Pittwater Council v Minister for Planning
[2011] NSWLEC 162
•12 September 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Pittwater Council v Minister for Planning [2011] NSWLEC 162 Hearing dates: 24 - 26 May 2011, 14 June 2011 (notice of motion), 29 July 2011 (notice of motion) Decision date: 12 September 2011 Jurisdiction: Class 4 Before: Pain J Decision: 1. The Further Amended Summons filed on 24 May 2011 is dismissed.
2. Costs reserved.
Catchwords: JUDICIAL REVIEW - whether determination of the Planning Assessment Commission to approve a concept plan and a project application for large multi-unit housing development uncertain - whether determination to approve based on no evidence - whether determination to approve failed to take into account relevant considerations - whether determination to approve was manifestly unreasonable Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(3).
Environmental Planning and Assessment Act 1979 s 23, Pt 3A s 75A, s 75B, s 75D, s 75E, s 75F, s 75H, s 75I, s 75J, s 75M, s 75N, s 75O, s 75P, s 75W, s 75X, s 79C(1) (repealed), Pt 4 s 91, Pt 5 s 112, s 117, Sch 3 cl 2(3)
Local Government Act 1993
Environmental Planning and Assessment Regulation 2000 cl 8B
State Environmental Planning Policy (Major Development) 2005 Sch 1 cl 13
Pittwater Local Environmental Plan 1993 cl 30CCases Cited: Anderson v Minister for Infrastructure Planning and Natural Resources [2006] NSWLEC 725; (2006) 151 LGERA 229
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Azriel v NSW Land and Housing Corporation [2006] NSWCA 372
Belmorgan Property Development Pty Limited v GPT RE Ltd [2007] NSWCA 171; (2007) 153 LGERA 450
Broad Henry v Director-General of the Department of Environment and Conservation [2007] NSWLEC 722; (2007) 159 LGERA 172
Bruce v Cole (1998) 45 NSWLR 163
Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83
Direct Factory Outlets Homebush v Strathfield Municipal Council [2006] NSWLEC 318
Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349
Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442
GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647
Gray v Minister for Planning [2006] NSWLEC 720; (2006) 152 LGERA 258
Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248
JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 156
Kennedy v Minister for Planning [2010] NSWLEC 129; (2010) 176 LGERA 395
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
King v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362
King v Great Lakes Shire Council (1986) 58 LGRA 366
Leichhardt Municipal Council v Minister Administering Environmental Planning and Assessment Act 1979 (1992) 77 LGRA 64
Malcolm v Newcastle City Council (1991) 73 LGRA 356
Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shang Liang [1996] HCA 6; (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 116
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992
Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11
Notaras v Waverley Council [2007] NSWCA 33; (2007) 161 LGERA 230
Ormwave Pty Ltd v Smith [2007] NSWCA 210
Parramatta City Council v Hale (1982) 47 LGRA 319
Puhlhofer v Hillingdon London Borough Council [1986] 1 AC 484
Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347
Save Our Streets Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30
Schroders Australia Property Management Ltd v Shoalhaven City Council [1999] NSWLEC 251; (1999) 110 LGERA 130
Scott v Wollongong City Council (1992) 75 LGRA 112
Skiwing Pty Ltd v Trust Company of Australia (Trading As Stockland Property Management) [2006] NSWCA 276
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195
Swift v SAS Trustee Corporation [2010] NSWCA 182
Transport Action Group Against Motorways v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598
Tugun Cobaki Alliance Inc v Minister for Planning [2004] NSWLEC 396
Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20
Walker v Minister for Planning [2007] NSWLEC 741; (2007) 157 LGERA 124
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118
Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707Texts Cited: Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action, 4th ed (2009) Thomson Reuters Category: Principal judgment Parties: Pittwater Council (Applicant)
Minister for Planning (First Respondent)
Meriton Apartments Pty Ltd (Second Respondent)
Meriton Property Management Pty Ltd (Third Respondent)Representation: Mr M Leeming SC with Ms J Taylor (Applicant)
Dr S Pritchard with Mr S Nash (First Respondent)
Mr C McEwen SC with Mr M Seymour (Second and Third Respondents)
Mallesons Stephen Jacques (Applicant)
Department of Planning (First Respondent) Meriton Apartments Pty Ltd (Second and Third Respondents)
File Number(s): 40269 of 2011
Judgment
Judicial review of PAC's approvals of concept plan and project
The Minister for Planning (the Minister) by his delegate, the Planning Assessment Commission (PAC), approved a concept plan and project application for residential and related development sought by Meriton Apartments Pty Ltd, the Second Respondent, under Pt 3A of the Environmental Planning and Assessment Act 1979 (the EPA Act) for land at Warriewood (the site). Meriton Property Management Pty Ltd , the Third Respondent is the owner of the site and was joined by consent at the hearing. The Second and Third Respondents will be referred to as Meriton in the judgment. The Applicant, Pittwater Council (the Council), is challenging the approvals of a concept plan and project application in these judicial review proceedings seeking declarations that both approvals are invalid. Four administrative law grounds of judicial review are identified in the Further Amended Summons filed in Court on 24 May 2011 in relation to both approvals.
Relevant statutory provisions - EPA Act Pt 3A
The Minister can delegate his functions under Pt 3A of the EPA Act, headed "Major Infrastructure and Other Projects", to the PAC under s 23 of the EPA Act. Section 75B(1) and (2) identifies the kinds of projects which may be considered as development under Pt 3A. Under the State Environmental Planning Policy (Major Development) 2005 Sch 1 [5] cl 13 residential subdivision over $100 million could be declared a Pt 3A project (Sch 1 [5] was repealed effective 13 May 2011). Division 2 concerns project approval and Div 3 concerns concept plan approval.
Section 75D Div 2 specifies that the Minister's approval is required for a project applied for under this Part.
75E Application for approval of project
(1) The proponent may apply for the approval of the Minister under this Part to carry out a project.
(2) The application is to:
(a) describe the project, and
(b) contain any other matter required by the Director-General.
(3) The application is to be lodged with the Director-General.
(4) An application may relate to part only of a project.
75F Environmental assessment requirements for approval
(1) The Minister may, after consultation with the Minister for the Environment, publish guidelines in the Gazette with respect to environmental assessment requirements for the purpose of the Minister approving projects under this Part (including levels of assessment and the public authorities and others to be consulted).
(2) When an application is made for the Minister's approval for a project, the Director-General is to prepare environmental assessment requirements having regard to any such relevant guidelines in respect of the project.
(3) The Director-General is to notify the proponent of the environmental assessment requirements. The Director-General may modify those requirements by further notice to the proponent.
(4) In preparing the environmental assessment requirements, the Director-General is to consult relevant public authorities and have regard to the need for the requirements to assess any key issues raised by those public authorities.
(5) The environmental assessment requirements may require an environmental assessment to be prepared by or on behalf of the proponent in the form approved by the Director-General.
(6) The Director-General may require the proponent to include in an environmental assessment a statement of the commitments the proponent is prepared to make for environmental management and mitigation measures on the site.
(7) This section is subject to section 75P.
Note. Section 75P enables the Minister to determine environmental assessment requirements for approval to carry out the project or any stage of the project when giving approval to a concept plan for the project under Division 3.
75G (repealed )
75H Environmental assessment and public consultation
(1) The proponent is to submit to the Director-General the environmental assessment required under this Division for approval to carry out the project.
(2) If the Director-General considers that the environmental assessment does not adequately address the environmental assessment requirements, the Director-General may require the proponent to submit a revised environmental assessment to address the matters notified to the proponent.
(3) After the environmental assessment has been accepted by the Director-General, the Director-General must, in accordance with any guidelines published by the Minister in the Gazette, make the environmental assessment publicly available for at least 30 days.
(4) During that period, any person (including a public authority) may make a written submission to the Director-General concerning the matter.
(5) The Director-General is to provide copies of submissions received by the Director-General or a report of the issues raised in those submissions to:
(a) the proponent, and
(b) if the project will require an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997 -the Department of Environment, Climate Change and Water, and
(c) any other public authority the Director-General considers appropriate.
(6) The Director-General may require the proponent to submit to the Director-General:
(a) a response to the issues raised in those submissions, and
(b) a preferred project report that outlines any proposed changes to the project to minimise its environmental impact, and
(c) any revised statement of commitments.
(7) If the Director-General considers that significant changes are proposed to the nature of the project, the Director-General may require the proponent to make the preferred project report available to the public.
75I Director-General's environmental assessment report
(1) The Director-General is to give a report on a project to the Minister for the purposes of the Minister's consideration of the application for approval to carry out the project.
(2) The Director-General's report is to include:
(a) a copy of the proponent's environmental assessment and any preferred project report, and
(b) any advice provided by public authorities on the project, and
(c) a copy of any report of the Planning Assessment Commission in respect of the project, and
(d) a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and
(e) except in the case of a critical infrastructure project-a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and
(f) any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate, and
(g) a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project.
75J Giving of approval by Minister to carry out project
(1) If:
(a) the proponent makes an application for the approval of the Minister under this Part to carry out a project, and
(b) the Director-General has given his or her report on the project to the Minister,
the Minister may approve or disapprove of the carrying out of the project.
(2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:
(a) the Director-General's report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and
(b) if the proponent is a public authority-any advice provided by the Minister having portfolio responsibility for the proponent, and
(c) any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.
(3) In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.
(4) A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine.
(5) The conditions of approval for the carrying out of a project may require the proponent to comply with any obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).
Division 3 Concept plans for certain projects
75M Application for approval of concept plan for project
(1) The Minister may authorise or require the proponent to apply for approval of a concept plan for a project.
(2) The application is to:
(a) outline the scope of the project and any development options, and
(b) set out any proposal for the staged implementation of the project, and
(c) contain any other matter required by the Director-General.
A detailed description of the project is not required.
(3) The application is to be lodged with the Director-General.
(3A) A single application may be made for approval of a concept plan for a project and for approval to carry out any part or aspect of the project. In that case, environmental assessment requirements, public consultation and reports under this Division and Division 2 with respect to the project may be combined.
(4) If an environmental planning instrument requires the preparation of a development control plan before any particular or kind of development is carried out on any land, the obligation may be satisfied for a project by an application for approval and approval of a concept plan in respect of the land concerned (but only if the Minister authorises or requires an application for approval of the concept plan).
75N Environmental assessment, public consultation and Director-General's report for concept plan
Sections 75F (Environmental assessment requirements for approval), 75H (Environmental assessment and public consultation) and 75I (Director-General's environmental assessment report) apply, subject to the regulations, with respect to approval for the concept plan for a project in the same way as they apply with respect to approval to carry out a project.
75O Giving of approval for concept plan
(1) If:
(a) the proponent makes an application for the approval of the Minister under this Part of a concept plan for a project, and
(b) the Director-General has given his or her report on the project to the Minister,
the Minister may give or refuse to give approval for the concept plan for the project.
(2) The Minister, when deciding whether or not to give approval for the concept plan, is to consider:
(a) the Director-General's report on the project and the reports and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and
(b) if the proponent is a public authority-any advice provided by the Minister having portfolio responsibility for the proponent, and
(c) any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.
(3) In deciding whether or not to give approval for the concept plan for a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for a concept plan for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.
(4) Approval for a concept plan may be given under this Division with such modifications of the concept plan as the Minister may determine.
(5) Approval for the concept plan may be given under this Division subject to satisfactory arrangements being made, before final approval is given for the project or any stage of the project under this Part or under the other provisions of this Act, for the purpose of fulfilling the obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F).
75P Determinations with respect to project for which concept plan approved
(1) When giving an approval for the concept plan for a project, the Minister may make any (or any combination) of the following determinations:
(a) the Minister may determine the further environmental assessment requirements for approval to carry out the project or any particular stage of the project under this Part (in which case those requirements have effect for the purposes of Division 2),
(b) the Minister may determine that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act (in which case the project or that stage of the project ceases to be a project to which this Part applies),
(c) the Minister may determine that no further environmental assessment is required for the project or any particular stage of the project (in which case the Minister may, under section 75J, approve or disapprove of the carrying out of the project or that stage of the project without further application, environmental assessment or report under Division 2).
(1A) The further requirements for approval to carry out the project or any part of the project that the Minister may determine under subsection (1) (a) are not limited to matters that the Director-General may require under Division 2.
...
75X Miscellaneous provisions relating to approvals under this Part
...
(3) The Minister may, but is not required to, give reasons to the proponent for:
(a) any disapproval, or conditions or modifications, of a project, or
(b) any disapproval, or modifications of, a concept plan for a project, or
(c) any conditions of approval of a modification of the approval of a project.
...
(5) The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project.
Clause 8B of the Environmental Planning and Assessment Regulation 2000 (the Regulation) provides:
Matters for environmental assessment and Ministerial consideration
The Director-General's report under section 75I of the Act in relation to a project is to include the following matters (to the extent that those matters are not otherwise included in that report in accordance with the requirements of that section):
(a) an assessment of the environmental impact of the project,
(b) any aspect of the public interest that the Director-General considers relevant to the project,
(c) the suitability of the site for the project,
(d) copies of submissions received by the Director-General in connection with public consultation under section 75H or a summary of the issues raised in those submissions.
Note. Section 75J (2) of the Act requires the Minister to consider the Director-General's report (and the reports, advice and recommendations contained in it) when deciding whether or not to approve the carrying out of a project.
Evidence - Planning history
The parties tendered an agreed bundle of documents which contained all the relevant planning history of the site. The site is located near the Warriewood Sewerage Treatment Plant (STP) and identified as buffer area 3 in various planning instruments made by the Council. Under Pt 3A s 75J(3), when giving approval for a project the Minister may but is not required to take into account the provisions of any environmental planning instrument. A similar provision appears in s 75O(3) in relation to the giving of concept plan approval by the Minister. There is no disagreement amongst the parties about the events leading up to the approvals by the PAC. The parties usefully agreed a chronology of relevant events including a reference to the documents in the tendered bundle and identifying the provision in the EPA Act a particular document addresses.
Date
Event
Reference
Statutory Reference
04.02.94
Pittwater Local Environmental Plan - date of gazettal
CB 2/913-1045 (tab 24)
17.07.07 to 18.09.07
Draft North East Subregional Strategy went on public exhibition
First Respondent's supplementary bundle, Tab 4
18.11.08
Instrument of delegation from Minister for Planning to the Planning Assessment Commission ( PAC ), in relation to project applications in which a statement has been made disclosing a reportable political donation.
CB 1/1 (tab 1)
27.03.09
Instrument of delegation from Minister for Planning delegating various powers under Part 3A of the Act.
CB 1/2-8 (tab 2)
20.07.09
Council granted a deferred commencement consent for land subdivision to provide 140 lots and construction of a development comprising 135 2-storey townhouse development
CB 2/577
19.08.09
Meriton wrote to the Department of Planning to apply under section 75M of the Act for concept approval of a development at the Site and at 23-27 Warriewood Road and 2 Macpherson Street.
CB 1/9 (tab 3); 2/577 (tab 20); CB 6/3-7 (tab 2)
August 2009
Meriton lodged a major project application
CB 1/27-31 (tab 9)
75E
In or around 21.08.09
Meriton lodged a concept plan application
CB 1/13 (tab 6)
75M
01.12.09
The Minister (by his delegate the Director-General) declared the proposal for residential development at the Site to be a project to which Part 3A of the Act applies, and authorised submission of a Concept Plan for the proposal on the land
CB 1/12 (tab 5); 2/577 (tab 20)
75M
10.12.09
Letter from Department to Council, requesting that Council provide details of key issues and assessment requirements which may be included in the Director-General's Environmental Assessment Requirements ( EARs ), and providing a draft copy of the requirements to assist.
Requests a response within 10 days.
CB 6/8 (tab 3)
75F(4)/75N
18.12.09
Letter from Council to Department, responding to request for issues to be included in the EARs
CB 6/9-16 (tab 4)
23.12.09
The Director-General's delegate informed Meriton of the EARs
CB 1/17, 19-25 (tab 8)
75F(2)/75N
March 2010
Meriton produced its Environmental Assessment ( EA )
CB vols 3 and 4
75H(1)/75N
26.03.10
Delegate of the Director General confirms the EA has satisfactorily addressed the Director General's Environmental Assessment Requirements
75H(2)
05.04.10
Meriton lodged a political donations disclosure statement under the Act
CB 1/32-34 (tab 10)
Between 14.04.10 and 16.06.10
The Environmental Assessment publicly exhibited
CB 2/577 (tab 20)
75H(3)/75N
04.05.10
Warriewood Valley Planning Framework 2010 adopted by Council
CB vol 6 (tab 6)
15.06.10
Council's Submission to Department of Planning in relation to the Major Project Application on the Site
CB 6/146-425 (tab 7)
75H(4)
15.07.10
Letter from Department to Meriton noting that the EA has been placed on public exhibition, and requiring a response to various submissions that were received. The Department also requested Preferred Project Report.
CB 1/35-37 (tab 11)
75H(6)/75N
August 2010
Warriewood Valley Strategic review prepared by Worley Parsons
CB Vol 1/462-500 (Tab 18)
11.08.10
Meriton lodged a political donations disclosure statement under the Act.
CB 1/38-40 (tab 12)
23.08.10
Instrument of delegation from Minister for Planning to the PAC in relation to powers and functions under section 75O and 75P of the Act in relation to Concept Plan Application MP09_1062
CB 1/41 (tab 13)
29.09.10
Meriton lodged a political donations disclosure statement under the Act.
CB 1/47-49 (tab 16)
29.09.10
Meriton produced a Preferred Project Report for the Site
The plans are dated 13.08.10 and are at CB 6/426-454 (tab 8)
CB vol 5
75H(6)/75N
08.10.10
Council submitted its submission to the Department in respect of the Preferred Project Report.
CB 1/53-371 (tab 17)
11.11.10
Warriewood Valley Traffic Report prepared by Halcrow
CB Vol 1 / 501 - 530 (tab 18)
13.11.10
The Director-General (by his delegate) prepared his Environmental Assessment Report ( EA Report)
CB 1/372-564 (tab 18)
75I/75N
15.11.10
The Director General referred the Concept Plan and Project applications to the PAC for determination. The PAC was constituted by Emeritus Professor Kevin Sproats (Chairperson), Ms Gabrielle Kibble AO and Mr Garry Payne AM
CB 2/577 (tab 20)
30.11.10
PAC met with Meriton and the Council and the departmental officers and requested a further report from the latter
CB 2/579, 581 (tab 20)
10.12.10
The Department provided three documents to the PAC:
Strategic Justification for Increasing the Residential Density of the Warriewood Buffer Areas;
Warriewood Valley Strategic Review (Worley Parsons, August 2010);
Warriewood Valley Traffic Report (Halcrow, November 2010)
CB 2/565-574 (tab 19)
December 2010
Metropolitan Plan for Sydney 2036 was published.
CB 2/646-911 (tab 23)
18.01.11
The PAC grants Project Approval and Concept Approval, and delivers a report.
PAC-approved plans are at CB 6/455-501 (tab 9)
CB 2/575 (tab 20), 587 (tab 21), 595 (tab 22)
75J/75O/75P
28.01.11
Department of Planning briefing note regarding an update on PAC decision
CB 6/538 (tab 12)
23.03.11
The Director-General approved the plans submitted by Meriton in relation to the Part B - Modification requirements 1 and 2 of the Concept Plan Approval and Part B - Condition B1 of the Project Approval.
The approved plans are at CB 6/505-536 (tab 11).
CB 6/502-504 (tab 10)
29.03.11
Council commenced the proceedings by Summons
05.04.11
Department of Planning Briefing Note regarding Metro Plan Interpretation in response the Concept Plan and the Project Application for the Site.
CB 6/537 (tab 12)
While the chronology refers to Meriton lodging a project application under s 75E and an application for a concept plan approval under s 75M the two were considered together throughout the assessment process and in the PAC's determination. When the project was declared to be within Pt 3A the Director-General of Planning (the DG) also resolved that a concept plan could be submitted. The DG's environmental assessment requirements (DGEAR) issued on 23 December 2009 refer to both as does Meriton's environmental assessment (EA), the DG's environmental assessment report (DG's report) and the Department's supplementary report. The parties agreed in final submissions that under s 75M(3A) a single application can be made for approval of a concept plan and a project. Under s 75N the DGEAR required under s 75F, the EA prepared under s 75H and the DG's report for a project required under s 75I also applies to a concept plan. The two applications travelled together, were assessed together as provided for in s 75N in relation to s 75F, s 75H and s 75I and determined together on the basis of the same reasons.
The Court was taken through a number of the planning instruments and reports in the agreed chronology referred to below by the Respondents' submissions.
Pittwater Local Environmental Plan 1993 (the LEP)/Development Control Plan No 21 (DCP 21)
Under the LEP the site is identified as one of three buffer areas around the Warriewood STP (buffer area 3). The site is zoned 2(f) (urban purposes-mixed residential). Residential buildings are permitted with development consent. Under cl 30C no more than 142 dwellings or fewer than 135 dwellings are permitted in buffer area 3, a density of 17 - 18 dwellings per hectare. The DCP 21 specifies a building height of 2 - 3 storeys for the site.
Draft North East Subregional Strategy July 2007
The draft North East Subregional Strategy which was publicly exhibited in 2007 refers to a target of 4,600 new dwellings in the Pittwater local government area to be constructed by 2031. It was prepared in response to the Metropolitan Strategy for Sydney to 2031 released in December 2005 (the Metropolitan Strategy 2005).
DGEAR 1, 4 and 5 (s 75F, 75N) 23 December 2009
The DGEAR specify what matters Meriton was required to address in its EA as required under s 75F(2). The Council's case relies on the alleged failure by the PAC to consider matters in DGEAR 1, 4 and 5 which state as follows:
1.Relevant EPI's policies and guidelines to be Addressed
Planning provisions applying to the site, including permissibility and the provisions of all plans and policies are contained in appendix A....
Appendix A refers to the NSW State Plan, draft North East Subregional Strategy, the LEP (including DCP 21) and Warriewood Valley Planning Framework 1997 and the STP Buffer Sector Planning Framework, inter alia.
4. Land uses and Density
Identify the range of land uses proposed, and demonstrate consistency with the objectives of the "2(f) (Urban Purposes - Mixed Residential)" zone. In particular, the EA should justify the intensity of non-residential uses proposed in Stage 1 and in the later stages of the Concept Plan.
Provide justification for the proposed dwelling yield and floor space.
5. Isolated Sites
The proposal should seek to amalgamate with the adjacent properties known as 5 and 7 Macpherson Street so that there is a more appropriate and reasonable relationship with future developments in the locality. The EA and [sic] shall include details outlining negotiations with the owners of the affected properties. In the event that amalgamation is not possible, the EA shall address development potential of the isolated sites if they cannot be included within this proposal.
Meriton Environmental Assessment
Meriton produced an EA in March 2010 which provided a summary of the project and concept plan, a summary of the DGEAR and consideration of these, planning background, site assessment, strategic justification of the project and concept plan including reference to the Metropolitan Strategy 2005 and the draft North East Subregional Strategy and the LEP dwelling yield assessment. The report also includes a height assessment, s 7.4 considers isolated sites. Correspondence with neighbouring owners and their responses were attached. A concept plan diagram was included which addresses the development potential of the adjoining sites. A report entitled Proposed Residential Development Boondah Road, Warriewood: Traffic Impact Assessment and Transport Accessibility and Management Plan dated 12 February 2010 prepared by Halcrow for Meriton was also submitted with the EA.
Pittwater Council Warriewood Valley Planning Framework May 2010
The planning framework report prepared by the Council recommended 25 dwellings per hectare for the buffer area around the STP including this site and a revised figure of 186 dwellings in total for buffer area 3. There was no recommendation in relation to building height.
Worley Parsons Warriewood Valley Strategic Review report August 2010 (the Worley Parsons report)
The Worley Parsons report was commissioned by the Department of Planning (the Department). It was relied on by the Department as a strategic justification for increasing the residential density of the Warriewood buffer areas prepared for the Department, and was completed in August 2010. It recommended a site density of 81 dwellings per hectare and building heights of up to five storeys in the Warriewood Valley buffer areas including the site.
Halcrow Warriewood Valley Traffic Report (Halcrow traffic report) November 2010
A traffic report dated November 2010 was also prepared for the Department by Halcrow traffic consultants. The independent study modelled different scenarios for density, consistent with the Warriewood Valley Planning Framework 2010 and increased densities similar to those proposed by Meriton. Scenario 2 was higher density in the buffer areas than allowed for in the Warriewood Valley Planning Framework 2010 being 655 total dwellings in buffer area 3 (approximately 81 dwellings per hectare). If that scenario were to be pursued, the report recommended "additional upgrading of the Warriewood Road/Pittwater Road intersection, beyond that assumed" in the study would need to be further investigated.
Meriton's Preferred Project Report (PPR) September 2010 (s 75H(6)(b), 75N)
The PPR follows the public exhibition of the EA and makes changes to the project and concept plan. Building heights of partly three, four and five storeys and density of 75 dwellings per hectare are proposed.
Council's submission on the PPR October 2010
The Council was critical of the PPR in its submission to the Department in part because it disregards the outcomes of the Metropolitan Strategy 2005, the draft North East Subregional Strategy and the Warriewood Valley Planning Framework 2010 (25 dwellings per hectare). The Subregional Strategy was informed by the Metropolitan Strategy 2005 in providing for 4,600 dwellings in the Pittwater local government area by 2031 which target can be accommodated under current planning strategies. The increased density of development proposed by Meriton is not required to meet the housing targets in the metropolitan and subregional strategies. The PPR yield of 559 dwellings greatly exceeds the 142 dwellings permitted under the LEP and the 186 dwellings permitted under the Warriewood Valley Planning Framework 2010. Criticism is made of the Worley Parsons report in part because it is limited to the three buffer areas and there is no assessment of likely impacts of increased density outside these areas. There is also an assessment of compliance against the LEP controls.
Director-General's environmental assessment report (DG's report) (s 75I, s 75N report) November 2010
The DG's report dated November 2010 is a substantial document which provides background to the proposed project and the planning history of the site, and identifies surrounding development. The PPR consisting of the concept plan and the Stage 1 project application is discussed. The strategic planning context refers to the NSW State Plan 2010, Metropolitan Strategy 2005, the draft North East Subregional Strategy 2007, the Worley Parsons report (appendix 5) and the Halcrow traffic report (appendix 5). In relation to density (section 6.1) the report states the proposal for 559 dwellings exceeds the maximum dwelling yield limits set by the Council's LEP of 140 dwellings and notes the more recent Warriewood Valley Planning Framework 2010 has a revised yield of 186 dwellings. Built form and height are considered with the report stating that the proposal has been designed to respond to the future character and context of the area and the site's environmental capability. Street front buildings are limited to three storeys with four and five storeys located toward the centre to minimise visual impact when viewed externally.
The report responded to the Council's objections based on equity and precedent given significant departures from existing planning controls, inadequate infrastructure for such unplanned development, impacts on amenity and the environment, traffic and public transport inter alia, in appendix 7. It considered the scheme should be approved at the density applied for namely 75 dwellings per hectare, which is supported by the Worley Parsons report, and is in the public interest as it provided additional housing, public open space, environmental improvements and local road improvements, inter alia.
The statutory context of Pt 3A of the EPA Act is identified in appendix 6 which includes a statement of compliance to the effect that in accordance with s 75I of the EPA Act and cl 8B of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation) the Department is satisfied that the DGEAR have been complied with. Appendix 6 refers to the principles of ecologically sustainable development, environmental planning instruments such as State Environmental Planning Policies (SEPPs) and any environmental planning instrument which would, except for the application of Pt 3A, govern the carrying out of the project and have been taken into consideration in the assessment of the project. Four SEPPs including the NSW Department of Planning's Residential Flat Design Code dated September 2002 are identified as relevant together with the LEP.
Metropolitan Strategy for Sydney 2036 released 16 December 2010
The Metro Strategy states:
The Metropolitan Plan for Sydney 2036 aims to guide the growth of Australia's leading city towards greater sustainability, affordability, liveability and equity for generations to come....
More Suitable and Affordable Housing (p 654)
While Sydney's population is growing, the average household size is falling, creating demand for more - but smaller, more affordable - homes. As a result, Sydney will need 770,000 additional homes by 2036 - a 46% increase on the city's current 1.68 million homes. The location, size and type of new housing must reflect the population's growing needs.
Housing Sydney's population (p 656)
Plan for 770,000 additional homes with a range of housing types, sizes and affordability levels for a growing and ageing population.
Locate at least 70% of new homes in existing suburbs and up to 30% in Greenfield areas.
Drive delivery through subregional targets and Local Environment Plans with follow-through on outcomes and yield
Policy settings (p 663)
This Metropolitan Pan is an integrated, long-term planning framework that will sustainably manage Sydney's growth and strengthen its economic development to 2036 while enhancing its unique lifestyle, heritage and environment.
Strategic Direction B considers growing and renewing centres including local centres. A series of actions to achieve this are identified. Action B1.2 is to establish appropriate mechanisms in subregional strategies to provide sufficient capacity for commercial development in centres. The subregional level work will be used in the preparation of LEPs. Strategic Direction D concerns housing Sydney's population with all centres to have a minimum level of medium density with low density reserved for heritage or physically constrained areas. Smaller local centres are suited to low-medium rise medium density housing. The aim it is to locate 80 per cent of all new housing within walking distance of centres of all sizes. Low, medium and high rise development is described as follows:
Low rise: Three storeys or less. Includes terraces, townhouses, shop-top housing, semi-detached housing and small residential flat buildings.
Medium rise: Four to five storeys. Includes residential flat buildings and shop-top housing.
High rise: Six storeys or more. Includes residential flat buildings, shop-top housing and large mixed use developments such as offices and shops with housing above.
Low density is fewer than 25 dwellings per hectare. Medium density is 25-60 dwellings per hectare. High density is more than 60 dwellings per hectare.
Action D2.1 aims to ensure that local planning controls include more low rise medium density housing in and around smaller local centres. Low rise medium density development is particularly encouraged around small local centres. Strategic Direction I is called Delivering the Plan. The plan is intended to be implemented by state involvement in implementation of spatial plans via local government through subregional strategies, LEPs, directions under s 117 of the EPA Act, inter alia. Objective I3 refers to the alignment of subregional planning with the strategic directions of the plan. Objective I4 identifies LEPs as the primary land use planning tool for delivering mandatory development controls. The Minister will issue a new s 117 direction under the EPA Act to ensure new LEPs respond to the plan.
PAC's determination 18 January 2011
The PAC provided a single written determination for the two applications for approval before it. The executive summary records that the PAC considered the documentation provided by the Department, matters raised in meetings held with the Department, the Council and Meriton and additional strategic justification for the proposal provided by the Department. The PAC members visited the area. The PAC considered that a strategic study of undeveloped sites in the Warriewood Valley was warranted including the development potential around Warriewood Centre. There is a need to increase housing stock in Metropolitan Sydney and in each subregion to meet housing demand from a growing population and changing household requirements. The PAC "takes its lead" from the Metro Strategy and approves the concept plan subject to modifications limiting building height generally to three storeys and development densities to a maximum of 60 dwellings per hectare. That height is considered compatible with surrounding streetscape and the density is sustainable given the location. The project application for stage 1 was also approved subject to the modified concept plan and conditions.
Section 1 includes a description of the proposal in the concept plan and the stage 1 project application, a brief planning history of Warriewood Valley and of the site. The documents before the PAC were listed in section 3.0 Information Available to the Commission as including:
(i) The DGEAR
(ii) The Council's consent number 526/08 and approved site layout
(iii) The proponent's response to submissions
(iv) Worley Parsons report August 2010
(v) Halcrow traffic report 11 November 2010
(vi) Review of development contribution rates by the Department 26 October 2010
(vii) The proponent's statement of commitments dated 12 November 2010 for the concept plan and project application
(viii) The recommended conditions of consent
(ix) Submissions received by the Department, a total of 545 during the exhibition of the EA and a further five were received in relation to the proponent's PPR
A summary of submissions made at the meetings with the Department, the Council and Meriton and additional information made available to the PAC by way of a strategic justification for increased residential density report was provided on 10 December 2010.
In section 7 "Key Issues" the PAC identifies the strategic justification for increased density and height, the impacts on transport and traffic, and environmental implications. Section 7.1 "Strategic Justification" records that the Metro Strategy states that 770,000 additional homes will be required across the Sydney metropolitan area by 2036 and that 70 per cent of these homes should be provided within existing urban areas. The draft North East Subregional Strategy calls for 4,600 new dwellings in the Pittwater local government area by 2031. While the Council indicated it could accommodate these dwellings under its existing plans, the PAC notes housing requirements have increased since the release of the draft Subregional Strategy and it is likely additional housing will be required in the Pittwater local government area. The Warriewood Valley Planning Framework 2010 identifies the site as capable of supporting medium density residential development up to a density of 25 dwellings per hectare. This was considered unduly restrictive. The Worley Parsons report was considered too limited in scope to provide a proper basis for a density of 81 dwellings per hectare.
The PAC strongly recommended that the Council and the Department of Planning work together to jointly prepare a comprehensive strategic study of the whole Warriewood Valley. In the absence of such a study and in order not to unreasonably delay a determination of the applications in considering the merits of the project, the PAC "takes its lead" from the Metro Strategy as guiding its conclusions regarding the appropriate development density and height at the site. The PAC considered the site could be developed in the range of medium density identified in the Metro Strategy and that a three-storey limit is appropriate with a fourth storey on certain buildings in the centre of the site as the natural ground level slopes down from the street.
The PAC set out its conclusions in section 8 approving the concept plan subject to modifications restricting building height to three storeys and limiting development density to 60 dwellings per hectare. The stage 1 project application was also approved with the same modifications in relation to this aspect of the approval.
Concept approval issued under s 75O of the EPA Act
On 18 January 2011 the PAC issued concept approval for stage 1 of "a residential and child care development" including multi-unit housing development and childcare centre, private and public open space, parking, road works, pedestrian and cycle pathway, landscaping and ecological rehabilitation works.
Schedule 2 Pt A condition 2 approves specified plans subject to modifications required under s 75O(4) specified in Part B modifications 1 - 4. Modification 2 was referred to by the Council.
1 Environmental Zones
The plans described above in Part A - Terms of Approval (2) shall be modified as follows:
The Asset Protection Zone shall be maintained as an Inner Protection Area with a minimum width of 25 metres, exclusive of the 10 metre wide Vegetated Wetland Buffer Zone.
The Bio-Retention Basin B and Private Internal Road adjoining Building P shall be relocated clear of the 10 metre Vegetated Buffer Zone.
The building envelopes of Buildings O and P shall be amended to accord with the above environmental zone modifications. The north eastern wall of Building O shall not extend past its existing location.
Amended plans demonstrating compliance with this modification shall be submitted to, and approved by, the Director General.
2 Density and Height
The plans described above in Part A - Terms of Approval (2) shall be modified as follows:
(a) The dwelling yield is limited to a maximum of 60 dwellings per hectare.
Note: For the purposes of calculating the dwelling yield, the site area is the developable area of 7.45ha and excludes Fern Creek and the creekline corridor.
(b) The height of the development shall be limited to 3 storeys, with the exception of Buildings D, E, F, G, K, L, and M which may be permitted to be a maximum of 4 storeys to achieve the maximum density specified in Modification 2a above, subject to:
(i) Any 4 th storey having a smaller footprint than the 3 rd level below to provide articulation to the building form;
(ii) Any change to the siting or form of the envelopes resulting from Modification 2a and/or 2b shall maintain compliance with the relevant provisions of the Residential Flat Design Code; and
(iii) The amendment shall maintain a minimum of 50% of the developable area of 7.45ha as deep soil area.
Amended plans demonstrating compliance with these modifications shall be submitted to, and be approved by the Director General.
3 Minimum Public Open Space
The redevelopment or the site shall provide a minimum of 15,601m 2 of publicly accessible open space to be dedicated to Pittwater Council as shown in the plan attached to Meriton's letter dated 11 November 2010.
4 Inconsistencies between Documentation
In the event of any inconsistency between modifications of the Concept Plan approval identified in this approval and the drawings/documents including the Revised Statement of Commitments, the modifications of the Concept Plan shall prevail.
Schedule 3 provided future environmental assessment requirements and Sch 4 referred to the statement of commitments in the PPR.
Project approval issued under s 75J of the EPA Act
The 18 January 2011 project approval was issued by the PAC for:
Stage 1 for a residential and child care development including:
Demolition of the existing buildings and structures on site and tree removal;
Excavation, earthworks and flood mitigation works;
Construction of 7 residential buildings of 3, 4 & 4 storeys in height providing 295 apartments with associated pools and gymnasium;
Basement parking for 471 cars comprising 429 resident car spaces and 42 visitor spaces;
Single storey childcare centre (270m 2 );
External road works, internal public access roads and public pedestrian and cycle way;
Asset Protection Zone, Environmental Buffer areas and ecological rehabilitation and landscaping works.
Schedule 2 Pt A identifies approval is to be in accordance with specified plans except as modified by the conditions of approval. Part B details numerous modifications including:
B1 Density and Height Modifications
The plans described above in Terms of Approval (A1) shall be modified as follows:
(a) The dwelling yield is limited to a maximum of 60 dwellings per hectare.
Note: For the purposes of calculating the dwelling yield, the site area is the developable area of 7.45ha and excludes Fern Creek and the creekline corridor.
(b) The height of the development shall be limited to 3 storeys, with the exception of Buildings D, E, F and G which may be permitted to be a maximum of 4 storeys to achieve the maximum density specified in Condition B1(a) above, subject to:
(i) Any 4 th storey having a smaller footprint than the 3 rd level below to provide articulation to the building form;
(ii) Any change to the siting or form of the envelopes resulting from Conditions B1(a) and/or B1(b) shall maintain compliance with the relevant provisions of the Residential Flat Design Code; and
(iii) The amendments shall maintain a minimum of 50% of the developable area of 7.45ha as deep soil area.
Amended plans demonstrating compliance with these modifications shall be submitted to, and approved by the Director General.
(Identical to modification 2 in the concept plan approval except it applies only to stage 1 consisting of seven buildings.)
B3 concerned carpark and service vehicle layout and B13 concerned car and bicycle parking provisions and storage.
Approved plans - Notices of Motion (NOM) after hearing
The PAC determination imposed identical conditions modifying the change of building form for the concept plan and project, the only difference being the number of buildings reflecting that stage 1 is seven buildings (project stage 1) and stage 2 a further seven buildings (concept plan, stages 1 and 2). The conditions imposed require the submission of amended plans by Meriton to the DG to reflect the final determination of the PAC in relation to the reduction of density and height of buildings from that sought by Meriton. The DG approved plans submitted by Meriton on 23 March 2011. During the hearing the DG sent a letter dated 24 May 2011 to Meriton which stated that the plans approved on 23 March 2011 were beyond the scope of what had been authorised by the PAC, the conditions for the project and concept approvals so that he considered the approvals notified on 23 March 2011 were not an approval (exhibit 1). The Minister informed the Court that the DG considered that the approval of the plans by the DG had no legal effect relying on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 because the amendments went beyond what the PAC authorised being changes limited to height and density as stated in the letter. Meriton did not appear to accept that this was the legal position in relation to the plans and suggested the validity of the DG's decision would be tested elsewhere.
After the hearing had been completed and judgment reserved Meriton filed a NOM dated 14 June 2011 seeking leave to reopen its case to adduce further evidence, as contained in the affidavit of Ms Mihail, solicitor, dated 14 June 2011. Leave was granted to do so and further written submissions were provided by Meriton and the Council. The evidence identifies three further applications by Meriton to the DG to have plans and drawings approved by the DG which comply with the PAC conditions of approval for firstly, the project, and secondly, the concept plan. Thirdly, an application to modify the project under s 75W of the EPA Act to allow for changed floor plan layouts in a number of units and changes in carparking was also made. The first and second applications were approved by the DG on 6 June 2011.
A further NOM dated 29 July 2011 was filed by Meriton which sought leave to rely on the evidence contained in the affidavit of Ms Mihail, solicitor, dated 25 July 2011 and to make submissions to the Court. The Council responded with written submissions also and consented to the matter being dealt with in chambers. The material attached to the affidavit in support is the PAC's determination made on 15 July 2011 to approve the application under s 75W for modifications to the residential development at 14 - 18 Boondah Road, Warriewood. The modifications sought were a reduction of one level of basement parking and amendment of the floor layout of units in buildings A, B and C to include a study in some apartments. The power to determine the modification was delegated to the PAC by the Minister on 28 May 2011.
Ground of challenge - PAC's approvals were uncertain
Council's submissions
As identified in the Further Amended Points of Claim filed in Court on 24 May 2011, the Council alleges that in purporting to grant the project approval and the concept plan approval subject to conditions requiring the preparation of amended plans which would decrease the number of dwellings, the height of buildings and their positioning and make other design modifications, the conditions imposed were uncertain or amount to impermissible delegation to the DG of the PAC's function. This falls outside the power of the Minister to impose conditions on a project approval under s 75J(4) or on a concept plan under s 75O of the EPA Act.
Both the concept plan approval and the project approval provided that the height of the development shall be limited to three storeys, with the exception of buildings D, E, F, G (stage 1 project and concept plan), K, L and M (stage 2 concept plan) which may be permitted to a maximum of 4 storeys to achieve the maximum density of 60 dwellings per hectare subject to:
(a) Any fourth storey having a smaller footprint than the third level below to provide articulation to the building form;
(b) Any change to the siting or form of the envelopes resulting from conditions B1(a) and B1(b) shall maintain compliance with the relevant provisions of the Residential Flat Design code: and
(c) The amendments shall maintain a minimum of 50 per cent of the developable area of 7.54 hectare as deep soil area.
The DG appears to be empowered by the PAC to approve any modified plans which conform to the modifications imposed by the PAC. This is not authorised by the Act. Mison v Randwick Municipal Council (1991) 23 NSWLR 734 per Clarke JA (Meagher JA concurring) held that where important aspects were not determined this could alter the proposed development in a fundamental respect. Transport Action Group Against Motorways v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 holds that a modification must also be certain. Other relevant authorities are Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20 , Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23 ; (2006) 143 LGERA 277 and Walker v Minister for Planning [2007] NSWLEC 741; (2007) 157 LGERA 124 at first instance. Walker should be distinguished on the facts of this case where the concept approval and project approval have travelled together. They should stand or fall together under this ground. Alternatively, if the Respondents succeed in relation to the concept plan approval, the project approval can still be found to be uncertain under s 75J. The modifications in the project approval and concept plan approval repose in the DG a discretion to approve or reject any modified plans that Meriton might submit. The PAC has effectively delegated its own function of approval to the DG which is contrary to the Act, which proceeds on the basis that the major projects to which Pt 3A applies will be determined personally by the Minister.
Further, and significantly, by introducing these modifications the PAC has left open to Meriton a wide leeway of possible modifications, all of which might fall within the very broad spectrum of plans that purport to have been approved. The introduction of these modifications is contrary to the notions of finality discussed in Mison . The question ultimately is whether s 75J and s 75O authorise the conditions which leave to Meriton and the DG the wide measure of choice involved.
In submissions on the first day while accepting this was not essential in its case relying on the terms of the condition B1, the Council relied on the plans which were approved by the DG on 23 March 2011 to show the extent of changes which were approved. A number of these went beyond changes to heights of buildings and reduction of density, such as the change in an underground carpark from two levels to one with shape and footprint changed and most of the parking stacked and no disabled parking, reducing bicycle storage areas, and the reconfiguration of floor layouts in all buildings indicated with the introduction of studies instead of a bedroom in a number of units, inter alia.
Following the first NOM dated 14 June 2011 filed by Meriton after the hearing concerning the approval of further plans by the DG, the Council submitted that this new evidence did not advance Meriton's case. The s 75W application is irrelevant to the matters before the Court. Whether the PAC permits or refuses the modification application has no bearing on the issues in the proceedings. Notwithstanding the most recent applications for amended plans to be approved lodged by Meriton it has not retreated from its original position that the plans approved on 23 March 2011 were supported by the concept plan approval and the project approval. If the Court finds that the plans purportedly approved on 23 March 2011 demonstrate the very broad range of uncertain matters left to the DG for decision, Meriton should not be permitted to say that the amended plans were not supported by the concept and project approvals.
In relation to the second NOM filed by Meriton dated 29 July 2011 concerning the approval by the PAC of the s 75W modification application, the Council submitted this material is irrelevant to the issues to be determined by the Court. The s 75W determination is not evidence that the works the subject of the modification application did not arise from the concept or project approval. Meriton's position is that the applications originally made to the DG approved on 23 March 2011 were within the wide discretion afforded under the project and concept plan approvals granted by the PAC. Nor is the approval of the modification sought relevant to the exercise of the Court's discretion.
Minister's submissions
Section 75J provides the power to the Minister, here the PAC, to impose conditions on a project approval, and under s 75O modifications on a concept plan approval under Pt 3A of the EPA Act. The conditions, terms of approval and modifications were not uncertain or fell outside the power of the Minister under s 75J and s 75O.
The Minister submits that the following principles apply to the determination of this ground of challenge:
a. "... there is no common law principle that an exercise of statutory power must be certain or final in order to be valid." Ulan per Preston J at [49].
b. "... a condition will only be invalid, by lacking certainty or finality, if it falls outside the class of conditions which the statute expressly or impliedly permits." Ulan at [50]; Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 per Preston J at [50].
c. "Mere ambiguity or uncertainty of the meaning of words does not necessarily lead to invalidity. Courts try to avoid uncertainty by adopting a construction which gives statutory instruments and decisions practical effect." Ulan at [66].
d. "... the power to grant approval on conditions in s 75J of the Act, neither expressly nor impliedly requires, in order for a condition to be valid, that a condition set the parameters for adjustment of a project to achieve an outcome or an objective specified in the conditions. The power to impose conditions on an approval under Part 3A of the Act is not confined in the manner specified for conditions of development consent under Part 4 of the Act (see sections 80 and 80A of the Act). The power to grant approval under s 75J is expressly stated to be able to be exercised, first, "with such modifications of the project" and, secondly, "on such conditions", as the Minister may determine in both cases." Ulan at [74].
e. "The power to impose conditions on an approval under Part 3A is wide." Ulan at [74].
f. "Retention of practical flexibility, leaving matters of detail for later determination and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme." Ulan at [78].
g. "The scale of the projects subject to approval under Part 3A, which are often complex, extensive and multi-stage projects, make the retention of such flexibility appropriate and inevitable." Ulan at [80].
h. "Questions of degree are always involved in determining whether a condition is sufficiently uncertain so as to be outside power." Ulan at [77].
i. "... the finality principle does not apply to a concept plan approval under s 75O": Walker per Biscoe J at [185] (findings not disturbed on the appeal in Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423).
The modifications in Sch 2 Part B of the concept plan or condition B1 of the stage 1 project approval were not uncertain or outside the power to impose. In relation to height, a maximum number of three storeys except for buildings D, E, F, G (stage 1), K, L and M (stage 2) permitted four storeys so that there was no real doubt about what was required to meet the modifications and the condition imposed by the PAC. Height also relates to building articulation and appropriate street presentation. This is clear from the PAC's determination report and the language of modifications and the condition requiring that the fourth storey have a smaller footprint than the third level below to provide articulation to the building form. Density is precisely measured at 60 dwellings per hectare.
Any change had to comply with the Residential Flat Design Code, an assessment readily capable of achievement by a town planner. The requirement to have a minimum 50 per cent of developable area for deep soil is precise and measurable. The modifications and conditions are clear and precise in terms, are confined in scope and accord with the principles identified in relation to Pt 3A approvals.
The starting point is not Mison , as that case considered Pt 4 of the EPA Act. Ulan is the appropriate starting point and the Council does not adequately grapple with these principles. The Council contends that the location, height and form of the building envelope are critical to the development and at the heart of what needs to be approved, relying on Clarke JA in Mison . Part 4 principles should not be applied in Pt 3A as the scale of such projects are greater often complicated multi-stage projects which means that flexibility in conditions is important, see Ulan at [80]. The facts in Mison were quite different, concerning a single two-storey dwelling house and garage. Rivers SOS principles also apply. The conditions do not provide for separate processes anything like the case in Rivers SOS .
The plans approved by the DG are immaterial to this ground which must focus on the wording of the approvals. The Minister did not wish to make further submissions about the additional evidence relied on by Meriton in its NOMs dated 14 June 2011 and 29 July 2011.
Meriton's submissions
Mison is relied on by the Council as expressing the finality principle applicable to these Pt 3A approvals giving rise to the possibility of a significantly different development which is beyond power. In Kindimindi Basten JA noted at 285 - 286 that there are two categories within the principle that was applied in Mison . Firstly, that if a condition significantly alters the development the subject of the application then there is no grant of approval. Secondly, the terms of a condition of consent may lack certainty or finality in the process of environmental assessment necessary to be an "effective consent to the application". In GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647 ( Basten JA, Bell JA and Young CJ in Eq agreeing) at [44] - [49] identifies relevant principles in Mison , Transport Action Group , Kindimindi and Scott v Wollongong City Council (1992) 75 LGRA 112. Mere uncertainty does not give rise to invalidity. A degree of practical flexibility is likely to be necessary.
Approval can be given under s 75O for a concept plan. Biscoe J in Walker at [185] held that the finality principle does not apply to concept plan approvals granted under s 75O of the EPA Act as lack of finality is inherent in the notion of a concept plan. This finding should be applied as it is clearly correct.
In relation to the project approval, Pt 3A makes an important distinction between modifications of a proposal and conditions of approval. Section 75J(4) of the EPA Act provides that the Minister can approve a project with such modifications of the project or on such conditions as the Minister may determine.
Firstly, the matters complained of at par 18 of the Further Amended Points of Claim, that the conditions imposed by the PAC on the project and concept plan approvals requiring amended plans were either uncertain and/or amounted to a delegation to the DG which was beyond power, are not factually correct because the PAC imposed modifications not conditions. The heading of B1 is "Density and Height Modifications". The text of the clause states that the plans described referred to in the terms of approval shall be "modified" and that amended plans showing compliance with these modifications shall be submitted for approval.
S econdly, it is questionable whether the finality principle applies to modifications made under approvals granted under Pt 3A of the EPA Act (as opposed to conditions). Ulan and Rivers SOS considered conditions only.
Thirdly, the Mison principle has no application under Pt 3A being conceived in relation to the Pt 4 regime which is markedly different to the Pt 3A one. Under Pt 3A there is express power to modify a development approval. The reasoning of Biscoe J in Walker in relation to concept plan approvals should be more generally applied to Pt 3A modification approvals. Further, subsequent changes to Pt 4 s 80A mean that the principles in Mison have less work to do, as recognised in Warehouse Group (Aust) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376 at [89] per Hodgson JA.
Applying Mison as explained in Warehouse Group , the terms of the modifications imposed on the project approval give a final and certain development height for the yellow buildings shown in stages 1 and 2 on the drawing in annexure A of Meriton's written submissions. The remaining buildings are given "clear criteria" for their final design, being limited to four storeys, the fourth storey to have a lesser footprint than the third level, unit numbers are reduced to maintain a dwelling yield of no more than 60 dwellings per hectare and changes in the built form must comply with the Residential Flat Design Code and have a minimum of 50 per cent of the developable area as deep soil landscaping. The Council's submission that the modifications contemplate changes to the siting and form of the building envelope incorrectly suggests that is open permission to make substantial changes to the development. The Court would not construe the modifications to produce that result, per Ulan at [66] per Preston J.
There is sufficient finality under the project approval for the modifications to be given effect without any significant alteration to the approved development. There was no unlawful delegation to the DG in leaving to him the approval of amended plans ensuring these complied with the modifications imposed. The Council's case is based on the terms of condition B1 issued in January 2011 in any event and that cannot be judged based on what the DG approved in March 2011.
The additional evidence sought and allowed to be relied on referred to in the two NOMs filed after the hearing confirms that additional plans prepared and submitted to the DG by Meriton have been approved. This overcomes the objection the DG expressed in the letter dated 24 May 2011 that no approval of the earlier plans had been effected. The modifications in the plans approved by the PAC also confirm that these were not within the scope of the PAC's approvals. The grant of modification is also relevant to the exercise of the Court's discretion.
Consideration
"Project" is defined in s 75A for the purposes of Pt 3A as development that is declared under s 75B to be a project to which this Part applies. Section 75M(2) identifies what an application for a project plan is to contain. The project in this case is stage 1 of a two stage multi-unit residential development consisting of seven multi-storey buildings around the site, including childcare facilities. There is no definition of concept plan in Pt 3A and it is has an inherently broad meaning. The concept plan includes the stage 1 residential development also the subject of the project application, and stage 2 consisting of seven more multi-storey residential buildings identified in plans with numerous related facilities. There is no clear delineation in Pt 3A between what can be the subject of a concept plan and a project. In this case they overlap.
Project approval
In relation to project approvals, the Council submits and it appears to be accepted by the Minister that the requirement for certainty (also expressed as the principle requiring finality of an administrative decision) can apply in the context of Pt 3A. To what extent is disputed. Meriton submits that such a principle should not apply to modifications of project approvals under Pt 3A given the greater scale and complexity of such projects and given that approval with modification by the Minister is provided for in s 75J(4). The PAC's project approval refers to modification at condition B1 with the imposition of specified conditions.
The principle of finality in Mison was articulated by the Court of Appeal (Priestley J Clark JA and Meagher AJ concurring) in the context of Pt 4 of the EPA Act. As emphasised by the Respondents the development in question was a proposed two-storey dwelling where the consent conditions left the important matter of the height of the building to a council officer for determination. This condition was struck down by the Court of Appeal. The Respondents seek to distinguish the types of development under Pt 4 from those likely to be the subject of Pt 3A, and take Ulan as the starting point. They further submit Mison has no direct application to Pt 3A project approvals, it being a case concerned with Pt 4 of the EPA Act. They rely on Ulan and Rivers SOS as examples of where the principle of finality has been considered in the Pt 3A context for project approvals.
In Mison the Court of Appeal held that by leaving an important aspect of the development in question to the determination of a council officer offended the requirement for certainty (that is, the principle of finality) in such a consent and struck down the consent. Section 91 of the EPA Act then provided that development consent could be granted unconditionally or subject to consent conditions. Section 75J(4) is in somewhat different terms, providing that a project may be approved with modifications or on such conditions as the Minister determines.
The Council also relied on Transport Action Group in the Court of Appeal which concerned s 112(4)(b) which provided for modification of projects seeking approval under Pt 5 of the EPA Act. Projects under Pt 5 are likely to be large and complex, such as government funded infrastructure projects. At issue in Transport Action Group was whether the modification of a highway project under that section required a further environmental impact statement. Mason P (Sheller JA and Fitzgerald JA concurring) held that modification under s 112(4) required a level of identification and description of the project to qualify as a valid exercise of power. At [116] he did not consider that the principles in Mison automatically applied in relation to s 112(4) due to the different statutory content and context compared to s 91 (as it was then). Questions of degree are involved, including in the application of Mison in subsequent cases, as cited in Malcolm v Newcastle City Council (1991) 73 LGRA 356, Leichhardt Municipal Council v Minister Administering Environmental Planning and Assessment Act 1979 (1992) 77 LGRA 64 and Scott . At [123] - [124] Mason P referred to the definition of activity in s 112 as including the carrying out of work and the important difference between Pt 4 and Pt 5. In Pt 5 the decision to modify is not limited by the application lodged with the consent authority. As long as a change is not too radical so as to effect a significant change, it is acceptable. That Pt 5 of the EPA Act includes projects of considerable magnitude and complexity was also referred to by Mason P. It is not confined to a small building job constructed according to a simple plan so that unforeseen problems could be encountered. It is therefore impossible to define an original activity or modification with complete certainty and finality so that some flexibility in decision-making must be allowed.
The relevant findings in Ulan of Preston J concerning the requirement for certainty in relation to conditions imposed under Pt 3A are identified in the Minister's submissions above at par 45(a) - (h), all of which I accept should apply in this case. These include that there is no common law requirement for certainty to validate an exercise of statutory power at [49]. A condition is invalid by virtue of lack of certainty or finality if it falls outside the class of conditions which the statute permits, expressly or impliedly. The construction of the section in the context of the project is necessary, citing Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [50]. At issue in Ulan was whether the particular condition imposed as part of the approval of a coalmine project fell outside the power to impose conditions that s 75J permits. One challenge was that there was uncertainty in giving effect to the condition requiring adjustment of the scale of mining operations to match water supply. This argument was unsuccessful, Preston J holding that mere ambiguity or uncertainty in the meaning of words does not necessarily lead to invalidity, inter alia. His Honour referred to Transport Action Group at [77] to the effect that questions of degree are always involved in determining whether a condition is sufficiently uncertain as to be outside power. The importance of the retention of practical flexibility, leaving matters of detail for later determination and delegation of supervision of some stage or aspect may be desirable, citing at [78] Scott, Transport Action Group, Kindimindi and Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248. Another challenge was that the project approved might be significantly different to that for which approval was sought. Factually this was held not to be demonstrated at [85] - [87]. Legally the challenge that a significantly different project could result required a finding that the condition in question was outside the power conferred in s 75J(4) of the Act. That section allowed modifications of the project as the Minister determined. The condition was found to be a modification of the project within the power conferred in s 75J(4).
In Rivers SOS , a judicial review challenge to the approval of a long wall coalmine project under Pt 3A, one of the challenges to the conditions imposed by the Minister was that these lacked finality. Preston J applied similar reasoning to that in Ulan at [133] - [135] in determining whether the condition was outside power and whether it was a significantly different project from that applied for. The Council relied on this statement as reflective of the language in Mison .
Kindimindi was a judicial review challenge to the approval of a Pt 4 development application for a large shopping centre on the basis that the consent was uncertain applying the principles in Mison , inter alia. As identified in Meriton's submissions, Basten JA at [24] identified two categories of overlapping circumstances where there may be no lawful consent, the first being where a condition has the effect of significantly altering the development in respect of the development application and the second being where consent is granted in terms which are uncertain.
The question is whether the conditions imposed by the PAC in relation to the modified project approval fell outside the statutory framework in Pt 3A because of their uncertain effect in leaving too much discretion to the DG to approve modified plans presented by Meriton in light of s 75J(4). The Council submitted that there is no relevant difference between the terms "modification" and "condition" in s 75J(4), Meriton submitted to the contrary. Given that the modification has been imposed by a condition I do not consider there is any relevant distinction between the two under s 75J(4) for the purposes of this matter. It is clear that the PAC has modified the project for which consent was sought and that is enabled by s 75J(4).
That s 75J(4) provides for the modification of projects by the Minister suggests the argument based on Mison that a consent is impermissibly granted for a significantly different development (the first category identified by Basten JA in Kindimindi ) faces a far greater hurdle to succeed. That is not the argument made by the Council here however which is that the terms of condition B1 modify the project application in a way which the Council argues is uncertain as a result (the second category identified by Basten JA in Kindimindi ).
The Council is correct that the DG's report is a mandatory relevant consideration for the Minister (here PAC) (as set out in s 75J(2)(a)), but it cannot follow that each of the 18 DGEAR is a mandatory relevant consideration. They are merely relevant considerations which cannot be elevated to mandatory status. Such a submission, with respect, ignores the way in which Pt 3A was intended to operate and in particular, the purpose of s 75J(2) as construed in Drake-Brockman .
Ultimately, this ground involves an invitation to the Court to assess the weight given by the Minister, by his delegate the PAC, to the LEP. Such a review is not permitted. The Court should reject this ground of challenge. In any event the density controls in the LEP were considered in section 4.3 and appendices 5 and 6 of the DG's report and section 6.1 of the EA.
In relation to isolated sites, the Council must make good that this was a mandatory relevant consideration and that the error was so material that the Court's intervention is warranted (for example Walker per Biscoe J at [31]; Parramatta City Council v Hale (1982) 47 LGRA 319 at 335 per Street CJ and Kindimindi at [66] per Basten JA (with whom Handley JA and Hunt AJA agreed)). The Council has made good neither factual proposition.
Meriton's submissions
The PAC must consider all relevant matters required by the EPA Act and must disregard those forbidden by the Act. There may be a range of other considerations that may be taken into account by the PAC at its own discretion: the Court of Appeal in Walker (CA) and Peko-Wallsend at 41. In relation to concept plan approvals s 75O(2) states what must be considered and for project approvals s 75J(2) so states. These matters are not mandatory in relation to an approval. Under s 75X(5) the only matter identified as a mandatory requirement is a requirement that an EA is made publicly available under s 75H.
Provisions of the LEP
Non-compliance with s 75O or s 75J is not alleged. Rather the Council alleges a failure by the PAC to consider the density specified for the site under the LEP as required by the DGEAR 1 and 4. The LEP density controls are not a mandatory matter to consider under Pt 3A as identified in s 75O(3) and s 75J(3). The ground is further pursued on the basis that Meriton's EA did not satisfy the DGEAR on this topic and the conclusion that the DGEAR were complied with is not reviewable.
In any event, as a matter of fact the Minister through the PAC expressly considered the density controls in the LEP when the concept plan approval and the project approval were given. These were drawn to the attention of the PAC on numerous occasions including in Meriton's submissions to the PAC.
The Council cites Kennedy at [68] in support but Kennedy does not stand for the proposition for which it is cited, namely that the Minister's power under s 75J(2) is conditioned on his or her consideration of the DG's report. His Honour's finding that the statement relating to compliance is a jurisdictional fact should not be read as intending to mean that the Court can review its correctness. To interpret it otherwise will also place it in conflict with Drake-Brockman which reasoning should be applied. Jagot J in that case held that Pt 3A and s 75I(2)(g) does not require that there be certification of compliance with the DGEAR at [93].
Whether the EA was sufficient to address the DGEAR is a matter for the DG to consider and the Council's submissions about inadequacy are not relevant. There was in any event justification for greater density to be imposed identified in Meriton's EA.
The LEP is not a starting point from which Meriton had to justify departure to the Minister and nor is the Court to consider itself that departure is justified. There is no requirement that the Minister consider these controls so that it cannot be correct that the Court can consider them to see if there has been compliance. Meriton's entire EA was directed to demonstrating to the PAC that the environmental constraints of the site were not sufficient to justify the low residential density supported by the Council's controls. The EA referred specifically to density and explains why consent for approximately 600 dwellings is sought taking into account various considerations relevant to the site. The draft North East Subregional Strategy is referred to, the existence of public transport and the Council's controls are specifically referred to. Clause 30B of the LEP is referred to which includes the objective of identifying land within the Warriewood Valley urban release area suitable for urban development to be provided with adequate physical and social infrastructure in accordance with the planning strategy for the area and Meriton seeks to do that in the EA.
Further the PAC was well aware of the planning history of the Warriewood Valley, that the Council had granted approval for 140 lots involving 135 2-storey townhouse developments on the site, the Worley Parsons report demonstrated that the land could sustain a significantly higher density than was provided for under the LEP and the physical layout of the site and placement in the surrounds. The approvals granted clearly took into account the existing controls as the project and concept plan were modified to reduce the density to medium density on the site with some four-storey buildings to the centre of the site as the natural ground level sloped down.
Isolated sites
In relation to isolated sites, there was material included in the DG's report on this topic. The DG executed a statement of compliance under s 75I(2)(g) and that is an answer to the matter pleaded. Meriton's EA addressed the topic advising that Meriton had contacted the owners of 5 and 7 Macpherson Street to see if they wished to be involved. The correspondence was attached to the EA and a concept plan addressing the development potential of these sites was included. Even if Meriton concedes that more might have been done to negotiate with one owner, as one was clearly not interested there was no utility in pursuing amalgamation where at least one party was not interested. Nothing more was required to be done in the circumstances.
The Council submits that the DGEAR imposed an obligation to provide a detailed account of bona fide negotiations with adjacent property owners and the material provided was not sufficient to discharge that obligation so that the PAC did not consider the matter at all. No such obligation was imposed. The DGEAR specified that the project must seek to amalgamate adjacent properties into the development site and address their development potential if not included. Meriton was to negotiate with owners of affected properties. The Council acknowledges that one owner did not wish to amalgamate but in fact neither owner wished to do so. In any event there was no obligation on Meriton to commence active negotiation in order to acquire the adjoining lands. The letters sent indicate a sufficient refusal by neighbouring landowners to amalgamate to conclude that the Meriton had sought to amalgamate but this was not possible. Meriton then demonstrated that the development potential would not be affected by providing drawings showing the connection of internal roads from the project to these sites.
Consideration
The Council focusses on three requirements of the DGEAR (1, 4 and 5) which it submits were mandatory relevant considerations not adequately considered in the DG's report and therefore not considered (or not properly considered) by the PAC in its determination. The Council bears the onus of establishing this ground of challenge. The Respondents submit that individual requirements in the DGEAR cannot amount to mandatory relevant considerations, adopting the reasoning of the Court of Appeal in Walker (CA), and in any event the PAC considered these matters when it determined the approvals before it . Further the Minister submits that the relevant focus under this ground is the PAC's determination as a whole, not restricted to the consideration of the DG's report only. This latter submission is significant in light of the facts in this case and is the appropriate basis for consideration of this ground. Consequently, it will not be necessary to determine every issue raised by the Council's submissions which focussed on the DG's report.
The identification of principles applicable to the ground of failure to take into account a mandatory relevant consideration generally commence with Peko-Wallsend , referred to by all parties. Peko-Wallsend states that whether a matter is a mandatory relevant consideration is determined by reference to the subject matter, scope and purpose of the particular statute and can be express or implied. There has been much judicial consideration of this ground, as identified in the Minister's submissions (written submissions at par 77) which correctly identify that it is to be borne in mind that "epithets such as 'proper, genuine and realistic' consideration... risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review": Walker (CA) per Hodgson JA (Campbell and Bell JJA agreeing) at [35]; Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [51] per Basten JA (Santow and Ipp JJA agreeing); Kindimindi at 297 at [79] per Basten JA (Handley JA and Hunt AJA agreeing); Belmorgan Property Development Pty Limited v GPT RE Ltd [2007] NSWCA 171; (2007) 153 LGERA 450 at [76] per Basten JA (Beazley JA agreeing); Notaras v Waverley Council [2007] NSWCA 33; (2007) 161 LGERA 230 at [118] - [120] per Tobias JA (Mason P and Hodgson JA agreeing); and Bruce v Cole at 186E per Spigelman CJ (Sheller and Powell JJA agreeing). A s cited by Biscoe J in Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2 ) [2011] NSWLEC 83 at [100], t he High Court has more recently applied again the phrasing of "proper, genuine and realistic consideration" in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 273 ALR 122. However, at [30] their Honours quoted Basten JA's (Allsop P agreeing) caution in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] that taken out of context this description could "encourage a slide into impermissible merits review".
The PAC had before it the DG's report which the Council criticises as inadequate in certain respects, which resulted, it submitted, in the PAC failing to properly consider certain matters. The Council is not seeking an order to have the DG's report declared invalid but argues its alleged inadequacies on certain matters impact on the PAC's determination, amounting to a failure by the PAC to consider mandatory relevant matters. As the Minister submitted at par 123 above there was also a great deal of other material before the PAC which is relevant to the failure to consider ground. The PAC's decision is being challenged. It is the failure at that level of decision-making which must be considered in relation to this ground of challenge. In other words, even assuming inadequacy in the DG's report and the statement relating to compliance, if the issues identified in the DGEAR are otherwise considered by the PAC there can be no successful challenge on this ground.
The Council's submissions focus on the content of the DG's report which is required by s 75I(1) to be given to the Minister or his or her delegate for consideration of a project application. In this case this applies in relation to the concept plan also by virtue of s 75N. The Respondents submit that is not the only source of material before the PAC. The content required in the DG's report is identified in s 75I(2). Subsection (e) states that the report is to include a copy of or reference to the provision of any environmental planning instrument that would substantially govern the carrying out of the project and that has been taken into consideration in the EA of the project under Div 2. Subsection (f) refers to any EA undertaken by the DG. Section 75I(2)(g) specifies that a statement relating to compliance is to be included. As outlined above in par 108 - 109 there is reference in the DG's report to the LEP and the neighbouring (isolated) sites issue. The Council's criticism is that the references are inadequate in addressing the DGEAR 1, 4 and 5.
In Drake-Brockman each of the subsections in s 75I(2) was considered and Jagot J observed that several documents were not material which the DG would produce. This, inter alia, supported her Honour's conclusion at [94] that subsection (g) did not require the DG to prepare a statement relating to compliance with the DGEAR. At [95] her Honour stated that s 75I(2)(g) did not impose any obligation on the DG to form an opinion about the matter in the subsection. Her Honour also concluded that the statement relating to compliance could be represented by a report (document) or series of documents and there was no need to have a specific single statement relating to compliance in order to satisfy s 75I(2)(g). Her Honour's reasoning was directed to the argument in that case that there was an absence of a mandatory requirement in the DG's report because there was no sentence purporting to be a statement relating to compliance, the technical nature of that argument was recognised and rejected at [105]. In this case the statement relating to compliance is expressed to be that of the Department. I do not need to ultimately consider how or whether to apply Jagot J's findings because of the appropriate approach to the facts in this case.
Nor is it strictly necessary that I resolve the issue of whether every particular specified in the DGEAR is a mandatory relevant consideration which must be considered in the DG's report and also by the Minister or his or her delegate because of my finding below considering the PAC's determination process as a whole. I agree with the Council's submission at par 116 above that the DG's report is an important part of the environmental assessment regime under Pt 3A. The level of particularity at which a mandatory matter arises depends on the construction of the relevant statute, recognised by Preston J in Walsh at [60] citing Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at [23]. In Walker (CA) Hodgson JA (Campbell and Bell JJA concurring) referred to Notaras , Kindimindi and Walsh in holding that there was a requirement on the Minister in making a decision under Pt 3A to consider the public interest, which operated at a high level of generality. Such a conclusion did not mean that the public interest included all aspects of ecologically sustainable development as mandatory at [45]. The Minister relied on that case to submit that while the preparation of the DG's report is compulsory, not every matter referred to in the DGEAR is a mandatory relevant consideration.
The statutory framework in this case concerns a project and a concept plan considered under Pt 3A. These are generally large and complex developments. Part 3A provides a comprehensive statutory environmental assessment process. Sections 75F(2) - (3) require the DG to provide the DGEAR for a project to a proponent. In preparing these the DG is to consult with public authorities and have regard to the need for the DGEAR to address issues raised by these authorities. Section 75H(1) requires a proponent to submit an EA and if the DG does not consider it adequately addresses the DGEAR, the DG can require the proponent to address the matters notified to the proponent. The EA is publicly exhibited after acceptance by the DG (s 75H(3)). The DG's report must include under s 75I(2) a copy of the proponent's environmental assessment, any environmental assessment undertaken by the DG and a statement relating to compliance with the environmental assessment requirements under the Division (which requirements I infer include the DGEARs). My preliminary view is that given the significance of the DGEAR in the Pt 3A environmental assessment framework the particulars specified are individually to be considered mandatory relevant matters for the Minister and his or her delegate. This preliminary finding is necessarily subject to specific statutory provisions which identify that certain matters are not mandatory, a relevant issue in relation to the DGEAR 1 and 4.
(i) Failure to consider the LEP/failure to demonstrate consistency (DGEAR 1, 4)
The Council's argument that there was a failure by the PAC to consider mandatory relevant matters because of inadequate consideration of the DGEAR 1 and 4 in the DG's report is problematic because of the other provisions of Pt 3A and the facts of the case, as highlighted in the Respondents' submissions. The DGEAR 1 and 4 require identification and demonstration of compliance with the LEP density and height of buildings provisions . The Minister and Meriton rely on s 75J(3) and s 75O(3) which specify that environmental planning instruments may be considered by the Minister but do not need to be when determining whether to approve a particular project or concept plan. Part 3A specifically provides that the provisions of an LEP are not mandatory relevant considerations for a determination under Pt 3A. Section 75J and s 75O make optional the consideration of environmental planning instruments which would otherwise apply under Pt 4 when granting development consent.
The Council's submission that the DG's report did not comply with s 75I(2) so that the identification of limits in and addressing compliance with the LEP in relation to density limitations were not before the PAC has to be assessed in light of that statutory framework. I agree with the Respondents that the consideration of an environmental planning instrument cannot be a mandatory relevant consideration for the Minister or his delegate in light of the explicit provisions in s 75J and s 75O. Therefore the failure said to arise in the DG's report that must be considered by the PAC under s 75I(1) cannot result in there being a failure in the PAC's determination to consider the matters specified in the DGEAR 1 and 4.
Further, assuming there was a failure in the DG's report to adequately consider the DGEAR 1 and 4, the circumstances of the PAC's determination must be considered as a whole. The assessment process leading up to it and the PAC's determination make clear that the PAC was aware of the LEP density controls and that the proposed project did not comply with these. Indeed that matter was obvious and is stated in the first sentence of section 4 of the PAC's determination. This states that the Council's planning framework provides for a density of 25 dwellings per hectare and that the PAC was considering a proposal for a density of 75 dwellings per hectare. The LEP and DCP 21 were referred to in numerous reports before the PAC including Meriton's EA, the Worley Parsons report and the DG's report. The Respondents' submissions (the Minister's at par 120 and Meriton's at par 129 above) to that effect are accepted. Further, as Meriton submitted at par 132, its EA was directed to demonstrating to the PAC that the environmental constraints of the site did not prevent a higher density than the Council's controls provided for. Further, the PAC met with the Council as part of the determination process and expressly considered the increased density proposed (section 5.1 of the determination). In these circumstances any failure, assuming there is one, in any of the intermediate steps taken by the DG in relation to the DG's report is overcome when the PAC's determination process is considered as a whole. There was no failure by the PAC to consider, within the principles identified in par 137 above, the matters raised by the DGEAR 1 and 4 in the determination to approve the project and concept plan.
(ii) Isolated sites
In relation to the issue of isolated sites referred to in the DGEAR 5 there is no specific reference to this issue in the PAC's determination. There is no requirement that the PAC refer to this (or any matter) in any determination it may choose to issue as it is not required to give reasons for a determination under Pt 3A in granting approval under s 75J or s 75O. Section 75I(1) requires that the Minister, here the PAC, consider the DG's report when considering whether to grant approval. The Council submits the consideration of this topic in the DG's report is legally inadequate and that fatally affects the PAC's determination by omitting to consider a mandatory relevant matter. Once again all the material before the PAC should be considered as it is in the PAC's determination process as a whole which any failure to consider must be established by the Council. As submitted by the Minister and Meriton (at par 134 above) the correspondence with the two neighbouring owners in Macpherson Street concerning amalgamation was attached to Meriton's EA together with a concept plan showing development potential for those sites in relation to Meriton's proposed development. In the DG's report this topic is identified on the basis that a design plan showing development potential for the neighbouring site are identified. All of this material was before the PAC and it was therefore a matter about which the PAC could properly inform itself.
The particular criticism made by the Council is that there was no evidence of genuine attempts by Meriton to amalgamate its site with those of its neighbours. The material in Meriton's EA addresses that topic by including its correspondence with the neighbours. These circumstances mean that this ground cannot be sustained on a factual basis and it is not necessary to deal with the Council's submission that the Court can consider whether the statement relating to compliance in the DG's report was made on a false premise. The Council is unsuccessful on this ground of challenge.
Ground of challenge - PAC's approvals were unreasonable
Council's submissions
The PAC's determination to approve the concept plan and project were unreasonable, meaning illogical, in the Wednesbury sense. The Council accepts that it has to meet a high hurdle in order to establish this ground. The Further Amended Points of Claim identifies four bases for this ground: that the approvals were based on a density that substantially exceeds the LEP, the height and density approved is at the outer limit of or exceeds what might be justifiable under the Metro Strategy, the decision was made in the absence of adequate strategic studies ordinarily required, and the approvals require the preparation of amended plans which effect a lesser density which require elaborate design changes.
Firstly, the PAC took its lead from the Metro Strategy. That document is incapable of supporting this particular approval and was never intended to be used to determine individual development applications, as opposed to informing the drafting of subregional and local environmental planning instruments. Secondly, even if the Metro Strategy was able to be applied for the site, it does not support the approval of medium rise development at the outer limit of medium density in the Metro Strategy. It supports at most low rise density between 25 and 60 buildings per hectare of four storey buildings at 60 buildings per hectare. Thirdly, the foregoing emphasises the absence of strategic studies ordinarily required before approvals would be given to a site-specific development.
The PAC's determination should be read as a whole. This identifies the need for a strategic study of the Warriewood Valley. The defect in the Worley Parson's report was that it focussed on the three buffer zones around the STP. Nevertheless the PAC decides to make the decision without a comprehensive strategic study and "takes its lead" from the Metro Strategy (first step of illogicality). The Strategy guides the PAC's conclusions regarding the appropriate development density and height at the site. The only reference to 60 dwellings per hectare is in this context. The next step of illogicality is that the Metro Strategy identified low to medium rise as less than three storeys and medium density as between 25 and 60 dwellings per hectare. Four out of seven buildings are more than three storeys. The PAC does not approve development of the site within the range of the Metro Strategy. The high hurdle is overcome in these circumstances.
Minister's submissions
Wednesbury unreasonableness rather than irrationality or illogicality is relied on, distinguished in Aronson, Dyer and Groves at p 265 - 273, 294 and p 296. There may be no relevant difference between the two see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131] (Crennan and Bell JJ).
The stringency of the Wednesbury standard is well known. The decision must amount to "an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course": Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36 - 37; Notaras at [122] per Tobias JA; Save Our Streets Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30 at [31] per Biscoe J. The question is whether based on the material before the decision-maker the decision was so unreasonable that no reasonable decision-maker could have come to that decision; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707.
That the project and concept plan result in greater density than the LEP is accepted. That the exceedances are substantial or at the outer limit of what is justified under the Metro Strategy is irrelevant. The PAC had various documents before it which justified the exceedences in density, the Worley Parsons report, the Halcrow traffic report, the Metro Strategy and the draft North East Subregional Strategy.
The Warriewood Valley Planning Framework 2010 which is referred to in the PAC's determination report provides for greater density (25 dwellings per hectare) than that provided for in the LEP (17 to 18 dwellings per hectare). This confirms that the current planning controls are below that considered suitable for buffer area 3.
All the documents speak for themselves and are not suggested to be inadequate. While the PAC's determination report referred to the need for "more thorough and extended strategic study of the Warriewood Valley" that must be understood in context. The PAC concluded that the density proposed in relation to the project and concept plan was not justified contrary to the Worley Parsons and departmental reports. The PAC conditioned or modified the approvals to reduce the density. The PAC went on to say that if further increases in densities on other land in the Warriewood Valley are to be justified, additional studies will be required. However, further studies were unnecessary for the determination of the subject applications. The PAC was satisfied based on the Worley Parsons report and the Halcrow traffic report that higher density was justified on merit grounds, that is, based on existing documentation and information.
Whether the approvals allow the preparation of amended plans requiring elaborate design changes as the Council submits is unclear.
Meriton's submissions
The Council bases its allegation of unreasonableness on four specific allegations in the Further Amended Points of Claim. Firstly, in relation to density exceeding the LEP, local controls do not need to be taken into account in granting a concept or project approval. The lawful exercise of power can always allow for an approval in excess, including substantial excess, of a local control. This is specifically contemplated by, if not endorsed under, the EPA Act; see Marrickville Metro at [208] per Basten JA.
Secondly, that the approvals are based on height and density that is at the outer limit of or exceeds what might be justifiable based on the Metro Strategy is an outcome within the range of potential outcomes. This cannot be irrational.
Thirdly, the approvals were granted "in the absence of adequate strategic studies which would ordinarily be required". This requires by implication that the PAC should have had more information before it and should have conducted more investigations. That is not an indicator of unreasonableness per King v Great Lakes Shire Council (1986) 58 LGRA 366 at 371. It seeks to add additional words into the statutory scheme under s 75O(3) and s 75J(3) in order that some unspecified additional information was required before a decision could be made. The PAC did have multiple reports before it concerning the strategic direction for the Warriewood Valley. The need for another strategic review was not framed by the PAC as a precondition to its ability to determine the application on its merits. The Council cannot make it a precondition.
Fourthly, the approvals required the preparation of amended plans to effect a lesser density "which will require elaborate design changes". The modifications allowed were a proper exercise of a statutory power and cannot represent irrationality of the required standard per Marrickville Metro . The amended plans do not show elaborate design changes in any event.
Consideration
The principles which apply to the consideration of whether a decision is unreasonable in the Wednesbury sense are not in dispute. The Council accepts that the hurdle it must overcome to succeed is high. In Notaras Tobias JA (Mason P and Hodgson JA concurring) identified relevant formulations at [121] - [125] approving the summary of these in King v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362 at [63] distinguishing justifiable opinion from sound opinion, to the effect that a court is not to judge whether the opinion is sound. His Honour also referred to Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 at [129] where Spigelman CJ (Beazley and Tobias JJA concurring) stated "Perhaps the most appropriate formulation is whether the decision is 'illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds'" citing Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [52], [37] and [173] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [38]. A further case considered by Tobias JA was Settree at [29], [31] - [32] where Biscoe J distinguished between a decision the court considers is unreasonable and one the court considers is so unreasonable that no reasonable body could come to it, the latter requiring something overwhelming, citing Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 627 per Gleeson CJ and McHugh J.
Most recently in Marrickville Metro the Court of Appeal (Tobias JA, Basten JA and Handley AJA concurring) again summarised the authorities at [104] - [107] referring to Murrumbidgee Groundwater and Notaras inter alia, and at [108] - [109] on the need to proceed with caution to avoid exceeding a court's supervisory role by engaging in merits review, identified in Puhlhofer v Hillingdon London Borough Council [1986] 1 AC 484 at 518, cited in Eshetu at [41], and by Mason J in Peko- Wallsend at 42 .
Further cases referred to in submissions included the reference by the Council to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [16] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stating (Heydon J to similar effect) the question as:
was there deficiency in process which was so linked to the decision reached as to make it manifestly unreasonable?
The Minister relied on Belmorgan at [76] - [78] where Basten JA said at [78]:
That is not to say that to give grossly inadequate weight to a matter of some importance may not provide a basis for review; however, to qualify as a ground of judicial review, such conduct must satisfy the test of manifest unreasonableness as applied to the exercise of the power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985-86) 162 CLR 24 at 41 (Mason J). It is not helpfully reflected in a supposed obligation to give "realistic" consideration to a particular matter.
That the PAC is a specialist planning body exercising statutory responsibilities is relevant to the consideration of whether a particular decision is unreasonable in the legal sense for such a body.
As noted above there is some overlap with the consideration of the no evidence ground as the unreasonableness is said to arise from the reliance of the PAC on the Metro Strategy in arriving at the density of 60 dwellings per hectare because the Metro Strategy is not intended as a policy instrument to be applied to site specific assessment of individual sites. It is a broad level strategic planning document.
When deciding whether to approve the carrying out of a project, s 75J(2) requires the Minister to consider the DG's report. Subsections (b) and (c) do not apply here. Section 75J(3) does not require compliance with any environmental planning instruments. The discretion to approve projects and concept plans under Pt 3A is largely unconstrained in terms of any specific provisions. Good planning practice suggests, and the PAC recognised, that a strategic review of the density requirements in Warriewood Valley is necessary but that does not render the PAC's decision to approve the concept plan and the project unreasonable in the legal sense. As identified in relation to the no evidence ground, the PAC was not bound by the Council's planning framework documents such as the LEP, DCP 21 and the Warriewood Valley Planning Framework 2010. It rejected the higher densities in the Worley Parsons report relied on by the Department. The lack of adequate strategic planning documents available to guide it is recognised by the PAC which recommends that such studies be carried out. It proceeded to grant approvals as it did not consider it was constrained from determining the application before it. There was no constraint in Pt 3A preventing the PAC determining the applications before it in these circumstances.
Considering the specific grounds raised by the Council, in the circumstances outlined above reliance on the Metro Strategy for the development of site specific controls was not unreasonable for the reasons I have given in relation to the no evidence ground. Secondly, the PAC did not rely exclusively on the Metro Strategy in reaching its conclusion on appropriate height and density. Given the evidence before it which supported a greater density on the site of 75 dwellings per hectare it was not therefore unreasonable in applying the outer limit of medium density development described in the Metro Strategy. Nor was it required to wait for the strategic study it identified as necessary for the Warriewood Valley and Meriton's submissions at par 159 are accepted on this part of the Council's case. As I have found that the Council did not succeed on the first ground of challenge relating to uncertainty in relation to the modified plans to be approved by the DG, the submission that elaborate design changes were envisaged is not established and cannot support this ground of challenge.
As identified in Marrickville Metro by Basten JA at [208], referring to the need for a court to avoid exceeding its powers, a claim of irrationality is usually a claim that there was a legally erroneous step. Where the power has been exercised for a proper purpose, no mandatory considerations have been ignored nor impermissible considerations taken into account, the challenge will be hard to make good. To borrow from Biscoe J in Settree at [32], the question is not whether the Court disagrees with the decision or regards it as unreasonable. If the decision is one that a reasonable decision-maker could have made it is not unreasonable in the Wednesbury sense as Parliament has conferred on the Minister through his delegate the PAC the responsibility to decide whether development consent ought be granted in the Pt 3A context. Alternatively, to borrow from SZIAI , there was no deficiency in process in arriving at the determination to render it manifestly unreasonable. The Council fails on this ground also.
The Council's Further Amended Summons should be dismissed.
Orders
The Court makes the following orders:
1. The Further Amended Summons filed on 24 May 2011 is dismissed.
2. Costs reserved.
Decision last updated: 14 September 2011
14
34
6