Premier State Developments Pty Ltd v North Sydney Council
[1999] NSWLEC 169
•23 July 1999
Reported Decision: 104 LGERA 215
Land and Environment Court
of New South Wales
CITATION:
Premier State Developments Pty Ltd V North Sydney Council [1999] NSWLEC 169
PARTIES
APPLICANT:
Premier State Developments Pty LtdRESPONDENT:
North Sydney Council
NUMBER:
40116 of 1999
CORAM:
Bignold J
KEY ISSUES:
Judicial Review :- Judicial Review - Council resolutions to prepare amending LEP - whether resolutions valid.
LEGISLATION CITED:
Local Government Act 1993 s 367
DATES OF HEARING:
07/15/1999
DATE OF JUDGMENT DELIVERY:
07/23/1999
LEGAL REPRESENTATIVES:
RESPONDENT:
APPLICANT:
Mr J J Bingham (Solicitor)
SOLICITORS:
Deacons Graham and James
Mr M H Tobias (QC)
WITH:
Mr B Preston (Barrister)
SOLICITORS:
Mallesons Stephen Jaques
JUDGMENT:
TABLE OF CONTENTS
A. INTRODUCTION 1-9
B. THE ISSUES RAISED BY THE PLEADINGS 10-19
C. THE VALIDITY OF THE COUNCIL’S 1ST RESOLUTION 20-34
D. THE VALIDITY OF THE COUNCIL’S 2ND RESOLUTION 35-41
E. THE VALIDITY OF THE COUNCIL’S 3RD RESOLUTION 42-48
F. THE VALIDITY OF THE COUNCIL’S 4TH RESOLUTION 49-59
G. DID THE PUBLIC EXHIBITION OF THE DRAFT LEP INVOLVE
- NON-COMPLIANCE WITH S 66 OF THE EP&A ACT? 60-79
H. CONCLUSIONS AND ORDERS 80-81
IN THE LAND AND Matter No . 40116 of 1999
ENVIRONMENT COURT OF Coram : Bignold J.
NEW SOUTH WALES 23 July 1999
v
NORTH SYDNEY COUNCIL
Respondent
JUDGMENT
Bignold J:
A. INTRODUCTION
1. By its amended class 4 application, the Applicant challenges the validity of four resolutions passed by the Respondent (the Council) at its meetings held on 6 April 1999; 17 May 1999; 7 June 1999; and 12 July 1999 respectively, all of which concern the Council’s decision to prepare a local environmental plan to amend the North Sydney Local Environmental Plan 1989 (the draft LEP) to generally prohibit residential development in the Commercial Zone comprising the North Sydney Central Business District (CBD).
2. The Applicant holds an option to purchase property known as No 71 Walker Street, North Sydney, in respect of which property it has lodged with the Council a development application to redevelop the land with a 27 storey building comprising 53 residential units. On 24 March 1999, the Applicant filed an appeal in this Court against the Council’s deemed refusal of the development application. The appeal has been fixed for hearing on 9, 10 and 11 August 1999.
3. The draft LEP has a material and obvious effect upon the Applicant’s pending class 1 proceeding. If the draft LEP is made by the Minister by the time the appeal is heard, the development proposal will be absolutely prohibited development (EP&A Act s 76B(a)). Even if the draft LEP has not progressed beyond its present draft status, it will be a relevant consideration in the evaluation of the development application (EP&A Act s 79C).
4. It was in these circumstances that expedition was sought and granted to the hearing of the present proceedings.
5. In its original form, the present application (which was filed on 17 June 1999) claimed declaratory relief in respect of the relevant Council’s Resolutions passed at its meetings held on 6 April 1999 and 17 May 1999 respectively.
6. As amended, the application claims additional declaratory relief in respect of the two later relevant Council Resolutions passed at its meetings held on 7 June 1999 and 12 July 1999 respectively.
7. It is conceded by the Council that these two later Resolutions were passed in a deliberate attempt to cure any defect in the Resolution passed at the Council’s meeting held on 17 May 1999, such as was exposed by the Applicant’s claims in its original application.
8. Although each of the impugned Resolutions must be considered in the light of the separate attacks made on their validity, the ultimate question for decision is whether the Council’s decisions and actions have resulted in a valid or invalid draft LEP, in terms of the EP&A Act, which is legally capable of becoming a plan made by the Minister pursuant to the EP&A Act s 70.
9. For convenience, I shall refer to the Council’s four Resolutions under legal challenge in their chronological sequence, namely the 1st, 2nd, 3rd and 4th Resolution.
B. THE ISSUES RAISED BY THE PLEADINGS
10. Before considering the detailed competing arguments, it may be helpful if I note at the outset the issues raised by the amended Points of Claim and amended Points of Defence.
11. The 1st Resolution is attacked on the ground that no proper prior notice of the matter dealt with by the Resolution had been given to Councillors as is required by the Local Government Act 1993. The Council denies this allegation.
12. The 2nd Resolution is attacked on the ground that the Council, in taking action pursuant to the EP&A Act s 68, had failed to consider at least three written submissions to the exhibited draft LEP, two of which had requested, conformably to the EP&A Act s 68(1), that a public hearing be held in respect of the issues raised in those submissions.
13. The Council admits this allegation and the legal consequence that the Resolution was legally ineffective to sustain the Council’s purported action under the EP&A Act s 68. However, the Council relies upon the 3rd and/or 4th Resolutions as adequately curing the defect in the 2nd Resolution.
14. The 3rd Resolution is attacked on the ground that the Council failed to discharge its statutory duty under the EP&A Act s 68(1) because of the misleading manner in which the submissions requesting a public hearing had been presented to the Council in the officer’s Report to the Council. The Council denies this allegation.
15. The 4th Resolution is attacked on a similar basis to the attack on the 3rd Resolution. Additionally, it is alleged that properly construed, the Council’s Resolution means that the Council has still not considered the submissions requesting a public hearing. Both these allegations are denied by the Council.
16. An additional basis for challenging the validity of the Council’s decisions (reflected in the 2nd, 3rd and 4th Resolutions) is the allegation of failure to comply with the requirements of the EP&A Act s 66(1)(b) in respect of the public exhibition of the draft LEP inasmuch as that public exhibition did not include other relevant documents and statements.
17. The Council admits that the public exhibition did not include some of these other documents but denies that that fact carries any legal consequence vitiating the public exhibition of the draft LEP.
18. It should be noted that there is no dispute on the primary facts. They can be conveniently stated when I consider in turn, the attack on each of the four Council Resolutions.
19. However, in order to better appreciate the context of those Resolutions, it will be helpful if I note in summary fashion the relevant sequence of decisions and/or actions taken by the Council in purported pursuance of the provisions of the EP&A Act in relation to the draft LEP applying to the CBD:
(i.) 6 April 1999 Council in pursuance of the EP&A Act s 54 resolves (i) to prepare the draft LEP; (ii) to inform the Department of Urban Affairs and Planning; (the Department) (iii) to grant the requisite s 65 Certificate in respect of the draft LEP pursuant to authority delegated to the Council; and (iv) to place the draft LEP on public exhibition.
(ii.) 9 April 1999, the Council’s Manager, Strategic Planning, acting as delegate of the Director General of the Department, issues the s 65 Certificate certifying that the draft LEP may be publicly exhibited in accordance with the EP&A Act s 66;
(iii.) the draft LEP is publicly exhibited pursuant to the EP&A Act s 66 from 15 April to 13 May 1999 (inclusive);
(iv.) 17 May 1999 a report prepared by the Council’s Strategic Planner (Felicity Lawrence) is submitted to the Council Meeting reporting on the reception of 17 submissions to the public exhibition of the draft LEP, identifying the issues raised by the submissions and providing comment thereon and recommending that “the Council continue to proceed with the draft LEP in the interim” and in particular that the Council (i) consider the submissions; (ii) adopt the draft LEP; (iii) submit the draft LEP and required documentation to the pursuant to the EP&A Act s 68; (iv) the Minister be requested to make the draft LEP pursuant to the EP&A Act s 70.
- The Council resolved “ that the report be adopted ”;
(v.) 20 May 1999 , the Council submits to the Department the draft LEP and required supporting materials requesting that the Minister make the plan;
(vi.) 2 June 1999 , the Department alerts Council of representations received by the Department and the Minister from persons affected by the draft LEP (requesting a public hearing into the issues raised by the submissions and suggesting that the Council has not properly processed the draft LEP) and seeks the Council’s response to issues raised by the submissions “ that had not been addressed in the Council’s planning report on the draft LEP ” (in particular, the requests for a public hearing and the suggestion that the draft LEP contain suitable transitional provisions);
(vii.) 7 June 1999 , the Council considered a report of its Manager Strategic Planning reporting on the receipt by the Strategic Planning Department “ a further 13 submissions since the close of the exhibition date and since the original report was written ”. The report provided “ an updated summary of all submissions received ” and noted that the “ two additional issues were raised in the late submissions ” were (i) a request for a public hearing; (ii) a request that the draft LEP contain savings and transitional provisions in respect of pending development applications.
- The report contained comment in respect of both requests which was adverse to both requests and the report concluded by recommending that the Council “ consider(ed) (sic) the additional issues raised in the late submissions, but for the reasons given, resolve not to hold a public hearing….and not to include savings and transitional provisions…. ”. The Council resolved “ that the report be adopted ”;
(viii.) 8 June 1999 the Council advised the Department of its decision (taken at its Meeting of 7 June 1999) not to hold a public hearing and not to include savings and transitional provisions in the draft LEP. The letter gave reasons for the Council’s decisions;
(ix.) 17 June 1999 , the present class 4 proceedings are filed in Court;
(x.) 12 July 1999 the Council considered a further report of its Strategic Planner. That Report, after recounting the substance of the relevant Resolutions passed by the Council at its Meetings held on 6 April, 17 May and 7 June 1999, continued:
It will be apparent that at its meeting on 7 June 1999, following consideration of the additional submissions, the Council did not expressly repeat its resolution of 17 May to adopt the DLEP.
The Report recommended that the Council
…again consider this matter including the submissions and formally resolve to adopt the draft LEP and to proceed with it.
The Council resolved “ that the report be adopted ”.
C. THE VALIDITY OF THE COUNCIL’S 1ST RESOLUTION
20. It is to be recalled that the legal challenge to this Resolution is based upon the allegation that no relevant prior notice to Councillors was given.
21. The relevant requirement for the giving of notice is prescribed by the Local Government Act 1993 s 367. Subsection (1) is in the following terms:
- (1) The general manager of a council must send to each councillor, at least 3 days before each meeting of the council, a notice specifying the time and place at which and the date on which the meeting is to be held and the business proposed to be transacted at the meeting.
22. The undisputed evidence reveals that on 31 March 1999, the Council’s General Manager gave notice to each Councillor of the 3185th meeting of the Council to be held at the Council Chambers North Sydney at 7.00 pm on Tuesday 6 April 1999. The Notice set forth the “ agenda” which included as an item (in conventional fashion) “ Reports from Councillors and Officers of the Council ”.
23. In the documents accompanying the Notice and recording the “Agenda” items, there was included in the “Reports” section under the sub-heading “Division of Planning and Environment Services” the following item:
- 263 Alfred Street
Report of Louise Menday, Manager Strategic Planning
Matter of Urgency, Council meeting 22/2/99, requested a report on the proposed rezoning of the subject property to prohibit, among other things, the prohibition of residential uses.
A specific rezoning is not recommended at this time for the following reasons.
Under North Sydney Local Environmental Plan 1989 the subject land is zoned Commercial 3(a). The objectives of the zone allow for land uses other than commercial on this land. However specific controls have not been developed for residential uses in commercial zones, the objective being to encourage residential development within this zone. After almost 10 years of implementation of this policy it is clear that if it is continued unchecked Council’s commercial stock will be eroded and the status of the North Sydney CBD, in particular, will be lost.
This issue is well recognised in the recent strategic planning which led to the development of the draft North Sydney Local Environmental Plan 1999, which has been adopted for exhibition and which is currently awaiting s.65 certification by the Department of Urban Affairs and Planning. The draft North Sydney Local Environmental Plan 1999 aims to prohibit residential development on land zoned for commercial uses in the North Sydney CBD. By adopting this proposed amendment to the commercial zone Council has, in effect, reversed its previous policy of encouraging residential development in the CBD.
It is recommended that the amendment relating to prohibition of residential in the North Sydney CBD, being the 3(a) zone which covers 263 Alfred Street, be pulled out of the comprehensive DLEP and proceeded with immediately, as this issue is relevant to a number of applications current or impending in the CBD. The relevant amendment needs to be made to the North Sydney Local Environmental 1989 and the justification that has been developed to support the similar proposal in DLEP 1999 needs to be used in supporting such an amendment.
A comment on this has been requested from DUAP. A reply has not yet been received.
Recommending -
1. THAT Council resolve to proceed with the amendments to the North Sydney Local Environmental Plan 1989 to prohibit all forms of residential development in the North Sydney CBD.
2. THAT the Department of Urban Affairs and Planning be informed of Council’s decision in accordance with Section 54 of the Environmental Planning & Assessment Act, 1979.
3. THAT the Draft Local Environmental Plan be forwarded to the Department of Urban Affairs and Planning for certification under Section 65 of the Environmental Planning & Assessment Act, 1979.
4. THAT, when the s. 65 certificate has been issued, the Draft Local Environmental Plan be placed on public exhibition for a period of 28 days in accordance with the Environmental Planning & Assessment Act, Regulation.
5. THAT public notice of the exhibition be given.
6. THAT all relevant parties be notified of the exhibition.
24. The Minutes of the Council’s Meeting held on 6 April 1999 record the following decision by the Council in relation to that Item on the Agenda:
It was moved, seconded and carried -
That Addendum to Item PES5 be brought forward and dealt with in conjunction with this matter.
RESOLVED:
1. THAT Council resolve to prepare a Draft Local Environmental Plan for the North Sydney CBD, as outlined in black on the map attached to the Addendum to the report, to:
(a) prohibit residential development in the area shown by hatching, and
(b) apply the floor space ratios and height restrictions, which currently apply to non-residential development, to all development in the remainder of the subject area.
2. THAT the Department of Urban Affairs and Planning be informed of Council’s decision in accordance with Section 54 of the Environmental Planning & Assessment Act, 1979.
3. THAT the Draft Local Environmental Plan be certified under Section 65 of the Environmental Planning & Assessment Act, 1979 using Council’s delegation.
4. THAT the Draft Local Environmental Plan be placed on public exhibition for a period of 28 days in accordance with the Environmental Planning & Assessment Act, Regulation and in accordance with the DUAP Best practice Guideline on DELOPs and Council owned land.
5. THAT public notice of the exhibition be given
6. THAT all relevant parties be notified of the exhibition.
25. The reference in the Council’s Resolution to the “Addendum” to the Report (included in the Agenda as Item 5) is a reference to a document that has a verbal text precisely in accordance with the terms of the Council’s Resolution and includes a plan that shows (i) the area comprising the North Sydney CBD; and (ii) within that area a hatched area indicating the area proposed for residential prohibition.
26. On these primary facts, can it be said, as the Applicant alleges, that no prior notice was given of “the business proposed to be transacted” at the Council’s Meeting?
27. In my judgment, the inevitable ultimate inference to be drawn from these facts is that the Notice given to each Councillor on 31 March 1999 relevantly “specified the business proposed to be transacted at the meeting” within the meaning of the Local Government Act 1993 s 367.
28. Indeed, no other factual conclusion is, in my respectful judgment, open on these undisputed facts.
29. The Applicant’s argument that the Notice was “misleading” because included in the Agenda as Item 5 the Report was headed “263 Alfred Street” was based upon cases such as Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 and Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91. However, both these cases were concerned with the public notice that is required by the EP&A Act s 66 to be given in respect of the public exhibition of a draft local environmental plan. They do not provide any real analogy to the present case. Nor does the Applicant’s reliance upon the Local Government Act 1993 s 9 bring the present case closer analogically to those cases.
30. However, the complete answer to the Applicant’s argument is that the content of the Agenda Item 5 included in the General Manager’s Notice to Councillors (that I have fully recited) clearly indicated that the Report was recommending that the Council prepare a draft LEP “to prohibit all forms of residential development in the North Sydney CBD”.
31. The Applicant’s argument accordingly is reduced to the proposition that because the Agenda Item 5 was headed “263 Alfred Street”, that misleading heading in some unexplained fashion abrogates the unambiguous content of the Report summarised in the Agenda and produces the legal result of there being no proper notice, despite the clear content of the Agenda Item. In my judgment, such a strained proposition is clearly untenable and must be rejected.
32. In passing, I would note that the reference to “263 Alfred Street” derives from the fact that at its Meeting held on 22 February 1999, the Council had entertained as a “Matter of Urgency” a matter raised by Councillor Reymond “following his site visit to 263 Alfred Street”. The matter so raised extended to the suggested rezoning of other nearby properties to No 263 Alfred Street in respect of which matter the Council had resolved “that an urgent report be submitted to Council concerning the proposed rezoning”.
33. The Planning Report submitted to the Council’s Meeting held on 6 April 1999, under Agenda Item 5 obviously was the report called for by the Council at the earlier meeting, and would have been appreciated to be so, by the Councillors receiving Notice of the Agenda Item 5.
34. For all the foregoing reasons, I reject the Applicant’s attack on the validity of the Council’s 1st Resolution.
D. THE VALIDITY OF THE COUNCIL’S 2ND RESOLUTION
35. Senior Counsel for the Council conceded that in passing the Resolution at its Meeting held on 17 May 1999, the Council had not considered all submissions made in response to the public exhibition of the draft LEP and in particular, the three submissions (particularised in par 8(4)(c) of the Amended Points of Claim) dated 13 May 1999 from (i) the Turnbull Group Pty Ltd (on behalf of the Applicant); (ii) the Turnbull Group Pty Ltd (on behalf of the Hayson Group of Companies); and (iii) Leon Maloney on behalf of the Applicant; at least two of which submissions had requested a public hearing into the issues raised by these submissions.
36. The documentary evidence indicates that this failure by the Council was not deliberate. Rather, the Council, at its Meeting held on 17 May 1999, simply had not been made aware of the receipt of these submissions (which occurred on the last day of the public exhibition period).
37. Although there was an issue between the parties as to whether the EP&A Act s 68 required the Council to consider all submissions, the Council concedes that it was at least legally bound to consider, in respect those submissions which requested a public hearing; whether the issues “were of such significance that they should be the subject of a hearing” (s 68(1)) that it had not done so.
38. Being so bound, it was conceded by the Council that there had been a breach of its statutory duty (s 68(1)), albeit committed by the Council ignorantly and innocently. Given the serious nature of the matter, ignorantly and innocently overlooked by the Council, it follows, in my judgment, conformably to well established authority, that the Council’s 2nd Resolution was not in law an effective exercise of the statutory power or discretion vested in the Council to submit the draft plan to the Department pursuant to the EP&A Act s 68(4). The Resolution not being effective in law, the submission to the Department must likewise be held to be ineffective: cf. Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1996) 98 LGERA 335.
39. To this extent, the 2nd Resolution must be held to be invalid. However, the Council submits that no declaration would be made to give effect to this conclusion because the legal deficiency was said to have been cured by the subsequent action taken by the Council as is reflected in the 3rd and/or 4th Resolutions.
40. Since the Applicant quite properly accepts the correctness of the proposition that the legal defect in the 2nd Resolution is capable of being cured by subsequent action or decisions by the Council, it is necessary at this stage to examine whether the 3rd and 4th Resolutions cured the defect in the Second Resolution.
41. However, in leaving the argument relating to the attack on the validity of the Council’s 2nd Resolution, I should say that had it become necessary to adjudicate upon the question whether the Council was bound by s 68 to consider all submissions made in response to the public exhibition of the LEP (and not merely those submissions that requested a public hearing), I would not have accepted the argument advanced on behalf of the Council that there was no such duty. That argument was founded upon the language of subsections s (1), s (2), s (3), and s (3A) of s 68. I accept that the language is not entirely clear. However, it is capable of supporting an interpretation that would require consideration by the Council of all submissions made to the publicly exhibited draft local environmental plan, and that interpretation is decisively the preferable construction to adopt having regard to the express objects of the EP&A Act s 5 and the obvious purpose of s 66, s 67 and s 68 of the Act: see the Interpretation Act 1987s 33.
E. THE VALIDITY OF THE COUNCIL’S 3RD RESOLUTION
42. The Council’s Resolution passed at its Meeting held on 7 June 1999 was “that the report be adopted”. The Report was that of its Manager Strategic Planning and included the following content:
At its meeting on 17/5/99 Council adopted the subject DLEP for referral to the DUAP for gazettal. The DLEP, which applies to the North Sydney CBD, will prohibit residential development in the core of the CBD, and apply floor space ratios to residential development in the remainder of the CBD. The DLEP has been referred to DUAP for gazettal.
The DLEP was publicly exhibited from Thursday 15 April to Thursday 13 May 1999. 17 submissions were received, by the Strategic Planning Department, by the end of the exhibition period. These submissions were considered in the report to Council at its meeting 17 May 1999. A further 12 submissions have been received by the Strategic Planning Department since the close of the exhibition date and since the original report was written. An updated summary of all submissions received is attached. Two additional issues were raised in the late submissions and are presented in this report for Council’s consideration.
RECOMMENDATION:
THAT Council resolve not to hold a public inquiry.
THAT Council resolve not to include Savings and Transitional provisions in the DLEP for the North Sydney CBD.
THAT the Department of Urban Affairs and Planning, Sydney Region Central, be informed of Council’s decision.
ISSUES RAISED
Issue: Public Hearing
Considering the nature of the changes a public hearing is warranted.
This request is made in submissions by consultants in connection with properties in the CBD which currently have development applications submitted (including 71 Walker St, 112-120 Pacific Highway
Comment
As the DLEP is an interim measure, put in place to slow down the rate of change in the CBD while further strategic planning can be undertaken, a public hearing is not considered necessary. This strategic planning process will be subject to further, comprehensive public consultation. A public hearing would pre empt and delay this planned public consultation.
Issue: Savings and Transitional Provisions
Savings and transitional provisions are requested so that the provisions of the DLEP will not apply to development applications already submitted and currently being considered by Council.
This request is made in submissions by consultants in connection with properties in the CBD which currently have development applications submitted (including 71 Walker, St, 112-120 Pacific Highway)
Comment
Again because the DLEP is an interim measure and not a permanent control on development in the CBD, savings and transitional provisions are not considered necessary. Savings and transitional provisions would actually defeat the purpose of the DLEP, which is to put a short term moratorium on development in the CBD, while further strategic planning is undertaken.
CONCLUSION
It is recommended that Council considered the additional issues raised in these late submissions, but, for the reasons given above, resolve not to hold a public hearing in relation to the DLEP for the North Sydney CBD and not to include savings and transitional provisions in the DLEP.
43. The Council’s Resolution can only mean that the content of the Manager’s Report including the “ Conclusions ” and “ Recommendations ” were adopted. (The word “ considered ” appearing in the “ Conclusion ” obviously was intended to mean “ consider ”).
44. As I understand the Applicant’s argument, it does not dispute the foregoing interpretation of the Council’s Resolution. However, it submits that the Council’s duty under the EP&A s 68 Act to consider the submissions and particularly those requesting a public hearing, must be held to have miscarried because the Manager’s Report that was submitted to, and considered by, the Council, referred to the submissions of “late submissions” and that this was a material misdescription of the submissions and was apt to downgrade or diminish the importance of the submissions. In particular, it was submitted that the Councillors may have been misled by the misdescription of the submissions to such an extent that they did not regard them as legitimate submissions engaging the Council’s statutory duty under the EP&A Act s 68(1) to “consider whether the issues raised in the submissions are of such significance that they should be the subject of a hearing….”
45. I am afraid that I find this argument much too sophisticated and speculative. It finds no support in the text of the Manager’s Report other than the use of the label “late”. If the submissions were truly regarded as not having been made “during the period referred to in s 66(1)(c)” as that expression is used in the EP&A Act s 67 it would have been open to the Council to have regarded the submissions as not qualifying as a “submission” for the purposes of s 67 and s 68. However, it is clear that the Manager did not so regard them and it is equally clear from the Council’s “adoption” of the Manager’s Report that the Council did not so regard them. Rather, they were considered in the Manager’s Report and she gave detailed reasons why the Council should not hold a public hearing (as requested in the submissions) and not include savings and transitional provisions in the draft LEP (as requested in the submissions).
46. Those conclusions are confirmed when reference is had to the text of the relevant submissions because they, in terms, request pursuant to the EP&A Act s 68(1)(a) the holding of a public inquiry.
47. In these circumstances, there is simply no rational basis for concluding that the Council’s Manager Strategic Planning in her Report, or the Council in its adoption in that Report, thought that they were dealing with something other than a request for a public hearing contained in a submission conformably to the EP&A Act s 68(1)(a).
48. For all the foregoing reasons, I must reject the Applicant’s submission that the Council’s 3rd Resolution was invalid.
F. THE VALIDITY OF THE COUNCIL’S 4TH RESOLUTION
49. The Council’s Resolution passed at its meeting held on 12 July 1999 was “that the report be adopted”. The Report was that of the Council’s Strategic Planner (Felicity Lawrence) and included the following content:
At its meeting on 6 April 1999, Council adopted a draft Local Environmental Plan (DLEP) - North Sydney CBD for exhibition. The subject DLEP is an interim measure, pending finalisation of strategic planning in the CBD, which prohibits residential in the core and applies existing floor space ratios, applying to non-residential floor space to residential development.
The DLEP was publicly exhibited from Thursday 15 April 1999 to Thursday 13 May 1999. Seventeen submissions were received and reported to Council at its meeting on 17 May 1999. A further fifteen submissions were received (some during and some after the close of the exhibition). It has been accepted as appropriate that all these submissions were considered by Council. Most of the issues raised in these submissions had already been addressed. However, an additional report was submitted to Council on 7 June 1999 addressing the additional issues of a public hearing & savings & transitional provisions (being the new issues raised in these submissions). Each of the resolutions on the 6 April, 17 May and the 7 June is attached. It will be apparent that at its meeting on 7 June 1999, following consideration of the additional submissions, the Council did not expressly repeat its resolution of 17 May to adopt the DLEP.
This report recommends that Council again consider this matter including the submissions identified in the table attached to the 7 June 1999 report, noting that all original submissions are available for further inspection if they wish, and that Council then resolve to adopt the DLEP and to proceed with the DLEP in accordance with the substance of the resolution of 17 May and 7 June 1999. However, as Council’s resolution on 7 June 1999 did include the standard recommendations to adopt the DLEP and refer to the Department of Urban Affairs and Planning and the Minister, the full recommendations are repeated here for Council to formally adopt.
The amended plan, relevant Council reports and associated minutes, and a submission table are attached.
RECOMMENDATION
THAT Council consider all submissions received, to date, on the Draft Local Environmental Plan.
THAT Council formally adopt reports of the 17 May, 7 June and 12 July 1999.
THAT Council adopt the Draft Local Environmental Plan, as amended, and attached to this report and resolve to proceed with the DLEP in accordance with the substance of the resolutions of 17 May 1999 and 7 June 1999.
THAT Council resolve not to hold a public inquiry.
THAT Council resolve not to include Savings and Transitional provisions in the DLEP for the North Sydney CBD.
THAT the Draft Local Environmental Plan and required documentation be forwarded to the Department of Urban Affairs and Planning, Sydney Region Central, in accordance with S.68 of the Environmental Planning and Assessment Act, 1979.
THAT the Minister be requested to make the Plan under Section 70 of the Environmental Planning & Assessment Act, 1979.
THAT all relevant parties be notified of Council’s decision.
50. It is apparent that the purpose of this Report was to cure what was thought to be an oversight on the Council’s part inasmuch as when it passed the 3rd Resolution, it did not, in terms, adopt the draft LEP. To overcome this perceived oversight, the Report contained comprehensive recommendations. (It is obvious that in the penultimate paragraph of the Report, the word “ not ” is missing.)
51. The Applicant’s attack on this Resolution is twofold. Firstly, it makes a similar submission to that advanced in respect of the 3rd Resolution, namely that the Report submitted to and considered by the Council refers to the receipt of “(A) further fifteen submissions (some during and some after the close of exhibition)”.
52. It was submitted that this description of the further submissions was misleading in the same fashion that the earlier description of them as “late submissions” had been when the Council passed its 3rd Resolution.
53. In my judgment, this argument must be rejected for reasons similar to those that led me to reject the Applicant’s argument based upon the reference to “late submissions”.
54. A further argument was advanced by the Applicant to the effect that the Council’s Resolution “that the Report be adopted” meant that the Council, in adopting the first recommendation contained in the Report, namely “that Council consider all submissions received to date, on the draft Local Environmental Plan” had not, in fact, “considered the submissions” but had resolved to consider them at some time in the future (and there was no evidence that such future consideration had been given).
55. In my judgment, this is an altogether far too strained and artificial interpretation of the Council’s Resolution.
56. The Strategic Planner’s Report had stated:
- This report recommends that Council again consider this matter, including the submissions…..
57. In resolving “ that the Report be adopted ” the Council clearly resolved to adopt all of the recommendations contained in the Report, including the first recommendation “ that Council consider all submissions received to date…. ” That adoption of that recommendation clearly means that the Council “ considered all of the submissions ”. If there is any doubt about that meaning (and with respect to the Applicant’s argument, I do not think there is any doubt), it is dispelled when regard is had to the fact that the Council adopted all of the Recommendations and all those other recommendations are only meaningful as consequences of the Council’s “ consideration ” of all the submissions received.
58. To put it another way, the adoption of the recommendations “not to hold a public inquiry” and “not to include Savings and Transitional provisions in the DLEP”, clearly indicated that the Council did consider the submissions (because it was those very submissions that requested the public hearing and the inclusion of savings and transitional provisions in the draft LEP).
59. For all of these reasons, I must reject the Applicant’s contentions that the Council’s 4th Resolution is invalid.
G. DID THE PUBLIC EXHIBITION OF THE DRAFT LEP INVOLVE NON-COMPLIANCE WITH S 66 OF THE EP&A ACT?
60. Particulars in support of its Amended Points of Claim alleging that the council’s 2nd Resolution was invalid included allegations of non-compliance with the requirement of the EP&A Act s 66(1)(b)(i) and s 66 (1)(b)(ii) in that there was not publicly exhibited with the draft LEP other documents including (i) an environmental study (ii) any state environmental planning policy, regional plan or s 117 direction applying to the land to which the draft LEP is intended to apply; and (iii) a statement as to the effect on the draft LEP of such other documents.
61. As the case was argued, the Applicant only focussed attention on the failure of the public exhibition of the draft LEP to include s 117 Direction styled “G9” and the statement of its effect on the draft LEP.
62. Nonetheless, in its amended class 4 application, the Applicant claims a Declaration that the Council has “not complied with the requirements of s 66, s 67 and s 68 of the EP&A Act” in respect of the draft LEP. (I have already held that the Applicant has failed to establish its case in respect of s 67 and s 68.)
63. Accordingly, I shall consider the matter concerning s 66 as entirely pleaded. However, I commence with the allegation in respect of the s 117 Direction “G9”, noting that the further allegation is included in the Applicant’s particulars that the Council failed to give consideration to that s 117 Direction.
64. Pursuant to the EP&A Act s 117(2), the Minister has given a number of General Directions to Councils relevant to the exercise of the statutory powers conferred by the Act for the preparation of local environmental plans.
65. The Directions include specific directions in relation to specific zones. Thus, the directions include the following:
- G8 “Rural Zones”
G9 “Residential Zones”
G10 “Business Zones”
G11 “Industrial Zones”
G12 “Environmental Protection Zones”
66. The Council submits that the s 117 Direction “ G9 ” simply is irrelevant to the draft LEP because that draft only applies to land within the Business Zone ie the CBD and the Direction only applies to “ Residential Zones ”.
67. The Applicant’s competing argument is that the Direction applies because “residential development” is a permissible form of development within the Business Zone (as the 1989 LEP currently exists) and that some form of residential development will continue to be possible in respect of a designated portion of the CBD in terms of the draft LEP.
68. As a matter of interpretation, I think that the Council’s construction is to be preferred. The s 117 Directions are expressed to apply to specific (and conventionally designated) zones. “Zone” is a well established town planning concept and generally speaking, “a residential zone” is not to be equated to a “residential development or purpose” for the reason that it is common in planning instruments which contain designated and conventional zones to allow for some residential development in zones, other than residential zones - namely rural zones, business zones and industrial zones.
69. Accordingly, I would reject the Applicant’s contention that the s 117 Direction “G9” is relevant to the draft LEP.
70. It follows from this conclusion that the Applicant’s related allegation that the Council failed to consider the s 117 Direction G9 in the preparation of the draft LEP, also fails.
71. For completeness, I should briefly deal with the other allegations of non-compliance with s 66 of the EP&A Act.
72. So far as it is alleged that an “environmental study” should have been publicly exhibited with the draft LEP, the short answer is that there was no such study and there was no need for there to be such a study: vide EP&A Act s 74(2)(b) (there being no evidence that there was any direction to the contrary).
73. So far as concerns the allegation that state environmental planning policies and regional plans should have been exhibited with the draft LEP, no such other documents were exhibited, although the Court may take judicial notice of the existence of many state environmental planning policies that apply generally to land within the State.
74. The Council, in its written submissions argued that the requirement of s 66(1)(b)(ii) in respect of the public exhibition of state environmental planning policies and regional environmental plans is to be interpreted as referring only to such instruments that apply particularly or specifically to the land in which the draft LEP is intended to apply and that accordingly, such instruments that apply generally to lands within Metropolitan Sydney or the State of NSW are not within the ambit of the requirement.
75. Alternatively, the Council submitted that the requirements of s66(1)(b) (ii) and (iii) were not intended to be mandatory and that non-compliance with their respective requirements did not invalidate the public exhibition of the draft LEP.
76. Reference was made to my unreported decision Jessop v WRA Willcocks Pty Ltd (23 December 1998) where I held, obiter, that non-compliance with s 66(1)(b)(ii) did not result in invalidity of the public exhibition of the draft local environmental plan.
77. As I have noted, the Applicant did not seriously press this aspect of its pleading and in my opinion, was right so to do.
78. For similar reasons to those expressed in Jessop, I would hold that any non-compliance with the EP&A Act s66(1)(b)(ii) in the present case, by dint of failure to publicly exhibit any relevant state environmental planning policy did not have the effect of invalidating the public exhibition of the draft LEP.
79. I would prefer to rely upon this basis for decision, rather than the Council’s alternative argument.
H. CONCLUSIONS AND ORDERS
80. For all the foregoing reasons, the Applicant has failed to make out its case. Apart from its attack on the validity of the Council’s 2nd Resolution, the defect in which I have held to be completely cured by the Council’s 3rd and/or 4th Resolutions, the Applicant has failed totally in its claims.
81. Accordingly, I make the following orders:
1. Amended application be dismissed.
2. Exhibits be returned.
3. Question of costs be reserved.
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