Ogilvie v Rovest Holdings Pty Ltd

[2023] NSWLEC 17

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ogilvie v Rovest Holdings Pty Ltd [2023] NSWLEC 17

Hearing dates:

6 and 7 December 2022

Date of orders:

16 March 2023

Decision date:

16 March 2023

Jurisdiction:

Class 4

Before:

Moore J

Decision:

Development consent held to be invalid on two bases (see [130] and [131]).

Directions to be made for further hearing on discretion and costs.

Catchwords:

JUDICIAL REVIEW ‑ Ground 1 ‑ Council grants development consent for proposed motel ‑ development consent incorporates approval under the Local Government Act 1993 (the Local Government Act) to install multi‑room accommodation modular units transported to the site to provide accommodation for the motel ‑ whether modular units are “movable dwellings” as defined by the Local Government Act ‑ modular units not “movable dwellings” ‑ modular units are “buildings” requiring approval pursuant to the Environmental Planning and Assessment Act 1979 (the EPA Act) ‑ no approval given for “buildings” pursuant to the EPA Act ‑ development consent invalid on this ground

JUDICIAL REVIEW ‑ Ground 2 ‑ provision in local environmental plan sets three criteria mandated to be satisfied for stormwater disposal from the site ‑ consent authority considered and was satisfied as to one of the three mandatory provisions ‑ no evidence the consent authority considered two of the mandatory provisions ‑ required state of satisfaction not demonstrated concerning two mandatory stormwater criteria ‑ failure to consider and reach required state of satisfaction of mandated criteria renders development consent invalid ‑ appropriate to make declaration development consent invalid on this ground

JUDICIAL REVIEW ‑ Ground 3 ‑ local environmental plan requires that consent authority be satisfied as to availability of services ‑ requirement that services are or will be available ‑ satisfaction of the deferred commencement condition ensures mandated service (access to sewer for effluent disposal) will be available for issue of construction/occupation certificate ‑ consent authority imposes deferred condition of consent ‑ deferred commencement condition permits consent authority to reach mandated conclusion that sewage service will be available ‑ mandatory prerequisite satisfied - challenge based on availability of sewage services rejected

DISCRETION ‑ parties agree questions of relief to be deferred to future hearing if invalidity established - directions to be given to set date of and timetable for separate hearing on relief as a result of invalidity of development consent

COSTS - costs to be addressed at hearing on exercise of discretion

Legislation Cited:

Blayney Local Environmental Plan 2012, cll 6.2 and 6.8

Environmental Planning and Assessment Act 1979

Local Government Act 1919, s 289E(1)

Local Government Act 1993, s 68

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021

Cases Cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Deputy Commissioner of Taxation v Clark [2003] NSWCA 91

Jambrecina v Blacktown City Council [2009] NSWCA 228

Warnes v Muswellbrook Shire Council [2009] NSWLEC 1284

Wyong Shire Council v Cohen and Anor [2004] NSWLEC 171

Category:

Principal judgment

Parties:

Peter Ogilvie (Applicant)
Rovest Holdings Pty Ltd (First Respondent)
Blayney Shire Council (Second Respondent)

Representation:

Counsel:
Mr T To, barrister (Applicant)
Mr M Wright SC (First Respondent)
Submitting appearance (Second Respondent)

Solicitors:
Mills Oakley (Applicant)
Maddocks Lawyers (First Respondent)
Pikes & Verekers Lawyers (Second Respondent)

File Number(s):

179897 of 2020

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The Applicant’s challenge to the development

The Applicant's Amended Summons

Representation

The Applicant’s proposed further amendment to the Amended Summons

The relevant statutory provisions

Introduction

The EPA Act

The Local Government Act

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005

The LEP

Introduction

Stormwater disposal

Provision of sewerage services

The hearing

The evidence

The approved development

Matters for consideration

General introduction

Ground 1

Introduction

The Applicant’s position

Introduction

The Applicant’s written submissions

The oral submissions for the Applicant

The Company’s position

The written submissions for the Company

The oral submissions for the Company

Mr To’s oral submissions in reply

Consideration

Introduction

Consideration of Warnes v Muswellbrook

Consideration of Jambrecina v Blacktown City Council

Consideration of Wyong Shire Council v Cohen

Conclusion on Ground 1

The general introductions to Grounds 2 and 3

Ground 2 - stormwater and cl 6.2 of the LEP

Introduction

The Applicant’s position

The Applicant’s written submissions

Mr To’s oral submissions on Ground 2

The Company’s position

Mr Wright’s written submissions on Ground 2

Mr Wright’s oral submissions on Ground 2 and 3

Mr To’s oral submissions in reply

Consideration of the stormwater disposal ground

Ground 3 - availability sewerage services and cl 6.8 of the LEP

Introduction

The Applicant's submissions

The Applicant’s written submissions

Mr To’s oral submissions on Ground 3

The Company’s position

Mr Wright’s written submissions on Ground 3

Consideration

Conclusion

Future progress of the matter

Judgment

Introduction

1. On about 23 December 2020, Rovest Holdings Pty Ltd (the Company) made an application via the Planning Portal to Blayney Shire Council (the Council). The first element of this applications was to seek development consent to use the site of the former Blayney Bowling Club (the site) as a motel.

2. The second element of the application was made pursuant to s 68 of the Local Government Act 1993 (the Local Government Act). This element sought approval for the installation of a number of prefabricated modular units on the site, with these modular units to form the accommodation facilities to be operated as the motel. The various modular units were proposed to be installed on footings; tied down securely; and connected to necessary services (including, relevantly, the Blayney town sewerage system).

3. Both elements of the application were made pursuant to s 4.12 of the Environmental Planning And Assessment Act 1979 (the EPA Act), a provision which permits a single development application to be made for consent to carry out development and to carry out nominated forms of activity for which consent is necessary as a consequence of the operation of s 68 of the Local Government Act. The relevant elements of this provision are later set out.

4. On 10 August 2021, the Council approved the development application to use the site and also approved the installation of the modular units and associated facilities to be installed and/or constructed on site to form the motel. It will, later, be necessary to consider both the terms of, and relevant conditions attaching to, the approval granted pursuant to s 68 of the Local Government Act for the installation and/or for construction of the motel elements on the site.

The Applicant’s challenge to the development

5. On 2 November 2021, Mr Peter Ogilvie (the Applicant) commenced these Class 4 proceedings challenging the validity of the approval granted by the Council pursuant to s 68 of the Local Government Act. The Applicant is a resident of Blayney whose dwelling is located some 50 to 60 metres north‑west of the site.

6. On 21 March 2022, the Applicant sought leave to rely on an Amended Summons and, on 22 April 2022, Robson J granted that leave.

7. The primary argument advanced on behalf of the Applicant is that the modules currently being installed on the site to be used to provide the accommodation elements of the Company's proposed motel are to be classified as “buildings” (and thus requiring development consent, pursuant to the EPA Act) rather than “movable dwellings” as defined in the Dictionary to the Local Government Act (this being the position advanced on behalf of the Company). If this classification dispute is resolved in the fashion proposed by the Applicant, the Council's granting of approval for the use of these modules pursuant to s 68 of the EPA Act was not permissible.

8. It is to be noted that the Applicant has not sought any interim restraint being imposed on the Company conducting installation and/or construction activities on the site. As a result, the Company has been free to act on the development consent for the use of the site and, more importantly, the Local Government Act approval for the installation and/or construction activities necessary to establish its proposed motel on the site.

9. As later to be set out in more detail, installation and construction activities on the site were substantially advanced as at the date of the hearing.

The Applicant's Amended Summons

10. It is appropriate to set out, in full, the terms of the relief sought in the Applicant's Amended Summons and the particulars pleaded in support. The Amended Summons is in the following terms:

ORDERS SOUGHT

1   A declaration that the development consent granted by the Second Respondent to the First Respondent on 10 August 2021 (‘Development Consent‘), in respect of development application no. DA4/2020 (‘Development Application’) on the land legally described as Lot 1 DP162646, Lot 8 DP505215, Lot 20 DP569741, Lots 11‑14 Section 13 DP758121 and Lot 10 DP1114679 or otherwise known as 62 Osman Street, Blayney (‘Subject Land‘) is invalid and of no effect.

3   An order that the Development Consent be set aside.

4   An order that the First Respondent, by itself and by its employees, servants and agents, be permanently restrained from carrying out any works under or in accordance with the Development Consent.

5   An order that any works carried out purportedly in reliance on the Development Consent are demolished and removed from the land.

6   An order that the First and Second Respondents pay the Applicant’s costs of these proceedings.

7   Any further and other orders that the Court sees fit.

DETAILS OF DECISION

1 The decision to be reviewed is the decision of the Second Respondent to grant the Development Consent to the Applicant on 10 August 2021, pursuant to section 4.16(3) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’), which also included an approval under the Local Government Act 1993 (‘LG Act’).

2   The Applicant seeks relief from the decision.

BACKGROUND

The Subject Land

1   The Subject Land is currently occupied by the former Blayney Bowling Club, including the main 2 storey club house building in the centre of the site, outdoor bowling greens, car parking and other ancillary structures.

2   The Subject Land has a site area of 11,585m², is irregular in shape and has frontages to Osman Street to the West and a vehicular access driveway connection to Church Street to the North.

The Applicant

3   The Applicant is the registered proprietor of a separate parcel of land legally described as Lot 1 in DP 197082 or otherwise known as 22 Church Street, Blayney (‘Applicant’s Land’).

4   The Applicant’s Land is located approximately 50‑60m north west of the Subject Land, on the corner of Church Street and Osman Street.

The Respondents

5   The First Respondent:

a.   is the registered proprietor of the Subject Land;

b.   was the applicant for the Development Application; and

c.   is the grantee of the Development Consent.

6   The Second Respondent:

a. is the council constituted pursuant to section 219 of the Local Government Act 1993 (‘LG Act’) for the local government area of NSW within which the Subject Land and the Applicant’s Land are situated;

b. was the relevant consent authority pursuant to Division 4.2 of the EPA Act in relation to the Development Application;

c.   was the maker of the decision to grant the Development Consent.

The Development Application

7   On or about 23 December 2020, the First Respondent lodged the Development Application with the Second Respondent, seeking consent for:

a.   the installation of 25 modular units pursuant to the LG Act;

b.   use of the site for the purposes of a hotel or motel pursuant the EPA Act; and

c.   lot consolidation and re‑subdivision under the EPA Act,

at the Subject Land.

8   Between 15 January to 5 February 2021, the Development Application was notified for 21 days.

9   On 11 February 2021, the Applicant lodged a written submission in objection to the Development Application (‘Submission’).

10   The Development Application was amended by the First Respondent on multiple occasions, most recently prior to its determination on 16 June 2021.

11   The amended Development Application was not re‑notified.

12   In about July 2021, the Second Respondent prepared an assessment report in relation to the Development Application (‘Assessment Report’), which described the proposed development for which consent was sought as follows:

a.   Stage 1: Hotel or Motel Accommodation

i.   site preparation to facilitate installation of modular units

ii.   installation of 21 x 4 single room modules, 4 modules with 1 double room and two single rooms, and two modules with 2 double rooms, providing a total of 89 rooms

iii.   installation of two double disabled compliant rooms

iv.   connection of necessary services

v.   construction of 80 at grade car parking spaces

vi.   installation of fencing and landscaping

vii.   installation of business identification signage

viii.   redevelopment of a portion of the former bowling club building to provide a reception area, communal kitchen and laundry, storage rooms and male/female amenities.

b.   Stage 1: Consolidation / Subdivision

i.   consolidation of 8 lots into 2 - note that the proposed lot 2 will not form part of the subject Development Application and any future development on the proposed lot 2 would form part of a separate development application.

c.   Stage 2: Hotel or Motel accommodation

i.   removal of three modular units and replacement of other buildings to increase the number of double rooms to 11 and single rooms to 70

ii.   increase the number of parking spaces from 80‑100

The Development Consent

13   On 19 July 2021, amended Development Application was considered by the Second Respondent, who determined to approve the application.

14   On 10 August 2021, the Second Respondent issued its Notice of Determination of the Development Application (i.e. the Development Consent), which:

a.   described the approved development under the EPA Act as “Signage, Subdivision of Land, Hotel or Motel Accommodation”; and

b.   contained other approvals, including an approval pursuant to “Section 68 Part A - Local Government Act 1993”.

Grounds

Misunderstanding of approval framework based on incorrect characterisation of the approved “modular units”

1   The Second Respondent fundamentally misunderstood and misapplied the approval framework in granting the Development Consent in respect of the “modular units” by incorrectly characterising them as ‘moveable dwellings’ for the purpose of the EPA Act and the LG Act.

Particulars

a.   The Development Consent granted permission to the First Respondent pursuant to separate statutory regimes, including the EPA Act and the LG Act.

b.   Relevantly, the Development Consent authorised:

i.   the erection of pre‑fabricated modular units, said to be ‘moveable dwellings’ under the LG Act over two stages, being 26 modular units providing 92 single rooms and 6 double rooms in Stage 1 and 23 modular units providing 70 single rooms and 11 double rooms in Stage 2;

ii.   use of the Subject Land for the purposes of a motel under the EPA Act; and

iii.   the consolidation and re‑subdivision of 8 existing lots into 2 lots under the EPA Act.

c. The Second Respondent mistook and erroneously applied the framework for approving the “modular units” under s.68 of the LG Act.

d.   The Second Respondent’s misunderstanding was premised on incorrectly characterising the approved “modular units” as ‘moveable dwellings’ under the LG Act.

e.   Pursuant to dictionary of the LG Act, “moveable dwelling” means:

(a)   any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or

(b)   a manufactured home, or

(c)   any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.

f.   The reasons behind the Second Respondent’s incorrect characterisation of the “modular units” as ‘moveable dwellings’ was set out on page 57 of the Assessment Report, which provides:

“Information provided with the Development Application states that “The proposed units at the site are modular structures constructed off site and transported to the site for installation. They have no wheels but are by their nature portable due to being capable of being transported to a truck, and are capable of collection and relocation to another location with only minor works required. They therefore satisfy the first aspect of the definition at part (a) of the moveable dwelling definition in that they are a portable device.”

g.   The “modular units” are not capable of being properly characterised as ‘moveable dwellings’ because they are:

i.   structures which are not, by their nature, portable devices in the sense used in paragraph (a) of the definition of “moveable dwelling”, including by reason of them being permanently connected to electricity, sewer and stormwater services; requiring the levelling and preparation of the ground on which they are to be located; being fixed to the ground and supported by concrete footings; and having permanent attached verandah structures.

ii.   capable of adverse interference with the amenity of neighbouring lots by virtue of their size, being some 14m in length and 3.25‑5m in depth;

iii.   not able to be readily or frequently moved in their entirety from place to place without the need for works being undertaken including:

1.   disconnection from the required services (e.g. stormwater, sewer and electricity);

2.   removal of the associated verandah structures; and

3.   disconnection from footing structures.

and

iv. intended to remain on the Subject Land and be used in perpetuity as a motel, despite the provision limiting the operation of an approval under s.68 of the LG Act to 5 years as acknowledged by the Applicant and recorded in the transcription on page 54 of the Assessment Report, which provides:

“In principle, there is no objection to amending the application to reflect a 5 year timeframe, although it must be made clear that the intention is to operate this facility in perpetuity, and thus it needs to be acknowledged in Council’s assessment that this is a technical response to the legislation, and not a reflection of the duration of the development.”

h. The “modular units” are properly characterised as a “building” pursuant to s.1.4 the EPA Act because:

i.   the “modular units” are built up of distinct component parts, including but not limited to the structures themselves, the footings, the drainage/sewage infrastructure, the verandahs and their associated footings;

ii.   the “modular units” have the characteristics of a building of permanent framework;

iii.   the “modular units” are capable of causing an impact upon the amenity of the adjoining; and

iv.   consistent with the objects of the EPA Act listed in s.1.3, public interest dictates that structures to be used for the purpose of a motel should be closely regulated in a suburban area to ensure not only amenity impacts but also the safety of the structures and their future occupants, including regulation by the EPA Act and the Building Code of Australia.

i. The “modular units” do not fall within any of the exclusions provided in the definition of “building” under s.1.4 of the EPA Act and as a result, development consent is required for their installation pursuant to s.1.5 of the EPA Act.

j. As a consequence, if development consent were able to be obtained pursuant to s.1.5 of the EPA Act, the prescribed conditions under s.98 of the Environmental Planning and Assessment Regulation 2000 will apply to the structures and compliance with the Building Code of Australia will be required.

Failure to consider a mandatory relevant consideration - BLEP2012 clause 6.2

2 The Second Respondent failed to form the required state of satisfaction in relation to Clause 6.2(3) of the Blayney Local Environmental Plan 2012 (‘BLEP2012’), and therefore failed to comply with section 4.15(1)(a)(i) of the EPA Act.

Particulars

a. Clause 6.2(3) of the BLEP 2012 required the Second Respondent to be satisfied that the Development Application:

i.   is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on‑site infiltration of water, and

ii.   includes, if practicable, on‑site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

iii.   avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

b.   The Assessment Report and the SEE did not address how the use of water permeable surfaces was ‘maximised’.

c.   Additionally, the Assessment Report is silent about on‑site retention of water for use as an alternative to other sources of supply. The SEE was silent about alternatives or comparisons.

d.   Page 20 of the Second Respondent’s Assessment Report notes that opportunities for stormwater re‑use for grey water ‘are being investigated’.

e. The Second Respondent could not have reasonably been satisfied that the proposed development complied with cl.6.2(3) in circumstances where compliance was being considered by the First Respondent and would likely be the subject of a future application.

Failure to consider a mandatory relevant consideration - BLEP2012 clause 6.8

3 The Second Respondent failed to form the required state of satisfaction in relation to Clause 6.8 of the BLEP 2012, and therefore failed to comply with section 4.15(1)(a)(i) of the EPA Act.

Particulars

a. Clause 6.8 of the BLEP 2012 required the Second Respondent to be satisfied that following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

i.   the supply of water,

ii.   the supply of electricity,

iii.   the disposal and management of sewage,

iv.   stormwater drainage or on‑site conservation,

v.   suitable vehicular access.

b.   The SEE states, at pages 20‑21, that augmentation of water supply was required, accepting that the supply of water at the necessary capacity was not available. There was no other indication that arrangements had been made for the service to be provided, as distinct from an expectation that augmentation would be possible.

c. The Second Respondent could not have reasonably been satisfied that the proposed development complied with cl.6.8(a).

d.   The Assessment Report also identified, at pages 72‑73, that the sewer connection also required augmentation. The Second Respondent proposed, and ultimately imposed, a deferred commencement condition requiring investigation of the capacity and limitations of the existing network and identifying means to overcome any identified limitations.

e. The Second Respondent could not have reasonably been satisfied that the proposed development complied with cl.6.8(c).

Misapplication and misconstruction of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulations 2005

4   In the alternative, if the “modular units” are able to be characterised as ‘moveable dwellings’ for the purpose of the EPA Act and the LG Act, the Second Respondent incorrectly construed clause 146(1) of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulations 2005 (‘LG Regulations’), and determined the Development Application in breach of section 89(1) of the LG Act.

Particulars

a. Section 89(1)(a) of the LG Act provides that the Second Respondent must not approve an application under s.68 if the activity for which approval is sought would not comply with the requirements of any relevant regulation.

b.   The LG Regulations are the relevant regulations for an approval for the installation of moveable dwellings.

c.   Clause 146(1) of the LG Regulations sets the minimum floor area of a bathroom in a relocatable home of at least 2.2m², plus:

i.   0.6m² if the bathroom has a separate shower and bath, and

ii.   0.7m², if the bathroom has a toilet, and

iii.   an additional 1.6m² if the relocatable home—

1.   does not include a separate laundry, and

2.   is not used or intended to be used as a holiday van or park van.

d.   None of the single and double rooms proposed by the Development Application include a separate laundry.

e.   The Development Application proposed a typical bathroom size of 3.4m², in rooms that contained a bathroom with a toilet and a shower, but did not include a laundry. The applicable minimum floor area required by clause 146(1) in those circumstances was 4.5m².

f.   The Second Respondent incorrectly concluded on page 61 of the Assessment Report that a bathroom size of 3.4m² complied with clause 146(1). It was not open to the Second Respondent to reach such a conclusion.

g. The Development Application failed to comply with clause146(1) and for this reason the Second Respondent was required to refuse the approval under s.89(1) of the LG Act.

5   Further and in the alternative, if the “modular units” are able to be characterised as ‘moveable dwellings’ for the purpose of the EPA Act and the LG Act, the Second Respondent failed to properly apply clause 145 of the LG Regulations and, on its proper application determined the Development Application in breach of section 89(1) of the LG Act.

Particulars

a.   Particulars 4(a) and (b) are repeated.

b.   Clause 145 of the LG Regulations sets the minimum enclosed floor area of a relocatable home of at least 15m².

c.   For the purposes of clause 145, each of the single and double rooms were required to have a minimum enclosed floor area of 15m².

d.   The Development Application proposed a typical enclosed floor area of each of the single and double rooms of:

i.   between 11.05m² and 11.09m² for a typical single room; and

ii.   19.18m² for a typical double room.

e.   The Second Respondent incorrectly concluded on page 61 of the Assessment Report that the proposed enclosed floor area of “each relocatable unit” complied with clause 145. It was not open to the Second Respondent to reach such a conclusion as the typical single rooms, each of which is a relocatable home, did not comply with clause 145.

f. The Development Application failed to comply with clause 145 and for this reason the Second Respondent was required to refuse the approval under s.89(1) of the LG Act.

Representation

11. The Applicant was represented by Mr T To, barrister, and the Company by Mr M Wright SC. The Council (being the Second Respondent to these Class 4 proceedings) had filed a submitting appearance except as to costs. The advocates each provided concise, helpful written opening submissions.

The Applicant’s proposed further amendment to the Amended Summons

12. As I have noted above, each counsel had provided helpful written submissions. In his written submissions, Mr Wright had addressed what he considered to be an inadequacy in what was sought by the Applicant in the Amended Summons for which leave had been given some seven months earlier. Before addressing any substantive matters in the proceedings, Mr To responded to this aspect that had been raised by Mr Wright. He said (Transcript 6 December 2022, page 12, line 46 to page 13, line 7):

TO: your Honour before I just take you through the evidence and then make submissions about each of the grounds, I do want to acknowledge one aspect. I think that's a matter that Mr Wright commented on in his written submissions, that is to say that the amended summons did not explicitly seek a declaration that the approval under s 68 of the Local Government Act was also sought to be declared invalid. So prayer 1 is limited in its present form to a declaration that the development consent ‑ clearly the proceedings challenges both the consent and the approval. See, for example, grounds 4 and 5 as well as the consequence if the first ground is upheld in favour of the applicant. That ought to be remedied by inserting the words “and approval” after the words “development consent” in the first line, so I seek leave to amend it in that fashion.

13. Following further discussion with the legal representatives of the parties as to how this proposed amendment should be addressed (with Mr Wright expressing the view that he wished to consider the matter and did not consider it appropriate that he address this “on the run” ‑ as it were), the hearing was adjourned until the following day to permit, first, Mr To to provide a copy of such amendments as were proposed by the Applicant to his Amended Summons and, next, for Mr Wright to consider the Company’s position concerning them.

14. I indicated to Mr To that I proposed to order that the Applicant pay the Company’s costs of the adjournment made necessary as a consequence of this proposal to seek to amend further the Amended Summons. Mr To did not cavil with that proposal so I indicated that I would so order (Transcript 6 December 2022, page 17, lines 27 and 28).

15. The following morning, Mr Wright provided short written submissions explaining why the Company opposed leave being granted. There was then an exchange between me and Mr To as to the need for, and scope of, the proposed amendment now advanced.

16. I also raised with him the question which had been addressed by Mr Wright in his written submissions as to the lateness of this proposed amendment (the issue of lateness arising in the context of the decision of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 as to the potential rejection of very late amendments). In this context, as earlier noted, the Applicant's proceedings had been commenced over a year earlier, with the Amended Summons upon which the Applicant now relied having been permitted some more than seven months earlier. At the conclusion of my exchanges with Mr To, I refused leave to rely on the proposed Further Amended Summons, doing so in the fashion that can be seen in the transcript extract reproduced below (Transcript 7 December 2022, page 23, line 29 to page 24, line 13):

HIS HONOUR: But if the position you advance is that the addition of the words that are underlined in the proposed further amended summons have no practical consequential effect potentially, then the question of aeon and the lateness of the amendment does not arise potentially but if there is any likelihood that they do have any potential additional consequence arising out of the proceedings, then the question of Aon expressly arises, does it not?

TO: It may do but I’ll be frank, I can’t answer that question in advance without understanding whether Mr Wright is going to, it’s not been signified in any of the submissions to date, that the arguments under grounds 4 and 5 particularly are not part of the challenge in the proceedings. That seems to be where that’s going.

HIS HONOUR: For present purposes, that which Mr Wright advances from para 24 onwards of his written submissions this morning postulates the proposition that the amendment is, if it is an amendment of substance, is so late as to mandate its refusal consistent with what the High Court decided in Aon. Now if I conclude that without needing to determine whether it is an amendment of substance of not, merely that the proposed amendment is too late and ought not be permitted, you have to take your chances on responding to whatever Mr Wright might say about grounds 4 and 5, don’t you?

TO: I think that’s right, your Honour.

HIS HONOUR: So isn’t the position I face now, that if it’s an amendment that has no consequence, it doesn’t matter whether it is approved or not, granted leave or not, and if it is a matter of substance, then it is open to me to reject it on Aon grounds alone and you take your chances on where it’s going to go?

TO: Yes, I think that’s an accurate description of the scenario.

HIS HONOUR: All right. I don’t need to hear from Mr Wright. On the grounds of it coming too late, and on the grounds advanced that on the applicant’s case it is not a matter of substance, I refuse leave to rely on the further amended summons.

The relevant statutory provisions

Introduction

17. Elements of the EPA Act, the Local Government Act, the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Movable Dwellings) Regulation 2005 (the 2005 Regulation) and the Blayney Local Environmental Plan 2012 (the LEP) all arise (or potentially arise) for consideration in these proceedings.

The EPA Act

18. As earlier noted, the EPA Act permits, by s 4.12, applications to a council for development consent for an activity and, concurrently, for a relevant approval pursuant to s 68 of the Local Government Act. This provision is, relevantly, in the following terms:

4.12   Application

(1)   A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

(2)   A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)-(f) of the definition of development in section 1.5(1).

(3) If the consent authority is a council, a person (other than the Crown or a person acting on behalf of the Crown) may, in the same development application, apply for development consent and approval for anything that requires approval under the following provisions of the Table to section 68 of the Local Government Act 1993, namely—

paragraph 1 of Part A

paragraph 1-6 of Part B

paragraph 1-5 of Part C

paragraph 1 of Part E

paragraph 1-5 or 10 of Part F.

(4)   In determining a development application to which subsection (3) applies, the council may apply any of the provisions of or under the Local Government Act 1993 that it could apply if the development application were an application under that Act for the relevant approval. In particular, if development consent is granted, the council may impose a condition that is authorised under that Act to be imposed as a condition of an approval.

(5) If development consent is granted to a development application to which subsection (3) applies, the council is taken to have granted the relevant approval under the Local Government Act 1993 that authorises the activity, but that Act has no application to the approval so taken to have been granted.

(6) In granting development consent to a development application to which subsection (3) applies, the council may, without limiting any other condition it may impose, impose, in relation to the approval taken to have been granted under the Local Government Act 1993, either or both of the following conditions—

(a)   a condition that the approval is granted only to the applicant and does not attach to or run with the land to which it applies,

(b)   a condition that the approval is granted for a specified time.

(6A)   A reference to a council in subsections (3)-(6) includes a reference to a Sydney district or regional planning panel, or a local planning panel or delegate, that has the function of determining the development application.

(7)   ….

(8)   ….

(8A)   (Repealed)

(9)   ….

19. It is also appropriate to set out the definition of “building” in s 1.4 of the EPA Act:

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

The Local Government Act

20. Section 68 of the Local Government Act sets out the general framework regulating the carrying out of a range of listed activities set out in the Table to the section. The relevant element of the provision is in the following terms:

68   What activities, generally, require the approval of the council?

(1)   A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.

21. The relevant item in the Table to s 68 of the Local Government Act is in the following terms:

Table

Approvals

Part A   Structures or places of public entertainment

1   Install a manufactured home, moveable dwelling or associated structure on land

22. The relevant definition in the Dictionary to the Local Government Act is in the following terms:

moveable dwelling means—

(a)   any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or

(b)   a manufactured home, or

(c)   any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005

23. The applicable regulation under the Local Government Act was the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (the 2005 Regulation) - the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2021 not coming into effect until 1 September 2021, some three weeks after the Council granted consent to the Company’s development.

24. As can be seen from Grounds 4 and 5 in the earlier reproduced Amended Summons, the Applicant alleges various non‑compliances with mandated dimensional elements set by the 2005 Regulation. Given that I have concluded that Ground 1 is to be upheld, and Grounds 4 and 5 are therefore rendered irrelevant, it is not necessary to set out any detail of any of the elements the Applicant relies on from the 2005 Regulation.

The LEP

Introduction

25. Two provisions of the LEP require consideration as the Applicant's Amended Summons, in Grounds 2 and 3, allege that the Council failed, in its assessment process for the Company's application to use the site as a motel, to consider matters of stormwater disposal from the site and provision of sewerage services to the motel proposed for the site as mandated by the LEP. The relevant clauses of the LEP setting out what is required in each of these regards is set out below.

Stormwater disposal

26. The LEP deals with stormwater disposal in cl 6.2. This provision is in the following terms:

6.2   Stormwater management

(1)   The objective of this clause is to minimise the impacts of urban stormwater on land to which this clause applies and on adjoining properties, native bushland and receiving waters.

(2)   This clause applies to all land in residential, business and industrial zones.

(3)   Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a)   is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on‑site infiltration of water, and

(b)   includes, if practicable, on‑site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c)   avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

Provision of sewerage services

27. The LEP deals with the provision of services to any proposed development in cl 6.8. For the purposes of matters in contest in these proceedings, the only element of cl 6.8 which is in contest is that relating to the provision of sewerage services. The relevant elements of cl 6.8 are in the following terms:

6.8   Essential services

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a)   …,

(b)   …,

(c)   the disposal and management of sewage,

(d)   …,

(e)   …

The hearing

28. As a consequence of the fact that one of the legal representatives had recently had COVID-19, an application was made to me in chambers to permit the hearing to be conducted by audio‑visual link as the parties agreed it was desirable to avoid risking exposure of other participants to the possibility of infection. The request had also been earlier made and granted to permit the legal representatives and staff of the Council to observe the proceedings via such an audio‑visual link. I approved the request for the hearing to be conducted in this fashion, with there being no appearances in the courtroom.

The evidence

29. An affidavit of the Applicant, dated 21 March 2022, was read. The Applicant was not required for cross‑examination.

30. Two folders of documents were tendered for the Applicant (the Evidence Book Volumes 1 and 2) ‑ these becoming Exhibits A and B.

31. On behalf of the Company, two affidavits deposed by Mr Adam Goodsir, a licensed builder and the Company’s Project Manager on the site, were read. Mr Goodsir was managing the installation and/or construction of the accommodation units and associated facilities for the motel. Mr Goodsir was not required for cross‑examination.

32. Mr Goodsir’s first affidavit was deposed on 26 July 2022. It described the installation process for establishment of the proposed motel and how the modular units were able to be removed at the end of the life of the use. His second affidavit was deposed on 4 December 2022 and described the state of the activities on the site as at that date. A number of photographs of the elements of what had been installed and/or constructed on the site were annexed to this affidavit.

33. A Supplementary Bundle was tendered for the Company - becoming Exhibit 1.

The approved development

34. The site owned by the Company comprises a number of allotments, with the dominant element of the site, that which contained the clubhouse and the greens of the former Blayney Bowling Club, being zoned B2 ‑ Local Centre under the LEP. The element of the site where the motel is being erected is zoned B2.

35. The remaining elements of the site are zoned R1 ‑ General Residential.

36. A motel is a form of “visitor and tourist accommodation” as defined in the Dictionary to the LEP. “Visitor and tourist accommodation” is a nominated permissible use in both the B2 and R1 zones by the Land Use Table of the LEP. Precise delineation of that zone boundary is therefore unnecessary.

37. A cropped copy of the Stage 1 Site Plan (depicting the layout of the development) is reproduced below to provide context for the approved motel:

38. Portion of the former clubhouse of the Blayney Bowling Club is to be converted to a reception area and communal laundry facility. These facilities will take up approximately 25% of the existing building. No consent was sought in the Company’s development application for any use for the remainder of the former clubhouse building.

39. It is appropriate to provide a visual understanding of the modular units that are being installed by the Company on the site to be used to provide the accommodation for the approved motel. The first appropriate image is that from page 12 of the affidavit of Mr Goodsir deposed on 4 December 2022. This depicts a module being lifted into place by crane. That image is reproduced below:

40. The second appropriate image to be reproduced is that which shows the internal layout of standard four‑bedroom modules (in their two potential orientations), showing each of the bedrooms and that bedroom’s associated bathroom. This image is also a cropped one. These floor plans appear below:

41. The dimensions of each of the modular units (excluding any attached verandah structure) are 14.4 metres long by 3.25 metres wide.

42. Each of the modules will be installed on piers and will have attached to it a verandah. As can be seen from the image of the modular unit being lifted into place reproduced above, these verandahs are installed and affixed to the modular units once they are located in place. Each of the bathrooms will have plumbing connections to supply potable water and connections for grey/black water discharges to the town sewer system. The modular units will be tied down. They will be connected to mains power. They will also be connected to the general stormwater disposal facilities to be installed on the site.

Matters for consideration

43. The fourth and fifth grounds advanced on behalf of the Applicant are contingent on me declining to accept the validity of Ground 1. As a result, Grounds 4 and 5 only arise for consideration if I reach the conclusion that the modular units do not comprise “movable dwellings” as defined in the Dictionary to the Local Government Act. As I am satisfied, for the reasons set out later, that Ground 1 has been made out, is not necessary to consider and determine those grounds.

44. However, it is to be noted that Grounds 2 and 3 are ones which arose for consideration in the determination process for the Company’s development application whether or not that that which was proposed to be erected on the site comprised moveable dwellings or buildings. Under these circumstances I also proceed to address those two grounds as they were fully argued and are independent of the definitional status of the modular units being installed on the site.

General introduction

45. The written submissions from Mr To and Mr Wright on each of the three grounds with which I need to engage substantively in this decision were comparatively concise. I therefore propose to reproduce those written submission elements (omitting footnotes but referencing citations in the text as necessary).

46. Similarly, the oral submissions made on Grounds 2 and 3 were also comparatively concise and I will set out these submissions concerning the relevant ground in full.

Ground 1

Introduction

47. Ground 1 can be regarded as the primary ground advanced by the Applicant as founding a conclusion that the Council’s approval of the Company’s miscarried. The essence of the argument advanced on behalf of the Applicant is that the modular units currently being installed on the site to be used to provide the accommodation elements of the Company's proposed motel are to be classified as “buildings” (and thus requiring potential impacts of these modular units to be subject to assessment pursuant to the EPA Act) rather than “movable dwellings” as defined in the Dictionary to the Local Government Act (this being the position advanced on behalf of the Company).

48. If this classification dispute is resolved in the fashion proposed by the Applicant, the Council's granting of approval for the use of these modular units pursuant to s 68 of the Local Government Act was not permissible.

The Applicant’s position

Introduction

49. It is appropriate to set out, first, what was advanced in support of Ground 1 in Mr To’s written submissions and then to set out a summary of his oral submissions on this ground.

The Applicant’s written submissions

50. Mr To’s written submissions in support of Ground 1 were in the following terms (footnotes omitted):

The significance of classification

7.   This ground relates to the proper classification of the modular units. The Consent was granted on the basis that the modular units are ‘moveable dwellings’.

8.   The applicant says this was incorrect, and the modular units are not ‘moveable dwellings’, and are instead ‘buildings’.

9. As at the date of the Consent (10 August 2021) the EPA Act defined a “building” to mean:

building includes part of a building, and also includes any structure or part of structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993.

10. As at the date of the Consent (10 August 2021) the LG Act defined a “moveable dwelling” to mean:

moveable dwelling means -

(a)   any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation, or

(b)   a manufactured home, or

(c)   any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition.

11. The consequence of the classification choice is the applicable approval pathway under each of the EPA Act and LG Act.

12. If the modular units are ‘buildings’ within the meaning of the EPA Act, the erection of a building is development. That development is to be assessed, inter alia, by reference to s4.15 of the EPA Act.

13. Council did not determine the Consent on this basis. Rather, as proposed by Rovest, Council classified the modular units as ‘moveable dwellings’, with the result that they were not ‘buildings’ for the purposes of the EPA Act.

14. Thus, Council only determined the Consent under the EPA Act on the basis of use of the modular units as a hotel or motel. It also determined the Consent as an approval under s 68 of the LG Act to install a moveable dwelling: Part A, Item 1 of the Table.

15.   If the Court concludes that the modular units are not moveable dwellings, the Council will have failed to assess the development under the applicable regime.

The modular units are ‘buildings’

16. The first part of definition of a “building” under the EPA Act is broad, including any structure. However, the qualifying clause specifically excludes a “moveable dwelling”.

17. The definition of a “moveable dwelling” under the LG Act has three limbs to it. Only para (a) is relevant, and then only the part that relates to “or other portable device”.

18.   However, it is relevant to notice the way para (a) is expressed.

19.   The phrase “or other portable device” follows on from more specific matters - tent, caravan, van. The use of ‘or other’ denotes that a portable device is of a kind similar to, or sharing characteristics with, the earlier mentioned matters.

20.   The modular units in question are pre‑fabricated structures shown on the approved plans, sheets A008, A009 and A010. They are of significant size, as distinct from the modest sizes that would be a common feature of the other things mentioned in para (a) ‑ tents, caravans or vans.

21.   The respondent’s evidence shows that:

21.1   the units and verandah are brought to site separately, and then connected.

21.2   the units are installed by placement onto concrete constructed footings, and attached by chains.

21.3   services (electricity, water, sewer) are permanently connected to the units.

22.   The modular units in question do not fit the description of a moveable dwelling. Specifically, they:

22.1   are not of modest dimensions,

22.2   comprise structures moved in parts before being assembled on‑site,

22.3   are not designed to be readily and frequently moved from place to place, and

22.4   involve permanent connections to electricity (and other services).

23.   The intended permanence of the modular units was specifically confirmed by Rovest to Council, in discussing the possibility of a time‑limited condition being imposed on the Consent: see email dated 10‑15 June 2021.

24. For these reasons, the units are at least a structure, and otherwise a building, for the purposes of the EPA Act. The ‘installation’ of them comprise the erection of a building.

25. However, the Council did not assess this development as required by the EPA Act, because of its acceptance of Rovest’s proposition that the units were only ‘moveable dwellings’. The Consent is invalid for this reason.

26. A further consequence is that the Council did not consider the requirements of the EPA Act: cf. clause 80 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005. Invalidity also follows for the s68 approval.

51. As noted above at Mr To’s paragraph 22, he set out the features of the modules he relied upon as factors supporting the conclusion that the structures which were being erected on the site should be classified as “buildings”.

52. It is to be observed that, with respect to the points advanced in paragraph 22.1 and 22.2, the footnote cited my own decision, in Warnes v Muswellbrook [2009] NSWLEC 1284 (Warnes v Muswellbrook), as what he relied upon for these propositions.

53. It is to be observed that, with respect to the point advanced in paragraph 22.3, the footnote cited the decision of the Court of Appeal in Jambrecina v Blacktown City Council [2009] NSWCA 228 (Jambrecina v Blacktown City Council) as what he relied upon for this proposition.

54. It is to be observed that, with respect to the point advanced in paragraph 24.4, the footnote cited the decision of Cowdroy J in Wyong Shire Council v Cohen and Anor [2004] NSWLEC 171 (Wyong Shire Council v Cohen) as what he relied upon for this proposition.

55. It will be necessary to address, in more detail, passages cited from each of these decisions in my consideration of whether or not the structures are to be correctly classified as “buildings” and, therefore, had required to be the subject of a development application requiring assessment under the EPA Act rather than being dealt with pursuant to s 68 of the Local Government Act, as had occurred.

The oral submissions for the Applicant

56. The primary submission advanced by Mr To was that each of the “modular units” ought to have been characterised as a “building” for the purposes of the EPA Act. He further submitted that the modular units had been incorrectly characterised as “moveable dwellings”. Mr To turned to address what he said were the consequences arising from the characterisation of such units as “moveable dwellings” (Transcript, 7 December 2022, page 36, lines 1 to 7):

Two consequences flow, at least, from that. One is that, that part of the consent that comprises an approval for installation of a moveable dwelling would become a nullity, because it’s not, in fact, a moveable dwelling. And secondly, because it was assessed on the basis [that] it was a moveable dwelling, there will have been no assessment under the Environmental Planning and Assessment Act for the erection of a building.

57. Mr To submitted that subcl (a) [referred to as paragraph (a) in the transcript] of the definition of “moveable dwelling” should be read in a manner consistent with the “genus approach”. He advanced that the term “other portable device” was to be interpreted as in the same genus or class as the preceding things mentioned elsewhere in subcl (a) (Transcript, 7 December 2022, pages 33 and 34, lines 47 to 50 and 1 to 3 respectively):

We would say that “other portable device” is to be read not independently of the things mentioned elsewhere in paragraph (a). They are of a genus or class.

That’s why the paragraph expresses itself, firstly, using the word ‘other’, and, secondly, portable device shares at least a common characteristic with things mentioned earlier - tent, caravan, or van - particularly in its contemplation of some modesty of dimension.

58. Mr To then took me to my decision in Warnes v Muswellbrook, which dealt with subcl (a) of the definition of “moveable dwelling”, albeit in the context of what Mr To referred to as “much larger structures” (some of which - but not all of which - were two‑storey structures) proposed to be located near to the Muswellbrook sewerage treatment works. Mr To pointed to my [41], submitting (Transcript, 7 December 2022, page 34, lines 25 to 31):

The point to take is that the approach that you took in that decision was to interpret paragraph (a) of moveable dwelling as comprehending a common characteristic that, to use the words that are used in paragraph [41], were of “inherently, generally modest dimensions”. And that is not a characteristic that the present modular units would answer. They are much larger, although [to] a lesser degree than what you were dealing with in Warnes, as to fit that category.

59. In this context, Mr To submitted that the dimensions of the modular units in the present case go so far as to exceed”‘generally, modest dimensions”. This, he advanced, warranted the exclusion of the modular units from the definition of “other portable device”, submitting (Transcript, 7 December 2022, page 34, lines 47 to 50):

So, as to the question of size and modesty of dimensions, we would say that your Honour would be well‑satisfied, both by the plan dimensions and what you see depicted in Mr Goodsir’s photographs, particularly his second affidavit, that they don’t answer that class and, therefore, are not an “other portable device” of the kind comprehended by that phrase.

60. Mr To then explained why he submitted that the proposition made by Mr Wright that the application of the ejusdem generis principle was to be avoided in the present case, should be rejected (Transcript, 7 December 2023, page 63, lines 6 to 12):

It’s submitted by Mr Wright that the ejusdem generis principle won’t be engaged, because the things that are described in paragraph (a) do not have a sufficiently common characteristic. We would say that your Honour would not accept that. The terms that are contained in that definition do have that common characteristic of modest size, which is different to the characteristic of portability.

The Company’s position

The written submissions for the Company

61. On behalf of the Company, Mr Wright rejected the proposition advanced that the modular units fall within the definition of “building” pursuant in the EPA Act. Instead, Mr Wright’s written submissions said, at paragraph 16:

16. The Modular Units do not fall within the definition of building because they are properly characterised as “other portable device (whether on wheels or not)” in subcl (a) of the definition of moveable dwelling under the LG Act.

62. In the context of proposing how subcl (a) should be construed, Mr Wright suggested, at paragraphs 19.1 to 19.3:

19.1   The provision must be considered in the context of the Act as a whole: Metropolitan Gas Co v Federated Gas Employees’ Industrial Union [1924] 35 CLR 449 at 455 per Isaacs and Rich JJ. That is, consideration must be given to the meaning of the expression “moveable dwelling” in the context of the LG Act and the LG Reg 2005 as a whole;

19.2 The structure of the whole of the LG Act and the LG Reg 2005 must be considered, including whether they are divided into parts, and whether this structure has any bearing on how the words are to be interpreted: Re Commercial Bank of Australia Ltd (1893) 19 VLR 333 at 375 per Holroyd J; and

19.3 Due consideration must also be given to the purpose (whether expressly stated or not) for which the provision was enacted to achieve: see s33 of the Interpretation Act 1987 (NSW). A literal approach to construction is to be avoided. It is better to “determine what things or actions come within [the statutory language] by reference to the purposes which the provisions were enacted to achieve”: Wyong Shire Council v Cohen [2004] NSWLEC 171; (2004) 133 LGERA 355, following Mahoney JA in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302, at [305]‑[308].

63. Mr Wright further addressed the danger of taking a literal approach to statutory construction, saying, in paragraph 29:

29.   Any maxim of construction should be applied with caution. The application of the ejusdam generis maxim has the effect here of giving the immediate verbal context of the general words determinative weight in the process of construing general words rather than from the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113 at [127] (Spigelman CJ); Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 373 (Mahoney JA).

64. The final point Mr Wright made in his written submissions, with respect to the characterisation of the modular units, was at paragraph 40:

40.   As the Modular Units are moveable dwellings for the reasons outlined above, the Modular Units cannot be characterised as buildings and do not require development consent under the EP&A Act.

The oral submissions for the Company

65. Mr Wright drew my attention to Deputy Commissioner of Taxation v Clark [2003] NSWCA 91 (Clark), which involved a discussion of the circumstances in which the ejusdem generis maxim (or syntactic assumption) might be applied. With respect to statutory construction, he suggested (Transcript, 7 December 2022, page 55, lines 5 to 11):

The first important point from the judgment which is, we say, is that… the first port of call or course is the text of the legislation, then context, then purpose and in summary form his Honour may agree that applying maxims, which should in any event be applied with a degree of caution, can have the effect of reading down language rather than construing the text as it actually appears in the provisions.

66. Mr Wright then submitted that the range of “things, vehicles and structures” capable of coming within the definition of “moveable dwelling” was wide enough to encompass many shapes, sizes, and dimensions. Because of this, he submitted that it would be inappropriate to read the things contained in subcl (a) in accordance with the maxim ejusdam generis. He proposed (Transcript, 7 December 2022, pages 50 to 51, line 50 and lines 1 to 7 respectively):

There is a whole range of vans, campervans and other matters which are of extraordinarily different shapes, sizes and dimensions, and they are captured in the individual generic descriptions within this definition.

“Other portable device” are words of very general import, and when I come to it more closely, if you read those [words] with the previous words, it has the, we say with respect, clearly incorrect consequence of reading down general words by reference to more specific words, which in themselves individually are of different character and are very general.

67. With respect to the words ‘tent, caravan, or van’ contained in the definition of subcl (a), Mr Wright submitted (Transcript, 7 December 2022, page 50, lines 35 to 38):

They are not such a character that together they can be described as a genus with other portable devices, whether on wheels or not, particularly by reference, with great respect to your Honour, to the concept of “dimension” or even “modest dimension”.

Mr To’s oral submissions in reply

68. Mr To’s oral submissions in reply on Ground 1 were (Transcript 7 December 2022, page 63, lines 6 to 35):

Now, can I come back to the first argument, about movable dwelling. It’s submitted by Mr Wright that the ejusdem generis principle won't be engaged, because the things that are described in para A don’t have a sufficiently common characteristic. We would say that your Honour would not accept that. The terms that are contained in that definition do have that common characteristic of a modest size, which is different to the characteristic of portability. We would also say that the decision in Jambrecina recognises, in para 44, that there is a genus, although it's described there in a different characteristic, that is, of portability. That's the last sentence.

I don't take issue with the proposition that the statement in para 44 of Jambrecina, read in context of the judgment, is obiter. That’s clear from the first portions of para 44, where the matter is disposed of on the basis that those structures could not be said to be for human habitation, but nonetheless, just to recognise there was a genus, a different one to the one that you dealt with in Warnes, but nonetheless, both are available.

Now, the other thing that I want to say about moveable dwelling in reply, is that the reference to Deputy Commissioner of Taxation v Clark has a paragraph in it, para 126, which your Honour will come to read in due course. But that paragraph emphasises that you can’t derive a genus unless there are at least two or more things by which a common characteristic can be identified. And the phrase that was in consideration in Clark was only one characteristic, it was “illness or other” reason, in effect.

So, that’s a different situation to the present, where you have several things - tents, caravans, vans - and then, additionally, you have the deliberate use, in that combination, of “other portable device”. So, the language itself suggests there is intended to be a class, as well as, there are several things by which a common characteristic can be identified.

Consideration

Introduction

69. I have earlier noted, the three cases relied upon by Mr To in support of the proposition advanced for the Applicant that the modular units being installed on the site should be regarded as buildings (thus requiring approval through the development application process in the EPA Act) rather than being movable dwellings (thus permitted to be approved pursuant to s 68 of the Local Government Act). I now turn to address these three decisions and consider what, if anything, is of relevance to the facts and circumstances of the Company’s development.

Consideration of Warnes v Muswellbrook

70. I first turn to the decision in Warnes v Muswellbrook, a decision I gave in my then capacity as Senior Commissioner. Before turning to the detail, I observe that I pay no heed to the fact that it was a decision of my own - if I was to be persuaded (although for the reasons which follow, I am not) that my decision was clearly wrong or that the facts and circumstances dealt with in that decision were not relevant to the Company’s development, I would have no hesitation in paying no further heed to it.

71. What was sought in that development was proposed in reliance on a definition in s 289E(1) of the then applicable statute (the now repealed Local Government Act 1919). It involved, for the single‑storey structural modular units proposed to be transported to that site and installed, modules that were of a similar nature to those that are involved in these proceedings.

72. A similar objection was raised on behalf of the Council in those proceedings that the modular units proposed to be transported to the site did not satisfy the definition of “movable dwelling”. I concluded that the Council's objection was well‑founded and that that proposed development would not be seeking to utilise accommodation structures capable of satisfying the definition of “movable dwelling”. It is appropriate to set out the entirety of my analysis in [35] to [52] of my decision. These are in the following terms:

35   The first element of the relocatable home or hostel site definition requires consideration of the terms of the definition of movable dwelling contained in s 289E(1) of the (now repealed) Local Government Act 1919. The definition in this section was in the following terms:

“movable dwelling” means -

a)   any tent, or any caravan or other van or other portable device (whether on wheels or not), used for human habitation; or

b)   any conveyance, structure or thing of a prescribed class or description.

36   There was no relevant “structure or thing” prescribed pursuant to (b) and these buildings are clearly not conveyances. Thus it remains to be considered whether that which is proposed to be erected can be regarded as being an “other portable device (whether on wheels or not), used for human habitation”

37   The proposed buildings, whether single‑storey or double‑storey, have been described earlier. Their construction is modular. The modules are constructed in a factory away from the site; transported to the site; and assembled onto some form of footings or footing platform that has previously been constructed.

38   The Statement of Environmental Effects depicts, in several photographs, examples of single‑storey versions of what are impliedly analogous structures. Another photograph showed a three accommodation unit module being lifted onto a truck.

39   The plans depict a layout of six accommodation units facing outward on each side of the long axis of each building at each level. Thus one of the proposed single‑storey buildings will contain four modules plus footings and verandahs (12 accommodation units) while one of the proposed two‑storey buildings will contain eight modules (24 accommodation units) plus footings, staircases and verandahs (these being at both levels).

40   Mr Wasiak valiantly supported the proposition that such structures were relocatable because, in fact, they were relocated in modules into the site, and this constituted being “portable” for the purpose of the first element of the critical phrase in the first limb of the definition in the 1985 LEP.

41 I cannot accept this proposition for two simple reasons. First, the first element of the definition in s 289E(1), if read ejusdem generis, does not, on any possible interpretation, extend to structures of the the size and nature proposed in this application. Tents, caravans or other vans are structures of inherently (generally) modest dimensions. Whilst a circus “big top” might be a tent, these are not used for human habitation and even the most extravagantly fitted modern car‑camping multi‑roomed tent is at least an order of magnitude smaller than the single‑storey buildings proposed here (let alone taking account the size of the two‑storey ones). The present structures, therefore, could not comfortably fit within the definition in the 1985 LEP on that basis.

42   Despite this, there remains to be considered the possibility, urged by Mr Clay, counsel for the applicant, that these structures constitute “portable devices” within the meaning of the definition.

43   I was taken to definitions of “portable” and “device” with these coming from the Oxford Dictionary (Australian Edition) and the current edition of the Macquarie Dictionary. In this regard, I am mindful of the fact that, in addition to the dictionary meanings of words, consideration may also be had of their ordinary contextual use that were to be of assistance.

44   The Macquarie dictionary definition of “portable”, relevant to buildings, is “able to be removed from its foundations and relocated”. The Oxford dictionary equivalent is “easily movable, convenient for carrying”. When used as a noun, the Oxford dictionary definition, relevantly is “a movable building, esp. a temporary classroom”. In this context, the Oxford dictionary definition of “device”, relevantly, is “a thing made or adapted for a particular purpose, especially a mechanical contrivance”.

45   A consideration of the combination of these definitional elements leads, in my view, inescapably to the conclusion that, if something was to constitute a “portable device”, in this context, it requires that the structure be able to be moved in its entirety. If I be wrong in reaching this conclusion, I am certainly satisfied that if such a structure is not required to be movable in its entirety, the concept of a “portable device” would not be encompassing of something that needed to be put together as a three‑dimensional modular jigsaw as is the case with the proposed structures the subject of this application (whether one or two storey).

46   As a consequence, these structures do not satisfy the first limb of the definition of “relocatable home hostel site” in cl 5 of the 1985 LEP.

47   To satisfy the second limb of the definition of “relocatable home hostel site” in cl 5 of the 1985 LEP, these structures would need to be regarded as “cabins”. The Macquarie Dictionary definition of a cabin is, relevantly “a small house; hut, esp. a temporary structure, as on a building site”.

48   Mr Wasiak’s written evidence in support of these structures satisfying this limb of the definition was in the following terms:

The Macquarie Dictionary describes a cabin as being "1 a small house; hut, esp. a temporary structure, as on a building site. 2 an apartment or room in a ship, as for passengers."

The structures proposed are temporary structures in that they are prefabricated elsewhere offsite and transported to the site and erected, and the individual rooms or apartments will be used for the accommodation by construction industry workers.

The only definition in the Council LEP 1985 which gives some reference to the concept of a cabin is the term holiday cabin, which means:

a dwelling used, constructed or adapted to be used for the provision of holiday accommodation only, being one of a group of similar dwellings erected on an allotment of land or allotments of land in the same ownership.

An exercise that may be useful in understanding the term construction industry workers cabin would be to substitute the term construction industry workers in place of holiday in holiday cabins to see how this relates to an understanding of the terms. This would therefore read as follows:

construction industry workers cabin means a dwelling used, constructed or adapted to be used for the provision of accommodation only, being one of a group of similar dwellings erected on an allotment of land or allotments of land in the same ownership.

With the definition of dwelling arising from the Environmental Planning and Assessment Model Provisions 1980 as being (underline for emphasis):

Dwelling means a room or suite or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

Each of these definitions amply describes the purpose to which the rooms are to be put.

The buildings themselves are not of a rudimentary type as is often seen on building sites i.e. ATCO sheds. They have been designed to have a more pleasing rustic rural appearance, which includes iron roofs, bull nose verandah's that stretch around the full perimeter of the building, colour scheme reminiscent of early Victorian era buildings, creams, deep red and deep green and are laid out in clusters similar to rural buildings in the countryside so that the amenity of the occupants is improved by being housed in more aesthetically pleasing structures and so that the appearance of the development is similarly more aesthetically pleasing when viewed from the public domain.

49   Despite Mr Wasiak’s written and oral evidence and Mr Clay's (also valiant) submissions in support of this position, I do not accept that there is any rational way that these structures should be considered in any way equivalent to a small house or hut. As with the first limb, there is at least an order of magnitude difference between the single‑storey buildings proposed here with each having 12 accommodation units in it (let alone taking account the size of the two‑storey buildings with double that number). The present structures, therefore, could not comfortably fit within the definition on that basis.

50   To suggest that each of the accommodation units could be regarded as a cabin, in the maritime senses used in the Macquarie Dictionary definition, and thus, in aggregation, fit within the scope of the definition is to extend a flexibility to this use of language that would be, in a Sir Humphrey sense, “courageous” and is rejected.

51   As a consequence, these structures do not satisfy the second limb of this definition.

52   The effect of these findings is that the proposed facility cannot be characterised as involving the permitted use of a “relocatable home or hostel site” contained in the Land Use Table for the L2 zone.

73. Of particular relevance, in the present context, is my discussion in [41] where I adopted the position that, even for the single‑storey modules proposed to be installed at Muswellbrook, they were of sufficient size that they could not be regarded as falling within the same genus as the other elements within the definition of “movable dwelling”, a definition which needed to be read ejusdem generis.

74. It is also to be observed that, in the present instance, that which comprises each structure of four bedrooms/bathrooms also has attached to it, as an integrated part of its functional utility, a separate verandah structure which is to be constructed and affixed to (and thus becoming part of) the module when the four‑unit module has been put on its footings.

75. It is, therefore, clear that the entirety of what constitutes the integrated four‑bedroom/bathroom module also encompasses the verandah servicing those four units. There is no suggestion that, once those verandahs have been attached to them, the modules are transportable in a single piece.

76. Indeed, it is appropriate to reproduce a (lengthy) extract from Mr Goodsir’s first affidavit so that there can be seen a clear understanding of the processes for installation and, critically, removal of the modules. Paragraphs 11 to 17 of his affidavit were in the following terms:

Installation and removal of the Modular Units

11   The Modular Units will be transported to \he Site by road. These Units are already assembled and are already fitted out intermilly. The only work required to complete the setup of these Units is :hat the hot water unit needs to be installed and connected to the rear of the Unit (there is one per Modular Unit), and the air conditioning outdoor units would need to be installed and connected to the rear of the Modular Unit (there are four of these per Modular Unit).

12   Prior to installation of the Modular Units, the following works will be undertaken:

a.   preparation of lead‑in electrical, water, sewer and stormwater infrastructure within the Site suitable for connection of the Modular Units. There will be trenches dug right throughout the Site to run the electrical, water, stormwater and sewer. All services will be run underground.

b.   construction of the footpaths and bollard lighting to footpaths; and

c.   preparation of footings and foundations to support the Modular Units, which involves the following steps:

i.   there are ten 450mm diameter bulk concrete pad footings drilled and poured under each Modular Unit. These holes are drilled with a bobcat/excavator with an auger on the front. GPS data for these hole locations is loaded into the computer on board of the bobcat/excavator and the holes are then drilled using GPS. To drill each Unit and clean the holes out would take approximately an hour;

ii.   the piers are then poured using concrete from the back of a truck. This would take approximately 1 hour per Modular Unit;

iii.   within these pad footings there are lengths of chains poured within the concrete to use as tie downs to the units. These are filled to a height of the finished ground level; and

iv.   there are then two layers of dry laid blocks (ie. Besser blocks) placed on top of the concrete pad footing to get the units off the ground to enable connection of the services and to enable the connection of the 'tie down' chains.

13   Following arrival at the Site, the Modular Units will be craned into position onto the pre‑constructed foundations. The following activities will complete the installation of the Modular Units:

a.   the Modular Units are craned into position and placed on top of the dry laid blocks (referred to in paragraph 12(c)(iv) above). The chains are then connected to the chassis rail on the underside of the Units by means of looping over the chassis rail and then back on themselves joined together with either a bolt and nut or shackle. This is the only structural connection which secures the Unit to the ground;

b.   connection to electrical mains from the nearest pre‑constructed electrical node. The conduits and cables would all be put in the ground and run to the exact location where the Unit is to be put. There are three wires to be connected to each Modular Unit through a main electrical board that is attached to the end of each Unit. Attached at Annexure C is a photo I took on 5 August 2021 showing the electrical boards already installed on the Modular Units. This is done by hand and would take a licensed electrician no longer than 30 minutes for each Modular Unit. All the wiring throughout a Unit is already completed and operational as soon as the main power supply is connected;

Moving to the second dot point or para B of 6.2 sub cl 3, the Council had to be satisfied that the development includes if practicable onsite stormwater retention for use as an alternative supply to mains water, ground water or river water. The response on the part of the application is set out at folio 230 para B. Opportunities for stormwater re‑use for grey water are being investigated. No proposal.

No statement about this is what we’re doing or how we’re doing it, simply we are ‑ we will investigate it and again folios 21 and 22, there is no assessment that could inform that inquiry at all, unsurprisingly, because it was only being investigated on the part of the application. So that's clause 6.2 and, your Honour would find either on the basis of 6.2(3)(a) and/or (b) that the council could not have formed the state of satisfaction and not being able to do so, did not have the power to grant consent.

The Company’s position

Mr Wright’s written submissions on Ground 2

100. Mr Wright’s written submissions responding to Mr To on Ground 2 were also succinct. They were in the following terms (footnotes omitted):

50 Clause 6.2(3) of the BLEP relates to the assessment of stormwater management. The evidence shows that as part of the Development Application, the First Respondent submitted to Council an SEE which described at Part 4.4.1.6 the proposed stormwater management solution and concluded that “the development results in a reduction in off site flows by comparison to the existing situation and is considered an acceptable design response”. There was also additional discussion at Part 5.14 of the SEE, and a Stormwater Management Plan.

51 In relation to clause 6.2(3), the Council’s Assessment Report says:

51.1   the proposed stormwater solution “appears adequate, following detailed design to ensure suitability for a 20% AEP”; and

51.2   the Council had some reservations about the ability of the applicant to create a 2.5m stormwater easement through 37 Water Street.

52   On this basis, the Assessment Report recommended that a condition of consent be imposed to provide a final design of the stormwater system, including confirmation that the detention system proposed is subject to detailed engineering design, and incorporating a design for the stormwater easement. This is reflected in condition 9 of the Consent.

53   Condition 9 is not dissimilar to many other conditions of consent which require the provision of further information to ensure that, as a matter of compliance, the preconditions in the relevant clause are satisfied. The condition is not an indicator that Council was not satisfied (or could not reasonably be satisfied) of any of the matters in subclauses (a) to (c).

54   A similar position was adopted by the Court in 4nature Incorporated v Centennial Springvale Pty Ltd [2016] NSWLEC 121 (4nature) which concerned whether the then Planning Assessment Commission (PAC) had attained the necessary state of satisfaction that the carrying out of the project would have a neutral or beneficial effect on water quality, as required by clause 10(1) of State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011. In 4nature, Pepper J found that the PAC was clearly aware of its obligations under the clause, and of the various assessments provided with the application, and the advice of the Department and the EPA that the test would be satisfied if the recommended conditions were imposed. The granting of the consent with the adoption of the recommended conditions was, in her Honour’s opinion, a “powerful indicator that the PAC formed the requisite state of satisfaction”.

55   Similarly, it is clear from the Assessment Report that Council:

55.1 was aware of its obligations to consider the matters in clause 6.2(3)(a)‑(c);

55.2   had before it and considered documentation provided by the First Respondent as part of the Development Application, including that stormwater modelling had been undertaken;

55.3   had before it and considered a referral from Council’s Infrastructure Services Department which had reviewed the documentation provided by the First Respondent as part of the Development Application; and

55.4 in imposing condition 9 on the recommendation of the council officer, had formed the requisite state of satisfaction required by clause 6.2(3).

56 Therefore, the grant of the Consent with condition 9 is a strong indicator that the Council had formed the necessary state of satisfaction for the purpose of clause 6.2(3), contrary to Ground 2 of the Amended Summons.

Mr Wright’s oral submissions on Ground 2 and 3

101. Mr Wright’s oral submissions addressed Grounds 2 and 3 together (Transcript 7 December 2022, page 58, lines 16 to 50):

The applicant’s case in relation towards 6.2 and 6.8 is one of a, I say this with respect, the finickity focus upon matters which take significant risk of grilling the council, the Court and servant’s assessments and council's assessments and merits, this is judicial review. The Court is not stepping into the shoes of the council. The council did not have to refer in its consideration to every single minute dimension of clauses. It plans out both clause 6.2 and 6.8 is in the assessment report. And I advise what had to be considered. And you do not need, in order to have addressed, your obligations under clauses of this nature, to refer minutely to every element. It is plain that the council addressed each element of clause 6.2, the ones which are put in contention. And when we turn to it, also at clause 6.8, paragraphs (a) and (b).

Importantly, and your Honour’s already addressed this in relation to the exchange of Mr To, in relation to his Honour, Mr Justice Baston’s recent judgment. The clause is concerned about availability. I've taken you to the plans. There's clearly no doubt that the services are available. Essential service availability of water and stormwater. The applicant attempts to suggest that while they're available, because there was an identification early on in the very detailed exchanges between the council and the applicant as to the capacity of system at its..(not transcribable)..treatment plant, that meant the services were not available.

That, with respect, takes this clause far too far. It is very common to see clauses, which say, we know these services are available. We want to be satisfied that everything works. We'll impose appropriate conditions to deal with that matter. The clause, and I say first, that we demonstrate planning services are available and the clause is absolutely answered, but there is a second limb to the clause and that is, arrangements can be made when required. Even if we were, and we say we don't have to, to resort to the second limb of the clause, as your Honour having..(not transcribable)..of Mr To, the two reports I have taken you to in the Supplementary Bundle at 1 and 2 demonstrate, absolutely, the compliance of the conditions. But when these things are required they are available and there is not only no impact in relation to stormwater, but there is a net benefit and there is, on the evidence before the council, not any impact upon the council's stormwater treatment plant.

102. Mr Wright concluded by saying (Transcript 7 December 2022, page 59, line 1):

The services are available, full stop. And that is an end to that matter.

Mr To’s oral submissions in reply

103. Mr To’s oral submissions in reply also addressed Grounds 2 and 3 together (Transcript 7 December 2022, page 63, lines 37 to 48):

In relation to cll 6.2 and 6.8, your Honour would not accept that we are adopting any pernickety approach. Certainly, one of the things that the authorities emphasise in inquiring in the decision making, is that an authority has to understand what it is looking at, in order to form a state of satisfaction. So, we gave your Honour a reference to Centro Properties Limited v Hurstville City Council (2004) 135, LGERA 257. McClelland CJ and the relevant passage collating those principles are at 266 to 267, at para 37. So, it’s the dot point at the top of 267, “Generally speaking, understanding the scope of a problem is a pre requisite to a lawful decision with respect to it”. And there’s no material that has been pointed out in the application, or there wasn’t any material in the application, nor in the assessment report, that would permit that evaluation in respect of paras A and B of cl 6.2, subclause 3.

Consideration of the stormwater disposal ground

104. I have earlier set out the terms of cl 6.2 of the LEP. The clause is structured in a fashion that requires that the Council considers and reaches the necessary state of satisfaction about each of the three matters set out in it. It does not set a development standard with which the Company’s development application was mandated to comply unless a dispensation is sought pursuant to cl 4.6 of the LEP and the Council is satisfied that such a dispensation should be granted because the tests set in that provision have been satisfied. The clause does not contain a prohibition acting as a barrier to the granting of consent to the Company's proposed development. The process mandated by the clause is, self‑evidently, an evaluative one to be undertaken, having regard to all of the material provided by the Company forming part of the development application or provided to the Council in support of that development application.

105. Complete absence of evidence of consideration and reaching the necessary state of satisfaction concerning a mandatory relevant matter or, having considered that factor, failing to reach a state of satisfaction that the requirement of the provision is met creates an error which renders invalid any decision where such an error is present. It is in this context that I now turn to consider each of the three elements in cl 6.2, where consideration and forming of the requisite state of satisfaction is mandated. These require that the Council is satisfied that the development:

1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on‑site infiltration of water, and

2. includes, if practicable, on‑site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

3. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

106. I next set out how this aspect of the Company’s development application was addressed by the Council officer’s assessment report. The complaint with respect to this element is that there nothing in the Council officer’s assessment report that indicated that the Council was asked to (and, therefore, did) consider the three mandated matters and reached the necessary state of satisfaction required by cl 6.2 of the LEP with respect to each of them.

107. The relevant element of the Council officer’s assessment report is in the following terms:

Part 6 - Additional local provisions Clause 6.2 Stormwater management

Clause 6.2 seeks to minimise the impacts of urban stormwater on land to which this clause applies and on adjoining properties, native bushland and receiving water.

Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

Is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

Includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

Avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

The applicant indicates in the SoEE that stormwater modelling was undertaken using the ILSAX hydrological model in watercom 'DRAINS' software with model parameters of 1mm impervious area depression storage, 5mm pervious area depression storage, soil type 2.5 and antecedent moisture condition of 3.0.

The system has been designed so that all roof catchments are proposed to connect to the underground pipe system, with the stormwater modelling assuming any rainwater tanks are full at the commencement of the storm simulation.

Stormwater is directed to a pit and pipe system with system discharge to the south to Water Street. An existing (pre and post development) overland flow path is located to the south-east of the subject site. As a result of the proposed measures, post development overland flows are reduced to nil for up to 10% AEP storm event. 1% AEP overland flow reduced under post development conditions by approximately 36%. On the basis of the above, the development results in a reduction in off-site flows by comparison to the existing situation and is considered an acceptable design response.

The proposed development has been reviewed by Council's Infrastructure Services Department. The Infrastructure Services Department has commented that the proposed solution appears adequate, following detailed design to ensure suitability for a 20% AEP.

However, this will require the creation of a 2.5m easement through 37 Water Street. Although this lot is owned by the applicant, this may prove difficult due to the proximity of the current building t the property boundary.

A condition of consent will be imposed to provide a final design of the stormwater system including confirmation that the detention system proposed is subject to detailed engineering design. The engineering detail is to incorporate a design for a stormwater easement through 37 Water Street.

108. Although the third element of the clause can be seen to be addressed by the assessing officer, there is no evidence contained in the assessing officer's report that any consideration was given to the first and second elements. The assessing officer’s report does not set out all the three elements required by cl 6.2 to be considered.

109. The assessing officer’s report also addressed relevant elements of the Blayney Shire Development Control Plan 2018 (the DCP). The assessing officer’s report addressed matters arising from Part G – Environmental Management and Hazards of the DCP, saying:

G3 Stormwater & Drainage

G2.3 seeks to ensure that stormwater and drainage systems address the objective of Clause 6.2 Stormwater Management of BLEP2012; will not significantly alter and/or worsen pre-development stormwater patterns and flow regimes; will convey stormwater to receiving waters with minimal damage, danger and nuisance; maintain the water quality of receiving waters; stabilise landform and control erosion; maximise the potential for water infiltration and minimise overland flows; protect proposed or likely building areas from erosion and stormwater damage; and consider water retention/detention and reuse (where relevant).

Staff comment:

A stormwater management plan has been provided.

Council’s Infrastructure Services Department has recommended specific conditions of consent to address storm water.

110. To the extent that the Council may have considered the conditions of consent that were proposed to be (and were) attached to the Company’s approval, only two of them addressed stormwater management issues in any fashion. The first of these was Condition 9 Stormwater Report and Drainage Design. This condition was in the following terms:

A stormwater report must be submitted to the satisfaction of Blayney Shire Council Infrastructure Services Department. The report must detail the effects of the increased roof area, and inform a drainage design that reduces stormwater outflows to pre-development levels.

111. The second condition of consent potentially relevant to this matter is Condition 74 Erosion and Sediment Control. This condition is in the following terms:

Erosion and sediment control measures are to be established prior to commencement of construction and maintained to prevent silt and sediment escaping the site or producing erosion. This work must be carried out and maintained in accordance with the Council's WBC Guidelines for Engineering Works (see Council's website) and the Department of Housing – Soil and Water Management for Urban Development (the Blue Book).

Note: all erosion and sediment control measures must be in place prior to earthworks commencing. Copies of the above Policy are available from Council's Environmental Planning and Building Services Department.

112. As can be seen from the terms of these two conditions, nothing in them could be construed as addressing either of the first two requirements of cl 6.2 of the LEP.

113. This absence of addressing these two mandatory matters in cl 6.2 of the LEP is an error of law rendering the development consent as being invalidly granted.

114. The failure to consider and reach the necessary state of satisfaction with respect to cl 6.2(3)(b) and cl 6.2(3)(c) of the LEP means that this ground also succeeds.

Ground 3 - availability sewerage services and cl 6.8 of the LEP

Introduction

115. I have earlier set out the terms of the relevant elements of cl 6.8 of the LEP.

116. The Statement of Environmental Effects which form the basis upon which the Council assessed the Company's proposed development dealt with the question of compliance with this element of cl 6.8 of the LEP in the following terms:

4.4.1.7   Essential Services

Clause 6.8 states:

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required‑

(a)   the supply of water,

(b)   the supply of electricity

(c)   the disposal and management of sewage,

(d)   stormwater drainage or on‑site conservation,

(e)   suitable vehicular access.

The following is noted in the context of clause 6.8:

(a)   The site is connected to the town reticulated water network, and these connections would be augmented to ensure sufficient supply of water to the development. This is further discussed in Section 5.5. Proposed connections are demonstrated in Drawing 02A_C001.

(b)   The site is connected to the reticulated electricity network. The site has historically accommodated loads associated with the bowling club development, and these would be augmented as required to supply the proposed development. There is adequate room on site to accommodate any necessary infrastructure.

(c)   The site is connected to the sewer reticulated water network, and these connections would be augmented to ensure sufficient supply of water to the development. This is further discussed in Section 5.5. Proposed connections are demonstrated in Drawing 02A_C001.

(d)   Refer Sections 4.4.1.6 and 5.14, and Drawing 03A_C001.

(e)   The site features a two way access to Church Street and this would be upgraded to provide safe ingress and egress for vehicles ‑ refer Section 5.3 and Appendix B

On the basis of the above, the development is considered to be acceptable in the context of clause 6.8.

117. The Council's assessment report then addressed this matter in the following terms:

Clause 6.8 Essential services

Clause 6.8 requires that development consent must not be granted to development unless the consent authority is satisfied that any of the services that are essential for the development are available or that adequate arrangements have been made to make them available when required.

Essential services are identified as the supply of water, the supply of electricity, the disposal and management of sewage, stormwater drainage/ conservation and suitable vehicle access.

Information submitted with the development application indicates that all essential services are available to the subject property.

Council's Infrastructure Services Department has recommended conditions of consent to ensure that the development is appropriately serviced with sewerage, water and electricity.

With specific regard to existing sewer capacity, Council's Infrastructure Services Department has commented that the capacity of the existing sewer network between the subject property and the Sewer Treatment Plant is unclear. This statement is based on preliminary modelling and analysis of the local sewer network undertaken by the applicant.

As such, it is recommended that a deferred condition of consent be applied to require that the applicant undertake a study of the existing sewer network to determine any potential limitations.

Should any shortcoming be identified, the study must also identify a method/s of overcoming any such limitation.

In addition, it should be noted that the applicant's response to submissions clearly states that any necessary augmentation of services required to support the proposed development would be completed at the applicants cost.

118. The consent given pursuant to the EPA Act had conditions attached to it. One of them was a deferred commencement condition imposed arising from the Council’s concern as to the capacity of the town’s sewage treatment system being able to cope with the additional effluent flow from the motel which would require to be treated at the system’s sewage treatment plant. That deferred commencement condition, condition 1, was in the following terms:

SCHEDULE A

CONDITIONS ISSUED WITH DEVELOPMENT APPLICATION NO.

4/2021

Deferred Commencement

1   Deferred Commencement Condition ‑ Sewer Capacity

By reference to section 4.16(3) of the Environmental Planning and Assessment Act 1979, this consent is a deferred commencement consent.

The consent does not operate until such time as the following information is provided to the satisfaction of the Blayney Shire Council:

A report providing analysis of the predicted impact of the development on the capacity of the existing sewerage network.

The report is to state the predicted number of Equivalent Tenements (ETs) generated by the development, and to be agreed upon by council.

The evidence is to include modelling of the impacts of the development on the existing sewerage gravity network and pump station using applicable Water Services Association of Australia codes and Standards, with a minimum being WSA02‑2014 & WSA04‑2005.

Where modelling indicates the development would impact on, or exceed the capacity of the existing sewerage network, the report must outline a suitable engineered solution to the satisfaction of the Blayney Shire Council.

Data provided for approval by Council is to include relevant standards used for calculations/provisions, including all assumptions which have been made to complete the calculations.

The period in which this information must be provided to the Blayney Shire Council is six months from the date of consent.

The Applicant's submissions

The Applicant’s written submissions

119. Mr To’s specific written submissions in support of Ground 3 were succinct. They were in the following terms (footnotes omitted):

36 In the case of clause 6.8, the problem is an impermissible deferral. The required state of satisfaction is that the nominated services are either ‘available’ or ‘adequate arrangements have been made’ for their availability when required.

37   In the case of sewer, Council did not know that there was sufficient capacity. It required, by deferred commencement condition, that this be studied and to then develop a suitable engineering solution: see Council’s assessment report, pages 72‑73 and deferred commencement condition 1.

38   For sewer, it was not open for Council could to have concluded that services either were ‘available’ or that ‘adequate arrangements had been made’.

Mr To’s oral submissions on Ground 3

120. Mr To’s oral submissions on Ground 3 were (Transcript 7 December 2022, page 38, line 21 to page 40, line 7):

Clause 6.8 is in a slightly different situation, as I say in the outline. The debate here resolves to the meaning of “available.” So the clause itself expresses its requirement in terms of, “Satisfaction that the following services that are essential for the development” ‑ and this is the key phrase ‑ “are available or that adequate arrangements have been made to make them available when required.” And then (c); “the disposal and management of sewage.”

It is the case and explicitly acknowledge this, on folio 22, the assessment report says in the third paragraph under the heading “Clause 6.8 Essential Services; Information submitted with the development application indicates that all essential services are available to the subject property,” but then two paragraphs down, “with specific regard to existing sewer capacity. Council's infrastructure services department has confirmed that the capacity of the existing sewer network, between the subject property and the sewer treatment plant is unclear clear.” this statement is based on preliminary modelling and analysis of the local sewer network undertaken by the applicant. I've already paused there. I've already taken you to the sewer capacity report that identified that section of sewer between the holes that were nominated as 607 and 8, be overloaded by a factor of three.

Then continuing over the page, folio 23 at the top, “As such, it is recommended that a deferred condition of consent be applied to require that the applicant undertake a study of the existing sewer network to determine any potential limitations.” And your Honour will be aware that the consent was in fact, granted in that form. The consent itself appears in the court book at tab 5 and the deferred commencement condition appears on age 4 of 28 of the consent, folio 53.

…

TO: And clearly reflecting the assessment that was taken, the fourth paragraph in the indented portion of the word says, “Where modelling indicates, the development would impact on or exceed the capacity of the existing sewage network, the report must outline a suitable engineering solution to the satisfaction of the blaming trial council.” Now, the applicant submits that “available” as used in clause 6.8, means not just that there is some infrastructure there, but there is the capacity for that relevant item of service. And here, that was not the case.

It was in fact, an identified lack of capacity, and it could not be ameliorated or addressed by way of deferred commencement consent. Now you would come to that construction of available, having regard to what this clause seeks to do. That is to ensure that you either can get services to the proposed development of the nominated kinds, or if you can't, make the adequate arrangements so it comprehends both types of situations. Here, of course, given the identified absence of capacity and the deferred commencement condition, there could be no question that adequate arrangements had, in fact been made. So your Honour we say‑‑

HIS HONOUR: Well, Mr To isn't that quintessentially a matter dealt with recently by the judgment of Acting Justice Basten in Ross v Lane as being a matter entirely to be addressed by the consent authority? And if the consent authority attains the degree of satisfaction necessary for the consent authority, and there is a rational understanding of how that satisfaction has been reached, that's not a matter to be dealt with here as a legal defect.

…

TO: Yes. The couple of things that come out of Ross v Lane, firstly, the Court of Appeal observed that in that case, no challenge was brought on conventional judicial review grounds on the question of the satisfaction that arose in that case. What we are saying here, is that the council misunderstood or misconstrued the meaning of “available” and it misdirected itself in the formation or otherwise of the state of satisfaction. And that is a challenge that remains available and is brought in this basis. But of course, if you're against me on the meaning of “available,” then clearly the report provides a basis‑‑

HIS HONOUR: But “available” is qualified by the words, “when required” and does not the deferred commencement condition mean that they must be available when required, that is, at the time the consent is given effect and the units are intended to be connected to the sewer.

TO: We would say that 6.8 isn't to be read that way. So the phrase “when required” is part of the second limb. So “are available” is one thing. So “are available at that time of the determination of an application.” And “if it's not available at the time of determination of the application, have you made adequate arrangements so that they become available when required.” So that's the alternative. We don't read the “when required” as meaning “are available when required or that adequate arrangements have been made to make them available when required.” It would, in our submission, it would not be needed to read it that way because alternative signified by the “or” is, what's the situation now, and if the situation now is that you just don't have capacity to do it, or you're not available at all, then just be able to satisfy the consent authority that they will be available if and when think that it is needed.

The Company’s position

Mr Wright’s written submissions on Ground 3

121. Mr Wright’s written submissions responding to Mr To on Ground 3 were also succinct. They were in the following terms (footnotes omitted):

57 Clause 6.8 of the BLEP relates to the availability of essential services.

58   Relevantly, the SEE noted that the Site is connected to the town reticulated water network, reticulated electricity network, and reticulated sewer network, and that these services would be augmented to ensure sufficient supply of services to the proposed development.

59   The Council’s Assessment Report then records that “information submitted with the development application indicates that all essential services are available to the subject property”. This is conclusive evidence that the Council satisfied itself that the essential services nominated in clause 6.8(a) to (e), including the disposal and management of sewage were available to the subject property.

60   However, Council had some residual questions regarding the capacity of the existing sewer network between the Site and the Sewer Treatment Plant. The Assessment Report recommended that a deferred commencement condition be imposed to require the First Respondent to undertake a study of the existing sewer network to determine any potential limitations. This is reflected in deferred commencement condition 1 of the Consent.

61 It is clear from the words in the chapeau of clause 6.8 that the Consent Authority (being the Council) simply needs to be satisfied that the listed services “are available” or that “adequate arrangements have been made to make them available when required”.

62   Consistent with Pepper J’s judgment in 4nature, the Assessment Report demonstrates that Council:

62.1 was aware of and understood its obligations to consider the matters in clause 6.8;

62.2   had before it and considered documentation provided by the First Respondent as part of the Development Application, including the SEE and modelling of the local sewer network;

62.3   had before it and considered a referral from Council’s Infrastructure Services Department which had reviewed the documentation provided by the First Respondent as part of the Development Application; and

62.4 in imposing deferred commencement condition 1 on the recommendation of the council officer, had formed the requisite state of satisfaction required by clause 6.8.

63 Therefore, the grant of the Consent with condition 1 is also a strong indicator that the Council had formed the necessary satisfaction for the purpose of clause 6.8, contrary to Ground 3 of the Amended Summons.

64   This is expressly addressed in the Assessment Report which confirms that all essential services are available. The assertion in the Applicant’s Ground 3 that Council was not satisfied that all essential services were available, as required by clause 6.8 cannot made out.

Consideration

122. As can be seen from the terms of the chapeau to cl 6.8 of the LEP, there are two separate potential paths to satisfaction of the mandated requirements in the provision. These paths are in the alternative and require either a state of satisfaction that the relevant service is available at the time that the Council considers whether a proposed development should be granted consent, or whether the Council has the necessary state of satisfaction that the relevant service will be available to the proposed development. These alternative tests are reflective of the fact that the clause lists a total of five services that are deemed necessary to be provided to any development which might warrant being granted consent.

123. In this instance, it is clearly the position that the Council had reached the necessary state of satisfaction that connection to the town sewerage system could be available prior to the occupation of the development. That position is reflected in the imposition of the deferred commencement condition.

124. It is to be observed that, in December 2021, the Company provided a consultant's report on this topic, a report which addressed matters which the Council required to be provided with further information with respect to the availability of sewer services for the site in order to permit the Council to determine that the requirements of the deferred commencement condition had been satisfied.

125. In response to this report, on 2 February 2022, the Council's Director Planning and Environmental Services wrote to the consultancy who were managing the development application process on behalf of the Company. The letter addressed the December 2021 report, relevantly, in the following terms:

Council refers to your correspondence of 16 December 2021, which included a Sewer Capacity Assessment Report by Barker Ryan Stewart dated 15 December 2021.

Council has proceeded to review and consider the report.

In accordance with clause 95(5) of the Environmental Planning and Assessment Regulation, Council confirms it is satisfied with the Sewer Capacity Assessment Report submitted and that it addresses the matters outlined in condition 1 of Development Consent 4/2021.

126. Adopting that position made it clear that the Council accepted that the deferred commencement condition had been satisfied, meaning that the consent could commence and become operative as a consequence of the satisfaction of the second of the two alternative potential foundations for compliance with cl 6.8 of the LEP.

127. The process adopted by the Council for ensuring that one or other of the two alternative paths for forming the necessary state of satisfaction concerning this aspect of the provision of essential services to the Company's proposed development was an entirely conventional, “plain vanilla” approach regularly and appropriately adopted by consent authorities for ensuring that a development consent did not become operative unless all essential services were or would be available to a proposal for which development consent was sought.

128. There was no failure, with respect to cl 6.8 of the LEP, to address and reach the necessary degree of satisfaction concerning this mandatory matter arising for consideration from this provision of the LEP.

129. This ground fails.

Conclusion

130. I have concluded that the Council’s decision‑making process in approving the Company's application miscarried in two respects. First, the accommodation modules installed at the site are to be characterised, properly, as “buildings”, and thus requiring development approval pursuant to the EPA Act, rather than as “movable dwellings” capable of being approved pursuant to s 68 of the Local Government Act. This finding renders it unnecessary to consider Grounds 4 and 5.

131. Second, I have also concluded that the Council failed to consider all relevant mandatory matters required by cl 6.2 ‑ Stormwater of the LEP. This also leads to the second inevitable conclusion that the Council's approval of the Company's application was invalid and Ground 2 was made out.

132. However, I have concluded that the Council's assessment of the Company’s application did sufficiently address the mandated requirements of cl 6.8(c) of the LEP, concerning “the disposal and management of sewage”, is without foundation and Ground 3 fails.

Future progress of the matter

133. During the course of the hearing, I indicated that I would defer any matters of discretion potentially arising until I had determined whether or not any or all of the bases of challenge pressed by the Applicant were established (Transcript 6 December 2022, page 11, line 45 to page 12, line 6). It will, therefore, be necessary to hold a further short hearing to permit the parties to address the question of discretion in light of the findings which I have set out.

134. Prima facie, I do not consider that this supplementary hearing needs to be lengthy and should be able to be accommodated one morning prior to the commencement of an ordinary court day. The question of costs will be dealt with at the hearing on discretion.

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Amendments

23 June 2023 - Mr Wright SC appeared without a junior in this matter.

Decision last updated: 23 June 2023