Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd

[2018] NSWCA 304

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304

Hearing dates:

22 August 2018

Date of orders:

14 December 2018

Decision date:

14 December 2018

Before:

Basten JA at [1]; Payne JA at [49]; Emmett AJA at [155]

Decision:

(1) Allow the appeal from the judgment and orders in the Land and Environment Court dated 21 December 2017.

 

(2) Set aside orders (1) and (2) made in the Land and Environment Court on 21 December 2017.

 

(3) Declare that the planning proposal accepted by the Liverpool City Council on 31 August 2016 in relation to 146 Newbridge Road, Moorebank, was not a valid planning proposal for the purposes of s 55 of the Environmental Planning and Assessment Act 1979.

 

(4) Declare that the determination by the Greater Sydney Commission made on 9 March 2017 in relation to the planning proposal forwarded to it by Liverpool City Council was invalid, the planning proposal not being a valid planning proposal.

 

(5) Set aside the determination of the delegate of the Commission made on 9 March 2017.

 

(6) Dismiss the appellant’s notice of motion filed on 10 July 2018.

 (7) Order that Tanlane Pty Ltd pay the costs of Moorebank Recyclers Pty Ltd in the Land and Environment Court and in this Court.

Catchwords:

ENVIRONMENT AND PLANNING – Environmental planning instruments – Local environment plan –Liverpool Local Environmental Plan 2008 – Environmental Planning and Assessment Act 1979 (NSW), Pt 3 Div 4 – Planning proposal – State Environmental Planning Policy No 55, cl 6 – whether obligations in State Environmental Planning Policy No 55, cl 6 engaged when planning proposal considered by Local Council – whether obligations in State Environmental Planning Policy No 55, cl 6 engaged when delegate of the Greater Sydney Commission made gateway determination pursuant to Environmental Planning and Assessment Act 1979 (NSW), s 56 – whether Local Council failed to comply with obligations in State Environmental Planning Policy No 55, cl 6 – whether delegate of the Greater Sydney Commission failed to comply with obligations in State Environmental Planning Policy No 55, cl 6 – whether compliance with obligations in State Environmental Planning Policy No 55, cl 6 a mandatory pre-condition to valid exercise of power

STATUTORY INTERPRETATION – Environmental Planning and Assessment Act 1979 (NSW), Pt 3 Div 4 – State Environmental Planning Policy No 55, subcl 6(1) – whether “preparing” an environmental planning instrument includes preparing a planning proposal – State Environmental Planning Policy No 55, subcl 6(2) – whether proposed amendment to local environmental plan involves “including land” in a “particular zone”

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4, 53, 53A, 54, 55, 56, 57, 58, 59, 123, 124, 145A, 145B; Pt 3, Div 4
Interpretation Act 1987 (NSW), s 11
Land and Environment Court Act 1979 (NSW), ss 20, 58
Local Government Act 1993 (NSW), s 377
Supreme Court Act 1970 (NSW), s 69

Liverpool Local Environmental Plan 2008, cll 2.1, 2.3, 2.5, Pt 2; Pt 7, Div 2; Sch 1
Standard Instrument (Local Environment Plans) Order 2006 (NSW), subcll 4(i)(a), 6(1)
State Environmental Planning Policy No 55 - Remediation of Land, cll 2, 6

Cases Cited:

Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
Blue Mountains City Council v Lawrence Browning Pty Ltd (2006) 67 NSWLR 672; [2006] NSWCA 331
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560
Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44
Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429
IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30
McGovern v Warringah Shire Council (2008) 72 NSWLR 504; [2008] NSWCA 209
Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40
Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2018] NSWLEC 1089
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2) [2017] NSWLEC 186
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim) (2014) 88 NSWLR 125; [2014] NSWCA 377
Parramatta City Council v Hale (1982) 47 LGRA 319
The Queen v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 695;
Twist v Randwick Municipal Council (1976) 136 CLR 106; [1976] HCA 58

Texts Cited:

M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017)

Category:

Principal judgment

Parties:

Moorebank Recyclers Pty Ltd (Appellant)
Tanlane Pty Ltd (First Respondent)
Greater Sydney Commission (Second Respondent)
Liverpool City Council (Third Respondent)

Representation:

Counsel:

 

Mr T Robertson SC / Mr J Lazarus (Appellant)
Mr T Hale SC / Mr D Robertson (First Respondent)

 

Solicitors:

  Mark McDonald & Associates (Appellant)
Minter Ellison (First Respondent)

File Number(s):

2017/388202

 Decision under appeal 

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 4

Citation:

[2017] NSWLEC 186

Date of Decision:

21 December 2017

Before:

Pain J

File Number(s):

2017/172252

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Moorebank Recyclers Pty Ltd, and the first respondent, Tanlane Pty Ltd, own neighbouring lots of land. The first respondent sought to develop its land for residential subdivision and for the construction of a marina.

The first respondent developed a planning proposal for its land which involved two proposed amendments to the Liverpool Local Environmental Plan 2008. One of the proposed amendments sought to enable residential development as an additional permitted use on the site of the proposed marina, zoned RE2 “Private Recreation”.

It was common ground that the first respondent’s land the subject of the planning proposal is contaminated. Accordingly, at some point the requirements of clause 6 of State Environmental Planning Policy No 55 – Remediation of Land (“SEPP 55”) would need to be complied with prior to any actual amendment to the Liverpool Local Environmental Plan.

On 31 August 2016, the third respondent, Liverpool City Council (“the Council”), passed resolutions supporting the development and authorising an officer of the Council to forward the planning proposal in an amended form to the second respondent, the Greater Sydney Commission (“the Commission”), for the purposes of a “gateway determination” pursuant to Part 3 Division 4 of the Environmental Planning and Assessment Act 1979 (NSW) (“the Council resolutions”). On 9 March 2017 a delegate of the Commission made a gateway determination that the planning proposal should proceed subject to certain conditions (“the Gateway decision”).

The appellant brought proceedings in the Land and Environment Court claiming that the Council resolutions and the Gateway decision were invalid by reason of a failure to comply with cl 6 of SEPP 55.

The primary judge dismissed the appellant’s claim on the basis that the obligations imposed by cl 6 of SEPP 55 were not required to be complied with at the point in time of both the Council resolutions and the Gateway decision. The primary judge also observed that, in any event, the Council resolutions were not necessarily amenable to judicial review and that cl 6 of SEPP 55 would not apply to the part of the planning proposal which sought to enable residential development on part of the first respondent’s land.

The issues on appeal were:

1. Whether the Council resolutions were amenable to judicial review?

2. Whether the Council and the Commission were required to comply with cl 6 of SEPP 55?

3. Whether cl 6 of SEPP 55 applied to the part of the planning proposal seeking to enable residential development on part of the first respondent’s land?

4.   Whether the Council complied with subcll 6(1) and 6(2) of SEPP 55?

5. Whether any failure by the Council to comply with cl 6 of SEPP 55 invalidates either or both of the Council resolutions and the Gateway decision?

The Court (Basten JA, Payne JA, Emmett AJA) held, allowing the appeal:

In relation to issue 1,

Per Basten JA (Payne JA agreeing):

The decisions of the Council to approve the planning proposal and to forward it to the Commission were necessary steps in the process of creating legal entitlements in the owner of the land and were therefore reviewable: [33]-[41]

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 applied.

Per Payne JA (Basten JA and Emmett AJA agreeing):

The Council resolutions were amenable to judicial review. The Council resolutions were steps taken to prepare the planning proposal within the meaning of s 55 of the Environmental Planning and Assessment Act and the case was advanced as one where a mandatory statutory precondition to the exercise of a power had not been complied with, in respect of which it sought a declaration of invalidity of the two impugned decisions and injunctive relief. That relief was available: [75]-[85]

In relation to issue 2,

Per Basten JA (Payne JA agreeing):

The Council exercises the function of preparing a planning proposal in accordance with s 55 of the Environmental Planning and Assessment Act 1979 (NSW). It follows that the Council was required to comply with cl 6 of SEPP 55 in preparing the planning proposal: [19]-[20]

Per Payne JA (Basten JA and Emmett AJA agreeing):

Clause 6 of SEPP 55 must be complied with at the time that a planning proposal is prepared under s 55 of the Environmental Planning and Assessment Act and submitted to the Minister or Commission under s 56(1). The Council was plainly the public authority responsible for preparing the planning proposal within the meaning of ss 55 and 56, and thus a “planning authority” within the meaning of cl 6 of SEPP 55. It was therefore required to comply with cl 6 of SEPP 55 prior to forwarding the planning proposal: [86]-[107]

Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 considered.

In relation to issue 3,

Per Payne JA (Basten JA and Emmett AJA agreeing):

The effect of the proposed amendment, if made, would be to include in a particular zone contaminated land so as to permit a change of use of the land, being residential development, within the meaning of cl 6 of SEPP 55. For that reason the proposed amendment falls within subcl 6(1) of SEPP 55: [108]-[119]

Blue Mountains City Council v Lawrence Browning Pty Ltd (2006) 67 NSWLR 672; [2006] NSWCA 331; Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380 applied.

In relation to issue 4,

Per Payne JA (Basten JA and Emmett AJA agreeing):

There was, on the evidence, no attempt by the Council to grapple with the requirements of subcl 6(1): [131]-[135]

The obligations in subcl 6(2) of SEPP 55 were not complied with in circumstances where, at the time of the Council resolutions, the only report before the Council concerned a different development and did not address any of the matters in subcl 6(2): [120]-[129]

Parramatta City Council v Hale (1982) 47 LGRA 319; Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2014) 88 NSWLR 125; [2014] NSWCA 377 considered.

In relation to issue 5,

Per Payne JA (Basten JA and Emmett AJA agreeing):

The step required by s 56(2) of the Environmental Planning and Assessment Act cannot lawfully be undertaken unless the process of preparing the planning proposal has been carried out by the relevant planning authority under s 55(1) in a legally valid manner. In preparing a planning proposal, the language of cl 6 of SEPP 55 is mandatory. There is a clear legislative intention that a planning proposal that did not comply with SEPP 55 at the s 55(1) stage should not be permitted to proceed under s 56: [138]

As the preparation of the planning proposal under s 55 of the Environmental Planning and Assessment Act by the Council was flawed for failure to comply with cl 5 of SEPP 55, the step taken to forward the planning proposal to the Commission under s 56(1) was not a valid exercise of power: [141]

In circumstances where the Council resolutions are invalid, it follows that the Gateway decision is itself invalid: [142]

Judgment

1. BASTEN JA: This case concerns the rezoning of a small parcel of land on the banks of the Georges River in the Liverpool local government area and a variation to the intensity of residential development permitted on an adjoining parcel. The changes were to take effect by amendment of the Liverpool Local Environmental Plan 2008 (“Liverpool LEP”).

2. The land the subject of the proposed amendments was “contaminated land” to which the State Environmental Planning Policy No 55 – Remediation of Land (“Remediation Policy”) applied. The principal question was whether the Remediation Policy imposed mandatory obligations on the Liverpool City Council (“Council”) and, if so, whether the Council had complied with those obligations in adopting the proposed amendments. The validity of the amendments was challenged by the present appellant Moorebank Recyclers Pty Ltd (“Moorebank”) in the Land and Environment Court. By a judgment delivered on 21 December 2017 Pain J dismissed Moorebank’s application. [1] Moorebank has appealed to this Court pursuant to s 58 of the Land and Environment Court Act 1979 (NSW).

   1. Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2) [2017] NSWLEC 186.

3. The background to the proceedings, the submissions and the legislative provisions are sufficiently set out by Payne JA. I agree that the appeal must be allowed and orders and declarations made, broadly as proposed by Moorebank. I also agree with his reasons. What follows is consistent with those reasons.

Statutory scheme

(1) the Planning Act

4. The following outline of the statutory scheme adopts the form of the Environmental Planning and Assessment Act 1979 (NSW) (“Planning Act”) prior to its renumbering on 1 March 2018. The latest of the events the subject of the present proceedings took place in March 2017.

5. The preparation, making and amendment of local environmental plans was governed by Pt 3, Div 4 of the Planning Act. Generally, environmental planning instruments (a term which includes local environmental plans) are made by the Minister; however, in the Greater Sydney Region (which includes the Liverpool local government area) such instruments are made by the Greater Sydney Commission (“Commission”): Planning Act, ss 53(3) and 53A(1). [2]

   2. See also Planning Act, s 3(1), Greater Sydney Region, adopting meaning in Greater Sydney Commission Act 2015 (NSW), s 3, Sch 1.

6. Part 3, Div 4 conferred functions on a “relevant planning authority”. The Council was the relevant planning authority for the purposes of the Liverpool LEP because it was “the council for the local government area to which the proposed instrument is to apply”: s 54(1)(a).

7. The Planning Act recognises that the initiative for the making (or amendment) of a local environmental plan may come from the owner of any land (presumably land which may be affected by the proposed plan): s 54(3). The effect of that section is not to transfer any function from the council to the owner, but rather to permit the council, on receipt of a request from the owner, to require the owner to carry out studies or provide information and to pay the costs of the council.

8. The making of a local environmental plan involves a staged process. Failure to recognise this aspect of the legislative structure led the respondent into an erroneous approach, which was adopted by the primary judge. The first step in the exercise is the preparation of a “planning proposal”, pursuant to s 55(1). Because the provision was critical to one aspect of the case, it is convenient to set it out in full:

55   Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal

(1)   Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).

9. Certain matters were required to be included in a planning proposal: s 55(2). However, for present purposes two questions arose: first, because s 55(1) provided for a planning proposal to be prepared “before” an environmental planning instrument is made, does that mean that the provision can be satisfied at any time before the instrument is made? Secondly, do the requirements of the Remediation Policy operate with respect to the preparation of a planning proposal?

10. The answer to the first question turns on the staged structure of the legislative scheme and involves considering whether a valid planning proposal must be prepared before the next stage occurs. The answer to the second question turns on the operation of the Remediation Policy, which will be addressed shortly. It is convenient first to identify the further stages in the process of making a local environmental plan. The second step in the process, as applicable in the present case, required that the Council forward the planning proposal to the Commission. That step was to be taken “[a]fter preparing a planning proposal”: s 56(1). The Commission was then required to “review” the planning proposal and to make a determination, described in the heading to the section (but not in the text) as a “Gateway determination”. It is convenient to adopt that label with respect to the determination to be made with regard to the planning proposal. In substance, the Commission was required to decide whether the matter should proceed, whether “community consultation” was required, and whether there should be a public hearing by the Planning Assessment Commission or some other specified person or body: s 56(2)(a), (c) and (e). Importantly, the Commission was required to determine “the times within which the various stages of the procedure for the making of the proposed instrument are to be completed”: s 56(2)(f).

11. Although it is not critical to the appreciation of the steps in the staged process, it is convenient to note the terms of s 56(8):

56   Gateway determination

…

(8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section.

12. Whether failure to conduct a community consultation would render an instrument, if subsequently made without such consultation, invalid will be discussed later; it is presently sufficient to note that community consultation, if required, is an important part of the staged process. It is apparent that an informed determination as to what steps should be required with respect to a particular planning proposal cannot occur unless all relevant considerations have been addressed in formulating the planning proposal.

13. The council has authority to vary a proposal as a consequence of submissions or reports obtained during community consultation “or for any other reason”: s 58(1). The final form of the local environmental plan is settled by the Secretary of the Department, in consultation with the council: s 59(1). The Commission then has power to take one of two steps “following completion of community consultation”, namely (a) make a local environmental plan, or (b) decide not to make the proposed local environmental plan: s 59(2).

(2)   the Remediation Policy

14. Against this decision-making framework, it is necessary to address the operation of the Remediation Policy. The object of the Policy is set out in cl 2 in the following terms:

2   Object of this Policy

(1)   The object of this Policy is to provide for a Statewide planning approach to the remediation of contaminated land.

(2)   In particular, this Policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment:

(a)   by specifying when consent is required, and when it is not required, for a remediation work, and

(b)   by specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and

(c)   by requiring that a remediation work meet certain standards and notification requirements.

15. The operative provision for present purposes is cl 6, which states:

6   Contamination and remediation to be considered in zoning or rezoning proposal

(1)   In preparing an environmental planning instrument, a planning authority is not to include in a particular zone (within the meaning of the instrument) any land specified in subclause (4) if the inclusion of the land in that zone would permit a change of use of the land, unless:

(a)   the planning authority has considered whether the land is contaminated, and

(b)   if the land is contaminated, the planning authority is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for all the purposes for which land in the zone concerned is permitted to be used, and

(c)   if the land requires remediation to be made suitable for any purpose for which land in that zone is permitted to be used, the planning authority is satisfied that the land will be so remediated before the land is used for that purpose.

Note. In order to satisfy itself as to paragraph (c), the planning authority may need to include certain provisions in the environmental planning instrument.

(2)   Before including land of a class identified in subclause (4) in a particular zone, the planning authority is to obtain and have regard to a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines.

(3)   If a person has requested the planning authority to include land of a class identified in subclause (4) in a particular zone, the planning authority may require the person to furnish the report referred to in subclause (2).

(4)   The following classes of land are identified for the purposes of this clause:

(a)   land that is within an investigation area,

(b)   land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c)   to the extent to which it is proposed to carry out development on it for residential … purposes, …—land:

(i)   in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii)   on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

(5)   In this clause, planning authority has the same meaning as it has in section 145A of the Act.

16. It was not in dispute that the land in question satisfied the criteria in sub-cl (4). There were three issues which remained to be determined. The first was whether cl 6 engaged with the staged process provided for in Pt 3, Div 4 of the Planning Act. The primary judge held that it did not, stating that there was “no overlap” between Pt 3, Div 4 and the Remediation Policy. The latter she concluded “continues as a standalone obligation which a planning authority must meet before making an LEP under s 59.”[3]

    3. Judgment at [70].

17. The second issue was whether, if cl 6 was a mandatory requirement in carrying out the steps preparatory to the making of a local environmental plan, the Council had in fact complied with its requirements.

18. The third issue was whether the effect of the proposed amendment of the Liverpool LEP was to include land in a particular zone which would permit a change of use of the land.

19. Addressing the first issue, the proper focus is upon the opening words of cl 6(1). They address a function to be exercised by a “planning authority”. As noted by cl 6(5), the term “planning authority” has the meaning given in s 145A of the Planning Act. Section 145A is to be found in Pt 7A of the Planning Act which is entitled “Liability in respect of contaminated land”. The definition of “planning authority” in s 145A contains three limbs dealing with different functions specified in s 145B. Those functions are relevantly defined as follows:

145B   Exemption from liability—contaminated land

…

(2)   This section applies to the following planning functions:

(a)   the preparation or making of an environmental planning instrument, including a planning proposal for the proposed environmental planning instrument,

…

(f)   anything incidental or ancillary to the carrying out of any function listed in paragraphs (a)–(e).

20. The definition of “planning authority” deals separately with functions relating to a development application or an application for a complying development certificate, neither of which is in issue in the present case. Thirdly, it states:

“(b)   in the case of any other function—the public authority or other person responsible for exercising the function.”

In respect of “the preparation … of an environmental planning instrument, including a planning proposal for the proposed environment planning instrument” the planning authority is the body described as “the relevant planning authority” in s 54(1), namely Liverpool City Council. The Council exercises the function of preparing a planning proposal in accordance with s 55. It follows that the Council was required to comply with cl 6 of the Remediation Policy in preparing the planning proposal. The primary judge was in error to conclude otherwise.

21. With respect to the second issue, because the primary judge concluded that the Council was not required to comply with the requirements of cl 6 of the Remediation Policy, she did not determine whether the Council had in fact complied. As explained by Payne JA, Tanlane ultimately conceded that the Council did not have before it a report satisfying sub-cl 6(2), which it was required “to obtain and have regard to” before exercising a function covered by cl 6(1). It nevertheless contended that the councillors did not have to have available to them the detailed report so long as an officer who had seen the report adequately summarised its content.

22. Underlying the second issue was a perennial problem, namely how a collegiate body should go about a statutory exercise which requires it to “have regard to” a particular matter. It is as well to note what this issue did not involve. First, it did not involve any delegation of authority by the Council to an officer to prepare a planning proposal or to decide that the planning proposal should be forwarded to the Commission. Consequently, no question arose as to whether the Council had power to delegate such a function, having regard to the terms of s 153A of the Planning Act and s 377 of the Local Government Act 1993 (NSW).

23. Secondly, those decisions were not made by an administrative officer of the Council in circumstances where the nature of the power conferred under the statute, read contextually, may have created an implied authority to act through an agent, in accordance with the principle identified in CarltonaLtd v Commissioner of Works. [4] Consequently it is not necessary to give consideration to the factors discussed in the authorities, including those referred to in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act(the Nelson Bay Claim),[5] as to when that principle can be invoked.

    4. [1943] 2 All ER 560.

    5. (2014) 88 NSWLR 125; [2014] NSWCA 377 at [9]-[22].

24. Rather, the question is whether the Council could be said to have had regard to a report satisfying the requirements of cl 6(2) of the Remediation Policy in circumstances where the Council did not have such a document before it when it decided to approve the planning proposal and make arrangements to forward it to the Commission. The submission that this requirement was satisfied in circumstances where the Council’s planning officer had prepared a report containing three sentences dealing with contamination should be rejected, for the reasons given by Payne JA. In summary, those reasons are twofold: first, the reports relied on in the Court to support the passage contained in the planning officer’s report had been prepared for a different purpose and did not address the issues raised by the planning proposal; secondly, even if they had addressed the relevant issues, the brief reference to contamination identified by the planning officer expressed a conclusion which gave no hint as to the content of the reports, or the necessary balancing of considerations which they undertook. Accordingly, it is not necessary to consider whether, and in what circumstances, a council could be said to “have regard to” a report which was not provided to councillors. It is therefore not necessary to consider the issues relating to collegiate decision-making discussed, for example, in IW v City of Perth [6] and McGovern v Ku-Ring-Gai Council. [7]

    6. (1997) 191 CLR 1; [1997] HCA 30.

    7. (2008) 72 NSWLR 504; [2008] NSWCA 209.

25. The third issue turns on whether the steps taken by the Council constituted the inclusion in a particular zone of any land “if the inclusion of the land in that zone would permit a change of use of the land”, for the purposes of cl 6(1) of the Remediation Policy. The Liverpool LEP contained standard provisions which addressed, in Pt 2, permitted or prohibited development. Clause 2.1 identified a number of land use zones which operated in accordance with their designation on a land zoning map. Clause 2.3 identified a “Land Use Table” which specified for each zone developments that may be carried out with or without development consent, and developments which were prohibited. Subclause (4) provided that cl 2.3 was “subject to the other provisions of this Plan.” One such provision, cl 2.5 was as follows:

2.5   Additional permitted uses for particular land

(1) Development on particular land that is described or referred to in Schedule 1 may be carried out:

(a)   with development consent, or

(b)   if the Schedule so provides—without development consent,

in accordance with the conditions (if any) specified in that Schedule in relation to that development.

(2)   This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan.

26. The planning proposal approved by the Council involved two elements. One element involved the rezoning of 0.41 ha of land from RE2 Private Recreation zone to the R3 Medium Density Residential zone. It is not possible to treat that element of the planning proposal as otherwise than the inclusion of land in a particular zone (the land having previously been differently zoned) so as to permit a change of use of the land.

27. The second element of the planning proposal involved an amendment to both Pt 7, Div 2 and Sch 1 of the Liverpool LEP to permit additional residential uses within the land zoned RE2 Private Recreation. Tanlane contended that this variation permitted a change in land use but did not involve a rezoning. It therefore did not involve “the inclusion of the land in that zone”.

28. This submission should be rejected as an overly narrow reading of the Remediation Policy, in a way which does not further its purpose or objectives. There are three reasons for that conclusion.

29. First, it is true that cl 6(1) does not refer to an amendment to an environmental planning instrument that would permit a change of use of the land; rather, it refers to a mechanism for achieving a permissible change of use, namely the inclusion of the land in a zone. However, a “zone” has a number of elements. It is certainly a topographical means of identifying where particular uses are permitted and where they are not. It is the permissible use of contaminated land which is the focus of cl 6. Thus, the exception to the prohibition in cl 6(1) includes a requirement that the planning authority be satisfied that “the land is suitable in its contaminated state … for all the purposes for which land in the zone concerned is permitted to be used” and, if the land requires remediation, the authority is satisfied that “the land will be so remediated before the land is used for that purpose.” [8] The purpose is to control land use where the land is contaminated; zoning is merely a means to that end.

    8. Remediation Policy, cl 6(1)(b) and (c).

30. Secondly, zoning is not merely the topographical depiction of particular areas on a land use map; such a depiction would be meaningless without reference to the relevant zone objectives and the specifications in the land use table for the particular zone. Accordingly, to change the zone objectives or the permitted uses within a particular zone is to change the zoning, whether or not the name of the zone is changed, or the topographical area varied.

31. Thirdly, cl 6(1) operates in a range of circumstances which may include the initial specification of a particular zone, or an amendment to a plan which has established zones and land uses. The language should be read with sufficient flexibility to cover such a variety of circumstances, consistently with the objectives of the Policy. In other words, the language of including land within a particular zone comfortably accommodates a planning proposal which changes the permitted land uses within a zone.

32. The respondent’s submissions to the contrary should be rejected for these reasons and for the reasons given by Payne JA in considering ground 3 of the notice of appeal.

Whether judicial review available

33. Before the primary judge the respondent submitted that the decision of the Council to adopt the planning proposal and arrange for it to be forwarded to the Commission was not judicially reviewable. The respondent further submitted that, even if the decision of the Council were invalid, the gateway determination made by the Commission was not infected by such invalidity. The respondent’s submissions involved two propositions. The first was that the proceedings in the Land and Environment Court were brought by way of judicial review of two decisions of the Council and one of the Commission. Secondly, proceedings for review under s 20(2)(b) of the Land and Environment Court Act engaged an equivalent jurisdiction to that reflected in s 69 of the Supreme Court Act 1970 (NSW), which was limited to decisions with a sufficient degree of finality to affect legal rights. Neither of these propositions should be accepted; they involved over-rigid characterisation, both of the nature of proceedings and the forms of relief available.

34. The first proposition sought to make a comparison between judicial review proceedings and enforcement proceedings under ss 123 and 124 of the Planning Act. The comparison is misplaced. Section 123 has two purposes: first, it is an open standing provision which permits “[a]ny person” to bring proceedings to remedy or restrain a breach of the Planning Act, whether or not that person has a right which has been infringed. Secondly, it confers jurisdiction on the Land and Environment Court to hear and determine such proceedings. Section 124 confers power on the Land and Environment Court to provide relief more particularly identified than simply by reference to “an order to remedy or restrain a breach”.

35. It is not necessary for present purposes to determine whether the relief available pursuant to ss 123 and 124 is broader than the powers of the Supreme Court in exercising its judicial review jurisdiction to make quashing orders, direct the carrying out of a duty or grant injunctive relief. It is sufficient to note that, in general terms, similar forms of relief will be available in proceedings brought by way of judicial review under s 20(2)(b) of the Land and Environment Court Act. In proceedings referable to the jurisdiction conferred by the Planning Act and the Land and Environment Court Act, the powers will be exercised by reference to both the statutory scheme and general law principles relevant to the validity of the exercise of statutory functions.

36. The second proposition turns on the scope, in accordance with general law principles, of a power to quash a decision or grant injunctive relief to prevent an authority acting upon a decision. Although the respondent sought to rely upon the reasoning of the High Court in Hot Holdings Pty Ltd v Creasy,[9] that decision supports a different conclusion.

    9. (1996) 185 CLR 149 at 159; 162 (Brennan CJ, Gaudron and Gummow JJ); [1996] HCA 44.

37. Hot Holdings was concerned with multiple applications for a mining lease being lodged within less than one minute with respect to substantially one area of land. If the applications had been lodged “at the same time”, the warden was required to conduct a ballot to determine which application should have priority. The decision to grant a mining tenement to a particular applicant was vested in the Minister. The challenge was brought to the decision of the warden that a ballot should be conducted. The Court held that the decision of the warden was reviewable.

38. It is sufficient to refer to two passages in the joint reasons of the majority (Brennan CJ, Gaudron and Gummow JJ). The issue was identified in the following passage: [10]

“The proposition that certiorari will lie only in respect of a decision which determines questions affecting rights has led to a number of cases, of which the present is one, where the contention has been that the decision in issue is merely advisory, provides a recommendation, or is made at a preliminary stage of a decision-making process.”

The relevant principle was further identified in the following passage: [11]

“There is no issue taken with the proposition that the granting or refusal of a mining tenement by the Minister under the Act affects legal rights in the relevant sense. Rather, the issue is whether a decision prior to that final exercise of discretion can be said sufficiently to affect legal rights. Thus, in the words of Stephen J,[12] one must ask whether there is a decision which constitutes some condition precedent to the exercise of power which will affect legal rights. Alternatively, in the words of the majority in Ainsworth,[13] the preliminary report or recommendation must operate in this situation ‘as a precondition or as a bar to a course of action’ or ‘as a step in a process capable of altering rights, interests or liabilities’.”

10.    Hot Holdings at 159.

11.    Hot Holdings at 162.

12. Referring to the judgment in The Queen v Collins; Ex parte ACTU-Solo Enterprises Pty Ltd (1976) 50 ALJR 471 at 473.

13. Referring to Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580; [1992] HCA 10.

39. In applying those principles to the circumstances of the case, the joint reasons noted that “a complaint about the ordering of a ballot is a complaint directed to the warden’s satisfaction as to initial compliance at the same time.” [14] The joint reasons then noted that: [15]

“While it may be true that the content of the warden's report and recommendation does not bind the Minister, this does not mean that the report and recommendation of the warden is not something to which the Minister is bound to have regard in exercising his discretion.”

The joint reasons concluded: [16]

“Here, the legislature provided no other means for the Minister to be informed of matters specific to the individual applicants. It is apparent that the Minister is bound to consider the information which the warden transmits …. The Minister may not exercise the discretion to grant or refuse applications until the warden's recommendation and report, expressing as it must the warden's decision on priority, is received and taken into account. The result of this statutory process is that, regardless of the content of the ‘right in priority’, the warden's decision has a discernible legal effect upon the Minister's exercise of discretion.”

14.    Hot Holdings at 168.

15.    Hot Holdings at 170.

16.    Hot Holdings at 174.

40. Applying those principles in the present case, there may be a request from the owner of land for the making of an environmental planning instrument, an act which cannot occur except through the medium of the Minister or the Commission. Nevertheless, an essential step in the process by which it can occur is the preparation by the Council of a planning proposal. As in Hot Holdings, it is correct to say that the Minister (or the Commission) will depend for their source of information as to the nature, purpose and effect of any proposed instrument on the contents of the planning proposal approved by the Council. It follows that the decisions of the Council to approve the planning proposal and to forward it to the Commission were necessary steps in the process of creating legal entitlements in the owner of the land and were therefore reviewable.

41. Whilst Aronson, Groves and Weeks have suggested that “[i]t is not always easy to reconcile the cases”, they do not suggest that the reasoning in Hot Holdings has been impugned in any later judgment of the High Court. [17] Accordingly, the challenge to the availability of relief with respect to the decisions of the Council must be rejected.

    17.    M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) at pp 866-871, under the heading “Interests must be relevantly affected”.

Whether invalid steps taken

42. The next question is whether the decisions of the Council were invalid, because there was non-compliance with the requirements of cl 6 of the Remediation Policy. The reason for finding non-compliance has already been addressed. Whether Moorebank is entitled to the relief it seeks depends upon whether non-compliance with the Remediation Policy renders the Council’s decision to approve the planning proposal on 31 August 2016 invalid. The final question is whether, if that decision were invalid, the gateway determination made by the Commission is also invalid.

43. There is no doubt that cl 6 of the Remediation Policy is expressed in mandatory terms. There is nothing in the nature of the obligation, or the purposes of the Policy, to suggest that compliance is not mandatory, in the sense that non-compliance will mean that a statutory precondition to the exercise of a power has not been fulfilled.

44. While Pt 3, Div 4 does not refer to the Remediation Policy, s 55 is in mandatory terms. Where an environmental planning instrument is proposed in relation to use of contaminated land, it would not be possible for a planning proposal to comply with the requirement in s 55 that it explain the intended effect of the proposed instrument and set out the justification for making the proposed instrument if obligations with respect to dealing with contamination had not been addressed. Once the obligations in s 55 and the Remediation Policy are read together, which must be done in circumstances where both apply, the effect is that a planning proposal prepared without reference to the requirements of cl 6 of the Remediation Policy will be invalid. There is nothing in s 55 to suggest otherwise.

45. By contrast, s 56(8) addresses the effect of a failure to comply with a requirement of the gateway determination made by the Minister or the Commission, after a review of the planning proposal. The first limb of s 56(8) provides that a failure to comply with a requirement does not “prevent the instrument from being made or invalidate the instrument once it is made.” The absence of any such provision in s 55 is an indication that the legislature did not think such a derogation from the mandatory language of that section was appropriate.

46. The second limb of s 56(8) is also significant in the present context. It commences with the connective term “however”. In ordinary parlance, that term is used to introduce a qualification or exception to what has preceded it. That is its apparent purpose in s 56(8). What follows qualifies the preceding permissive provision by stating that the instrument is “not to be made” until the relevant elements of community consultation have been undertaken, where community consultation is required by a direction given by the Minister or the Commission. The process of community consultation is set out in s 57. That provision requires that a planning proposal with respect to the making of a local environmental plan be made publicly available, so that members of the community may have the opportunity to make submissions with respect to the proposal. It is clear that, if the proposal relates to contaminated land, the process of community consultation would be thwarted, or at least seriously undermined, if cl 6 of the Remediation Policy has not been complied with in the preparation of the planning proposal. Because the plan could not be made absent a community consultation process complying with s 57, where community consultation is required, the proper inference is that non-compliance with cl 6 will result in a planning proposal which does not comply with the requirements of the legislation. In that sense, the decision of the Council to approve the planning proposal put before it without compliance with cl 6 was not a valid step in the process of making the instrument.

47. As each step in the process is an essential link in a chain, but subject to those directions non-compliance with which does not result in invalidity pursuant to s 56(8), compliance with each mandatory step is a precondition to the making of a valid instrument. In this case those steps have not been complied with. It follows that the gateway determination was invalid and the proposed local environmental plan could not have been validly made.

Orders

48. These conclusions should be reflected in appropriate orders. The appellant sought both declaratory relief and orders quashing the decisions made by the Council and the gateway determination made by the Commission. These orders depend upon a critical finding of fact, namely that the Council had not complied with cl 6 of the Remediation Policy in approving the planning proposal. No declaration is required in terms reflecting that conclusion. Rather the relief is based on the effect of that finding. In my view the appropriate orders should be framed in the following terms:

1. Allow the appeal from the judgment and orders in the Land and Environment Court dated 21 December 2017.

2. Set aside orders (1) and (2) made in the Land and Environment Court on 21 December 2017.

3. Declare that the planning proposal accepted by the Liverpool City Council on 31 August 2016 in relation to 146 Newbridge Road, Moorebank, was not a valid planning proposal for the purposes of s 55 of the Environmental Planning and Assessment Act 1979.

4. Declare that the determination by the Greater Sydney Commission made on 9 March 2017 in relation to the planning proposal forwarded to it by Liverpool City Council was invalid, the planning proposal not being a valid planning proposal.

5. Set aside the determination of the delegate of the Commission made on 9 March 2017.

6. Dismiss the appellant’s notice of motion filed on 10 July 2018.

7. Order that Tanlane Pty Ltd pay the costs of Moorebank Recyclers Pty Ltd in the Land and Environment Court and in this Court.

49. PAYNE JA: The appellant, Moorebank Recyclers Pty Ltd, owns land neighbouring that belonging to the first respondent, Tanlane Pty Ltd, on the banks of the Georges River in southern Sydney. Under the Liverpool Local Environmental Plan 2008 (“LLEP”) the northern portion of the first respondent’s land is zoned R3 Medium Density Residential and the southern portion is zoned, in part, RE1 Public Recreation and, in part, RE2 Private Recreation. The appellant, the first respondent and a company associated with the first respondent, Benedict Industries Pty Ltd (“Benedict”), have been locked in litigation for some years over the first respondent’s proposal to develop its land for residential subdivision and for the construction of a marina by Benedict. The marina development also involves development of recreation and residential facilities by the first respondent in the RE2 Private Recreation portion of the land.

50. Over a lengthy period of time leading up to 2016, the first respondent developed a planning proposal for its land, in a number of iterations, which planning proposal relevantly involved two proposed amendments to the LLEP:

1. an amendment to Schedule 1 of the LLEP enabling residential development up to 21,765m² as an additional permitted use on a proposed marina site on the first respondent’s land, zoned RE2 “Private Recreation” (“the Schedule 1 amendment”); and

2. an amendment to the LLEP adjusting the boundary between the residential subdivision and marina sites by rezoning 0.41ha of the first respondent’s land from RE2 Private Recreation to R3 Medium Density Residential (“the Rezoning amendment”).

51. It is common ground that the first respondent’s land the subject of these proposed amendments is contaminated and that cl 6 of State Environmental Planning Policy No 55 - Remediation of Land (“SEPP 55”) will need to be complied with at some time during the process of preparing and making any amendments to the LLEP. The effect of the proposed Rezoning amendment and Schedule 1 amendment may be seen on the following map. The proposed 0.41ha of the first respondent’s land rezoned from RE2 Private Recreation to R3 Medium Density Residential is shown in the yellow hatched portion.

52. The red near-rectangle shape immediately to the south of the proposed rezoned area shown in the light green area marked RE2 is the subject of the Schedule 1 amendment. Schedule 1 of the LLEP addresses “Additional Permitted Uses”. The effect of this proposed amendment to Schedule 1 is to permit residential development in the RE2 Private Recreation zone. Such development is currently prohibited in that area. The Schedule 1 amendment would permit, with consent, up to 21,765m² of the RE2 zoned land (the size of the land shown within the red near-rectangle shape) to be used for residential development.

53. This appeal concerns two parts of the process of seeking the proposed amendments to the LLEP:

1. on 31 August 2016, the third respondent, Liverpool City Council (“the Council”) who entered a submitting appearance save as to costs in the proceedings, passed resolutions supporting the first respondent’s planning proposal “in principle”. The resolutions authorised an officer of the Council to forward that planning proposal once amended to the Greater Sydney Commission (“GSC”) (the second respondent who also entered a submitting appearance save as to costs in the proceedings) to consider making a “gateway determination” pursuant to the Environmental Planning and Assessment Act 1979 (NSW) (the “EPA Act”) (“the Council resolutions”);

2. on 9 March 2017, a delegate of the GSC made a gateway determination that the first respondent’s planning proposal should proceed subject to conditions (“the Gateway decision”).

54. The agreed statement of facts which was before the primary judge provided, relevantly, as follows:

“1.    In January 2012, Benedict Industries Pty Ltd lodged a development application with Liverpool City Council (Council) for a marina on Lot 7 in DP 1065574 (Tanlane land) (the Marina DA). The Marina DA was subsequently referred to the Sydney West Joint Regional Planning Panel (JRPP) for determination in accordance with Schedule 4A of the Environmental Planning and Assessment Act 1979 (EP&A Act).

2.    On 22 August 2014, the JRPP approved the Marina DA (Marina Approval).

3.    On 6 January 2015, EMM on behalf of Tanlane prepared a planning proposal entitled “Planning proposal LEP amendment at 146 Newbridge Road” (Planning Proposal).

4.    On 12 January 2015, the Planning Proposal was lodged by or on behalf of Tanlane with the Council.

5.    On 18 March 2015, Preston CJ declared the Marina Approval invalid (Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40).

6.    In July 2015, a report entitled “Preliminary Investigation of Contamination” (PI) was prepared by EMM.

7.    On 17 August 2015, Benedict Industries Pty Ltd lodged a further development application with the Council for a marina on the Tanlane Land, being DA-781/2015.

8.    On 11 March 2016, a report entitled “Supplementary Preliminary Investigation Proposed Georges Cove Marina” (SPI) was prepared by EMM.

9.    On 12 July 2016, the Planning Proposal was modified.

10.    On 13 July 2016, the modified Planning Proposal was submitted to the Council by or on behalf of Tanlane.

11.    On 31 August 2016, the Council made resolutions supporting the Planning Proposal in principle, with modifications, and delegated to the Acting CEO the power to forward the updated proposal to the Department of Planning and Environment (Department) seeking gateway determination (the Resolutions).

12.    On 29 September 2016, the JRPP approved the marina DA (DA-781/2015) (Marina Approval).

13.    On 7 October 2016, the Planning Proposal was further modified.

14.    On 4 November 2016, the Council forwarded the Planning Proposal to the Department of Environment and Planning (Department).

15.    On 15 November 2016, the Department sent an initial assessment of the Planning Proposal to the Council.

16.    On 29 November 2016, Moorebank commenced objector proceedings against the Marina Approval (proceedings no. 16/357347).

17.    On 13 December 2016, the Planning Proposal was further modified.

18.   On 17 January 2017, the Council sent an “updated” version of the Planning Proposal to the Department.

19.   On 24 January 2017, the Council sent a further amended version of the Planning Proposal to the Department.

20.   On 14 February 2017, a Planning Team Report was prepared in respect of the Planning Proposal.

21.   On 9 March 2017, Stephen Murray, the delegate of the Greater Sydney Commission (GSC) determined that the Planning Proposal should proceed, subject to the conditions contained in the determination (Gateway Determination).

22.   On 22 March 2017, the Planning Proposal was further modified.

23.   On 29 March 2017, the Council submitted the further modified Planning Proposal to the Department.

24.   On 30 March 2017, the Planning Proposal was further modified.”

55. One matter to note in that chronology is that the planning proposal actually forwarded to the GSC by an officer of the Council on 4 November 2016 was not the version of the planning proposal before the Council on 31 August 2016. That planning proposal was modified on 7 October 2016. The version sent to the Department was known as “v4”. I will return below to the question of whether this is a matter of any legal significance in this case.

56. To complete the chronology, on 21 December 2017, Pain J in the Land and Environment Court published her Honour’s decision rejecting the claim by the appellant that the Council resolutions and the Gateway decision were each invalid by reason of a failure to comply with cl 6 of SEPP 55: Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (No 2) [2017] NSWLEC 186. This is the decision the subject of the present appeal.

57. On 28 February 2018, Commissioner Brown in Class 1 proceedings in the Land and Environment Court set aside the Marina Approval and made an order that “Development application DA 781/2015 for the construction and operation of a marina on part Lot 7 DP 1065574, 146 Newbridge Road, Moorebank is refused”: Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2018] NSWLEC 1089.

Decision of the primary judge

58. The issues described in an “Agreed List of Real Issues for Determination” before the primary judge were as follows:

“1.    Does cl. 6 of State Environmental Planning Policy No 55-Remediation of Land (SEPP 55) apply to the preparation and/or adoption of the Planning Proposal by the Council, including the resolutions made on 31 August 2016 (Resolutions)?

2.    If the answer to 1 is yes, did the Council fail to comply with:

(a)    cl. 6(2) of SEPP 55? and/or

(b)    cl. 6(1) of SEPP 55?

3.    If yes to either or both 2(a) and 2(b), should the Resolutions and any subsequent actions pursuant to the Resolutions be declared invalid and of no effect?

4.    Does cl. 6 of SEPP 55 apply to the Gateway Determination?

5.    If yes to 4, in making the Gateway Determination, did the delegate of the Greater Sydney Commission (GSC) (Delegate) fail to comply with:

(a)    cI.6(2) of SEPP 55 and/or

(b)    cI.6(1) of SEPP 55?

6.    If yes to either or both 5(a) and 5(b), is the Gateway Determination invalid and of no effect?

7.    Did the Delegate make the Gateway Determination under a misapprehension of material fact and/or law?

8.    If the answer to 7 is yes, is the Gateway Determination invalid and of no effect?”

59. The primary judge began with an analysis of what her Honour identified as the threshold question, being:

“does cl 6 of SEPP 55 apply to the preparation and/or adoption of the Planning Proposal by the Council including the Council Resolution and the making of the Gateway Determination by the GSC Delegate?”

60. Clause 6 of SEPP 55 relevantly provides that:

“6    Contamination and remediation to be considered in zoning or rezoning proposal

(1)    In preparing an environmental planning instrument, a planning authority is not to include in a particular zone (within the meaning of the instrument) any land specified in subclause (4) if the inclusion of the land in that zone would permit a change of use of the land…

(2)    Before including land of a class identified in subclause (4) in a particular zone, the planning authority is to obtain and have regard to a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines.”

61. The primary judge found that no explicit or implied obligation to consider SEPP 55 arose from Pt 3 Div 4 of the EPA Act because, unlike the pre-2009 version of the EPA Act, there is no intersection between the language in Pt 3 Div 4 and subcll 6(1) or (2).

62. The primary judge found that an “Environmental Planning Instrument” (“EPI”), which was defined in s 4 of the EPA Act as “an environmental planning instrument (including a SEPP or LEP but not including a DCP) made, or taken to have been made, under Part 3 and in force”, does not include the preparation of a planning proposal or a gateway determination. It followed from that finding that the obligations in Pt 3 Div 4 of the EPA Act and cl 6 of SEPP 55, which apply to the preparation of an EPI, were not engaged by the preparation of a planning proposal or a gateway determination.

63. Having found that there was no “link” or “overlap” between Pt 3 Div 4 of the EPA Act and cl 6 of SEPP 55, the primary judge found that SEPP 55 was a standalone obligation that a planning authority must meet before making a LEP under s 59 of the EPA Act.

64. The primary judge drew support for that conclusion from Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 where this Court (Sackville AJA, Beazley JA and Tobias AJA agreeing) held that the operation of cl 6 of SEPP 55 was not confined to or concerned with the procedures involved in making a SEPP under s 37(1) of the EPA Act, and could apply before the formal procedures for making a SEPP arose.

61. In the context of Pt 3 Div 3 of the EPA Act, which is concerned with the making of SEPPs (as opposed to Div 4 which is concerned with LEPs), Sackville AJA held that the obligation of a planning authority to comply with a SEPP can occur at any time prior to the making of a SEPP. Her Honour found that the equivalent step of making a LEP occurs in Div 4 under s 59.

62. In concluding that there was no obligation to comply with cl 6 of SEPP 55 in making the Council resolutions or the Gateway decision, the primary judge noted evidence that the relevant government department considered that the third iteration of the planning proposal, being the iteration sent by the Council, needed to address SEPP 55, resulting in the preparation of the fourth iteration of the planning proposal given to the Delegate. The primary judge concluded that the Delegate had material addressing SEPP 55 before him when making the Gateway decision. Her Honour, however, made no finding about whether SEPP 55 had been complied with. Her Honour observed that (at [74]) “[i]n practice a council preparing a planning proposal and a decision maker at the gateway determination stage can address contamination issues including by reference to SEPP 55”.

63. The primary judge next made some observations about a topic strongly pressed on her Honour by the first respondent, which submission was repeated in this Court, framed as an issue of justiciability:

“Are the Council Resolutions and Gateway Determination amenable to judicial review?”

68. The primary judge found that the Council resolutions of 31 August 2016 were not grounded in any statutory provision, concluding that the mere fact that a council will as an administrative matter make a decision to proceed with a planning proposal does not “necessarily” give rise to a justiciable decision: at [80]. The primary judge reached no conclusion in respect of the Gateway decision based on her Honour’s earlier conclusion that consideration of cl 6 of SEPP 55 was not mandatory in making that decision.

69. The primary judge then addressed, on a contingent basis, the question of whether cl 6 of the SEPP applied to the Schedule 1 amendment. The primary judge held that the Schedule 1 amendment was “not expressed to be a change in zoning of land”: at [85]. Her Honour found that the plain meaning of “a change of use of land” does not call for any further interpretation. Her Honour apparently concluded that this meant that the proposed change was not the result of a “zoning provision” and thus subcl 6(1) of SEPP 55 did not apply to the Schedule 1 amendment.

70. The primary judge stated that the remaining issues concerning whether cl 6 of SEPP 55 was breached and whether the two decisions were invalid did not need to be addressed given her earlier conclusions.

Issues on appeal

71. The notice of appeal has ten grounds. The issues raised can be categorised as the “justiciability issue” (ground 2), “threshold issues” (grounds 1-4 and 10), the “Schedule 1 issue” (ground 3), the “Council resolutions issues” (grounds 5-6) and the “Gateway decision issues” (grounds 7-9). The grounds are as follows:

1. that the primary judge erred in finding that compliance with cl 6 of SEPP 55 was a standalone obligation which could be satisfied at any time prior to making a LEP under the EPA Act, s 59;

2. that the primary judge erred in finding that the Council resolutions of 31 August 2016 were not justiciable;

3. that the primary judge erred in finding that cl 6 of SEPP 55 did not apply to the Schedule 1 Amendment;

4. that the primary judge erred in failing to find that cl 6 of SEPP 55 applied to the Rezoning Amendment;

5. that the primary judge erred in failing to find that the Council breached subcl 6(2) of SEPP 55;

6. that the primary judge erred in failing to find that the Council breached subcl 6(1) of SEPP 55 because it failed to comply with subcll 6(1)(b) and 6(1)(c);

7. that the primary judge erred in failing to find that the Gateway decision was invalid because the Council had breached SEPP 55;

8. that the primary judge erred in failing to find that the Delegate breached subcl 6(2) of SEPP 55 in making the Gateway decision;

9. that the primary judge erred in failing to find that the Delegate breached subcl 6(1) of SEPP 55 in making the Gateway decision because he failed to comply with subcll 6(1)(b) and 6(1)(c); and

10. that the primary judge erred in finding that any failure to comply with SEPP 55 at the gateway stage could be cured before the LEP is made under s 59 of the EPA Act.

Applicable legislation

72. The decisions the subject of the appeal were made on 31 August 2016 (the Council resolutions) and 9 March 2017 (the Gateway decision). SEPP 55 at both of those dates provided, relevantly:

“1      Name of Policy

This Policy is State Environmental Planning Policy No 55—Remediation of Land.

2      Object of this Policy

(1)     The object of this Policy is to provide for a Statewide planning approach to the remediation of contaminated land.

(2)     In particular, this Policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment:

(a)     by specifying when consent is required, and when it is not required, for a remediation work, and

(b)     by specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and

(c)     by requiring that a remediation work meet certain standards and notification requirements.

3      Notes

The table of contents and notes in the text of this Policy do not form part of this Policy.

4      Definitions

(1)     In this Policy:

category 1 remediation work is defined in clause 9.

category 2 remediation work is defined in clause 14.

contaminated landhas the same meaning as it has in Part 7A of the Act.

contaminated land planning guidelines means guidelines under section 145C of the Act.

investigation area means land declared to be an investigation area by a declaration in force under Division 2 of Part 3 of the Contaminated Land Management Act 1997.

preliminary investigation, in relation to land, means a preliminary investigation referred to in the contaminated land planning guidelines.

remediationmeans:

(a)    removing, dispersing, destroying, reducing, mitigating or containing the contamination of any land, or

(b)     eliminating or reducing any hazard arising from the contamination of any land (including by preventing the entry of persons or animals on the land).

Note. This definition of remediation corresponds to parts of the definition of remediation in the Contaminated Land Management Act 1997.

remediation order means a remediation order made by the Environment Protection Authority and in force under Part 3 of the Contaminated Land Management Act 1997.

remediation site means:

(a) land declared to be a remediation site by a declaration in force under Division 3 of Part 3 of the Contaminated Land Management Act 1997, or

(b)  premises:

(i) in respect of which there is in force a notice under section 35 of the Environmentally Hazardous Chemicals Act 1985 requiring prescribed remedial action to be taken, or

(ii)  that are the subject of prescribed remedial action (whether being undertaken by the Environment Protection Authority or by another public authority at the direction of that Authority) under section 36 of that Act.

the Act means the Environmental Planning and Assessment Act 1979.

unincorporated area means such parts of the Western Division of New South Wales as are not within a local government area.

(2)     A reference in this Policy to a remediation work carried out or to be carried out on any land includes a reference to a remediation work carried out or to be carried out in, over or under the land concerned.

5      Land to which this Policy applies

This Policy applies to the whole of the State.

6      Contamination and remediation to be considered in zoning or rezoning proposal

(1)     In preparing an environmental planning instrument, a planning authority is not to include in a particular zone (within the meaning of the instrument) any land specified in subclause (4) if the inclusion of the land in that zone would permit a change of use of the land, unless:

(a)     the planning authority has considered whether the land is contaminated, and

(b)     if the land is contaminated, the planning authority is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for all the purposes for which land in the zone concerned is permitted to be used, and

(c)    if the land requires remediation to be made suitable for any purpose for which land in that zone is permitted to be used, the planning authority is satisfied that the land will be so remediated before the land is used for that purpose.

Note.    In order to satisfy itself as to paragraph (c), the planning authority may need to include certain provisions in the environmental planning instrument.

(2)     Before including land of a class identified in subclause (4) in a particular zone, the planning authority is to obtain and have regard to a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines.

(3)     If a person has requested the planning authority to include land of a class identified in subclause (4) in a particular zone, the planning authority may require the person to furnish the report referred to in subclause (2).

(4)     The following classes of land are identified for the purposes of this clause:

(a)     land that is within an investigation area,

(b)     land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c)     to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land:

(i)     in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii)     on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

(5)     In this clause, planning authority has the same meaning as it has in section 145A of the Act.

…”

73. The relevant provisions of the EPA Act are Pt 3 Div 4, ss 79C, 83(2)(a), 122-124, 145A and 145B. The EPA Act in the form current between 6 January 2017 and 7 June 2017 (which is not relevantly different to the EPA Act in the form it took between 3 June 2016 and 29 November 2016 when the Council resolutions were made) provided:

“Division 4 LEPs

53    Minister may make environmental planning instruments for local areas (LEPs)

(1) The Minister may make environmental planning instruments for the purpose of environmental planning:

(a)    in each local government area, and

(b)    in such other areas of the State (including the coastal waters of the State) as the Minister determines.

(2)    Any such instrument may be called a local environmental plan (or LEP).

(3) Despite subsection (1), the Minister may not make a local environmental plan in respect of any local government area in the Greater Sydney Region. However, this subsection does not prevent the Minister from giving directions under section 117 to a council or other public authority on any matter relating to the Greater Sydney Region.

53A    Greater Sydney Commission may make LEPs for local areas in Greater Sydney Region

(1)    The Greater Sydney Commission may make environmental planning instruments for the purposes of environmental planning in each local government area in the Greater Sydney Region. Any such instrument may be called a local environmental plan (or LEP).

(2)    For the purposes of the making of LEPs that apply to local government areas in the Greater Sydney Region, a reference to the Minister in section 15, 33B (4) or (5), 54 (1), (2) (a), (c) or (d) or (4), 56, 58, 59, 73A (1) (c), 74D (5) (b) or 74F is to be construed as a reference to the Greater Sydney Commission.

54    Relevant planning authority

(1)    For the purposes of this Part, the relevant planning authority in respect of a proposed instrument is as follows:

(a)    the council for the local government area to which the proposed instrument is to apply, subject to paragraph (b),

(b)    the Secretary or any other person or body prescribed by the regulations if the Minister so directs under subsection (2).

(2) The Minister may direct that the Secretary (or any other person or body prescribed by the regulations) is the relevant planning authority for a proposed instrument in the following cases:

(a)    the proposed instrument relates to a matter that, in the opinion of the Minister, is of State or regional environmental planning significance or of environmental planning significance to a district within the meaning of Part 3B,

(b)    the proposed instrument makes provision that, in the opinion of the Minister, is consequential on the approval of the concept plan for a project under Part 3A, is consequential on the making of another environmental planning or other instrument or is consequential on changes made to a standard instrument under section 33A,

(c) the Planning Assessment Commission or a joint regional planning panel has recommended to the Minister that the proposed instrument should be submitted for a determination under section 56 (Gateway determination) or that the proposed instrument should be made,

(c1) a recommendation has been provided under section 15 (b) that the proposed instrument should be submitted for a determination under section 56 or that the proposed instrument should be made,

(d)    the council for the local government area concerned has, in the opinion of the Minister, failed to comply with its obligations with respect to the making of the proposed instrument or has not carried out those obligations in a satisfactory manner,

(e)    the proposed instrument is to apply to an area that is not within a local government area (subject to subsection (6)).

(3)    A relevant planning authority that is requested by the owner of any land to exercise its functions under this Division in relation to the land may, as a condition of doing so, require the owner to carry out studies or provide other information concerning the proposal or to pay the costs of the authority in accordance with the regulations.

(4) The Minister may, in a direction under this section, require a council to provide studies or other information in its possession relating to the proposed instrument to be provided to the person or body specified in the direction as the relevant planning authority for the proposed instrument.

(5)    Two or more relevant local authorities may together exercise the functions under this Division of a relevant planning authority in connection with the making of a single principal or amending instrument in relation to the whole of their combined areas.

(6)    A reference in this section to a local government area includes a reference to an adjoining area that is not within a local government area and that is designated as part of that local government area for the purposes of this Division by the Minister by order published in the Gazette.

Note. Section 117 enables directions to be given to councils or other relevant planning authorities on the exercise of functions under this Division in relation to the making of an instrument.

55    Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal

(1)    Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal).

(2)    The planning proposal is to include the following:

(a)    a statement of the objectives or intended outcomes of the proposed instrument,

(b)    an explanation of the provisions that are to be included in the proposed instrument,

(c) the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117),

(d)    if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument,

(e)    details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.

(3)    The Secretary may issue requirements with respect to the preparation of a planning proposal.

56    Gateway determination

(1)    After preparing a planning proposal, the relevant planning authority may forward it to the Minister.

(2)    After a review of the planning proposal, the Minister is to determine the following:

(a)    whether the matter should proceed (with or without variation),

(b)    whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal),

(c)    community consultation required before consideration is given to the making of the proposed instrument (the community consultation requirements),

(d)    any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument,

(e)    whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body,

(f)    the times within which the various stages of the procedure for the making of the proposed instrument are to be completed.

(3)    A determination of the community consultation requirements includes a determination under section 73A (or other provision of this Act) that the matter does not require community consultation.

(4)    The regulations may provide for the categorisation of planning proposals for the purposes of this section, and may prescribe standard community consultation requirements for each such category.

(5) The Minister may arrange for the review of a planning proposal (or part of a planning proposal) under this section to be conducted by, or with the assistance of, the Planning Assessment Commission or a joint regional planning panel:

(a)    if there has been any delay in the matter being finalised, or

(b)    if for any other reason the Minister considers it appropriate to do so.

(6)    The relevant planning authority may, at any time, forward a revised planning proposal to the Minister.

(7) The Minister may, at any time, alter a determination made under this section.

(8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section.

57    Community consultation

(1)    Before consideration is given to the making of a local environmental plan, the relevant planning authority must consult the community in accordance with the community consultation requirements for the proposed instrument.

(2) The planning proposal (as revised to comply with the determination under section 56 and in a form approved by the Secretary) is to be made publicly available during the period of community consultation. Detailed provisions may be summarised instead of being set out in full if the Secretary is satisfied that the summary provides sufficient details for community consultation.

91. Clause 6 of SEPP 55 provides two important textual indications that the construction advanced by the first respondent, that cl 6 of SEPP 55 may be satisfied at any time prior to the “making” of a LEP under s 59 of the EPA Act, is not correct. First, subcl 6(1) expressly addresses the functions involved in “preparing”, as distinct from “making”, an environmental planning instrument.

92. “Preparing” an environmental planning instrument includes the time at which a planning proposal is finalised by the planning authority as s 55 of the EPA Act requires, and submitted to the GSC or Minister under s 56(1) of the EPA Act. Subclause 6(1) of SEPP 55 must have been complied with by this point. Otherwise, the requirement for community consultation in s 57 of the EPAAct would be largely meaningless, as the information concerning contamination would not be available for the purposes of that consultation.

93. The second important textual indication that the construction advanced by the first respondent is not correct is found in subcl 6(2) of SEPP 55. That requires that before including contaminated land in a particular zone, the planning authority is to obtain and have regard to a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines. This strongly suggests that the requirement to obtain and have regard to the relevant report arises before contaminated land is included in a planning proposal.

94. The first respondent’s construction of this issue, that an “environmental planning instrument”, being the LEP, is “prepared” at the point it is “made” under s 59(1), should be rejected.

95. The structure of Div 4 of Part 3 of the EPA Act set out at [73] makes clear that the critical step of the assessment of contamination must occur prior to the community consultation provided for by s 57 of the EPA Act. The statutory object of public participation in environmental planning and assessment is reflected in s 57.

96. The only statutory step applying to the Council after the community consultation in s 57 is the requirement in s 58 to consider whether to vary the planning proposal as a consequence of any submission or report during the community consultation or to make a request to the Minister that the planning proposal not proceed.

97. It is difficult to see how this consultation could be meaningful if consideration of contamination issues was not part of that consultation, as would be the case if cl 6 of SEPP 55 only needed to be addressed immediately prior to the “making” of an environmental planning instrument.

98. I reject the first respondent’s submission that the construction I prefer of cl 6 of SEPP 55 is “impractical and unworkable”. There is nothing impractical in requiring a planning authority to take steps to consider the issue of contamination of land as required by cl 6 of SEPP 55 before forwarding a planning proposal to the Department under s 56 of the EPA Act. There is every reason to think that the objects of SEPP 55, which include remediation of contaminated land “for the purpose of reducing the risk of harm to human health or any other aspect of the environment”, are enhanced by requiring consideration by the Council of contamination issues before forwarding a planning proposal to the Department. No doubt it is more expensive and less convenient to a developer of contaminated land to have to comply with SEPP 55 prior to attempting to persuade a council to forward a planning proposal effecting a rezoning of that contaminated land to the Department. That conclusion does not make the construction I prefer “unworkable”.

99. The decision of this Court in Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 does not support the conclusion advanced by the first respondent and accepted by the primary judge. Huntlee addressed the making of a SEPP, which is a different statutory question to the one raised here. In any event, to the extent Huntlee provides assistance in determining this case it assists the appellant.

100. Huntlee at [104]-[108] makes the point that the EPA Act contemplates a clear distinction between the functions of the preparation of an environmental planning instrument and the “making” of an environmental planning instrument. This Court did not conclude in Huntlee that the obligation imposed by SEPP 55 could be complied with at any time up to the “making” of a SEPP under Div 3. Rather, at [100] Sackville AJA said:

“[100] …. The operation of cl 6 is not confined to (or even concerned with) the procedures involved in the making of a SEPP pursuant to the power conferred by s 37(1) of the EPA Act. It is capable of applying to action that occurs before those procedures are formally invoked. If, for example, a Department acts in apparent contravention of cl 6 of SEPP 55, an aggrieved person might well be able to obtain relief pursuant to s 123 of the EPA Act (read with s 122(b)(ii))…”

103. His Honour also made clear, at [106], that cl 6 of SEPP 55 did not address the “making” of an environmental planning instrument:

“[106] The only function referred to in cl 6 of SEPP 55 is ‘preparing an [EPI] ‘. Clause 6 says nothing about making an EPI, either in general or in relation to the making of a SEPP. The EPA Act itself distinguishes between the preparation and making of an EPI: see, for example, s 145B(2).”

104. Huntlee is not authority for the first respondent’s construction of SEPP 55.

105. It will be recalled that ground 4 of the notice of appeal provided that the primary judge erred in failing to find that cl 6 of SEPP 55 applied to the Rezoning Amendment. There can be no doubt that the Rezoning Amendment involved the inclusion of particular contaminated land in a particular zone which would permit a change of use of the land within the meaning of cl 6 of SEPP 55.

106. Ground 10 of the notice of appeal provided that the primary judge erred in finding that any failure to comply with SEPP 55 at the gateway stage could be “cured” before the LEP is made under s 59 of the EPA Act. As I have said, this is not a construction I can agree with.

107. It follows from the construction of cl 6 of SEPP 55 that I favour that it must be satisfied, in the case of a council as a relevant planning authority, prior to forwarding the planning proposal to the Minister under s 56 of the EPA Act. I would uphold grounds 1, 4 and 10 of the notice of appeal.

Ground 3 of the notice of appeal

108. Ground 3 of the notice of appeal addresses the finding by the primary judge (at [85]) that cl 6 of SEPP 55 did not apply to the proposed amendment to Schedule 1 of the LLEP. The reason for this is that her Honour found that the proposed amendment to Schedule 1 did not include in a particular zone contaminated land so as to permit a change of use of the land.

109. I respectfully disagree. The relevant power to permit the addition of permitted uses to particular land here is cl 2.5 of the LLEP which provides:

“2.5   Additional permitted uses for particular land

(1) Development on particular land that is described or referred to in Schedule 1 may be carried out:

(a)   with development consent, or

(b)   if the Schedule so provides – without development consent,

in accordance with the conditions (if any) specified in that Schedule in relation to that development.

(2)   This clause has effect despite anything to the contrary in the Land Use Table or other provision of this Plan.”

110. Clause 2.5 and Schedule 1 together effect what is often referred to as “spot rezoning”. By this mechanism land is effectively included in two zones, one in the Land Use Table and the other in Schedule 1. The effect of cl 2.5 is that the development of land included in Schedule 1 may be carried out in accordance with any limits provided in Schedule 1 itself, “despite anything to the contrary in the Land Use Table or other provision of this Plan.”

111. In Blue Mountains City Council v Lawrence Browning Pty Ltd (2006) 67 NSWLR 672; [2006] NSWCA 331 the Court addressed a provision, cl 29.2 of the Blue Mountains Local Environmental Plan 1991, which was in the following terms:

“29.2 Where a Consolidation Requirement is shown on the Map, development (other than an existing use or for the purpose of bushfire hazard reduction) is prohibited unless all adjoining lots with this subscript which are shown edged with a heavy black line on the Map have been consolidated into one lot.”

112. The separate question being addressed in Lawrence Browning was:

“is cl 29.2 a development standard as defined in s 4(1) of the Environmental Planning and Assessment Act 1979 and thus amenable to the application of State Environmental Planning Policy No. 1 – Development Standards?”

113. Basten JA, addressing this question said:

“[81] …It is not disputed that classifications required for the purposes of zoning define essential elements of the development. However, it does not follow that only those elements which are included in the zoning table and map which form part of the usual LEP, are to be included as essential elements of the development. There may be other elements in a particular LEP which should properly be treated in the same way as the zoning table. Whether a particular requirement will so qualify in a particular case will depend not only on the nature of the requirement, but also on the drafting of the LEP. That proposition was expressly accepted by the majority in Lowy [v Land and Environment Court (NSW) (2002) 123 LGERA 179]: see Mason P at [2] and by Giles JA at [123].”

114. In the context of the separate question Basten JA said, relevantly:

“[87] The LEP provides for the general control of development by zoning land covered by the LEP, in accordance with lines drawn on a map. For each zone there is a table indicating which of approximately 80 defined categories of development are permitted, with consent, in each of the zones.

…

[89] However, the zoning requirements are not restricted to the map and the table. As noted above, effect is given to the table pursuant to cl 9.1 of the LEP. Clause 9.2 provides:

“9.2 Except as permitted by clause 9.1 or by some other specific provision of this plan, the carrying out of development is prohibited.”

The table itself refers to restrictions contained in cl 9.4, which is expressed to operate, in relation to identified areas, “notwithstanding clause 9.1”. The effect of these restrictions need not, however, be further considered for present purposes.

…

[91] …There are other provisions, however, albeit dealt with alphabetically, which fall into a different category. …. Of present relevance is cl 29, headed “Minimum area and consolidation requirements”. The key provision in this case is cl 29.2, which is set out … above. As the map indicates, a consolidation requirement is shown by the symbol “(CONS)” in relation to an area, as provided in cl 29.2, “edged with a heavy black line” on the map.

[92] Subject to two minor exceptions which do not affect the nature of the prohibition, cl 29.2 imposes a prohibition on all development within areas identified on the map to which the clause applies, absent consolidation into one lot. The manner in which this is achieved is by what is described as a “zone subscript”.

[93] The fact that a consolidation requirement is imposed as part of the zoning under the LEP is significant. Indeed, it is not even a provision identifying which kinds of development are permissible and which are prohibited, but rather it is a provision which precludes all forms of development, absent compliance with its terms. It requires a step to be taken (namely consolidation of lots) which is not itself a form of development, as a precondition to any permissible development. It does not identify any aspect of a particular development and fix a standard or specify a requirement with respect to it. It applies, indiscriminately, to every permissible development within the area covered. It is thus incapable of falling within the definition of “development standard” in s 4(1) of the EP&A Act.” (emphasis added)

115. Basten JA’s decision was followed in Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380 by Tobias JA with whom Giles JA agreed at [55]:

“[55] Finally, as Basten JA observed in Lawrence Browning at [81], it does not follow that only those elements that are included in the zoning table of a planning instrument are to be included as the essential elements of a development. There may be other elements in a particular instrument that should properly be treated in the same way as the zoning table.”

116. Whilst it is correct, as the first respondent submitted, that SEPP 55 refers to the inclusion of land within a particular zone within the meaning of the LLEP, cl 2.5 of the LLEP is included in Part 2 of the LLEP, which deals with zoning, and it operates, in combination with Schedule 1, as part of the zoning in the LLEP in the way explained by Basten JA in Lawrence Browning.

117. The proposed Schedule 1 amendment will create a spot zone in respect of the land nominated, being an area which permits uses (by reason of cl 2.5) which are prohibited under the zoning applying to that land by the Land Use Table.

118. The proposed area of land to which the amendment to Schedule 1 of the LLEP applies is properly to be described as land included in a particular zone within the meaning of the LLEP. The effect of cl 2.5 of the LLEP and the proposed amendment to Schedule 1, if made, would be to include in a particular zone (the “private recreation” zone in the LLEP) contaminated land so as to permit a change of use of the land (being residential development) within the meaning of cl 6 of SEPP 55. For that reason the proposed Schedule 1 amendment falls within subcl 6(1) of SEPP 55.

119. Ground 3 of the appeal should be upheld.

Ground 5 of the notice of appeal

120. Ground of appeal 5 raises the question of whether the Council complied with subcl 6(2) of SEPP 55 in making the Council resolutions.

121. The asserted compliance with subcl 6(2) of SEPP 55 was put by the first respondent as being that, at the time the Council resolutions were passed, the Council had been provided with copies of the following documents which addressed contamination issues in respect of relevant proposals:

1. the Environmental Impact Statement for the Marina DA dated 30 July 2015 (“EIS”);

2. the Preliminary Investigation for the Marina DA dated 28 July 2015 (“PI”);

3. the Supplementary Investigation for the Marina DA dated March 2016 (“SPI”);

4. a remediation action plan prepared by EMM dated 11 March 2016 for the proposed marina (“Marina RAP”); and

5. a remediation action plan prepared by Douglas Partners dated May 2016 for the proposed residential development (“Residential RAP”).

122. It was established with sufficient clarity by a notice to produce addressed to the Council that at the time it made its decision on 31 August 2016 none of the above reports were amongst the materials before the Council.

123. The first respondent did not contest the appellant’s submission that none of these reports were before the Council when it made the Council resolutions, but submitted that this Court should draw an inference that the Council “had regard to” those reports prior to making the Council resolutions by reason of the Planning and Growth Report prepared by the Council’s executive planner. The only information contained in that Planning and Growth Report about contamination was:

“The proponent submitted a contamination report in support [of] the development application for the Georges Cove Marina. The Environment Protection Authority (EPA) has issued ‘General Terms of Approval’ (GTA) for this DA. The residential uses proposed on the subject property would not be inconsistent with the GTA issued by the EPA.”

124. The first respondent relied upon the Carltona principle as explained by this Court in Parramatta City Council v Hale (1982) 47 LGRA 319 and by McClellan CJ in Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 at [55]. The relevant passage in Hale is extracted in Centro. The first respondent submitted that application of the Carltona principle had the effect that the Council could rely on the extracted paragraph of the Planning and Growth Report as satisfying subcl 6(2) of SEPP 55. The passages relied upon by the first respondent, however, do not assist the first respondent’s case. McClellan CJ said:

“[55] In my opinion, the Carltona principle is confined to the circumstances where an officer exercises the decision-making power of the person or body given the responsibility for making the decision. Although the principle was confirmed in wartime and may have to be, at least in Australia, reconciled with a diminishing acceptance of responsibility by ministers for failure by their departmental officers, in my opinion it does not extend to decisions of local authorities. In the absence of the delegation of the decision-making function to an officer, the corporate body must itself consider the issues relevant to the development application before it. It may be informed about those issues by the officer's report which may not, and often will not, disclose all of the information considered by the officer and his or her complete reasoning processes. However, as Moffit P explained in Hale (at LGRA 346):

‘While it is the collegiate body which must take the matters into consideration and accordingly must be aware of such matters to enable it to do so, that body may rely on the inquiry, advice and recommendations of its officers. Accordingly it is open to it to adopt such a recommendation, provided in doing so it is aware from the report or from some other source, for example its general knowledge, of all the relevant s 90(1) matters, as earlier discussed.’” [Section 90 of the EPA Act at that time required a council on determining a development application to take certain specified matters into account].

125. Those passages establish that, in the context of considering matters required to be taken into account when considering a development application, a council “must itself consider the issues relevant to the development application before it”. While “it may be informed about those issues by the officer's report” and may “rely on the inquiry, advice and recommendations of its officers”, there is an important qualification. That is, the Council may so rely provided that in doing so it is aware from the report or from some other source, for example its general knowledge, of all the relevant matters in making the particular decision.

126. I am not persuaded that the Carltona principle is necessarily applicable here. Its application would need to be considered in light of the relevant statutory framework and this Court’s decision in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2014) 88 NSWLR 125; [2014] NSWCA 377 at [9]-[22]; [41]-[45]; [77]-[80] and [81]-[85]. Assuming, without deciding, that the Carltona principle as explained in Hale and Centro applies in this case, however, the passage from the Planning and Growth Report relied upon by the first respondent is inadequate to demonstrate compliance with subcl 6(2) of SEPP 55 because:

1. the report referred to is on its face about a different development, the Marina development;

2. the passage concerned does not expressly or by implication refer to any of the matters addressed by cl 6 of SEPP 55; and

3. the conclusion of that passage that “the residential uses proposed on the subject property would not be inconsistent with the GTA issued by the EPA” does not purport to address any of the relevant matters in subcl 6(2) of SEPP 55 but rather addresses a separate subject matter, namely, inconsistency with a different determination about another development.

127. It is true, as the first respondent submitted, that the SPI was subsequently provided to the Council, together with further descriptive material contained in the December 2016 version of the planning proposal (v4). That, however, is inadequate to demonstrate compliance with subcl 6(2) of SEPP 55 by the Council. At the time the SPI was received, the Council had already made the Council resolutions which were to adopt the planning proposal and had delegated authority to the Acting CEO to forward the amended proposal to the Department.

127. The statutory obligations in subcll 6(1) and (2) of SEPP 55 were imposed on the Council as the “planning authority”. The Council’s statutory obligations cannot be discharged by individual Council officers unless lawfully delegated. Assuming in the first respondent’s favour that this particular statutory obligation could be lawfully delegated, there is no evidence of any purported delegation of that task. A delegation to forward an amended planning proposal to the Department does not include or imply a delegation to address the requirements of cl 6 of SEPP 55.

128. These conclusions mean that the obligations in subcl 6(2) of SEPP 55 were not complied with by the Council in making the Council resolutions. That is sufficient to dispose of the first respondent’s reliance on those reports. Ground 5 of the notice of appeal should be upheld.

129. That conclusion means that it is unnecessary to address the alternative submission that the decision of Commissioner Brown gave rise to an issue estoppel. That argument gives rise to difficult questions of fact and law and it is undesirable to admit the additional evidence the subject of the appellant’s motion to address an issue of this complexity when it is unnecessary to do so.

Ground 6 of the notice of appeal

131. Ground 6 addresses the Council’s state of satisfaction about subcl 6(1) of SEPP 55. The parties agreed that the primary judge did not make any findings about whether the Council had complied with subcl 6(1), but agreed that this Court is in a position to do so, if necessary.

132. I have essentially addressed the competing arguments when addressing ground 5. The first respondent submitted that the question whether the Council reached the requisite state of satisfaction under subcl 6(1) of SEPP 55 is a “matter of inference based on the materials that were before the Council at the time of passing the Council Resolutions and on each occasion that the Council forwarded a version of the Planning Proposal to the Commission”.

133. The first respondent again submitted that the Court should infer that the Council formed the requisite state of satisfaction required by subcl 6(1) on the basis of the references to contamination in the Planning and Growth Report. I reject that submission for essentially the same reasons as given in relation to ground 5. The relevant paragraph of the Planning and Growth Report does not support an inference of compliance with subcl 6(1) of SEPP 55. None of the material relied upon by the first respondent was before the Council when the Council resolutions were made. Council breached subcl 6(1) of SEPP 55 in failing to turn its mind to any of the issues required by that provision. There was, on the evidence, no attempt by the Council to grapple with the requirements of subcl 6(1).

134. To the extent that the first respondent relies on the existence of the Marina RAP and the Residential RAP as being given to the Council subsequently, those documents were not before the Council when it made the Council resolutions. Reliance by the first respondent on these documents being provided to the Council after it made the Council resolutions should be rejected. The existence of the requisite state of satisfaction under subcl 6(1) of SEPP 55 is an essential condition preliminary precondition to the exercise of the power to make any decision affected by cl 6 of SEPP 55. The Council did not on the evidence have the requisite state of satisfaction under subcl 6(1) of SEPP 55.

135. Ground 6 of the notice of appeal should be upheld.

Ground 7 of the notice of appeal

136. Ground 7 of the notice of appeal deals with the appellant’s submission “in circumstances where the Council resolutions are invalid because of the breaches of SEPP 55, the Gateway Determination must itself be invalid”.

137. The first respondent submitted that even if (as I have found) the Council was required to comply with SEPP 55 and had not done so, the Gateway decision was nonetheless valid and effective:

“Even if the Council resolutions are void and of no effect, the Council has still carried out its statutory functions under ss 55(1) and 56(1), and the Planning Proposal was before the Delegate. So long as the Planning Proposal was before the Delegate, he could carry out his statutory function of reviewing the Planning Proposal under s 56(2), whether or not the Council Resolutions are subsequently found to be invalid.”

138. I reject the first respondent’s submission. The step required by s 56(2) of the EPA Act cannot be lawfully undertaken unless the process of preparing the planning proposal has been carried out by the relevant planning authority under s 55(1) in a legally valid manner. Under s 55, the Council was “required” to prepare the planning proposal which explained “the intended effect of the proposed instrument” and “set out the justification for making the proposed instrument”. In preparing a planning proposal, the language in cl 6 of SEPP 55 is mandatory. That the proposal is “not to include” contaminated land “unless” the requirements of cl 6 are addressed demonstrates a clear legislative intention that a planning proposal that did not comply with SEPP 55 at the s 55(1) stage should not be permitted to proceed under s 56 of the EPA Act.

139. Finally on this ground, the first respondent submitted that “the Gateway Determination made by the Delegate following consideration of clause 6 of SEPP 55 afresh or de novo will cure any failure by the Council to consider such matters: see, by analogy, Twist v Randwick Municipal Council (1976) 136 CLR 106 at 115-116”.

140. I reject this submission. Twist provides no relevant analogy. Where a statutory process, as here, requires there to be valid links in a chain, each step must be properly undertaken.

141. Clause 6 of SEPP 55 imposed an express obligation on the Council as the “planning authority”. I have found that the preparation of the planning proposal under s 55 of the EPAAct by the Council was flawed. The step taken under s 56(1) of the EPA Act, to forward the planning proposal to the Department, was not a valid exercise of power because a statutory precondition to the exercise of the power was not complied with. Merely because the GSC was likewise required to consider cl 6 of SEPP 55 does not mean that the Council was excused from complying with the obligations in SEPP 55.

142. Where the Council resolutions are invalid because of the breaches of SEPP 55, the Gateway decision is itself invalid. Ground 7 of the notice of appeal should be upheld

Ground 8 of the notice of appeal

143. Ground 8 of the notice of appeal asserts that the GSC failed to comply with subcl 6(2) of SEPP 55 when making the Gateway decision. It was common ground that the only material before the GSC at the time it made the Gateway decision capable of satisfying subcl 6(2) of SEPP 55 was the SPI.

144. In addressing this issue I agree with the conclusion of Preston CJ of the LEC in Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 at [91]-[108] that, for the purposes of subcl 7(2) of SEPP 55, if the report relied upon by the planning authority does not meet the requirements of subcl 7(2) of SEPP 55, the planning authority does not validly comply with its obligation by having regard to such a report. The same conclusion arises in relation to compliance with the requirements of subcl 6(2) of SEPP 55.

145. The GSC had before it the SPI. The SPI was a supplementary preliminary investigation for the Marina DA. The site of the Marina DA is shown in the following diagram:

146. A significant difficulty in treating the SPI as “a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines” is that the report was expressly addressed to a different purpose than the proposed rezoning, namely the proposed Marina development.

147. As I have determined that the Council resolutions are invalid because of the breaches of SEPP 55 and that the Gateway decision is also invalid, the fact, if it be the fact, that the GSC did not separately comply with subcl 6(2) of SEPP 55 does not need to be determined. It is unnecessary in deciding this appeal to determine ground 8 of the notice of appeal.

Ground 9 of the notice of appeal

148. Ground 9 addresses an alleged failure to comply with subcl 6(1) of SEPP 55 by the GSC. As I have found that the Council resolutions are invalid because of the breaches of SEPP 55 and that the Gateway decision is therefore invalid, the fact, if it be the fact, that the GSC did not separately comply with subcl 6(1) of SEPP 55 does not need to be determined. It is not necessary to deal with ground 9 of the notice of appeal.

Conclusion and proposed orders

149. This case was framed by the appellant and conducted as one where an identified mandatory statutory precondition to the exercise of a power had not been complied with. The relief which was sought, a declaration of invalidity addressed to two decisions and an injunction preventing the parties to the proceedings giving any further effect to those decisions, was pleaded and conducted with clarity.

150. SEPP 55 aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health and the environment. One of the principal means by which this aim is to be achieved is by specifying certain considerations that are relevant in determining whether contaminated land should be permitted to be included in a different zone. Remediation of contaminated land cannot occur unless and until there is an investigation, carried out in accordance with the contaminated land planning guidelines, of whether land proposed to be included in a different zone is contaminated and, if it is contaminated, whether the land is suitable in its contaminated state or will be suitable after remediation for the purpose for which the new zoning is proposed.

151. Clause 6 of SEPP 55 specifies these considerations as being preconditions “before including” contaminated land in a planning proposal seeking rezoning. To contravene or fail to comply with the requirements of cl 6 of SEPP 55 frustrates the attainment of the aim of reducing the risk of harm to human health and the environment and promoting the remediation of contaminated land.

152. Furthermore, cl 6 does not merely specify the matters required to be considered, but also specifies the manner in which information on the matters must be obtained, the content of the information on the matters and the form in which the information on the matters must be presented to the consent authority for its consideration. Compliance with these process requirements is fundamental to achieving the regulatory purpose of cl 6 of SEPP 55.

153. The appeal should be allowed. Clause 6 of SEPP 55 is a mandatory statutory precondition to the exercise of a power in ss 55 and 56 of the EPA Act. The appellant is entitled to a declaration that the Council resolutions are invalid and the Gateway decision, which was based on the Council resolutions, is also invalid. The respondents, including the Council and the GSC, should be restrained by injunction from taking any further action in reliance upon the invalid Council resolutions and Gateway decision.

154. I agree with the additional reasons of Basten JA and with the orders proposed by his Honour at [48].

155. EMMETT AJA: This appeal is concerned with the process undertaken by the third respondent, Liverpool City Council (the Council), in amending the Liverpool Local Environmental Plan 2008 (the LLEP). The appellant, Moorebank Recyclers Pty Ltd (Moorebank), claims that the process was defective and that resolutions of the Council and a decision of a delegate of the second respondent, Greater City Commission (the Commission) were invalid and of no effect.

156. The first respondent, Tanlane Pty Ltd (Tanlane), owns land on the banks of the Georges River in Southern Sydney. Moorebank owns land neighbouring Tanlane’s land. Under the LLEP, the northern portion of Tanlane’s land is zoned “R3 Medium Density Residential” and the southern portion is zoned, in part, “RE1 Public Recreation” and, in part, “RE2 Private Recreation”.

157. Tanlane proposed two amendments to the LLEP. The first involved an amendment to Schedule 1 of the LLEP that would enable residential development as an additional permitted use of part of Tanlane’s land zoned “RE2 Private Recreation” (the Schedule 1 amendment). The second amendment involved rezoning part of Tanlane’s land from “RE2 Private Recreation” to “R3 Medium Density Residential” (the Rezoning Amendment).

158. On 31 August 2016, the Council passed resolutions (the Impugned Resolutions) that authorised an officer of the Council to forward Tanlane’s proposals to the Commission, to consider making a “gateway determination” pursuant to the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act).

159. On 9 March 2017, a delegate of the Commission made a gateway determination (the Impugned Decision) that Tanlane’s planning proposals should proceed subject to certain conditions not presently relevant.

160. Moorebank thereupon commenced proceedings in the Land and Environment Court of New South Wales (the L&E Court) seeking declarations that each of the Impugned Resolutions and the Impugned Decision was invalid by reason of failure to comply with cl 6 of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). Clause 6 of SEPP 55 relevantly provides that, in preparing an environmental planning instrument, a planning authority is not to include certain land in a particular zone if the inclusion of the land in that zone would permit a change of use of the land. Before including such land in a particular zone, the planning authority is to obtain and have regard to a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines.

161. On 21 December 2017, a judge of the L&E Court (the primary judge) rejected Moorebank’s claims. The primary judge found that no explicit or implied obligation to consider SEPP 55 arose from the provisions of the Planning Act. Rather, her Honour found, cl 6 of SEPP 55 was not engaged by the preparation of a planning proposal or a gateway determination.

162. By its notice of appeal, Tanlane relies on ten grounds. It is convenient to deal with the grounds in five categories, as suggested by Payne JA, whose reasons I have had the great advantage of reading in draft form.

163. Logically, the first ground for consideration is ground 2, namely, that the primary judge erred in finding, as contended by Tanlane, that the Impugned Resolutions were not justiciable. The proceedings have been conducted on the basis that Moorebank’s complaint was that a mandatory statutory precondition to the exercise of power had not been complied with. I agree with Payne JA that, whether the contention advanced by Tanlane was a pleading point or a jurisdictional issue, it must be rejected. Accordingly, to the extent that the primary judge found that the Impugned Resolutions were not amenable to judicial review, ground 2 is made out.

164. Grounds 1, 4 and 10 are concerned with the conclusion of the primary judge that compliance with cl 6 of SEPP 55 was an obligation that could be satisfied at any time prior to making an LLEP under the Planning Act and that any failure to comply with SEPP 55 at the gateway stage could be cured before the LLEP was made. I agree with Payne JA, for the reasons proposed by his Honour, that, on the proper construction of SEPP 55, it was necessary for cl 6 to be satisfied prior to the Council forwarding the planning proposal for consideration by the Commission. Grounds 1, 4 and 10 are made out.

165. Ground 3 is concerned with the conclusion reached by the primary judge that cl 6 of SEPP55 does not apply to the Schedule 1 Amendment on the basis that the proposed amendment to Schedule 1 did not include contaminated land in a particular zone so as to permit a change of use of the land. I agree with Payne JA, for the reasons proposed, that her Honour erred in that regard and that ground 3 is made out.

166. Ground 5 asserts that the provisions of cl 6 of SEPP 55 were not complied with. I agree with Payne JA that ground 5 is made out. Ground 6 involves similar questions and it follows, for the reasons proposed by Payne JA, that ground 6 is also made out.

167. Ground 7 asserted that the primary judge erred in failing to find that the Impugned Decision was invalid because the Council had failed to comply with SEPP 55. I agree with Payne JA, for the reasons proposed by his Honour, that, in circumstances where the Impugned Resolutions are invalid by reason of breaches of SEPP 55, the Impugned Decision is also invalid. Ground 7 is therefore made out.

168. Grounds 8 and 9 assert that the primary judge erred in finding that the Commission’s delegate failed to comply with cll 6(1) and (2) of SEPP 55. Having regard to the conclusions reached in relation to the other grounds, it is unnecessary to deal with either of those grounds.

169. It follows that, for the reasons proposed by Payne JA that the appeal must be allowed. I agree with Payne JA that the orders proposed by Basten JA should be made.

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Endnotes

Decision last updated: 14 December 2018