Pongrass Group Operations Pty Ltd v Minister for Planning
[2007] NSWLEC 638
•4 October 2007
Land and Environment Court
of New South Wales
CITATION: Pongrass Group Operations Pty Limited v Minister for Planning & Anor [2007] NSWLEC 638 PARTIES: APPLICANT
Pongrass Group Operations Pty LimitedFIRST RESPONDENT
SECOND RESPONDENT
Minister for Planning
Marrickville CouncilFILE NUMBER(S): 40450 of 2007 CORAM: Jagot J KEY ISSUES: Judicial Review :- amendment to local environmental plan - whether Minister functus officio - whether amendment made in breach of public exhibition requirements - failure to exhibit Ministerial direction - whether Ministerial direction applied - application dismissed LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Marrickville Local Environmental Plan 2001CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;
Currey v Sutherland Shire Council (2003) 129 LGERA 223;
Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350;
Ex parte Renouf (1924) 24 SR (NSW) 463;
Falkiner v Director-General of Planning NSW (2002) 125 LGERA 138;
Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173;
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597;
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193;
Ricegrowers Co-operative Mills Ltd v Bannerman [1981] 56 FLR 443;
Richmond v Urban Affairs and Planning [2000] NSWLEC 23;
Semunigus v Minister for Immigration & Multicultural Affairs [1999] FCA 422;
Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533;
Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740;
Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18;
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429;
Smith v Wyong Shire Council (2003) 132 LGERA 148;
Townsend v Evans Shire Council (2000) 109 LGERA 336;
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78DATES OF HEARING: 25/9/2007
DATE OF JUDGMENT:
4 October 2007LEGAL REPRESENTATIVES: APPLICANT
Mr Mark Speakman SC with Dr S Berveling
SOLICITORS
C G Gillis & CoFIRST RESPONDENT
SECOND RESPONDENT
Mr N Williams SC with Ms A Mitchelmore
SOLICITORS
Department of Planning
Mr Michael S Henry
SOLICITORS
Marrickville Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
4 October 2007
40450 of 2007
PONGRASS GROUP OPERATIONS PTY LIMITED
ApplicantMINISTER FOR PLANNING
First RespondentJUDGMENTMARRICKVILLE COUNCIL
Second Respondent
Jagot J:
A. Introduction
1 By Class 4 application filed on 15 May 2007 Pongrass Group Operations Pty Limited (Pongrass) sought a declaration that Amendment No 30 to the Marrickville Local Environmental Plan 2001 (the LEP) was invalid. Amendment No 30 to the LEP was published in the Gazette on 23 February 2007. It amended the definition of bulky goods salesroom or showroom in the LEP and permitted with consent development for that and other nominated purposes on land at 500 Princes Highway, St Peters.
2 Pongrass claimed that Amendment No 30 was invalid on two grounds as follows:
(2) When draft Amendment No 30 was publicly exhibited between 3 February and 4 March 2005, the Council had delegation from the Director-General to prepare a report under s 69 of the EPA Act with respect to the amendment. Ministerial direction G22, made under s 117 of the EPA Act, applied at that time in accordance with s 66(b)(ii) and (iii) and thus had to be, but was not, publicly exhibited with draft Amendment No 30.(1) The Minister decided not to proceed with draft Amendment No 30 on or about 30 July 2006 in accordance with s 70(1)(c) of the Environmental Planning and Assessment Act 1979 (the EPA Act). Having so decided, the Minister had no power thereafter to decide to make Amendment No 30 in accordance with s 70(1)(a) of the EPA Act.
B. Facts
3 The facts may be recorded briefly.
4 In late 2004, the owners of 500 Princes Highway, St Peters requested that the Council rezone their land. A “rezoning submission” prepared by a planning consultant accompanied their request. The Council considered this request on 7 December 2004 and resolved under s 54 of the EPA Act to prepare a draft local environmental plan to allow bulky goods salesrooms or showrooms and other specified retail uses on the land and amend the definition of bulky goods salesrooms or showrooms to exclude sale of clothing and foodstuffs. The Council notified the Director-General of its resolution on 16 December 2004 and, in so doing, said the Council would be using its delegations from the Director-General under ss 65 and 69 of the EPA Act. Under s 65 a certificate must be issued by the Director-General to permit a draft local environmental plan to be placed on public exhibition. Under s 69 the Director-General must prepare a report to the Minister before the Minister may decide what action to take in respect of a draft local environmental plan.
5 On 27 January 2005 the Council’s General Manager exercised the delegation from the Directory-General and issued the certificate under s 65 authorising the public exhibition of draft Amendment No 30. The Council exhibited draft Amendment No 30 between 3 February and 4 March 2005. Direction G22 was not placed on exhibition.
6 Direction G22 was made by the Minister for Planning on 17 February 1986 under s 71 and s 117(2) of the EPA Act.
7 Section 71 enables the Minister to determine the “format, structure and subject-matter of a local environmental plan or draft local environmental plan”.
8 Section 117 enables the Minister, first, to direct a council to exercise its functions with respect to a draft local environmental plan in accordance with principles, not inconsistent with the EPA Act, as are specified in the direction and, secondly, to include in a draft local environmental plan provisions which will achieve or give effect to such principles or such aims, objectives or policies, not inconsistent with the Act, as are specified in the direction.
9 Direction G22 is headed as follows:
Environmental Planning and Assessment Act 1979
Determination and Direction under section 71 and 117(2) (for plans made using S.69 Delegation to Council officers)
10 The words “(for plans made using S.69 Delegation to Council officers)” appear on the direction in handwriting. The applicant conceded that direction G22 operates as if qualified by the words in the brackets. The “determination and direction” set out in the schedule to direction G22 is in the following terms:
2 A plan to which this determination and direction applies shall either –1 This determination and direction applies to any draft local environmental plan or local environmental plan which amends another environmental planning instrument in order to allow a particular development proposal to be carried out.
(a) allow development for the general purpose of the proposal to be carried out throughout the zone within which the land is situated;
(c) allow development for the general purpose of the proposal on the particular land without imposing any development standards or requirements in addition to those already contained in the environmental planning instrument being amended.(b) rezone the particular land to another zone already existing in a local environmental plan or deemed environmental planning instrument applying in the local government area without imposing any additional development standards or requirements to those that already apply in that zone; or
3 A plan to which this determination and direction applies shall not refer to drawings which show details of the development proposal.
4 The determination made by me on the 17 January 1983 shall not apply to a plan to which this determination and direction applies.
11 The Department considered draft Amendment No 30 inconsistent with direction G22. The Department notified the Council to that effect on 8 March 2005 and, in consequence, required the draft plan to be referred to the Department under s 69 of the EPA Act. The Council queried this requirement on the basis that the delegation under s 69 from the Director-General to the Council was not excluded by reason of inconsistency with a direction under s 117. The Department informed the Council on 18 April 2005 that it should treat the Department’s letter of 8 March 2005 as a revocation of the “assumed delegation” of the Director-General’s functions under s 69. This is a reference to the delegations to nominated councils from the Director-General in accordance with s 23 of the EPA Act that took effect on 3 March 1997. Under s 23, functions may be exercised in accordance with a delegation while the delegation remains unrevoked and the Director-General may continue to exercise all or any of the functions delegated notwithstanding any delegation.
12 The Council resolved to proceed with draft Amendment No 30 on 5 April 2005. On 28 April 2005 the Council submitted a report to the Director-General in accordance with s 68(4) of the EPA Act. In so doing the Council acknowledged that its delegation under s 69 had been revoked due to inconsistency with direction G22 but provided the Director-General with a draft report under s 69. In accordance with the revocation of the delegation, the Director-General did not treat this draft as a report under s 69 and it was not submitted to the Minister under that section.
13 At least one officer of the Department was concerned that draft Amendment No 30 raised substantive and procedural problems. The procedural problem was that draft Amendment No 30 was inconsistent with direction G22 but had not been publicly exhibited, a situation the officer described as “not legally sustainable” (referring to Smith v Wyong Shire Council (2003) 132 LGERA 148).
14 On 23 January 2006 the Director-General submitted a report to the Minister about draft Amendment No 30 under s 69 of the EPA Act. This report recommended that the Minister not make the plan for a number of reasons including that it was inconsistent with direction G22 and the direction had not been publicly exhibited.
15 The Minister considered the reasons for not making the plan and the implications of so deciding unclear from this report and requested that it be redrafted. A note records that at a meeting between the Minister and Director-General on 2 March 2006 the Minister asked for the strategic reasons for refusal to be elaborated rather than any “technical shortcomings of the rezoning process”.
16 The Director-General submitted a second report to the Minister under s 69 of the EPA Act on 14 July 2006 recommending that draft Amendment No 30 not be made for three reasons each of which may be described as substantive rather than procedural. This report also noted that the draft plan was inconsistent with the then applying direction G22 (which had been repealed and replaced by direction 25). The Minister signed and dated this report on 30 July 2006. The report included a recommendation that the Department notify the Council of the Minister’s decision and reasons in accordance with s 70(7) of the EPA Act. A draft letter was prepared for this purpose but was not sent.
17 Section 70(7) of the EPA Act provides that:
The Minister shall inform the council of his or her decision under subsection (1) and, except where the Minister decides to make a local environmental plan in accordance with the draft local environmental plan as submitted by the council under section 68 (4), the reasons therefor, and may at the same time give directions to the council as to the procedure to be followed in connection with making his or her decision known to the public.
18 Section 70(1) of the EPA Act is as follows:
After considering the Director-General’s report made under section 69, the Minister may:
(a) make a local environmental plan:(i) in accordance with the draft local environmental plan as submitted by the council under section 68(4), or
(b) direct that action be taken in accordance with subsection (3), or
(ii) in accordance with that draft plan with such alterations as the Minister thinks fit relating to any matter which in the opinion of the Minister is of significance for State or regional environmental planning,
(c) decide not to proceed with the draft local environmental plan.
19 Under s 34(5), an environmental planning instrument must be published in the Gazette and takes effect from that date or such later date as nominated.
20 On 7 August 2006 a legal officer within the Department gave advice about aspects of draft Amendment No 30. The advice referred to the Minister having “determined not to proceed” with draft Amendment No 30 and then having sought legal advice on various matters so that he could give further consideration to whether draft Amendment No 30 should proceed. The legal officer recommended that a further submission under s 69 be made to the Minister “seeking his redetermination”.
21 On 14 February 2007 the Director-General submitted a third report to the Minister under s 69 of the EPA Act. This report noted that the Minister’s earlier decision had not been communicated to the Council. It said that draft Amendment No 30 would be inconsistent with direction G22 if the Council were exercising its delegation under s 69 but the Council was not doing so. The report recorded that the Council had advised that it had complied with ss 66 and 67 of the EPA Act. The report recommended that the Minister make draft Amendment No 30 and authorise the Department to advise the Council of the Minister’s decision. The Minister signed this report on 16 February 2007.
22 On 21 February 2007 the Department advised the Council that the Minister had made Amendment No 30 to the LEP. Amendment No 30 was published in the Gazette on 23 February 2007. The substantive provisions of this instrument amended the definition of bulky goods salesroom or showroom in the LEP and inserted into Sch 2 in columns 1 and 2 respectively the following:
500 Princes Highway, St Peters
Lot 1, DP 1022755, as shown coloured magenta on the map marked “Marrickville Local Environmental Plan 2001 (Amendment No 30)—Additional Uses Development and Site Specific Development Controls Map”The additional uses development for the purpose of bulky goods salesrooms or showrooms.
The additional uses development for the purpose of sale, hire or display of engineering supplies or tools or vehicle parts and accessories, but only if the gross floor area of the building proposed to be used is at least 500m2.
23 Under cl 45 of the LEP the Council may grant consent to the use of land identified in column 1 of Sch 2 for the purpose nominated in column 2 of the schedule notwithstanding any other provision of the LEP.
C. Were Minister’s powers exhausted?
Submissions
24 Pongrass submitted that Amendment No 30 was invalid because the Minister’s powers under s 70 of the EPA Act were exhausted by the Minister’s decision on 30 July 2006 not to proceed with the plan. Pongrass developed these submissions as follows:
(1) Whether there is power to reconsider a decision involves a question of statutory construction ( Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [8] and Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443).
(2) The EPA Act does not expressly or impliedly vest in the Minister any power of reconsideration of a decision under s 70(1)(c).
(3) Such a power is inconsistent with the statutory scheme. Pt 3 of the EPA Act sets out detailed provisions for the preparation, consideration and making of local environmental plans. That detailed scheme, the objects of the EPA Act in s 5(b) and (c) with respect to shared responsibility for environmental planning and increased opportunities for public participation, and the requirements of s 70, particularly s 70(6) and (7), speak against any such implication.
(4) This Court had determined that the principle of functus officio applied to the Minister’s powers under s 70(1)(c) of the EPA Act in Richmond v Urban Affairs and Planning [2000] NSWLEC 23. The reasoning in that decision supported Pongrass’s submissions.
(5) The law in Australia about when a decision has been made was accurately set out in Semunigus v Minister for Immigration & Multicultural Affairs [1999] FCA 422 at [18] to [20] (see also Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533). The Minister’s reliance on Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 at [43], emphasising the requirement for communication of a decision before it became irrevocable, was misplaced. Moreover, a local environmental plan is legislative in character and thus the context is different from that considered in Goulding . It is clear that the Minister made a firm decision on 30 July 2006 that was communicated to officers of the Minister’s Department.
(7) The Minister’s signature and dating of the report under s 69 on 30 July 2006 evidenced the firm decision made at that time with respect to draft Amendment No 30. The Minister could not thereafter take any further action with respect to that draft plan. If, contrary to Pongrass’s primary position communication of the decision was necessary, it is also apparent that the Minister’s decision was communicated to officers of the Department. This satisfied any communication requirement. Either way, the Minister’s powers were exhausted before he purported to make Amendment No 30. Section 48 of the Interpretation Act 1987 did not support a different conclusion, particularly as it was subject to contrary intention (s 5(2)).(6) It is important to recognise that under s 70 the Minister makes or does not make a plan. Although a made plan does not take effect until published in the Gazette under s 34(5) of the EPA Act, the plan is made without any requirement for communication of its making. Section 70(7) is procedural and does not affect the validity of the made plan or the decision not to proceed with the plan. Section 70(7) also relates to a function of the Director-General not the Minister. The Director-General and the Minister have separate responsibilities under the EPA Act. Accordingly, the Minister made a valid decision not to proceed with Amendment No 30 on 30 July 2006. This is also apparent from the fact that there is no equivalent requirement for communication of the Minister’s decision with respect to a regional environmental plan under s 51 of the EPA Act.
25 The respondents submitted in reply that the first ground of challenge must fail:
(2) The issue is one of statutory interpretation ( Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 218-219). Preventing the Minister from reconsidering his conclusion on 30 July 2006 would not further, and would be inconsistent with, the scope, object and purposes of the EPA Act. An infinite number of examples may be envisaged where such a rigid approach to s 70 of the EPA Act (as advocated by Pongrass) would undermine the statutory objects. Be that as it may, the process in this case was precisely as contemplated by the EPA Act in which the making or not of plans is an outcome of a dialogue between a council, the Director-General and the Minister. (3) This conclusion is consistent with the provisions of Div 4 of Pt 3 of the EPA Act in which, although a sequence is established, steps may be repeated ( Falkiner v Director-General of Planning NSW (2002) 125 LGERA 138 at [61]). In this case, and in distinction from Richmond , the Council had not been notified of the Minister’s decision of 30 July 2006. The importance of communication beyond the Minister’s Department was clear from s 70(7) and the observations in Semunigus (2000) 96 FCR 533 at [78], Ricegrowers Co-operative Mills Ltd v Bannerman [1981] 56 FLR 443 at 451-453, Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18 at [27], and Goulding at [43] and [52]. It is also consistent with the approach taken to decisions of consent authorities on development applications ( Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 at 742F to 744F, Townsend v Evans Shire Council (2000) 109 LGERA 336 at [19]-[20] and Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350 at 359). There were sound policy reasons for this approach ( Ex parte Renouf (1924) 24 SR (NSW) 463 at 467). These applied equally to the process under Div 4 of Pt 3 of the EPA Act. Section 48 of the Interpretation Act 1987 supported the conclusion that would be reached in any event on the facts of this case.
(1) Any debate about whether the Minister made a decision on 30 July 2006 or not is arid. The real issue is whether the Minister was precluded from making Amendment No 30 in the circumstances recorded above.
Decision
26 The Minister’s submissions are compelling. Nothing in the scope, object or purposes of the EPA Act supports the conclusion that, on the facts of this case, the Minister was unable to reconsider his decision of 30 July 2006. The decision had not been communicated outside the Minister’s own Department. Within a week of the decision being made, the Minister had received legal advice recommending further consideration of draft Amendment No 30. The inference that should be drawn is clear. Very soon after signing the report on 30 July 2006 the Minister had second thoughts. As a consequence, the letter to the Council notifying it of the Minister’s decision was not sent. Instead, the third report under s 69 was prepared and submitted to the Minister.
27 Because of the potential range of different factual circumstances that might arise, attempts to articulate any general principle as to when a decision under s 70 becomes irrevocable are best avoided. For present purposes, the following observations suffice.
28 In Richmond, the Minister’s decision not to make the plan had been communicated to the Council in unequivocal terms (at [77]). Although the reasons in Richmond leave open the importance of that step to the conclusion that the Minister was functus officio, the case turned on its facts. The facts are clearly distinguishable.
29 Although the requirement to communicate the Minister’s decision under s 70(7) is properly described as procedural and breach would not lead to invalidity of a local environmental plan, this does not indicate that the Minister’s decision on 30 July 2006 was irrevocable. The requirement in s 70(7) reflects the different regime for preparation of these environmental planning instruments (councils prepare local environmental plans and the Minister or Director-General cause to be prepared or prepare regional environmental plans). In both cases, the Minister may decide to make the instrument (in which event the instrument has no effect until published in the Gazette) or may decide “not to proceed” with the draft plan. The same considerations of the scope, object and purposes of the EPA Act indicate that the Minister might revisit a decision not to proceed with a draft regional environmental plan if the facts were otherwise equivalent to those in the present case.
30 The EPA Act identifies certain steps that must occur with respect to a draft local environmental plan once a council has submitted the draft in accordance with s 68(4). The Director-General shall submit a report to the Minister addressing certain matters under s 69. The content of any such report is a matter for the Director-General alone (s 13). The Minister may make a decision under s 70(1), but only after considering the Director-General’s report. The EPA Act otherwise leaves it to the Minister and the Department to manage the administrative process by which environmental planning instruments are made. It would be unrealistic to assume that these administrative processes occur without any ongoing dialogue between officers of the Department and the Director-General or the Director-General and the Minister.
31 In this case, there was dialogue. The Minister found the first report unclear. He was concerned about the implications of development already on the land and existing use rights. The Minister and the Director-General met. The Minister wanted more information about the strategic issues associated with the decision. No one has suggested that the Director-General was precluded from preparing the second report despite having submitted one report under s 69. Nor could any such suggestion withstand scrutiny. The Minister was entitled to ask for more strategic information and the Director-General was able to submit a second report under the section. This is clear despite the fact that no provision of the EPA Act specifically contemplates these steps. It is clear for a number of reasons. First, the EPA Act operates against the background of an assumed system of government. Secondly, it would be inconsistent with sound administrative decision-making to exclude the Minister from requesting more information about issues of concern. Thirdly, it would be inconsistent with the objects of the EPA Act, particularly the focus on the proper management of resources and the orderly and economic development of land, to establish a system of decision-making in which the Director-General, having prepared one report under s 69, is precluded from doing so again by reason of that fact alone.
32 Similar considerations must inform the construction of s 70. In the context of the EPA Act it makes no sense for the Minister, having merely signed and returned the report under s 69 to the Director-General, to be precluded from reconsidering the decision. The fact that Departmental officers knew about the Minister’s decision is beside the point. They knew about it within a context of also knowing that the Minister wished to reconsider draft Amendment No 30 within a week after signing the report. The reasons prompting the Minister are not relevant but expose the inconsistency of Pongrass’s argument with any plausible conception of the objects and operation of the EPA Act. Amongst other things, the Minister was concerned about the existing development on the land and its interaction with the provisions of the EPA Act about existing use rights. After signing the report on 30 July 2006, the Minister sought legal advice on this issue. I can think of no justification for concluding that the EPA Act impliedly prevented the Minister in this case from taking steps to ensure that his decision was based on a correct understanding of the law.
33 Accordingly, I do not accept that the EPA Act, by implication, precluded the Minister from revisiting his decision under s 70(1)(c) where nothing more had occurred than that the Minister signed and returned the s 69 report to the Director-General, then (as I infer was the case) acted quickly to prevent the Council from being notified of that decision and thereafter sought legal advice to ensure he understood any legal implications he considered relevant. Pongrass’s first ground of challenge cannot be sustained.
D. Was Amendment No 30 made in breach of s 66?
Submissions
34 Pongrass submitted that Amendment No 30 was invalid because it had been made in breach of the public exhibition requirements in s 66 of the EPA Act.
35 At the time draft Amendment No 30 was exhibited s 66 provided that:
(1) Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall, after complying with any condition subject to which the certificate was granted and subject to the regulations:
(2) A draft local environmental plan shall be publicly exhibited for a period being not less than the prescribed period.
(a) give public notice, in a form and manner determined by the council, of the place at which, the dates on which, and the times during which, the environmental study prepared by the council under section 57 of the land to which the draft local environmental plan applies and the draft local environmental plan may be inspected by the public,
(b) publicly exhibit at the place, on the dates and during the times set out in the notice:(i) a copy of that environmental study and draft local environmental plan,
(c) specify, in the notice, the period (being a period which is or includes the period referred to in subsection (2)) during which submissions may be made to the council in accordance with section 67, and
(ii) a copy of any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft local environmental plan is intended to apply, and
(iii) if such a policy, plan or direction does so apply—a statement to the effect that the policy, plan or direction referred to in subparagraph (ii) substantially governs the content and operation of the draft local environmental plan and that any submission made pursuant to section 67 should be made having regard thereto,
(d) publicly exhibit such other matter as it considers appropriate or necessary to better enable the draft plan and its implications to be understood.
(3) Where, for the purposes of informing the public generally, a council decides to publicly exhibit a draft local environmental plan otherwise than in accordance with subsection (1), or to publicly exhibit any other matter which could be construed or represented as having a similar purpose to a draft local environmental plan, it shall at the same time publicly exhibit a statement to the effect that the exhibition is not to be regarded as an exhibition for the purposes of this Act.
36 Pongrass submitted:
(1) Draft Amendment No 30 proposed an amendment to allow a particular development proposal to be carried out on the land at 500 Princes Highway, St Peters. Accordingly, direction G22 applied.
(2) Direction G22 applied to the land and substantially governed the content and operation of draft Amendment No 30. Thus it had to be publicly exhibited under s 66 of the EPA Act (see Smith v Wyong Shire Council (2003) 132 LGERA 148).(4) The validity of the public exhibition under s 66 must be determined by reference to the circumstances in existence at the time of the exhibition. At that time direction G22 applied. Draft Amendment No 30 was inconsistent with the direction. The failure to exhibit direction G22 and to make the statement in accordance with s 66(1)(b)(iii) of the EPA Act were material breaches of the statute giving rise to invalidity ( Smith v Wyong Shire Council ).(3) When draft Amendment No 30 was exhibited between 3 February and 4 March 2005, the Council proposed to use its delegation from the Director-General to prepare the report under s 69 of the EPA Act. The Director-General did not revoke the delegation until after the exhibition was complete.
37 Pongrass also embraced, at least to some extent, a question I raised about whether the words “for plans made using S. 69 Delegation to Council officers” extended to plans proposed to be made (see, by analogy, Currey v Sutherland Shire Council (2003) 129 LGERA 223). Pongrass said that there must be an element of contemplation in direction G22 as it was difficult to understand how it could otherwise operate.
38 The respondents submitted that:
(1) Pongrass had conceded that the words in brackets qualified the operation of direction G22. There was no basis on which to give those words anything other than their ordinary meaning. Currey was not an analogous situation. Direction G22 applied only where a council reported to the Minister under s 69 about a draft local environmental plan as described. It did not apply where the Director-General exercised that function.
(3) Even if direction G22 potentially applied to Amendment No 30 when exhibited, or to draft Amendment No 30 as exhibited, the relevant question is whether or not the alleged breach of s 66 invalidates Amendment No 30 as made. This question must be answered by reference to all circumstances known when validity is determined. If it were otherwise, potentially relevant circumstances would be improperly excluded. Once this is recognised it is apparent that any breach of s 66 of the EPA Act could not lead to invalidity of Amendment No 30 because it would be immaterial for four reasons. First, direction G22 did not apply to draft Amendment No 30, in fact or potentially, at any time after the Director-General revoked the Council’s delegation and thus did not substantially govern its content or operation. Secondly, Amendment No 30 as made was not subject to direction G22 with the same consequence that direction G22 was irrelevant to the content and operation of the amendment. Thirdly, direction G22 did not bind the Director-General in any way. Fourthly, although direction G22 might have applied to the Council had the Council submitted the s 69 report to the Minister (but see (4) below) the Council did not do so. Immaterial breaches do not go to validity ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 and Smith v Wyong Shire Council at [63]).(2) In this case, the Council did not report to the Minister under s 69. The Director-General exercised this function because the Council’s delegation was revoked. It follows that direction G22 did not apply to Amendment No 30.
(4) In any event, direction G22 did not apply to Amendment No 30 because it was not a direction applying to land and Amendment No 30 did not amend an instrument to allow a particular development proposal to be carried out. It merely, amongst other things, increased the range of permissible uses on a parcel of land.
39 The importance of the process of public exhibition to the making of local environmental plans has been stated too often to need repetition here (for example, Smith v Wyong Shire Council at [59] and Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at [37]-[38]). But I do not consider this general principle provides a ready answer to the facts of the present case. Nor for that matter does the result in Smith v Wyong Shire Council. In Smith direction G9 applied to all draft local environmental plans. The direction contained no qualification about its own application by reference to any process under Div 4 of Pt 3 of the EPA Act.
40 The direction in this case is different. Consistent with Pongrass’s concession direction G22 operates subject to the words in the brackets. Because s 117 of the EPA Act, in terms, relates to draft local environmental plans, Pongrass must be correct to the extent of its submission that the direction involves an element of contemplation. However, other provisions of the EPA Act are also relevant to the context. The Director-General is able to delegate functions to a council under s 23. Exercising this power of delegation does not deprive the Director-General of the capacity to exercise the function personally (s 23(4)). A delegation may be revoked at any time and then ceases to have effect (s 23(2)).
41 Direction G22 says that it applies to plans made using a s 69 delegation to Council officers. On first reflection it seems odd for a direction under s 117 to limit its application to the part of the process under Div 4 of Pt 3 from s 69 onwards. In particular, until a council in fact exercises the delegation under s 69 it may not know whether it is bound to publicly exhibit the direction. Nevertheless, the words of the direction are clear and its limited operation can be reconciled with the statutory scheme.
42 First, a draft local environmental plan exists from a council’s resolution under s 54 until the plan is made or the process is otherwise exhausted under s 70. Section 117 does not preclude the Minister from identifying the circumstances in which a direction applies to a draft local environmental plan by reference to stages in the statutory process.
43 Secondly, making a direction apply only to draft local environmental plans where a council reports directly to a Minister under s 69 has a recognisable policy basis. In a report under s 69 the consistency and relationship of the draft plan to any relevant direction under s 117 must be addressed. The functions of the Director-General under the EPA Act are different from those of a council. It thus must be open to the Minister to limit the field of operation of a direction under s 117 to cases where a council, rather than the Director-General, performs a particular function. If the council then in fact performs the nominated function, the direction would be relevant. The report under s 69 would need to address the direction. Moreover, and as required by s 69(1)(c), the council would have to report to the Minister on its compliance with the public exhibition requirements in s 66 of the EPA Act on the basis that the direction applied. Accordingly, the circumstances are not analogous to those considered in Currey and do not provide a basis to depart from the ordinary meaning of the direction.
44 One concern of this approach to directions under s 117 might be that a council’s obligations under s 66 are unclear at the time they must be performed and, in consequence, identifying a threatened breach of the EPA Act may be difficult. These concerns are a product of the way in which the Minister chose to frame the field of operation of the direction under s 117 and are not sufficient to displace the ordinary meaning of the words in the title to direction G22. Nor should the concerns be overstated. A council that elects not to publicly exhibit a direction under s 117 that depends for its application on an event that can only occur after exhibition runs the risk of breach of s 66 of the EPA Act. The Minister must also be informed about compliance with the public exhibition requirements under s 69(1)(c). If, however, the event does not occur then there has been no breach of s 66 at all. In this case, the event did not occur and, accordingly, there has been no breach of s 66 of the EPA Act.
45 If this conclusion is incorrect then the respondents’ submissions about the materiality of any breach are persuasive. This is because the breach, properly characterised, is not a failure to exhibit a direction under s 117 that applied to the draft local environmental plan (as in Smith v Wyong Shire Council) or even applied to the draft plan during the exhibition period. At its highest the so-called breach in this case is a failure to exhibit a direction under s 117 that might have applied to draft Amendment No 30 after exhibition but in fact did not so apply. To put it another way, this is a complaint that the Council did not adopt the risk free course of exhibiting direction G22 at a time when it thought it could exercise its delegation under s 69. This argument faces a number of difficulties.
(1) Direction G22 did not apply merely because the Council intended to use its delegation under s 69. In terms, it only applied where such a delegation had in fact been exercised. Accordingly, even if the relevant circumstances are limited to those in existence at the time of the exhibition there was at that time, at most, a prospective or threatened breach of s 66 not an actual breach. On this basis, the revocation of the delegation did not cure a breach. It merely prevented a threatened breach from becoming an actual breach.
(2) If to the contrary an actual breach at the time of exhibition is assumed, the materiality of any alleged breach must be assessed by reference to Amendment No 30 as made. Pongrass has not sought, and nor would the Court now entertain, any declaration about the validity of the exhibition. It is the validity of Amendment No 30 that is in issue. In this context and assuming breach during exhibition, breach was thereafter cured. Moreover, it was cured because events demonstrated that direction G22 never applied at all.
46 Given these conclusions, it is not necessary to address the balance of the respondents’ arguments about direction G22. It necessarily follows from these conclusions that Amendment No 30 was not made in breach of s 66 of the EPA Act.
47 Pongrass has not established either of its grounds of challenge to Amendment No 30 to the LEP. Therefore, the Class 4 application is dismissed. The parties may address on costs.
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