NRS Group Pty Ltd v Cowra Shire Council
[2008] NSWLEC 156
•28 April 2008
Land and Environment Court
of New South Wales
CITATION: NRS Group Pty Ltd v Cowra Shire Council [2008] NSWLEC 156 PARTIES: APPLICANT
RESPONDENT
NRS Group Pty Ltd
Cowra Shire CouncilFILE NUMBER(S): 41122 of 2007 CORAM: Sheahan J KEY ISSUES: Development Consent :- validity thereof; lack of power to grant consent; whether denial of procedural fairness (failure to notify neighbours); failure to consider relevant matters; lack of landowner's consent; discretion LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s.101
Environmental Planning and Assessment Regulation 2000, cl.124
Land and Environment Court Act 1979, s.25BCASES CITED: Centro Properties Limited v Hurstville City Council & Another (2004) 135 LGERA 257
Clark & Davis v Wollongong City Council & Others [2008] NSWLEC 110
Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116
Kindimindi Industries Pty Ltd v Lane Cove Council & Another (2006) 143 LGERA 277
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207
Lord and Another v Hiscock and Others (1980) 47 LGRA 168
Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695
Manly Council v Hortis and Another (2001) 113 LGERA 321
Mulyan Pty Ltd v Cowra Shire Council & Another (1999) 105 LGERA 26
Noble v Cowra Shire Council (2001) 114 LGERA 440
Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; 63 LGRA 361
Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707DATES OF HEARING: 7 March 2008
19 March 2008
DATE OF JUDGMENT:
28 April 2008LEGAL REPRESENTATIVES: APPLICANT
Mr J Johnson
Solicitors
S & T LawyersRESPONDENT
Mr I Hemmings
Solicitors
Minter Ellison
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESSheahan J
28 April 2008
JUDGMENT41122 of 2007 NRS Group Pty Ltd v Cowra Shire Council
Introduction
1 His Honour: These proceedings concern the future use of the site, in Cowra Shire Council’s area, formerly occupied by the Lachlan Wool Scour, conducted by a Japanese-controlled NSW company, Lachlan Industries Pty Ltd (“Lachlan Industries”).
2 During 2004 NRS Group Pty Ltd (“NRS”) obtained from Cowra Shire Council (“Council”) three relevant approvals – Development Consent (“DC”) 131 (2 June 2004), DC 185 (9 July 2004), and a modification to DC 185 (12 August 2004).
3 On the strength of those approvals, NRS proceeded with the purchase of the site from Lachlan Industries, but by 1 June 2005 Council had come to the conclusion that its approvals were “uncertain”, if not invalid, and wrote to NRS asking it to surrender them.
4 NRS has continued to rely upon the two consents, and brought these proceedings in Class 4 of the Court’s jurisdiction to obtain declarations that it is entitled to carry out, on the subject land, the development specified in the DCs, as modified.
5 The Council has cross-claimed, seeking declarations that both the consents it granted are void and of no effect, on various grounds.
6 The site occupies approximately 63ha, comprising Lot 1 DP 378382 (0.4ha), Lot 2 DP 179288 (0.1ha), and Lot 1 DP 519943 (63ha). It is located on the South-eastern outskirts of urban Cowra, has an entrance address of 1 Campbell Street, and is bounded in general terms by Darbys Falls Road to the North, Waugoola Creek to the East, the Lachlan River to the South, and Campbell Street to the West. All of the land is located within Zone “1(a) – Rural” under Cowra Local Environmental Plan 1990 (“the LEP” - Exhibit C1 fol 1-34).
7 The scheme proposed by NRS was that 21ha of the site, namely, that in the South and including the former wool scouring complex, would become a TV/movie studio and backlot (“industrial infrastructure” to be known as “Lachlan River Studios”), and the remaining 42ha in the North would be subdivided into a cluster of 21 residential blocks (having areas of between 996.4 and 1375.1 square metres), with an internal road and a lot for shared amenities (2310 square metres) (occupying a total area of 2.75ha) plus a community title vineyard and some open space (amounting to just less than 40ha) (to be known as the “Lachlan Valley Estate”).
8 The effect of DC 131 was to subdivide the site into those two constituent areas, and the effect of DC 185 was to resubdivide the 42ha Estate lands as envisaged by the scheme.
9 Further steps in the project, such as full operation of the movie studio on the southern area of the site, and the construction of dwellings etc. on the northern area of the site may well require further specific development consent(s), but the housing development was to generate a cash flow to allow full development of the studio component of the project.
The Issues for decision
10 The Council’s challenges to the two DCs rest on the following grounds:
DC 131
- (a) denial of procedural fairness – failure to notify neighbours.
(b) failure to consider a relevant matter, namely the objectives of the zone.
DC 185
(1) lack of land owner’s consent.
(2) denial of procedural fairness – failure to notify neighbours.
(3) failure to consider a relevant matter, namely the objectives of the zone.
(4) lack of power to grant the consent.
11 The Court is also required to adjudicate on whether any of those challenges are precluded by the operation of s.101 of the Environmental Planning & Assessment Act 1979 (“EP&A Act”) which provides:
- If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.
12 The Council’s case is that s.101 protects neither consent, but, if the Court finds it protects DC 185, Council says two of its four challenges are not precluded by it.
13 The Court must also consider questions of discretion.
The Evidence
14 Before the Court are the following exhibits:
· Exhibit C1 – an agreed bundle of documents, including planning instruments.
· Exhibit N1 – the published report of an independent panel on its “review of certain planning matters” in Cowra Shire.
· Exhibit N2 – a development control plan subtitled “Guidelines for Rural Development”.
· Exhibit N3 – a certificate issued by the Council under s.149(5) of the EP&A Act.
· Exhibit N4 – a letter with voluminous enclosures, sent by Council to NRS on 14 October 2005.
15 In addition there are extensive documentary annexures and exhibits to various affidavits read during the proceedings. In particular, NRS’s Managing Director, Graham Patrick, swore three affidavits in the proceedings – on 18 December 2007, 12 February 2008, and 7 March 2008. There are 54 tabbed exhibits to the December affidavit, 8 to the February affidavit, and a bundle of supporting documents attached to the March affidavit.
16 Two other witnesses who provided affidavits – Michael Carter from the Council, and Lee Mewburn from NRS – also gave oral evidence.
17 There are three other affidavits, all from adjoining or adjacent neighbours of the subject site (Mr and Mrs Melchert, and Mr Paul Mooney).
The Chronology of Major Relevant Events
18 NRS operates production studios in the ACT, and its Managing Director, Graham Patrick, has been in the media industry since 1983. The company is seeking to establish “a low cost production facility in a regional area”.
19 A Council officer drew the Lachlan Industries site to Mr Patrick’s attention at about the time its wool scour plant was ceasing productive operations (1 July 2003). He toured the site with the then Managing Director of Lachlan Industries (Mr Ishiguro) and Mr Mewburn (who was then its Office Manager, and is now Studio Manager for NRS) in August 2003.
20 NRS found the scour facility “ideal” for conversion to a production studio, and, on 12 November 2003, commenced negotiations to purchase the property. Lachlan Industries Pty Ltd agreed in writing on 5 April 2004 to NRS making at least one (and arguably both) development application(s) (“DA”) for the site, and in May 2004 agreed to sell to NRS for $2.3M. Patrick and Ishiguro made a joint presentation to Council, also during May.
21 Settlement of the sale was scheduled for 14 January 2005, shortly after Lachlan Industries closed down altogether (1 January 2005), but was, according to Mr Patrick’s sworn evidence, conditional on (i) Lachlan Industries’ consent (as owner, pending sale) to the two proposed DAs, and (ii) NRS’s obtaining consent to both DAs.
22 Mr Patrick deposes (Affidavit 18 December 2007 par 13) that:
- “ The concept of the structuring and character of the two DA’s arose from consultations with Wayne McDonald, the Cowra Council Consultant Town Planner, James Roncon, General Manager Cowra Council, and Graham Apthorpe, Business Development Manager, Cowra Council . These consultations took place over the time period November to December 2003 ”.
23 McDonald sent Lachlan Industries a letter on 3 December 2003, drawing attention to Council’s requirements and enclosing a copy of clauses 12-17 of the LEP. The letter was passed on to Patrick.
24 A letter from Gerard Thompson on behalf of the proponent, addressed to McDonald, and faxed on 11 December 2003, refers to discussions at Council and a meeting held with senior agronomist Peter Wilson, on the advice of Council earlier in December, regarding “portion of land zoned non-prime agricultural. The area to be confirmed non-prime agricultural is on top of the old quarry. Mr Peter Wilson has advised he will support this area, in doing so we wish to build 21 dwellings each attached to a 5 acre vineyard on a community title”. (In fact, as noted below in par [58], all of the site was classified as prime agricultural land). Thompson’s understanding was that a rezoning would not be required if all the Council’s stipulations were met. On 12 December 2003 McDonald faxed Thompson, indicating that the proposed community title development (as summarised in the fax of 11 December) “appeared to be consistent with established similar development in the Shire”.
25 All parties to the ongoing consultations were made aware by NRS representatives that NRS would not proceed with the purchase until both DAs were approved. NRS’s financier, Elvin Brothers, also required both consents to be in place before finance would be approved. Mr Roncon’s filenote of 9 July 2004 (Exhibit C1 fols 56-7) indicates that Council clearly understood this position throughout the relevant time period.
26 NRS then engaged Cowra Council in February 2004 to develop and prepare a concept plan for the subdivision and housing development and paid for the service. On 19 March 2004 the Council quoted on some engineering works.
27 Planning Consultant William John Chapman of CPC Land Development Consultants Pty Ltd appears to have been engaged in December 2003, and he then conducted negotiations with the Council on behalf of NRS. He submitted DA 131 on 7 or 8 April 2004, and DA 185 (plus a series of relevant supporting documents, including an Aboriginal archaeological survey – Exhibit C1 fols 114-118) under cover of his letter of 28 May 2004.
28 DC 131 issued on 2 June 2004. DA 185 was advertised on 11 June 2004. Mr Patrick wrote to the apparent “objector” (McGuigan Simeon) explaining that the nearest house under the Lachlan Valley Estate proposal would be more than 1.5km from their vineyard and no housing would be constructed across the river from their vineyard. The winery did not “object” to the DA; it was then assessed in detail by a report dated 6 July 2004 (Exhibit C1 fol 139-143), and DC 185 issued on 9 July 2004. DC 185 was advertised in the Cowra Guardian on 6 August 2004 (Exhibit C1 fol 171).
29 Detailed meetings and correspondence between NRS representatives and Council continued almost immediately. McDonald considered DC 185 had been issued hastily, to enable NRS to satisfy financiers and the Japanese vendors, and ensure a quick completion of the sale, and certain modifications to the conditions were negotiated. (See assessment report in Exhibit C1 fols 173-4). The formal Modification issued on 12 August 2004. Meanwhile, on or about 27 July 2004, a variation in the name of the applicant in both DA/DCs from Chapman to NRS (with Chapman’s written agreement) was also agreed, and both DCs were re-issued, unchanged even as to date, to NRS. At the same time Council sought legal advice regarding the use of community title structures, and issued a certificate that NRS had fulfilled two relevant conditions of DC 131.
30 The actual modification documentation, as apparently issued to NRS (Tab 27 to Mr Patrick’s affidavit 18 December 2007), appears to incorporate DC 131, DC 185 and the amended conditions of DC 185 (but cf Exhibit C1 fols 180-185).
31 The sale contracts were exchanged on 26 November 2004, notably more than 3 months after the advertisement of DC 185 on 6 August 2004, and the sale was settled on 14 January 2005 (Tabs 3 and 29 ibid).
32 NRS engaged Council to quote for some engineering works, and engaged various consultants to advise on the recycling of the scour plant as a studio, the development of the vineyard and the studio site, and the construction of the housing estate. Discussions continued with Council (including as to approval processes for the studio use), and NRS commenced marketing efforts in regard to both the studio and the housing estate.
33 Meanwhile, Mr Carter gave his General Manager (Roncon) a preliminary and brief overview of how Council had come to the three relevant approval decisions, and Roncon became concerned about the way several DCs, including those in this matter, had been assessed and granted. On 26 April 2005 Council decided to seek legal advice on the lawfulness of DC 131 and DC 185. On 30 April 2005 Councillor John Mallon made a formal complaint to the Minister, and the Department of Planning was asked by Councillor Ian Brown to investigate Council’s development approval processes on 9 May 2005. The Department officially informed the Council of resident complaints on 23 May 2005, and sought Council’s assistance in responding to them.
34 On 1 June 2005, Council wrote to NRS advising that the two consents granted to it are “likely to be invalid for various reasons”. NRS was invited to surrender its consents, and proceedings in this Court were foreshadowed by Council (Exhibit C1 fols 192-3). Further information was provided to NRS on 7 June 2005 (fol 194), and to its solicitors on 4 July 2005 (fols 195-201), as to Council’s thinking on the question of possible invalidity.
35 Throughout all this the Council remained supportive of the project. In its response to the Department’s inquiries of 23 May 2005 the following comments are made (Exhibit C1 fol 76):
- “ The NRS Group Film Studio and Lachlan Estate proposal represents one of the most important industry and employment generating projects that has been presented to Cowra in many years. The opportunities that could well be lost as a result of poor levels of assessment of [the DAs] are of great concern to Council and is something Council wishes to repair as a matter of priority ”.
36 The search for a solution as between NRS and Council continued, and Council continued its dialogue with the Department. The Mayor and General Manager were both involved in these matters, and NRS corresponded through its then solicitors with all Councillors personally on 10 August 2005 about the impasse (Tab 45 Patrick affidavit 18 December 2007).
37 Essentially, Council wanted NRS to resubmit DA 131, so it could be processed properly, and to seek a rezoning of the relevant part of the subject site, so DA 185 would become permissible. The Department wanted any such rezoning proposal addressed under a shire land use strategy rather than on its own, and Council embarked on that exercise.
38 On 20 December 2004 Council had resolved to prepare what became proposed LEP Amendment No.14, and it was agreed to by Council on 11 July 2005. Council appears to have endorsed the essential elements of the solution at its meeting on 22 August 2005, and it remained firm that NRS was to take no active steps on the basis of the consents as they stood/stand.
39 NRS also sought assistance from the NSW government in late 2005, firstly through the Minister for Planning’s “State significant” processes, and then through financial assistance for the studio from the Minister for Regional Development.
40 The former proposal did not succeed – apparently at least partly because a larger residential component (150 units cf 21) was being foreshadowed (Patrick affidavit 12 February 2008 Tab 7) – but the Minister set up an Independent Panel (see Exhibit N1) on 7 December 2005 to conduct a “review of certain planning matters” in Cowra Shire (see pars 72ff hereunder). A relevant outcome of that Panel’s review was the re-advertisement of DC 185 in the Cowra Guardian on 19 May 2006 (Exhibit C1 fols 204-205).
41 Financial support for the studio was finally offered by the State government on 5 December 2006.
42 NRS pressed Council to issue the subdivision certificate for DC 131. The company put its case before the Council on 18 December 2006, and Council refused the certificate on the grounds that as the DC was invalid there is no DC to which such a certificate could relate. The invitation to lodge a new DA was renewed.
The relevant planning controls
The LEP as it stood at the relevant time
43 Clause 9(3) of the LEP requires that any development must be “consistent with the objectives of the zone within which the development is proposed to be carried out”.
44 Clause 2 of the LEP deals with the “Aims, objectives etc” of the LEP itself. Clause 2(1) says that its “principal aims” are “to promote the growth, development and prosperity of the Shire of Cowra and to assist present and future residents of the Shire in their endeavours to maintain their prosperity, security and present rights”. Clause 2(2) sets out a wide range of “particular aims” for the plan, and, “in relation to the rural needs of the Shire”, cl.2(2)(a) states the following “particular aims”:
“(i) to encourage and preserve all forms of agriculture and preserve prime agricultural lands, and
(ii) to promote the use of land within its capability, and
(iii) subject to sub paragraph (i) to provide opportunities for people to live in rural areas, and
(iv) subject to sub paragraph (i), to provide for other types of development appropriate in rural zones, particularly tourist oriented and employment generating development, and
(v) to permit development for small rural allotments of variable size to avoid waste and neglect of productive rural land, and
(vi) to ensure that noxious forms of development are precluded or isolated in the interests of rural residential lifestyle, and
(vii) to provide a choice of housing types and to support existing towns and villages … ”.
45 Clause 2(2) goes on, relevantly, to state the following additional “particular aims” (omitting only those particularly concerned with heritage issues):
- “(b) in relation to the residential needs of the Shire—to encourage a variety of densities, locations, building materials and styles of construction for residential development, and
(c) in relation to the commercial needs of the Shire—to provide adequate areas for present retail and commercial enterprises and for future expansion, and
(d) in relation to the industrial needs of the Shire—to provide for new industrial development, including heavy industry, which will contribute to the local economy of and employment in the Shire, and
(e) in relation to community facilities—to encourage the provision of community services and facilities, and
(f) in relation to tourism—to provide opportunities for tourist oriented development, and
(g) in relation to flooding—to promote awareness of flood severity and frequency so as to minimise the risk to life and property from severe flooding effects, and
(h) to enable the Council to prepare development control plans to provide more detailed policies and guidelines concerning the development of land,…”.
46 The objectives of the Rural 1(a) zone itself are set out in the Table to cl.9 in the following terms:
- “(a) to encourage and preserve all forms of agriculture and to preserve prime agricultural lands, and
(b) to promote the use of agricultural land within its capability, and
(c) to provide opportunities for people to live in rural areas, and
(d) to establish a preference for non-agricultural development (particularly dwelling-houses) being located on land other than prime agricultural land, unless there are no alternative, practical and cost effective sites available, and
(e) to take into consideration the potential economic recovery of known mineral and extractive resources in the siting of buildings, and
(f) to provide for other types of development appropriate in rural zones, particularly tourist oriented and employment generating development within the capability of the land to support the development, and
(g) to permit development for small rural allotments of variable size to avoid waste and neglect of productive rural land, and
(h) to ensure that noxious forms of development are precluded or isolated in the interests of rural residential lifestyle, and
(i) to provide a choice of housing types and to support existing towns and villages”.
47 There are various definitions in cl.5(1) of the LEP, but none for “agriculture”, “horticulture”, or “viticulture”, as such. “Agriculture” is defined in the Macquarie Dictionary as “the cultivation of land, including crop-raising, forestry, stock-raising, etc; farming”. “Viticulture” is defined in the Macquarie Dictionary as “the culture or cultivation of a grapevine; grape-growing; …”; and “horticulture” is defined to include “commercial cultivation of … grapes …”. “Intensive agriculture” is defined in cl.5(1) of the LEP as:
- “ an agricultural enterprise of an intensive nature on land where horticulture, irrigated agriculture or intensive livestock keeping is the primary use of the land”.
48 “Prime agricultural land” is defined in cl.5(1) as:
- “land within an area identified, on a map prepared by or on behalf of the Director-General of the Department of Agriculture and deposited in the office of the Council, copies of which are deposited in an office of the Department of Agriculture, as Class A1, Class A2 or Class A3 (or as subsequently identified by or on behalf of the Director-General on a map as Class 1, Class 2 or Class 3) or land of merit for special agricultural uses, as notified to the Council in writing by the Director-General, but does not include land which the Director-General has notified the Council in writing is not prime agricultural land for the purposes of this plan”.
49 Clause 10 of the LEP deals with subdivision “generally” in these terms:
- “(1) Subject to subclause (2), a person may, but only with the consent of the Council, subdivide land to which this plan applies.
(2) Land may be subdivided without development consent where the subdivision is for the purpose of:
- (a) adjusting the boundaries of allotments where an additional allotment is not created, or
(b) consolidation of allotments, or
(c ) rectifying encroachments along boundaries of allotments.
- (a) states, in relation to each allotment created by the subdivision, the primary purpose for which that allotment is intended to be used, and
(b) identifies any allotment which is intended to be used primarily for the purpose of agriculture, and
(c) identifies any allotment which is intended to be used primarily for the purposes of a dwelling-house, and
(d) identifies any allotment on which it is intended to erect a dwelling-house and states whether or not the dwelling-house is the primary purpose for which the allotment is being created, and
(e) shows the approximate location of any dwelling-house erected on the land at the date of the application.”
50 Particular provisions of the LEP, regarding subdivision, and/or possibly otherwise relevant to this matter, include the following:
51 Clause 12 “Subdivision for the purposes of dwelling-houses in Zone No 1(a) on prime agricultural land” provides:
- “(1) This clause applies to land which is within Zone No 1(a) and is prime agricultural land.
(2) Subject to clause 13, land to which this clause applies shall not be subdivided so as to create an allotment on which a dwelling-house may be erected, or on which an existing dwelling-house will stand, where the allotment would have an area less than 4,000 square metres or greater than 2 hectares.
(3) An allotment of land to which this clause applies my (sic) be created which is less than 4,000 square metres in area where the allotment is for road widening or another public purpose.
(4) The number of allotments created under subclause (2) for the erection of additional dwelling-houses shall not exceed one per 40 hectares or part of 40 hectares of each existing holding.”
52 Clause 13 “Subdivision for purpose of agriculture in Zone 1(a) on prime agricultural land” provides:
- “(1) This clause applies to land which is within Zone No 1(a) and is prime agricultural land.
(2) The Council may consent to a subdivision of land to which this clause applies which results in the creation of an allotment of any area the Council is satisfied will be used for the purposes of agriculture if no application has been made for consent to the erection of a dwelling-house on the allotment.
(3) The Council shall not consent to a subdivision of land to which this clause applies which results in the creation of an allotment the Council is satisfied will be used for the purposes of agriculture if that allotment would have an area of less than 40 hectares and there would be an existing dwelling-house on the allotment.”
53 Clause 14 “Subdivision in Zone 1(a) on non-prime agricultural land” provides:
- “(1) This clause applies to land which is within Zone No 1(a) and is not prime agricultural land.
(2) The Council shall not consent to the subdivision of land to which this clause applies which results in the creation of an allotment for the purposes of a dwelling-house where that allotment is less than 2 hectares in area.
(3) The Council shall not consent to subdivision of land to which this clause applies which results in the creation of an allotment on which there is an existing dwelling-house where that allotment is less than 2 hectares in area.
(4) Notwithstanding subclauses (2) and (3), the Council shall not grant consent to a subdivision under this clause unless it is satisfied that the lot sizes permit the siting of dwelling-houses so that they are unlikely to inhibit or give rise to complaints about normal farming practice (such as aerial spraying, separation from noxious odours and the like).”
54 Clause 17 “Dwelling-houses – Zones 1(a) and 1(c)” provides:
- “(1) The Council shall not grant consent to the erection of a dwelling house on a portion or lot of land within Zone No 1(a) that has an area of less than 40 hectares and is prime agricultural land.
(2) The Council shall not grant consent to the erection of a dwelling-house on an allotment with an area of less than 40 hectares which is created for the purposes of agriculture under this plan where the land is within Zone No 1(a) and is prime agricultural land.
(3) The Council shall not grant consent to the erection of a dwelling-house on land within Zone No 1(c) unless the land has an area of not less than 4,000 square metres and not more than 2 hectares.
(4) The Council may grant consent to the erection of a dwelling-house on land within Zone No 1(a) which is not prime agricultural land only if the land has an area of not less than 2 hectares.
(5) The Council may consent to the erection of a dwelling –house on land:
- (a) within Zone No 1(a) which is prime agricultural land where the land is less than 40 hectares in area, or
(b) within Zone No 1(a) which is not prime agricultural land where the land is less than 2 hectares in area, or
(c) within Zone No 1 (c) where the land is greater than 2 hectares in area, but only if , [emphasis added]
(d) the land comprises a vacant existing holding, or
(e) the dwelling-house is ancillary to a non-agricultural use carried out on the land, or
(f) the dwelling-house is intended for occupation by a relative of the owner or a rural worker.
- (a) evidence has been provided, to the satisfaction of the Council, that the subject lands are to be used for intensive agriculture, being evidence which takes the form of a programme of works to be submitted with the development application, and includes commencement dates for each stage of the agricultural enterprise, and
(b) evidence is provided to the satisfaction of the Council, of the practicability of performing the submitted programme.”
55 Clause 19 “Development in Zone No 1(a) involving prime and non-prime agricultural land” provides:
- “(1) This clause applies to land within Zone No 1(a).
(2) Where a part of any parcel of land, the subject of a subdivision or dwelling development application, consists of both prime and other agricultural land to which this clause applies, the Council is to determine if the importance of any prime agricultural land within the subject land is such that it warrants protection for agricultural production.
(3) For the purpose of subclause (2) the Council is, in determining the importance of such part of a parcel of land as is prime agricultural land, to take the following factors into consideration:
- (a) the size of the area of prime agricultural land,
(b) the location of the area of prime agricultural land in relation to other prime agricultural land,
(c) the shape of the area of prime agricultural land,
(d) any geographical constraints on production in relation to the prime agricultural land,
(e) the importance of that section of prime agricultural land to the overall viability of the whole area of the land,
(f) any other factors that significantly limit the potential of the prime agricultural land for agricultural production.”
56 Clause 21 “Additional dwellings” provides:
“The Council may consent to the erection of an additional dwelling-house on land within Zone No 1(a) or 1(c) (including the alteration of an existing dwelling-house to create 2 dwellings) where:
- (a) in the case of land within Zone No 1(a), the land is 2 hectares or more in area, and
(b) separate ownership of the proposed dwelling or dwelling-house could only be achieved by a subdivision of the land, and
(c ) no additional access to a public road is required from the land.”
“Prime Agricultural Land”
57 The definition in cl.5(1) of the LEP, quoted in full at par [48] above, was inserted in the LEP by Amendment No.7 on 8 May 1998. In practical summary, it means that land is defined as “prime agricultural land” if it appears as “Class A1, Class A2, or Class A3” on a map published by the Director-General of the Department of Agriculture, or is certified as such or as “land of merit for special agricultural uses” by the Director General.
58 At the time DAs 131 and 185 were assessed, all of the subject land was identified as “Class A2” on the Department of Agriculture map, and was, therefore, regarded as “prime agricultural land for the purposes of the Cowra LEP”. (See Carter affidavit 5 March 2008 par 4.3). Class A2 land is defined in the schedule to the map as “arable land: flat to gently undulating with minor occurrences of hilly land; dominantly class 2; classes 3 and 4 on upper slopes and crests and steeper country; minor class 5”. A footnote indicates that these classes are those defined in the Rural Land Evaluation Manual, by Woodward & Nielson, published in 1981.
59 Council does not assert any reclassification of the subject land from “prime” to “non-prime” agricultural land by the Department. However, the evidence establishes that the Council’s planning consultant at the time, Wayne McDonald, recommended to NRS in about December 2003 that it seek advice from a private sector local agronomist, Peter Wilson (Tab 6 to Patrick affidavit 18 December 2007).
60 Wilson carried out a “property evaluation” of the 2.75ha “referred to as Lachlan Village Estate” (actually the land earmarked for the housing, not for the vineyard), and concluded (per his letter 20 May 2004, Exhibit C1, fol 113):
- “ The area comprises of a shallow sandy loam topsoil with a loam subsoil. Quartz aggregates are present throughout the soil profile. Agricultural activity is limited due to the low soil fertility status and poor soil texture. The soil is susceptible to sheet erosion if intensively cultivated. Thus, the area is not prime agricultural land ”.
61 Wilson’s “evaluation” of the land accompanied the submission to Council of DA 185 on 28 May 2004 (see Exhibit C1 fol 106).
62 In May 1991 Council had adopted a Development Control Plan entitled “Guidelines for Rural Development” (Exhibit N2). It is to be “taken into consideration by Council when it deals with Development Applications in the 1(a) zone” (cl.1.2). One of its stated purposes (cl.1.1) is to assist applicants in addressing the Council’s consideration of “rural development issues” in the LEP. Others are to “ensure that Council has the flexibility to adapt policies to the circumstances” and “enable policies on local development issues to be modified locally”.
63 Clause 2.2(a) of this guidelines document deals with “prime agricultural land”, and requires Council to “have regard to the land classification system provided by the Rural Land Evaluation Manual, and to any more detailed information provided by other reliable sources”. (That Manual is also referred to in the footnotes to the Department of Agriculture maps – see par [58] above). The clause notes that Council had defined prime agricultural land according to the Department’s classification system, but then says that “the final determination of land classification will be made by Council”. It envisages Council “may consult” the Department of Agriculture “where a proposal unavoidably affects prime agricultural land”.
Notification of Development Proposals
64 The evidence includes a document entitled “Cowra Shire Council Development Control Plan No. 1/99 ‘Advertising and Notification’ adopted 26 September 1999” (Exhibit C1 fol 34a-34k). There is some question raised as to whether this “DCP” was formally, if not validly, made, but there is clear evidence that Council adopted it on 27 September 1999, and its terms were thereafter relied upon, specifically, by Council regarding notification matters. Accordingly, the Court accepts that it sets out the Council’s policy on such matters at the relevant time (see Mr Carter’s affidavit, and his oral evidence on Day 1 – see T20-22, and T62-66). Mr Carter agreed that not every adjoining owner was notified by letter in the case of every DA Council considers, but he opined that Council’s decision was always informed by following the policy in the ‘DCP’, which was consistently applied, especially in cases of “subdivisions of land for rural purposes entailing lots created for dwelling house purposes” (Day 1, T63 L16-17 & L33-35 & T66 L33-42).
65 The DCP/Policy applies to all land covered by the LEP, and it provides relevantly in section 3 as follows:
66 Clause 3.2:
* Those persons who own land either adjoining to the side and rear boundaries, or adjacent to the subject land.“All adjoining and adjacent property owners, who in the opinion of Council, may be effected (sic) by a development proposal shall be notified in writing. In this regard certain activities are generally considered to be minor and unlikely to adversely affect adjoining owners, or are identified exempt or complying development. These may be exempt from notification (refer section 3.12). The following person(s) may be notified:
* An association for a community, precinct or neighbourhood parcel …
* If in the opinion of Council or its delegated officers, the enjoyment of any other land may be affected by the proposed development:
· the owners of such other land;
· the owners of land separated only by a pathway, driveway or similar thoroughfare from the proposed development.”
67 Clause 3.3 provides also that notification be given in the local newspaper for particular types of development and included in the list is “commercial development (in a commercial zone; excluding change of use and minor alterations and additions)”. The list also includes “industries” and the clause goes on to say “In addition where Council or its Delegate considers that community interest in a development proposal may be wider than the immediate vicinity of the development site, notification may also be given in a local newspaper”.
68 Clause 3.4 deals with “criteria for neighbour notification” (in the sense of an individual letter from Council). The extent of neighbour notification will be determined having regard to a long list of items including the building’s siting and proximity to boundaries, its design, height, bulk and scale and relationship to the character of existing development in the vicinity and the streetscape, the use of proposed rooms and possible effect on adjoining land due to overlooking and loss of privacy, views to and from adjoining land, overshadowing of adjoining land, natural drainage issues, the likelihood of adjoining land being detrimentally affected by noise, and “any relevant matter for consideration under s.79C of the EPA Act”.
69 The DCP/Policy goes on to give particular detail about the form of notice, erection of signs, accompanying plans, exhibition period, submissions and their consideration, notice of any DC, etc. Clause 3.12 clearly envisages that Council may form an opinion that persons in its consideration “will not be detrimentally affected by a proposal”, and decide not to follow its notification procedures. One specific circumstance mentioned concerns applications where, in Council’s opinion, the amenity of adjoining and adjacent properties is not affected. Section 4 of the DCP deals with public meetings, and s.5 deals with involvement of the community in the formulation of development guidelines.
Concerns about Council’s Assessment Processes
70 It would appear that there was growing concern, within the Council and elsewhere, during 2004, about the way in which rural residential subdivisions were assessed and about the fact that many of them were determined under delegated authority by the “officer” who assessed them. The two DAs in this matter were assessed and determined by the Council’s then Consultant Town Planner, Wayne McDonald, who appears to have ceased to play those roles by the end of 2004 or early 2005. Mr Carter became Council’s Director Environmental Services on 24 January 2005, after 10 years as Manager Development Services at Parkes.
71 By 26 April 2005 Council’s General Manager, James Roncon, was prepared to express in writing some concerns about LEP interpretations etc. in respect of Rural 1(a) lands (Exhibit C1 fol 72). Legal advice was then sought by Council, specifically about DCs 131 and 185.
72 On 7 December 2005 the Minister for Planning established an Independent Panel to “review certain planning matters in Cowra Shire”, and it was part of Mr Carter’s duties to assist that Panel – comprised by Adrian Galasso SC (Chairperson), Dr Regina Fogarty, and Mr Kevin Cleland. Mr Carter’s officers reviewed all zone 1(a) subdivisions granted consent 1998-2005, but he was personally involved in most of the investigations, which also reviewed neighbour notifications. He did not personally familiarise himself with the post-consent details of every matter, at least not at that stage (see Carter’s oral evidence – Day 1 T62-66).
73 The Panel presented its report (Exhibit N1) to the Minister on 30 March 2006, identifying 35 “uncertain development consents”, including DC 185. Mr Carter says DC 185 was the only one in respect of which Council recommended surrender.
74 The Review Panel had 6 terms of reference:
1. Advise the Minister on Amendment No.14.
2. Identify and describe possible errors in the planning process and particularly whether actions have been taken by the Council that contravened environmental planning instruments.
3. Identify uncertain consents.
4. Advise the Minister what action to take on terms 1-3 “ particularly in relation to uncertainty of property rights and consents ”.
5. Advise on the appropriateness of current actions being taken by the Council.
6. Recommend any other appropriate actions that would promote improved land use planning for the Cowra local government area.
75 The Panel’s principal recommendations were:
- “1 . Cowra LEP 1990 (Amendment 14) be made as a matter of priority with a minimum lot size of 400ha inserted at clauses 12(3) and 17A(b).
2. On balance, no further action be taken with respect to planning consents given by the Cowra Shire Council that may be uncertain.
3. Cowra Shire Council be urged to publish and/or republish section 101 notices with respect to planning consents given by the Council that may be uncertain.”
76 The closing comment of the Panel in its covering letter expressed the view that the actions then being taken by Cowra Shire Council to ensure orderly and sustainable development of the Shire were appropriate, but should be subject to periodic review.
77 In its report the Panel sketched the background of the 1973 state-wide 40ha minimum subdivision dwelling entitlement for rural land, and specifically the development of the Cowra LEP.
78 The Panel noted that in 1998 (by Amendment 7) the LEP’s definition of prime agricultural land in terms of departmental maps was substituted for the Council’s former discretion in defining it, but that Council interpretations between 1998 and end 2004 “resulted in a level of uncertainty for a number of approvals …”. The Panel concluded that prime agricultural land had effectively been reclassified as non-prime by Council, without the power to do so other than by the process set out in the definition. The Panel referred to the practice of reclassifying individual pieces of land in response to an agronomist’s report suggesting the Department’s classification was inappropriate for that particular parcel, and the Panel acknowledged difficulties with relying on the Departmental mapping. I can find no reference in the Panel’s report to the 1991 DCP “Guidelines for Rural Development” (see pars [62]-[63] above) which would appear to have influenced Council’s approach, especially regarding the use of private agronomists.
79 The Panel noted that the Department of Planning had been investigating planning issues in Cowra since 2004 following submissions from residents concerned with Council’s assessment of DAs, particularly in respect of the subdivision of Rural 1(a) land.
80 The Department had written to the Council in November 2004 seeking clarification, and asked the Council to review all DAs granted since 1998 where consent could have been affected by a misunderstanding of the provisions. In August 2005 Council advised the Department of Planning that it had completed the review and considered there were 35 DAs where consent may be in question.
81 With the encouragement of the then Director General of Planning, Council prepared, exhibited and adopted draft LEP 1990 (Amendment 14). (See par [38] above). It was exhibited with a minimum lot size of 400ha, but ultimately adopted with a minimum lot size of 100ha for a dwelling entitlement. This amendment was intended as a “interim measure to restrict subdivision of rural 1(a) lands”.
82 Minimum lot size for dry land agricultural areas of the Shire proved a most contentious issue for the Panel. Suggestions among submissions to the Panel as to the “correct” area to insert in cl.12(3) and cl.17A(b) of the LEP (as it would stand after Amendment 14 was made) for dwelling entitlement were as follows: Council 100ha; Council Officers 300ha; Department of Primary Industries 400ha; Department of Planning 300ha or more; and members of the community a range from 10-400ha.
83 The Panel recommended the plan be made with the minimum lot area for dwelling entitlement set at 400ha. It also supported a minimum lot size of 40ha for intensive agriculture and recommended further detailed assessment by Council of the potential for niche agricultural pursuits to be developed on smaller lots in specified locations.
84 The Panel commented that the LEP’s subdivision provisions were “somewhat confusing and hence open to a variety of interpretations”, and found that some inaccurate versions of the LEP were in use in the years 1998-2004. Determinations which might look technically sound may not have properly observed the requirements of the LEP. Particular concern was noted in respect of “community title subdivisions” (Exhibit N1 page 23). The Panel also noted, however, that there was little evidence of resident/ratepayer objection to DAs for rural subdivision, even though the practices being reviewed “had the effect of importing to prime agricultural land the significantly lower minimum subdivision allotment requirements that were applied to non-prime agricultural land”. The Panel noted that in September 2004 there were public complaints concerning one particular application and that brought the controversy to a head. The Court deduces from the evidence that the NRS project was the relevant application, but the Panel report does not state that.
85 The Panel’s report went on to review the 35 identified DAs and their impact on lot availability (pp 26-27 and Appendix A3). Many involved only a very small number of lots. The Panel noted that many of the questionable consents had been acted upon and lots on-sold without any controversy or complaint.
86 However, the Panel also noted that there were inconsistencies in Council’s use of public notices under s.101 of the EP&A Act – where advertisements were placed, they were not always precise.
87 The Panel arrived at a recommendation that s.101 notices should be published/republished in respect of all 35 consents. The Panel also noted that, in the case of one DC, action was underway to secure its surrender, and recommended “that such efforts continue”. Carter testified that the consent referred to in that remark was DC 185 (Day 1 T65 L13-20 & T66 L24-29).
88 As noted above (par [73]), the Panel presented its report on 30 March 2006. Amendment 14 was duly gazetted on 10 April 2006, to apply to DAs made on or after 4 March 2005, and the 35 s.101 notices were published in the Cowra Guardian on 19 May 2006. Amendment 14 made very substantial amendments to the LEP insofar as it impacted on the subject matter of DA 185.
89 Relevantly, changes were made to cl.2, the objectives of zone 1(a), cls.10, 12, 13, 17, and 21; cls.14 and 19 were omitted; and new cls.17A and 17B were added.
Section 101
90 The full wording of s.101 of the EP&A Act is set out at par [11] above. Clause 124 of the Environmental Planning and Assessment Regulation 2000 (“EPA Regulation”) provides as follows:
- “(1) The granting of a development consent is publicly notified for the purposes of section 101 of the Act if:
- (a) public notice in a local newspaper is given:
- (i) by the consent authority, or
(ii) if the consent authority is not the council, by the consent authority or the council, and
- (b) the notice describes the land and the development the subject of the development consent, and
(c) the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours:
- (i) at the consent authority’s principal office, or
(ii) if the consent authority is not the council, at the consent authority’s office or the council’s principal office.
91 The Courts have insisted on strict compliance with the requirements of s.101, as a privative provision, in order to achieve its full effect. There must be a public notice, by the consent authority, in a local newspaper, and it must describe the land and the development with precision. The notice must state that the DC is available for inspection (as required in detail by cl.124(1)(c) of the above Regulation).
92 If all these requirements are satisfied, s.101 will, prima facie, insulate the relevant DC from challenge once three months has passed from the date of the advertisement.
93 I recently reviewed the latest authorities on the operation of s.101 in my reasons for judgment in Clark & Davis v Wollongong City Council & Others [2008] NSWLEC 110 (“Clark & Davis”), especially at pars [39]-[41], and I won’t restate the principles at length here.
94 Despite what Patrick said to Council in his letter of 5 December 2006 (see Tab 48 to his affidavit 18 December 2007) there is absolutely no evidence before me to suggest that DC 131 was ever publicly notified pursuant to s.101, so s.101, in this case, is relevant only to DC 185, assuming the s.101 advertisement is found to be valid.
95 DC 185 was purportedly notified twice – firstly on 6 August 2004 (par [28] above and Exhibit C1 fol 1), and again on 19 May 2006 (par [40] above and Exhibit C1 fol 204-5).
96 The 6 August 2004 notice clearly did not satisfy the requirements of s.101 and Regulation 124 – it lacked the invitation to inspect etc, and NRS (as the defender of the consent in this matter) does not rely on it in any event.
97 In respect of the 19 May 2006 notice the Council submits that, as it contains the date of the modification and not of DC 185, it also does not satisfy the requirements, as it effectively gives notice of the modification and not the consent. I do not accept that argument – the address, the consent and its substance are accurately and adequately identified and described, and all the other requirements are satisfied. Neither the Section nor the Regulation requires the inclusion of the date – indeed even the consent number is not stipulated as a crucial detail to include. Anyone accepting the public invitation to inspect would clearly be directed to DC 185 itself, and not just to the amended conditions in the modification.
98 My conclusion, therefore, is that the notice of 19 May 2006 operates, pursuant to s.101, to protect DC 185 from challenges which do not meet the exceptions established by the recent line of authority. If Council makes good its challenge that there was a failure to notify, resulting in a denial of procedural fairness, or its challenge that Council lacked the necessary power to grant DC 185, s.101 will not operate to protect it. See Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707; Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695 (“Anambah Homes”). Despite the fact that DC 185 depends on DC 131, the protection of DC 185 by s.101 does not extend also to protect DC 131.
99 I now turn to consider all the challenges (listed in par [10] above).
Owner’s Consent – Challenge (1) to DC 185
100 The consent of a landowner to the making of a DA is not mandated by the EP&A Act, but s.78A(9) empowers the making of regulations which “may specify other things that are required to be submitted with a” DA. Clause 49(1) of the EPA Regulation provides:
- “(1) A development application may be made:
- (a) by the owner of the land to which the development application relates, or
(b) by any other person, with the consent in writing of the owner of that land.”
The requirement for owner’s consent is usefully discussed by Lloyd J in Mulyan Pty Ltd v Cowra Shire Council & Another (1999) 105 LGERA 26.
101 Lachlan Industries signified its consent in writing to the lodgement of a DA in this matter only once, namely by a letter dated 5 April 2004 addressed to the Council in the following terms:
“RE: LOT 1 DP519943
We understand the development application will seek a separate title for the proposed 100 acre vineyard housing block and divide it from the 60 acres containing the Wool Scour Plant and dams. We also understand that the application will dedicate the access road (Campbell Street), which is on the land, to the Council as a public road .”We, the proprietors of Lot 1 DP 519943, consent to W J Chapman of CPC Land Development Company on behalf of NRS Services lodging a development application with the Cowra Council for the purpose of subdivision.
102 The letter was prepared by Mr Mewburn, for signature by his then superior at Lachlan Industries (Mr Ishiguro), at the request of, and with a precedent or draft of some sort provided by, Mr Chapman (see p6 at Tab 12, Patrick affidavit 18 December 2007, and Day 1 T68 L35-50). Mr Mewburn was totally without experience in the making of development applications, and conceded in his evidence that he thought of the whole project as “all one process”, even though Mr Chapman’s submission of DA 131 on 7 April 2004, which included the Lachlan Industries letter, made clear there would be “separate applications”. (See Day 1 T68 L11-50 & T69 L8-10).
103 The letter clearly refers and agrees to the first stage (DA 131), but also, contrary to Mr Hemmings’ submissions, clearly foreshadows the rest of the general scheme, eventually carried forward by DA 185.
104 The evidence (as finally assembled on day 2 of the hearing) also makes clear that the Lachlan Industries letter was indeed resubmitted to Council with DA 185 by way of evidence of the owner’s consent to what in essence was the second stage of the unified project (see Exhibit C1 fol 108, and the notation “see attached letter” on the DA form at fol 110A).
105 The ongoing support of Lachlan Industries for the whole project from conception (in August 2003) to the completion of the sale (in January 2005) and the voluntary liquidation of the company (in mid 2005) is clear from the role of their representatives in the continuous negotiations between NRS and the Council. As Mr Johnson put it: “[H]ere we have a landowner who was intricately involved in the negotiations with the council, the giving of presentations to council, who fully knew and understood precisely what was going on …”. (Day 1 T61 L4-6).
106 NRS submits, and I accept the submission, that the absence of a written consent from the owner, dealing precisely with the substance and detail of DA 185, is “a technical and procedural defect that infects this consent … [which] in the exercise of the Court’s discretion … in the special circumstances of this case would not operate so as to give rise to a declaration of invalidity” (Day 1 T61 L6-10).
107 The letter of 5 April 2004, in light of Council’s clear knowledge of the owner’s support of the development and of the need for NRS to have both approvals in place so that the owner could complete the sale and withdraw altogether from the Cowra district, is adequate evidence of “owner’s consent”, and challenge (1) must fail.
Notification/Procedural fairness – Challenge (a) to DC 131 and Challenge (2) to DC 185
108 Some but not all “adjoining and adjacent property owners” were notified, by letter from Council, of DA 131, on 22 April 2004, and others but not all were so notified of DA 185, on 17 June 2004, Council having also advertised DA 185 in the local newspaper on 11 June 2004.
109 From the various sketch maps in evidence (e.g. Exhibit C1 fol 43), the seven relevant property owners (apart from Lachlan Industries Pty Ltd itself) appear to be State Rail, the Melcherts, Warn/Fardell (who rented their property to Paul John Mooney from late 2004 until they sold it to him in June 2005), P W Johnstone, the Mallons, the Honeybrooks, and a winery group (represented by “Simeon Wines Ltd”). The Mallons appear to join the South-west of the subject site (nearest the scour), the SRA the North-west (nearest the proposed housing cluster), and Warn/Fardell and Mooney the North-west corner. Honeybrooks are across the creek to the East, the wineries across the river to the South, and Johnstone across the road to the North.
110 Mr Carter testified that notice of DA 131 was given to the Melcherts, Warn/Fardell, and State Rail (Exhibit C1 fols 44-46) on 22 April 2004, but to none of the other four, and that notice of DA 185 went to the Honeybrooks, Johnstone, the Mallons, Simeon and State Rail, but not the Melcherts or Warn/Fardell.
111 John Mallon was at the time a councillor on Cowra Shire Council, (see par [33] above), and several items of correspondence from him, in the nature of complaint/objection regarding the project (including Council’s failure to notify him of DA 131) are among the evidence (Exhibit C1 – fols 63, 66, 103-4, 187-8, 191). Mr Andrew Hancock of McGuigan Simeon Wines Ltd made a submission on 1 July 2004 regarding possible implications of DA 185 (fol 138) – the wineries were not opposed to DA 185, but wanted to ensure that no housing would be approved closer to the existing vineyards than was already proposed.
112 Councillor Mallon attended Mr Patrick’s presentation to Council about the (whole) project in May 2004, so NRS’s case is that he was on notice, even if not notified formally by letter. (The detailed slides from that presentation are before the Court – Tab 2 to Patrick’s affidavit 12 February 2008 – and they give a clear picture of the scope of the project as a whole).
113 Manfred and Noelene Melchert of 54 Parkes Street Cowra both swore affidavits. They own, as joint tenants, Lot 11 s.3 of DP 1244 Cowra. Both annex title searches, and say they bought the property in 1975 and have lived there continuously since then. Both depose that “at no time” were they ever directly notified by Cowra Shire Council of the lodgement of DA 185 but they were aware of the “intention of the new owners of the West Cowra property, to create a subdivision and construct houses and a vineyard estate” because they read about it in the local paper and discussed the details with various friends. Both have no objection to the proposed subdivision and construction of houses, and the creation of the vineyard estate.
114 Paul John Mooney lives at 71 Brougham Street Cowra. He owns Lot 10 s.3 DP 1244. After he had lived in and rented the property for about 6 months from the previous owners Warn and Fardell, he purchased it in June 2005, and has lived there continuously. He does not know the present whereabouts of the former owners. He too was at no time directly notified by the Council of the lodgement of DA 185. “After I purchased, I became aware of the intention of the new owners of the wool scourer property to create a subdivision and construct houses and a vineyard estate”. He was so informed by his former employer, a gentleman from Canowindra who told him he proposed to “buy the biggest and best block in the estate”. Mr Mooney expresses no objection to the proposed subdivision and construction of houses, and the creation of the vineyard estate.
115 There are strong public policy grounds for requiring that neighbours are notified by Councils of development proposals which might adversely affect them and their properties, particularly in circumstances of extensive urbanisation by way of residential development. See, e.g., Lord and Another v Hiscock and Others (1980) 47 LGRA 168, per Waddell J at 182-3. It is common for Councils to have written policies of various levels of detail or complexity, providing for a system of notification, and in this case the Council followed what it saw as a DCP (No.1/99) and has, in practice, observed as a consistent policy (see pars [64]-[69] above).
116 Clause 3.2 of the DCP/policy (par [66] above) requires Council to form an “opinion” as to whom or what may be “effected (sic) by” a particular development proposal; cl.3.4 (par [68] above) sets out considerations Council must take into account in coming to its opinion; and cl.3.12 (par [69] above) specifies circumstances where the Council may decide not to follow its notification procedure.
117 It is clear on the evidence recounted in this section of these reasons that the Council, in the case of each DA involved in this matter, namely DA 131 and DA 185, gave consideration to the various property owners in the vicinity, and formed, at some level of authority, such an opinion, correctly or incorrectly, in each case. (See especially, pars [107]-[110]).
118 The only neighbour aggrieved by the decision not to notify him/her/it in either case appears to be Councillor Mallon, who was notified by letter of DA 185, but not of DA 131. He became aware of DA 131 by virtue of his position as a Councillor, but that was a DA for a two lot subdivision and the dedication of an access road some distance (150m?) from his land.
119 Unlike the position which confronted me on the evidence in Clark & Davis, I can find in this case no denial of procedural fairness which would cause the Council’s notification system to miscarry, and thus invalidate the consent.
Failure to Consider Objectives of Zone – Challenge (b) to DC 131 and Challenge (3) to DC 185
120 Clause 2 of the LEP sets out the “Aims, objectives, etc” of the plan as a whole, and the table to cl.9 sets out the objectives of the relevant zone itself (here Rural (1)(a)). See pars [44]-[46] above. Clause 2(3) states that the “particular objectives” adopted by the plan to achieve its “aims” can be identified by reference to the tables of zone objectives.
121 Clause 9(3) requires the consent authority to satisfy itself that any development proposal is “consistent with the objectives of the zone” – it does not say “plan”, but there is substantial overlap between the actual wording of the plan’s “aims”, and the Rural 1(a) zone’s objectives. The only zone objective not strictly reflective of the plan’s aims is (d) – preference for dwelling-houses and other non-agricultural development to be located on land other than prime agricultural land.
122 For the Council, Mr Hemmings argues that there is no evidence of any consideration of the zone objectives when DA 131 was assessed and the Court should infer they were not considered at all (a question for judicial review, cf “inadequately” as in a merits review). Noble v Cowra Shire Council (2001) 114 LGERA 440 (“Noble”).
123 For NRS, Mr Johnson says that, in the absence of such evidence, the Council bears, but has not discharged, the onus of making good its challenge to its own processes and their output. Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319 at 335, 339-340. The Council sent a copy of both the plan and zone objectives to Lachlan Industries on 3 December 2003, before lodgement of either DA (Tabs 5 and 7 to Patrick affidavit 18 December 2007), and there is no evidence at all that they were not considered when the DAs were received. Mr Johnson says that the process of inference described in Noble works in reverse of the way argued by Mr Hemmings. Manly Council v Hortis and Another (2001) 113 LGERA 321, at par [26] ff.
124 I accept Mr Johnson’s submissions on this aspect of the matter. In respect of DC 131, I am satisfied that, as the challenger to the consent, the Council has failed to discharge its onus.
125 When the Court comes to consider the processing of DA 185, there is clear evidence that Council’s consultant town planner did, indeed, consider at least the plan’s “aims”, if not, in terms, the zone “objectives” (Exhibit C1 folio 143). I have already drawn attention to their overlapping provisions and to the provision in cl.2(3). The amount of weight to be attributed to any of them is a matter for the Council, and there is no Wednesbury-type challenge in play in this case. In respect of zone objective (d) (par [120] above), Council had before it Mr Wilson’s expert opinion indicating that the home-site area was not prime agricultural land. Reliance on that may not have been legally sound, but I raise it as evidence of “consideration” having occurred.
126 I am again not satisfied that the challenges to the consents, dealt with in this section, have been made out.
Lack of Power to Grant Consent – Challenge (4) to DC 185
127 I turn now to the last of the six challenges before the Court, the assertion that Council lacked the requisite power to approve DA 185 (see assessment report at fols 139-143 of Exhibit C1).
128 The relevant provisions of the Cowra LEP in force at the relevant time are set out and discussed at pars [43]-[63] above. Some of them are complex and need to be construed and applied very carefully. Their application to DA 185 has to be assessed against a careful characterisation of what it proposed, basically the subdivision of an area of approximately 2.75ha of the newly created northern lot on the subject site into 21 residential blocks and a shared amenities lot, and the intended establishment and use of most of the remaining 40ha of the created Northern lot surrounding that area as a community title vineyard or open space (see pars [7]-[8] above).
129 In considering the permissibility of this DA 185 project the starting point is that the whole of the northern lot is shown as “prime agricultural land” on the relevant NSW Department of Agriculture maps. It may not be truly “prime” in the opinion of even expert observers such as NRS’s consultant agronomist Mr Wilson, but it is mapped as such by the Department.
130 The LEP’s definition of “prime agricultural land” (par [48] above) is quite clear. In assessing particular land for development consent purposes one must examine how it is mapped to see if it meets that definition. As Mr Hemmings, Counsel for the Council, put it: “… if it is on the map, it is, unless the Director General tells you that it’s not” (Day 1 T22 LL12-13). Council lost any former discretion to categorise agricultural land as “prime” when Amendment 7 took effect in 1998 (see par [78] above), but the Rural Development Guidelines/DCP, dating from 1991 (see pars [62]-[63] above), were certainly still relied upon by Council officers and consultants, at the expense of strict compliance with the LEP as relevantly amended in 1998.
131 If one disputes the mapping/classification, the remedy lies in an approach to the Director General of Agriculture for him/her to “notify Council in writing” that the land in question is not “prime agricultural land for the purposes” of the LEP. The Council cannot form and act upon an opinion, or rely on a private agronomist’s opinion, that the map is wrong, or operates inadequately, because the particular area of land concerned lacks certain attributes or exhibits certain shortcomings.
132 Neither the Council nor NRS approached the Department in this case, armed with Mr Wilson’s opinion, so, legally, at the time of the determination of DA 185 the subject land was “prime agricultural land”, and protection of such land was a high priority in the overall planning regime established by the LEP.
133 Accordingly, DA 185 could be assessed and determined only under cls. 10, 12 and 13 of the LEP – because dwelling-houses and intensive or “niche” agriculture (a vineyard) were the ultimate objectives of the scheme in the DA, albeit not part of the DA 185 development itself. Clauses 14 and 19 would apply only if the status of at least part of the relevant affected land is, or becomes, “non-prime”. Clauses 17 and 21 were not relevant at that “enabling” stage of the rural-residential project. None of the land was mapped as “non-prime”, even though, in fact, it may have been properly considered by experts as “non-prime”.
134 A similar complication flowing from such mapping was recently dealt with by the Chief Judge in Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116. The definition of “prime crop and pasture land” in the relevant LEP in that case was based on departmental maps, but the LEP had significantly different provisions from those here, requiring the consent authority to make assessments, satisfy itself, and form opinions regarding the implications for relevant land of approving certain development.
135 His Honour had before him more evidence than was before me regarding the classification system represented in departmental mapping (see pars [30]-[43] and [62]-[65] of his judgment), and the relevant agricultural industry was bee-keeping, which was defined in the plan. His Honour held, over the weight of expert opinion about the relevant land, that the departmental mapping was conclusive of its status. (See pars [41], [54] and [63]). I respectfully agree with His Honour, in coming to a similar conclusion in this matter.
136 Clause 12, read in conjunction with cl.13 (which probably does not apply here) regarding the purely agricultural component of the proposal, renders DA 185 not permissible, due to the sizes of the proposed lots earmarked for dwelling development. Council wrongly relied on cls. 3, 14, 17 and 21 of the LEP to approve DA 185, relying on Mr Wilson’s expert opinion about the agricultural quality of the subject land. This is a “manifest absence of power” in the sense in which that term as used in Anambah Homes (at [17]).
137 Mr Johnson conceded, on behalf of NRS, that Council relied on the wrong power(s) in the LEP, and argued in vain for the consent to survive on the basis that the subdivision in DA 185 prevented the fragmentation of “prime agricultural land” by its combination of cluster housing and the community title vineyard, making the grant of DC 185 unique among the 35 consents reviewed by the Independent Panel (see pars [72]-[87] above).
138 That Panel identified the shortcomings in Council’s assessment of DAs involving “prime agricultural land” between 1998 and 2004, following the passing of Amendment 7, and especially in reliance upon agronomists’ assessments, which questioned mapping but did not lead to the amendment of the maps in the way prescribed (see par [78] above). The Panel recognised the need for Council to have scope to approve “niche agricultural pursuits” on suitable smaller areas of land (par [83] above), possibly involving community title schemes ([84]), and one could easily argue for the DA 185 scheme on this basis. However, that cannot retrospectively make valid an approval previously granted without power, despite the apparent absence of community opposition ([85]).
139 DA 185 was approved by Council, contrary to the express provisions of its LEP. Carter’s assertion (Tab 30 to Patrick Affidavit 18 December 2007) that the delegated approving officers properly considered the recommending officers’ report matters not when that report is infected with error and did not properly discharge the Council’s duties under the EP&A Act, and/or the LEP.
140 I have concluded that DC 185 is invalid.
Summary of the outcomes of the Council’s challenges to its consents
141 In summary:
· Neither of the Council’s two challenges to DC 131 have succeeded.
· Only one of Council’s four challenges to DC 185 has succeeded.
· DC 185 is protected by a valid s.101 public notification, but that notification cannot protect a consent granted in the absence of legal power (see par [97] above and the cases there cited).
Discretionary considerations and the Relief to be granted
142 As eventually pleaded, the relief respectively sought by the parties is as follows:
The Applicant seeks (i) declarations that it is entitled to rely, act upon and implement both DC 131 and DC 185; (ii) orders appropriate to the nature of the proceedings (especially, perhaps, an order against Council to issue a subdivision certificate for DC131?), and (iii) costs.
The Applicant pleads discretion in its favour, but has abandoned its original prayer for relief under s.25B of the Land & Environment Court Act 1979 (“ Court Act ”) regarding DC 185.The Respondent seeks (a) declarations that both consents are void, (b) such orders as the Court thinks fit, and (c) costs.
143 NRS has succeeded in arguing the validity of the first of its two consents. That earlier consent (DC 131) was granted almost four years ago (2 June 2004), relevant conditions are acknowledged to have been satisfied, and, despite in-principle agreement that NRS was so entitled as long ago as 6 August 2004, the relevant subdivision certificate has still not issued. It seems to me that NRS is entitled to the first declaration it sought, and, if needed, to an appropriate order in respect of the subdivision certificate. In his written submissions for the Council (par 49), Mr Hemmings undertook that Council would issue the certificate (if otherwise appropriate) in the event that DC 131 was upheld.
144 I should now set out the discretionary matters raised on both sides in respect of any further relief to be considered.
145 On the basis of Council’s granting of DC 131, and Council’s cooperation and support in the advancement of its overall concept plan, NRS has, since three months after the initial s.101 advertisement of DC 185, incurred substantial expenditure and debt. (Patrick’s affidavit 7 March 2008 identifies a total of $5.2M). Despite Council’s 1 June 2005 letter casting doubt on the validity of both consents and threatening to bring proceedings in this Court to have them overturned, and despite the Independent Panel’s work commencing December 2005, and its report being presented on 30 March 2006 and acted upon fully by Council within two months, such proceedings were never commenced, and the validity of the consents was contested only when a cross-claim was lodged in these proceedings on 22 January 2008.
146 NRS complains vehemently about this delay, and the fact that, in the interim, Council acknowledged the two consents in its register and s.149 certificates, without qualification.
147 NRS worked collaboratively at every stage of this project with Council and its officers. Its consents remain valid until declared invalid, no apparent environmental harm is involved in their implementation, and no genuinely “prime agricultural land” will be “lost”. Faced with Council’s letter of 1 June 2005, and further particulars provided shortly thereafter, NRS embarked on serious efforts to find a solution to its impasse with Council, or an alternative way forward (largely via State Government intervention of some sort). It did not resort to these class 4 enforcement proceedings until 1 November 2007.
148 On the other hand, it must be noted here that Mr Patrick deposes to having initiated discussions with legal advisors about bringing these proceedings, as early as July 2006, and then again in February 2007, so there is delay on the company’s part as well. Further, the evidence indicates Council’s repeated invitations to NRS to surrender the consents and recommence the DA process afresh. (See e.g. Tab 46 to Parker affidavit 18 December 2007). It was submitted that the amended LEP (see pars [88]-[89] above) may now permit dwellings on the proposed Lachlan Village Estate lots. The new cl.17 provides as follows:
- Dwelling-houses—Zones Nos 1 (a) and 1 (c) in general
Despite any other provision of this plan (including clauses 17A and 17B), the Council may consent to the erection of a dwelling-house on an allotment of land within Zone No 1 (a) or 1 (c) if the Council is satisfied that:
- (a) the allotment was created in accordance with a consent granted before the appointed day, and it is an allotment on which a dwelling-house could have been lawfully erected immediately before the appointed day, or
(b) the allotment comprises an allotment created for the purpose of a dwelling-house by a subdivision for which consent was granted under this plan.
149 I can see no reason to deny the Respondent, on the grounds of discretion, the appropriate declaration of invalidity in respect of DC 185. It was a gross miscarriage of Council’s planning functions, regardless of the merit of what was proposed by NRS, and it should be declared void and of no effect. In matters of this type the Court has to be careful to stay away from any merits review. See Kindimindi Industries Pty Ltd v Lane Cove Council & Another (2006) 143 LGERA 277, especially at 297. As Mr Hemmings submitted, the Court is not measuring the merits of DC 185 against those of the other 34 which benefited from the Panel’s recommendation regarding the use of s.101, but against the public benefit of honouring the prime agricultural land priorities of the validly made local planning regime, breached so seriously in the process by which DC 185 was granted by the Council (Day 2 T59 L24-39). See, generally, Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 especially at 339; 63 LGRA 361, especially at 365). NRS should not be allowed to rely on the work of the Panel when its report specifically supported Council’s attempts to get NRS to surrender its consents.
150 I am obliged by s.25E of the Court Act to consider making an order under s.25B although it is not sought. I agree with Mr Hemmings’ submission (par 62) that a fundamental absence of power cannot be cured by such an order. (See discussion in Clark & Davis at pars [5]-[6] and [69]-[73] and cases cited there. See also Centro Properties Limited v Hurstville City Council and Another (2004) 135 LGERA 257 at pars [82]-[85]).
151 The Court makes the following Orders:
1. The parties are directed to agree upon, and bring in, Short Minutes of Order within 7 days to reflect these reasons for judgment.
2. All questions of costs are reserved.
3. The parties are granted liberty to apply on 72 hours notice.
4. All exhibits will be returned after 14 days.
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