear legislative requirement. While s.66(1)(a) provides that the public notice include the statement that the study and plan "may be inspected by the public", subsection (1)(b) speaks of "publicly exhibit". In the context of s.66 I do not see any particular difference between the two phrases. However, if anything the requirement of public exhibition goes further than having the documents available for inspection upon request. In my view what occurred could not amount to the public exhibition required by the section. Again, the requirement is indubitably mandatory and no question of substantial compliance arises. In my opinion the failure to publicly exhibit must lead to invalidity of the plan.

Additionally, on an analysis of the requirements of s.66 looked at as a whole, it is in my view open to consider the requirement of s.66(1)(a), (regarding the failure of the public notice to refer to the environmental study), and the requirement of public exhibition of the study, plan and other documents in s.66(1)(b), in a cumulative fashion. When one does this it becomes clear that there was a failure to comply with the notice provision together with a failure to place the relevant documents on public display. In my opinion, the possibility of members of the public being mislead is that much greater, i.e., no mention of the environmental study in the notice and no study on public display. The combination of the two failures leads to the irresistible conclusion that the mandatory requirements of the Act have not been met. In my opinion this leads to invalidity of the plan. Even if it could be opined that the requirement of public exhibition was directory, the facts do not permit me to find that there was sub

stantial compliance with the duty.

Because of the breaches of the Act which I have found, it is unnecessary to determine the other claims of the applicants. I will, however, say that I am not convinced that, assuming an exhibition, insufficient documentation was exhibited (submission 4), or that the failure to exhibit the s.117 directions would necessarily lead to invalidity. I make the same comment in relation to the failure to comply with s.66(1)(b)(iii). These are clearly ancillary and subsidiary materials and I agree with the conclusion of Bignold J. in Jessop supra. In the circumstances of my findings I expressly do not determine the issue alleging a failure of the Council to consult as required by s.62.

Accordingly I make a declaration that the Snowy River Local Environmental Plan No. 35 is invalid. At the request of the parties I reserve costs. One last word! The hearing of the application was made difficult for the parties and the Court because of the fact that the Council was not a party. I am unaware why the Council was not originally joined in the application. Whilst it is strictly unnecessary for the Council to be a party to the proceedings and the matter could be determined by the Court, its presence as a party would have assisted the conduct of the hearing.