Reid's Farms Pty Ltd v Murray Shire Council - [2010] NSWLEC 127

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127

PARTIES:
APPLICANT
Reid's Farms Pty Ltd
FIRST RESPONDENT
Murray Shire Council
SECOND RESPONDENT
KSK Developments Pty Ltd

FILE NUMBER(S): 40145 of 2009

CORAM: Pepper J

KEY ISSUES:
DEVELOPMENT CONSENT :- whether or not development consent lapsed - whether s 82A review permissible because review was of a determination in respect of integrated development prohibited by s 82A(1)(c) - whether there was a failure to notify the request for the s 82A review - whether there was a legitimate expectation of notification of the s 82A review - whether any “practical injustice” arose as a consequence of failure to notify - whether s 96(1A) modification was an alternative source of power to support review – whether s95(6) can be used to extend time for compliance with deferred conditions of consent – whether s 95A validly extended time for compliance with deferred commencement conditions – effect of consent discontinuance of Class 1 appeal on operation of consent – whether consent void for uncertainty because the council left for future consideration of matters the subject of the consent - whether a failure to take into account a mandatory relevant consideration - whether the decision of the council manifestly unreasonable – consent not lapsed – application dismissed
STATUTORY INTERPRETATION:- whether review of determination of an application for integrated development “integrated development” for the purpose of s 82A(1)(c) – whether a consent discontinuance a “determination” of an appeal for purpose of s 83(2)(a)

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 ss 80A, 82A, 83(2)(a), 95(6),95A, 96(1A), 97
Land and Environment Court Act 1979 s 25B

CASES CITED: Aldous v Great Taree City Council [2009] NSWLEC 17; (2009) 167 LGERA 13
Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 74 NSWLR 733
Boral Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81; (2009) 167 LGERA 134
Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Clark & Davis v Wollongong City Council (No 2) [2008] NSWLEC 226
Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; (2006) 150 LGERA 81
GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647
Gunning Sustainable Development Assn Inc v Upper Lachlan Council [2005] NSWLEC 23; (2005) 138 LGERA 281
Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737; (2005) 143 LGERA 237
Kindimindi Investments Pty Ltd v Land Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333
Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145
Maule v Liporoni [2002] NSWLEC 25; (2002) 122 LGERA 140
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Nambucca Valley Conservation Association Inc v Nambucca Shire Council [2010] NSWLEC 38
Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 168 LGERA 59
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302
Swadling v Sutherland Shire Council [1994] NSWLEC 45; (1994) 82 LGERA 431
The Village McEvoy Pty Limited v Council of the City of Sydney (No 2) [2010] NSWLEC 17
Vaw (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631
Wingecarribee Shire Council v Pancho Properties Pty Ltd [2001] NSWCA 271; (2001) 117 LGERA 104

DATES OF HEARING: 16-18 November 2009

DATE OF JUDGMENT:
23 July 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Baird
SOLICITORS
Chris Kinnane
FIRST RESPONDENT
Mr M Seymour
SOLICITORS
Kell Moore Solicitors Pty Ltd
SECOND RESPONDENT
Mr N Eastman
SOLICITORS
Cosgriff Orchard Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

23 July 2010

40145 of 2009 Reid’s Farms Pty Ltd v Murray Shire Council
JUDGMENT

Introduction

1 HER HONOUR: By amended points of claim dated 7 October 2009, the applicant, Reid’s Farms Pty Ltd (“Reid’s Farms”), seeks various declarations of invalidity in relation to a development consent granted by the Murray Shire Council (“the council”) on 16 December 2008 (“the December consent”) in favour of the second respondent, KSK Developments Pty Ltd (“KSK”).

2 In Kinder Investments Pty Ltd v Sydney City Council (2005) 143 LGERA 237 the economic value of a development consent was described in the following terms (at [1]):

Environmental Planning and Assessment Act

3 In my opinion, the application should be dismissed because, as I have found, the December consent has not lapsed.

Factual Background

4 The background to these proceedings is largely agreed. KSK is the registered proprietor of land situated in Moama, New South Wales. KSK became the registered proprietor of the land on 18 December 2006. It is this site which is the subject of the dispute.

5 Initially KSK applied to the council for approval to construct a boat ramp on the site, to be used as part of a future proposed tourist development of the land. Approval was granted and the ramp constructed.

6 On 2 October 2007, the council granted development consent to KSK for the development of a tourist facility on the land. Reid’s Farms successfully challenged the approval in this Court after the council and KSK filed submitting appearances, effectively conceding that it was invalid.

7 On 13 March 2008, KSK lodged development application DA 241/08 (“the DA”) in respect of a proposed tourist development and effluent disposal facility on the site. The application was, in part, by way of reassessment of the October 2007 approval.

8 On 15 December 2008, KSK filed with the Court an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (“EPAA”) pursuant to the deemed refusal of the DA. The appeal was subsequently discontinued by KSK on 23 July 2009.

9 The day after the appeal was filed, on 16 December 2008, the DA was approved by the council for a “tourist facility and community subdivision” subject to a number of conditions, including deferred commencement conditions.

10 Conditions 2, 3 and 4 of the December consent stated as follows:

Expiry
2. This development consent will expire if:

(a) the “deferred commencement” matters listed in Condition 3 of this consent are not complied with within six (6) months of the date of this notice in accordance with section 95(6) of the Environmental Planning and Assessment Act 1979 ; and

(b) the development is not substantially commenced with five (5) years of the date that Council provides written notice to the Applicant that the development consent has become operational.

Deferred Commencement
3. Pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979 this is a “deferred commencement” consent in respect of the lodgement with Council of:

(a) an amended site plan and an amended staged development plan to account for no building structures, including any overhanging building structures, being located within 60 m of the nearest high bank of the Murray River;

(b) an amended overall landscaping plan in accordance with Condition 10 of this consent;

(c) a rehabilitation plan for the Core Riparian Zone in accordance with Condition 12 of this consent; and

(d) BASIX certificates for each BASIX affected building within the meaning of the Environmental Planning and Assessment Act 1979 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 .

In deciding whether this condition has been satisfied Council will determine whether sufficient information has been lodged in accordance with the nominated conditions.

Approved Plans
4. The development is to be carried out in accordance with the followed stamped approved plans:

Drawing No. 020708PKM Version 2, dated 2 July 2008, prepared by Rich River Irrigation, except where varied by Condition 3(a) and Condition 9 of this consent;
‘Type A’ Drawing No’s. A01 & A03, dated 25 January 2008, prepared by Nicholas Murray Architects;
‘Type B1 & B2’ Drawing No’s. A01 and A02, dated 25 January 2008, prepared by Nicholas Murray Architects;
‘Type B3, B4 & B5’ Drawing No’s. A01 and A02, dated 25 January 2008, prepared by Nicholas Murray Architects;
‘Type C’ Drawing No’s. A01 & A03, dated 25 January 2008, prepared by Nicholas Murray Architects;
Drawing No’s. TP01 and TP02, dated 5 June 2008, prepared by Nicholas Murray Architects;
the staged development plan;
the landscaping plan; and
rehabilitation plan for the Core Riparian Zone.
If there is any inconsistency between the above, the conditions of this consent shall prevail to the extent of the inconsistency.

11 Condition 9 stated:

Amended site plan
9. Pursuant to section 80(4) of the Environmental Planning and Assessment Act 1979 , no building structures, including any overhanging building structures, are to be located within 60 m of the nearest high bank of the Murray River.

12 Condition 15 provided that:

Consolidation of lands comprising the Site
15. Prior to the issue of a subdivision construction certificate or the first building construction certificate (which ever comes first), a fresh development application is to be lodged with Council showing on a plan all the land comprising the site (the tourist facility as well as the ancillary sewerage treatment plan) in one (1) lot. Prior to the issue of the first ‘interim’ or ‘full’ building occupation certificate, the subdivision certificate for the above subdivision is to be approved by Council and registered at the Titles Office. Documentary evidence of such is to be provided to the Principle Certifying Authority and Council (if not the PCA).

13 Condition 23 provided that:

Sewage treatment plant
23. The approved sewerage treatment plant is to be used as an ancillary component of the approved tourist facility. The ancillary sewage treatment plant is to be established and fully commissioned to the satisfaction of Council prior to the issuing of the first ‘interim’ or ‘full’ occupation certificate for any building which has a toilet and/or greywater system. Documentary evidence of such commissioning is to be provided to the Principle Certifying Authority (and Council if not the PCA).

14 Prior to the discontinuance of the Class 1 appeal, KSK lodged a s 82A review application to the council by facsimile on 12 June 2009. The sole purpose of the application was for the council to “review the determination by determining, inter alia, that the development be carried out in accordance with Drawing No. 020708PM Version 4 dated 9 February 2009 prepared by Rich River Irrigation and as attached to this request.”

15 On 16 June 2009, the Director of Environmental Services of the council submitted a supplementary report to the ordinary meeting of council dealing with the application for review of the December consent. The report noted that:

This report has been prepared in response to an application to review conditions relating to a plan associated with the above development consent pursuant to section 82A of the Environmental Planning and Assessment Act 1979 .

The application was lodged with Council on 12 June 2009 and a copy is attached .

Extent of requested review

The extent of the requested review concerns amending the site plan to provide for locating no buildings less than 60 m of the nearest high bank of the Murray River and to show ‘staging’ details, as shown on the attached plan.

The affect of the requested review would be to change the following conditions as shown below:

Condition 3(a); and

Condition 4 (first dot point).
The entire content of each condition is shown for context reasons. A full copy of the entire development consent will be available for inspection on the relevant file at the meeting.

16 Under the heading “Consultation” the report stated that “given the nature of the review it is considered that no public notification of the application is required pursuant to section 82A(4)(a)” of the EPAA. There then followed this statement:

Discussion

Pursuant to section 82A(4)(c) it is considered that the development, as amended, is substantially the same development as the development described in the original application.
It is recommended that the conditions relating to the plan lodged as a part of the review be changed in the manner indicated above.

17 The recommendations were therefore:

THAT conditions 3 and 4 of Development Consent No. 241/08 dated 16 December 2008 be amened pursuant to section 82A of the Environmental Planning and Assessment Act 1979 as follows:

Deferred commencement
3. Pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979 this is a “deferred commencement” consent in respect of the lodgement with Council of:

(a) [deleted]

(b) an amended overall landscaping plan in accordance with Condition 10 of this consent;

(c) a rehabilitation plan for the Core Riparian Zone in accordance with Condition 12 of this consent; and

(d) BASIX certificates for each BASIX affected building within the meaning of the Environmental Planning and Assessment Act 1979 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 .
In deciding whether this condition has been satisfied Council will determine whether sufficient information has been lodged in accordance with the nominated conditions.

Approved Plans
4. The development is to be carried out in accordance with the following stamped approved plans:

Drawing No. 020708PKM Version 4, dated 9 February 2009, prepared by Rich River Irrigation, except where varied by Condition 9 of this consent where relevant;

18 The recommendations were accepted and on 16 June 2009, the council wrote to KSK attaching an amended consent pursuant to the s 82A review and drawing KSK’s attention to the terms of conditions 1-3. The letter stated that “in this regard, it is advised that relevant plans will be stamped when the terms of Condition 3 have been complied with to the satisfaction of Council.” The expiry date of the development consent was given as “within six (6) months of the date of this notice in accordance with s 95(6) of the” EPAA (condition 2).

19 The Notice to Applicant of a Determination of a Development Application referred to the DA amended by the s 82A review.

20 A s 96(1A) application was then received by the council on 6 August 2009 (“the modification application”). The application sought that the attached modification staged development plan be stamped approved as the plan referred to at the seventh dot point of cl 4 of the consent.

21 The Director of Environmental Services at the council submitted a Supplementary Report to the ordinary meeting of the council on 18 August 2009 in respect of the modification application. The report recommended the granting of approval to amended condition 4 and stated that, “as detailed in the attached report public/government notification of the modification was not required, however, due to ongoing Class 4 proceedings interested parties will be notified of the outcome of the modification.” The modification application was approved by the council on that date.

22 Condition 4 of the s 96(1A) modification amended the drawing the subject of the December consent and the s 82A review relating to site and staging plans. In particular, it amended the consent by substituting Drawing No. 020708PKM, Version 4, dated 9 February 2009 with Drawing No. 020708PKM, Version 5, dated 24 July 2009. Otherwise the development was as originally approved.

Issues for Determination

23 Summarised, the challenge by Reid’s Farms in these proceedings is three-fold:

(a) first, to the validity of the December consent;

(b) second, to the power of the council to conduct the s 82A review; and

24 More specifically, and as they were logically and chronologically presented to the Court, the issues for determination were as follows:

(a) first, was the determination the subject of the s 82A review integrated development for the purpose of s 91(1) of the EPAA, and therefore, the council was not empowered to conduct the review (ground two in the amended points of claim);

(b) second, was there a failure to comply with a statutory duty to notify the application the subject of the s 82A review (ground three);

(c) third, in the alternative to ground two, did Reid’s Farms have a legitimate expectation that it would be notified of any proposed amendments to the December consent and thus to the s 82A review application which was not met thereby resulting in a denial of procedural fairness (ground four);

(d) fourth, had the December deferred commencement consent lapsed on 16 June 2009 because the requirements of condition 3 were not satisfied (ground one);

(e) fifth, was the effect of the December consent lapsing on 16 June 2009 that there was nothing to amend under s 96(1A) (ground five);

(f) sixth, was the December consent void for uncertainty in any event because the council left for future consideration fundamental matters the subject of the consent (ground six);

(g) seventh, was there a failure to take into account a mandatory relevant consideration, namely, the matters raised under cl 13(2) of the Murray Local Environment Plan (“the LEP”) (ground seven);

(h) eighth, was, for the reasons given in grounds six and seven, the decision of the council to grant the December consent manifestly unreasonable (ground eight); and

Land and Environment Court Act

Evidence of the Parties

25 The evidence consisted primarily of a bundle of agreed documents comprising of the various statutory instruments, planning controls and experts reports that had been before the council.

26 In addition, Reid’s Farms relied on an affidavit of Mr Chris Kinnane sworn 26 October 2009. Mr Kinnane is the sole director of Reid’s Farms. In that affidavit he stated that Reid’s Farms had previously objected to development on the site for the purposes of a tourist development and it had been previously successful in setting aside an earlier consent approved by the council.

27 He deposed that he first became aware of the s 82A review application on 20 August 2009, when a copy of the Notice to Applicant issued under s 81(1) of the EPAA pursuant to that review was provided to him. He stated that had he been aware of the application then an objection would have been made “on the basis of similar objections to the development application previously lodged with the Council” in respect of the same proposed development.

28 Mr Kinnane also stated that he did not receive any notification of the s 96(1A) modification application and that had he been notified, “it would have been possible to lodge and objection to the Council”.

29 The council relied on an affidavit sworn on 29 October 2009 by Mr Matthew Rogers, a director of Kell Moore Solicitors Pty Ltd, solicitors for the council. Mr Rogers deposed to the fact that:

(a) Mr Kinnane was kept informed at all material times of the lodgement of amended plans to satisfy deferred commencement condition 3(a) of the December consent;

(b) he informed Mr Kinnane that the council would not oppose KSK’s lodgement of the amended plans and that he sent a copy of the draft conditions of consent that the council would seek if the proposed amended plans were filed;

(c) Reid’s Farms was unsuccessful in its application to join the Class 1 appeal; and
(d) on 18 May 2009, the council wrote to all objectors, including Reid’s Farms, advising them that the Class 1 appeal had been set down for a consent order hearing on 9 June 2009. As a consequence, Mr Kinnane attended the consent order hearing, together with his consultant planner. No other objectors were present or responded to the notification correspondence.

30 KSK relied on an affidavit of Mr Gavan Kennaugh sworn 30 October 2009. Mr Kennaugh is a director of KSK. In addition to outlining the factual history of the proceedings, he stated that as at the date of the swearing of the affidavit, KSK had expended $3,859,411.74 on the development of the site.

Consideration

Was the Determination the Subject of the s 82A Review Integrated Development Such That s 82A Did Not Apply?

31 As outlined above, just prior to the expiration of the lapsing period under condition 2 of the December consent, KSK made an application to the council on 12 June 2009 for the council to accept a modified site plan. The application was described by KSK as “a formal request pursuant to Section 82(A)” of the EPAA.

32 Section 82A of the EPAA permits an applicant to request a council to review a determination of a development application, a consequence of which is that the council may confirm or change the determination. It relevantly states as follows:

82A Review of determination
(1) If the consent authority is a council, an applicant may request the council to review a determination of the applicant’s application, other than:

…

(c) a determination in respect of integrated development, or …

(2) A request for a review may be made at any time, subject to subsection (2A).
(2A) A determination cannot be reviewed:

(a) after the time limited for the making of an appeal under section 97 expires, if no such appeal is made against the determination, or

(b) after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination.

...

(3A) In requesting a review, the applicant may make amendments to the development described in the original application, subject to subsection (4)(c).
(4) The council may review the determination if:

(a) it has notified the request for review in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the council has made a development control plan that requires the notification or advertising of requests for the review of its determinations, and

(b) it has considered any submissions made concerning the request for review within any period prescribed by the regulations or provided by the development control plan, as the case may be, and

(c) in the event that the applicant has made amendments to the development described in the original application, the consent authority is satisfied that the development, as amended, is substantially the same development as the development described in the original application.

(4A) As a consequence of its review, the council may confirm or change the determination.

…

(8) If on the review the council grants development consent, or varies the conditions of a development consent, the council must endorse on the notice the date from which the consent, or the consent as varied, operates.
(9) If on a review the council changes a determination, the changed determination replaces the earlier determination as from the date of the review.

33 For present purposes s 91(1) of the EPAA defines “integrated development” as:

91 What is “integrated development”?
(1) Integrated development is development (not being complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals:

Act Provision Approval

…

Rural Fires Act 1997 s 100B authorisation under section 100B in respect of bush fire safety of subdivision of land that could lawfully be used for residential or rural residential purposes or development of land for special fire protection purposes

Water Management Act 2000 ss 89, 90, 91 water use approval, water management work approval or activity approval under Part 3 of Chapter 3

34 Reid’s Farms submitted that the determination referred to in s 82A(1) was the December consent which was an application in respect of integrated development, and therefore, the approval granted on 16 June 2009 pursuant to s 82A of the EPAA was invalid because the council granted approval in circumstances where it was not empowered to do so under s 82A(1)(c). Further, the breach of s 82A(1)(c) was a breach of an essential pre-condition to the exercise of power by the council and was not being capable of remedy.

35 The determination was a determination in respect of integrated development because, first, the development involved the approval of a bushfire safety authority pursuant to s 100B of the Rural Fires Act 1997 by reason of the proposed tourist accommodation being located on bushfire prone land, and second, because of the need for approval under s 91 of the Water Management Act 2000 as the works were proposed on waterfront land.

36 The respondents submitted that because at the time of the application for review the approvals listed in s 91 of the EPAA had already been issued by both authorities (which they had), the approvals had already been integrated and the review was not a review of “integrated development” but simply a review of development permissible under s 82A(1).

37 The respondents further submitted that Reid’s Farms’ construction of s 82A(1)(c) of the EPAA could not be supported by the statute because it would produce the result that the original application would be permanently characterised as integrated development which was inconsistent both with the permissive nature of the scheme and with the ability under s 82A(3A) to modify the proposal to remove those aspects of the development that rendered it ‘integrated’.

38 I do not agree. There is no warrant for construing s 82A(1)(c) other than in accordance with the plain language of that provision. The prohibition contained in s 82A(1)(c) is both express and unambiguous. In the review, the determination the subject of the s 82A application is plainly the December consent. It is this consent that is the “determination of the applicant’s application” (s 82A(1)). This was a determination in respect of integrated development. The council therefore had no power under s 82A to review it.

39 Were s 82A construed otherwise, review by a council would be permitted of an integrated development determination absent any notification or additional input by the authorities which were initially required to grant general terms of approval. Thus a proponent could make amendments to the development described in the original application (pursuant to s 82A(3A)) and, subject to the review being successful, commence construction without any further approval relating to the possible impacts of the amendments being given. Such a construction would, in my opinion, undermine the objects and intent of Pt 4 Div 5 of the EPAA (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 405-408 and Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at [10]-[11]).

40 To the extent that the respondents relied in support of their construction on s 82A(3A), the better view of that sub-section is that it is subservient to the prohibition contained in s 82A(1)(c).

41 Finally, the respondents submitted that a literal construction of s 82A(1)(c) produced an absurd result insofar as it permanently characterised the original application as integrated development, which was also antithetical to the description of s 91 as an elective scheme and the provisions in Pt 4 Div 5 of the EPAA as facultative and beneficial (Maule v Liporoni (2002) 122 LGERA 140 at [84] and [86] and Gunning Sustainable Development Assn Inc v Upper Lachlan Council (2005) 138 LGERA 281 at [69]-[70]).

42 This is to misconstrue the proscription in s 82A(1)(c) which applies not to the review application, but to the original determination the subject of the review. While it is true that “the provisions relating to integrated development are there for the benefit of applicants for development consent and not to hinder them” (Liporoni at [84]), nevertheless this provision must perform some work. The interpretation afforded to it by the respondents would substantially denude it of all functionality and would impose a gloss that cannot be justified by the clear text of the sub-section.

43 The respondents forcefully made the point that the application the subject of the review before the council in June 2009 was substantially the same as that before the council in December 2008, and therefore, it would not have been necessary to obtain additional approval from the relevant approval bodies. While this may have been the case for this particular application, as alluded to above, it is not difficult to envisage circumstances where it would be entirely appropriate that the approval bodies be further consulted.

44 Accordingly, to the extent that the respondents rely upon s 82A(4) as the source of the council’s power to make the determination, an essential precondition to the exercise of that power by the council had not been met because an application in conformity with the statutory criteria had not been made by reason of the fact that what sought to be reviewed was a determination in respect of integrated development which was statutorily verboten (Barrick Australia Ltd v Williams (2009) 74 NSWLR 733 at [33]-[34]).

45 It follows that I do not accept the submission put by the council and KSK that the determination of the council on 16 June 2009 was nevertheless immune from challenge because the legislature did not evince an intention that a failure to adhere to the procedures for integrated development would result in invalidity (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). In my view it did.

46 While reliance was placed on Liporani (at [91]), this authority does not assist the respondents concerning, as it does, a failure by the council to process a development application as integrated development, and therefore, to obtain necessary terms of approval. It is distinguishable on this basis.

47 I therefore find that the s 82A determination made by the council on 16 June 2009 was invalid.

Is There an Alternative Source of Power to Support the Review?

48 However, this is not the end of the matter. The respondents submitted that even if the power was not validly exercised pursuant to s 82A as I have determined, then it was open to the Court to find that some other source of power supported the making of the review determination (Vaw (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631 at [32] and [52]-[58]), namely, ss 96(1A) or 95A of the EPAA. This was so notwithstanding that KSK had clearly applied for a review under s 82A of the EPAA.

49 In reply, Reid’s Farms submitted that a material difference in the statutory tests under both s 82A(4) and s 96(1A) of the EPAA which would preclude s 96(1A) as an alternative source of power to conduct the review was the fact that if the review was in reality an application to modify the consent pursuant to s 96 of the EPAA, then the determination on 16 June 2009 impermissibly changed the date for compliance with the deferred commencement consent. Moreover, that the date could not be extended under s 95A of the EPAA (the only other available source of power to do so) because KSK had not satisfied the council that it had “shown good cause”. Therefore, because s 95 exhaustively prescribed means by which a development consent will lapse (Kinder at [36]-[41]), time could not be extended by either ss 96(1A) or 95A, which meant that neither could be an alternative source of power to support the purported s 82A review application.

50 Notwithstanding the nomenclature of the application, it is the determination of the council that is the proper focus of this enquiry (Pselletes v Randwick City Council (2009) 168 LGERA 59 at [50]).

51 The statutory scheme on lapsing is contained in ss 95 and 95A of the EPAA which provide as follows:

95 Lapsing of consent

(1) A development consent lapses 5 years after the date from which it operates.

(2) However, a consent authority may reduce that period of 5 years in granting development consent. This subsection does not apply to development consent granted to a staged development application under Division 2A for development that requires a subsequent development application and consent.
(3) Such a reduction may not be made so as to cause:

(a) a development consent to erect or demolish a building or to subdivide land to lapse within 2 years after the date from which the consent operates, or

(b) a development consent of a kind prescribed by the regulations to lapse within the period prescribed by the regulations in relation to the consent.

…

(4) Development consent for:

(a) the erection of a building, or

(b) the subdivision of land, or

(c) the carrying out of a work,
does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

(5) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.

(6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 80 (3) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified.

95A Extension of lapsing period for 1 year

(1) If, in granting a development consent, the consent authority reduces the period after which the consent lapses to less than 5 years, the applicant or any other person entitled to act on the consent may apply to the consent authority, before the period expires, for an extension of 1 year.

(2) The consent authority may grant the extension if satisfied that the applicant has shown good cause.

(3) A person making an application under subsection (1) who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after it is made, may appeal to the Court, and the Court may determine the appeal.
(4) An extension of 1 year granted under this section commences to run from the later of the following:

(a) the date on which the consent would have lapsed but for the extension,
(b) the date on which the consent authority granted the extension or, if the Court has allowed the extension in determining an appeal, the date on which the Court determined the appeal.

(5) This section does not apply to complying development.

52 Section 96 permits modifications of consents and states that:

96 Modification of consents—generally
(1) Modifications involving minor error, misdescription or miscalculation

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5), (6) and (7) do not apply to such a modification.

(1A) Modifications involving minimal environmental impact

A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) it is satisfied that the proposed modification is of minimal environmental impact, and

(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c) it has notified the application in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Section 95A

53 Turning first to the assertion that time could be extended under s 95A of the EPAA, I accept the submissions of Reid’s Farms that the preconditions for the exercise of power under this provision could not be met when regard was had either to cl 114 of the Environmental Planning and Assessment Regulation 2000 (“the Regulation”) (there was no application indicating why the council should extend time) or s 95A(2) of the EPAA (there was no evidence that the council in any way turned its mind to whether or not KSK had shown good cause warranting the granting of an extension). Accordingly, s 95A cannot be relied upon as an alternative source of power for the review purportedly undertaken pursuant to s 82A.

Section 96(1A)

54 Second, as to the availability of s 96(1A) of the EPAA, the respondents submitted that because the time limit contained in s 95(6) attached to the deferred commencement condition, and not to the consent, there was nothing preventing a council from modifying a condition under s 96, the effect of which was to extend the time for compliance with the condition required in the original consent. Thus there was nothing precluding this section from being employed as an alternative source of power to effect the review.

55 In Kinder Preston CJ analysed whether the modification of a development consent pursuant to s 96(1A) could permissibly extend the term of a lapsing consent (fixed for two years by the council). The date of the expiry of the lapsing period had already been extended by one year under s 95A(2). His Honour held that it could not reasoning (at [32]-[33], [36] and [39]-[42]):

32 The statutory scheme embodied in s 95 is that the statute itself, ultimately s 95(1), and not the development consent, causes a development consent to lapse. It does this by causing a development consent to lapse upon the occurrence of an event. The event is the expiry of a period of time from a date. The date is the day from which the development consent operates. The period of time is the period fixed at the time of, and in the granting of, the development consent.

33 The fixing of the period is a one off exercise. It can only be done at the time of and in granting development consent. The period can either be the five year maximum period specified by s 95(1) as the maximum period, or such reduced period (but not less than two years: s 95(3)) as the consent authority may specify in granting the development consent pursuant to s 95(2).

…

36 The upshot is that the statutory scheme exhaustively prescribes the means by which a development consent will lapse, and the timing of the lapsing, dependent upon the period fixed in the granting of the consent and any subsequent extension of that period under s 95A.

39 No modification of a development consent under s 96 can alter these means or timings of lapsing. The modification of a consent is not the grant of a consent: see s 96(4) of the Act. Hence, even if s 96 could be used to alter any reduced period that was specified pursuant to s 95(2) by the consent authority in granting the development consent, such modified period could never answer the description of being a period specified under s 95(2) of the Act “in granting development consent.”

40 The consequence is that, notwithstanding any modification of the consent that might be made, s 95(1) would still operate so as to cause the development consent to lapse on the expiry of the period that was fixed in granting the development consent together with any extension granted under s 95A.

41 In the present case, this means that even if the development consent were to be modified by changing the period stated in the consent to five years, as sought by the applicant, s 95(1) would continue to operate so as to cause the consent to lapse upon the expiry of the period of three years (two years fixed in granting the development consent plus the one year extension) after the date from which the consent operates, namely 13 December 2005. Any modification would be legally ineffectual to prevent this statutory consequence of lapsing.
42 For these reasons, the assumption in the question posed for determination is incorrect. Even if the power to modify a consent under s 96 of the Act were to be available, an exercise of that power would not prevent a consent from lapsing in accordance with the statutory means and timings which operate in relation to the unmodified consent.

56 The council and KSK argued that caution was now required in approaching the reasoning of Preston CJ in Kinder, which was decided prior to the enactment of s 95(6) (inserted into the EPAA by cl 41 of Sch 1 of the Environmental Planning Legislation Amendment Act 2006).

57 While it is undeniable that a council may permissibly modify a deferred consent condition pursuant to s 96, in my view, a council may not, pursuant to this provision, extend the time in which a development consent that is subject to a deferred commencement condition will lapse. Notwithstanding the legislature’s insertion of s 95(6) into Pt 4 Div 7 of the EPAA and irrespective of the word “condition” contained in that provision, the analysis in Kinder is, in my opinion, equally valid and applicable to the present consent.

58 The time limit stated in s 95(6) is clear, namely, that “a development consent that is subject to a deferred commencement condition… lapses…within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified”. In the present case, the time limit specified in the December consent was for a “shorter period”, namely, six months from 16 December 2008 (the date of the granting of the consent). This is no different than the time limit stated in s 95(1) read together with (2), viz, “a development consent lapses 5 years after the date from which it operates. However, a consent authority may reduce the period of 5 years in granting development consent.” (emphasis added)

59 The time limit in s 95(6) is fixed by the statute and not by the consent, other than by causing a development consent to lapse upon the occurrence of an event, namely, the failure to satisfy the consent authority as to the matter specified in the condition within the time stipulated (Kinder at [32]-[33]). The modification of the December consent by extending the time for compliance of deferred condition 3 by six months is qualitatively no different than that which was sought in Kinder. The result is, like Kinder, that the modification of the time limit for the expiration of the consent caused by the review is legally ineffectual to prevent the statutory consequence of lapsing.

60 Were it otherwise, an applicant could seek by modification, as was sought in Kinder, to extend indefinitely (on the respondents’ logic) the time limit for the expiration of the deferred commencement consent. This cannot be correct.

61 It therefore follows that s 96(1A) similarly cannot be used as an alternative source of power to support the review impermissibly conducted under s 82A.

62 Accordingly, this ground of review must be upheld. For the reasons that follow, however, this has not ensured Reid’s Farms’ success.

Was There a Failure to Comply With a Statutory Duty to Notify in the s 82A Review?

63 If the analysis above is incorrect and the June 2009 determination was validly made pursuant to a s 82A review, Reid’s Farms submits that the determination is in any event invalid because of the council’s failure to notify the review for a period of up to 14 days as mandated by s 82A(4) of the EPAA and cl 113A of the Regulation.

64 It is conceded by the council that no notification occurred.

65 Clause 113A of the Regulation relevantly provides:

113A Public participation: application under section 82A of the Act for review of council’s determination

(1) This clause applies to an application under section 82A of the Act for review by a council of its determination of a development application.

(2) An application to which this clause applies must be notified or advertised for a period not exceeding 14 days, but otherwise in the same manner as the original development application was notified or advertised.
(3) However, if the application is made to a council that has provided in a development control plan for the notification or advertising of such an application, the application is to be notified or advertised in accordance with the development control plan.

66 However, s 82A(4)(a)(ii) states that the request for the review may be notified in accordance with a development control plan if the plan “requires the notification or advertising of requests for the review of its determinations” and provided it has satisfied the matters in (b) and (c) of that section.

67 The council contends its “Notification for Development Applications Policy” (“the policy”) is such a plan and applied to the review.

68 The policy applies to “all development applications” received by the council and cl 7.4 of the policy states that “notice of an application will not be required where Council considers the proposal to be of a minor or inconsequential nature”.

69 Clause 8.2 of the policy states that:

8.2 It should be noted that the provisions of this Policy do not take precedence over the notification provisions set out in the Environmental Planning and Assessment Act 1979 and the Environmental Planning and Assessment Regulation 1994. Those provisions relate to designated development, integrated development, nominated integrated development and advertised development.

Curiously, it is silent with respect to the 2000 Regulation.

70 Reid’s Farms did not challenge that the policy was not a plan for the purpose of s 82A(4)(a)(ii). However, it did challenge that it was a plan that required the notification or advertising of requests for the review of its determinations. It also questioned whether the council could be satisfied that the amended consent was substantially the same development as the development described in the original application pursuant to s 82A(4)(c).

71 One of the objects of the EPAA (s 5(c)) is to provide for public involvement and participation in environmental planning and assessment. The consequences of a failure to correctly advertise a development can be severe (Boral Resources (Country) Pty Ltd v Clarence Valley Council (2009) 167 LGERA 134 at [40]).

72 I accept the submissions of the respondents that the policy applied to KSK’s request for a s 82A review. The request was in respect of a development application received by the council (the DA). That consent was given to the DA in December, and that the s 82A review was in respect of the December consent does not, in my opinion, deny the application of the policy. In my opinion, a policy applying to “all development applications” also applies to subsequent requests for reviews and to modification applications. In so concluding, I do not consider that this construction undermines the objects of the EPAA. Where the council considers that the proposal is more than of a minor or inconsequential nature, notification will nevertheless occur (cl 7.4).

73 As is evident from the report prepared in response to the application for review, the council applied its notification policy and concluded that none was required because the development was substantially the same as the development described in the original application.

74 Reid’s Farms submits that this conclusion cannot stand upon closer scrutiny because it was in respect of the December consent which modified the DA as lodged to provide for a 60 m, and not 35 m, set back of the development from the Murray River. If regard was had to the original DA then, the applicant states, the council could not have formed the view that the development the subject of the s 82A review request was substantially the same as the development described in the original application given the variance in the set backs.

75 Leaving aside the extent to which this submission slides into a consideration of the merits of the council’s decision that notification was not necessary, I do not, in any event, accept it as correct. Absent proof to the contrary, it may be assumed that in considering the review application the council had before it the DA and all associated documentation (including objector submissions and experts reports) (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 31, Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67] and Nambucca Valley Conservation Association Inc v Nambucca Shire Council [2010] NSWLEC 38 at [187]). It can therefore be inferred that in concluding that the s 82A review request was substantially the same as the development described in the original application, this included an assessment of the DA and the December consent.

76 On this basis, there was no failure by the council to comply with the notification requirements contained in s 82A(4)(a).

77 If I am wrong, given that Mr Kinnane was served with, and moreover notified that the council had been emailed with, a copy of the amended plan the subject of the subsequent s 82A review request as early as 22 April 2009, as an appropriate exercise of my discretion I would be reluctant to grant the relief sought by Reid’s Farms for this reason alone.

If There Was a Failure to Notify, Was Reid’s Farms Denied Procedural Fairness?

78 Even if notification was not required, did Reid’s Farms, in light of its history and involvement with the development, have a legitimate expectation that it would be notified of any proposed amendments to the December consent?

79 The short answer is that it did not and this ground must fail. This is because irrespective of the current scope of the concept of legitimate expectations, even if such an expectation arose on the part of Reid’s Farms, there was no denial of procedural fairness in the circumstances because no “practical injustice” resulted from the denial (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [38], [59], [111]-[114] and [145]-[149]).

80 Mr Kinnane’s evidence is that had Reid’s Farms been aware of the application for review under s 82A “an objection would have been made on the basis of similar objections to the development application previously lodged with the Council” which, it can be inferred, were taken into account by the council. It may be safely concluded, therefore, that no practical injustice resulted.

Did the Deferred Commencement Consent Lapse on 16 June 2009?

81 It was not in dispute that the requirements under condition 3 of the December consent were not satisfied within six months of the date of the Notice of Assessment on 16 December 2008.

82 Given my finding that the s 82A review application was determined by the council absent any power to do so, the issue becomes from what date did the December consent become effective given the commencement on 15 December 2008 and discontinuance on 23 July 2009, of the Class 1 appeal by KSK pursuant to s 97 of the EPAA.

83 Section 83 relevantly provides:

83 Date from which consent operates

(a) except as provided in paragraph (b)—the date that is endorsed on the notice given to the applicant in accordance with section 81 (1) of the determination of the development application or under section 82A (7) …

(a) ceases to be, or does not become, effective pursuant to subsection (1), and

(b) becomes effective and operates from the date of the determination of that appeal, except where that decision is to refuse development consent.

(a) an appeal under section 97 is dismissed and development consent is refused, or

(b) an appeal under section 98 is upheld, with the effect that development consent is refused.

84 The respondents submit that the appeal had the effect of suspending the operation of the December consent while the appeal was extant (s 83(2)(a)). Once the appeal was discontinued, the suspension was lifted and the consent became effective as at that date, namely, 23 July 2009, and hence it did not lapse on 16 June 2009.

85 KSK additionally argued that the consent became effective on 23 July 2009 because there was no date endorsed “on the notice” given to it of the determination of the development application (s 83(1)(a)). The covering letter attaching the development consent was dated 22 December 2008 and stated “further to the Meeting of Council held on 16th December 2008 please find the attached development consent”. By its submission KSK seeks to draw a distinction between the date “on” the notice and the date ‘of’ the notice.

86 In my opinion, this distinction is an overly fine one, the logical corollary of which is that there has never been a date endorsed on the notice of determination and the consent has never become operative.

87 In the present case, because the letter attached the notice of determination and expressly referred to the date of the determination as “the Meeting of Council held on 16th December 2008”, this was sufficient to amount to a date endorsed on the notice of determination given to KSK for the purpose of s 83(1)(a).

88 Reid’s Farms does not dispute that the operation of the consent was suspended during the period of the appeal pursuant to s 83(2). Rather, it says that the appeal did not have the effect of suspending compliance with the deferred commencement conditions and because the discontinuance of the appeal was not a “determination of that appeal” under s 83(2)(b), upon discontinuance the consent immediately lapsed. The practical effect of the applicant’s submission is that KSK was granted an extension of just over a month to comply with the conditions of deferred commencement, which it did not do.

89 While the Class 1 appeal remained pending the operation of the consent, including the deferred commencement conditions, was suspended (Wingecarribee Shire Council v Pancho Properties Pty Limited (2001) 117 LGERA 104 at [27] citing Swadling v Sutherland Shire Council (1994) 82 LGERA 431 at 435).

90 Accordingly, by operation of s 83(2)(a) of the EPAA, immediately upon the granting of the consent as at 16 December 2008 the consent was suspended by reason of the appeal. What then occurred once the appeal was discontinued?

91 Section 83(2)(b) states that a consent becomes operative “from the date of the determination of” an appeal. In the present case, there was no determination of the appeal by the Court assuming that term is to be construed as only referring to a curial decision.

92 But this is not what the statute requires. The section merely refers to “the determination of that appeal” and not the ‘the determination by the Court of that appeal’ (cf s 82A(2A)(b) which expressly refers to a determination that “is disposed of by the Court”, emphasis added, or s 83(5)(a) which refers to “a court…that finally determines an appeal or a question of law”, emphasis added). Construed in accordance with its ordinary meaning the term “the determination” includes the “the act of coming to a decision; the fixing or settling of a purpose”, “a result ascertained; a solution” and “conclusion or termination” (Macquarie Dictionary, on-line edition). This includes the decision to discontinue the appeal (Swadling at 436).

93 To interpret the provision otherwise would produce the absurd result of the consent never having become enlivened, it having been suspended as a consequence of the appeal being lodged and not able to be revived (on the applicant’s logic) upon discontinuance. It would also be an interpretation that is inconsistent with the objects of the EPAA, which include the promotion and co-ordination of the orderly and economic use and development of land (s 5(a)(ii)).

94 It therefore follows that the December consent, which was not effective and operational until discontinuance of the Class 1 appeal on 23 July 2009, did not lapse on 16 June 2009.

Did the December Consent Lapse on 16 June 2009 and If So What Was the Effect of the August s 96 Modification Application?

95 Not having lapsed on 16 June 2009 for the reasons given above, the December consent was amenable to the s 96 modification application lodged by KSK on 6 August 2009. There was no challenge to the validity of this modification application other than on the basis that by August 2009 the consent had lapsed and there was nothing to modify.

96 Accordingly, there being no statutory impediment to entertaining and making the determination it did on 18 August 2009, the effect of the modification was that the development was to be carried out in accordance with Drawing No. 220708PKM, Version 5, dated 24 July 2009.

Was the December Consent Void for Uncertainty?

97 Reid’s Farms contends that if the December consent has not lapsed then it is void for uncertainty because the council left for future consideration fundamental matters the subject of the consent that were not able to be conditioned as deferred commencement conditions. The matters particularised in the Amended Points of Claim were:

(a) at the time of granting the December consent the council left for further determination both the location of the buildings behind the 60 m zone and the staging of the development consent; and

60 m set back

98 Both in oral and written submissions it was primarily the 60 m set back to which the Court’s attention was directed under this ground. Reid’s Farms submitted that the plans referred to in the December consent (Drawings No. 020708PKM, Version 2, dated 2 July 2008) did not show proposed buildings set back 60 m or more from the high bank of the Murray River. The council could not, therefore, approve the consent pursuant to cl 30(2) of the LEP.

99 Clause 30 of the LEP relevant states:

30 Development along rivers
(1) Notwithstanding any other provision of this plan, a person shall not, on land to which this plan applies:

(a) on land within Zone No 1 (a) or 1 (c) within 400 metres of any bank of a river, erect a building for any purpose,

(b) on land within 60 metres of any bank of a river, cause destruction to any tree,

(c) on land within 20 metres of any bank of a river, carry out development for any purpose, or

(d) on land comprising the bed or any bank of a river, carry out development for the purposes of:

(i) a canal,
(ii) a marina (including pontoons, jetties, piers of other structures) designed to provide mooring or dry storage for one or more vessels used for any purpose, or
(iii) filling or extraction,

except with the consent of the Council.

(2) the Council shall not consent to an application to erect a building on land comprising:

(a) a bed of a river, or

(b) land within Zone No 1 (a) or 1 (c) and being within 60 metres of any bank of the river,

unless, in the opinion of the Council, the building:
(c) is ancillary to the use of that land for the purpose of a recreation area, or

(d) is to be used for the purpose of fisheries, irrigation works (including the pumping and treatment of water for private domestic consumption), marinas, utility installations or the servicing of vessels or sea planes.

100 It is not in dispute that no plans were before the council on 16 December 2008 for a development set back 60 m from the nearest high bank of the Murray River. There was, however, before the council material submitted by KSK by way of planning reports that discussed this requirement. For example, see the town planning assessment report dated 5 November 2008 (Issue D) prepared for the council by blueprint Planning & Development in respect of the DA (“the bluerprint report) (at pp 7-8, 20-22 and 44) and the report prepared by EDM Group (town planners, surveyors, engineers, environmental planning and project management) on behalf of KSK, dated 24 April 2008, in support of the DA (‘the EDM report”) (at pp 1-2, 32 and Appendix 1).

101 The applicant further submitted that because the Department of Planning was the concurrent authority with respect to any SEPP 1 objection under cl 30, which had rejected on two prior occasions a variation under SEPP 1 to cl 30(2), compliance with the set back provisions was neither unreasonable nor unnecessary in the circumstances, and as a consequence of the lack of concurrence the council ought not have approved the development.

102 In addition, when Version 2 of the plans was compared with Version 4, it was apparent that there were material changes in the allotment sizes, the set back, the location of the pond and the road layout. Thus, Reid’s Farms submitted, the development was approved subject to deferred commencement conditions, in particular conditions 3(a) and 9, that contained no constraints on the proponent changing the development in a significant way.

103 In short, Reid’s Farms contended that because in reality the question as to the set back of the whole development was left for future determination with no constraints on KSK to prevent it from substantially changing the development, because the council had no power to approve the development other than in accordance with the 60 m set back and because the December consent was silent on whether the amended plans needed to come before the council for final acceptance, the consent was uncertain as the council had left open the possibility of a significantly different development.

104 In Kindimindi Investments Pty Ltd v Land Cove Council (2006) 143 LGERA 277 the Court of Appeal stated the test for uncertainty as follows (per Basten JA at [28]):

[28] Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests.

105 Further, the Court said (at [57]-[59]):

[57] Returning to the present facts, neither condition 1(a) nor condition 1(b) will be invalid merely because it is imprecise or uncertain. It will only be invalid if it falls outside the class of conditions permitted by the EP&A Act. The addition, since Mison and other pre-1997 authorities in this Court, of s 80A requires that that question be answered primarily by reference to the terms of that provision. Thus, to the extent that each condition relates to a matter referred to in s 79C(1)(a) (being the matters to be taken into consideration by the consent authority) and (g) (because each modifies a detail of the development) they are prima facie valid. Thus, the argument for the appellant must be that each will comply with the statutory requirements only if they also satisfy subs 80A(4). However, care must be taken not to invert the intended purpose of that provision. It is not, in its terms, expressed as a restriction which would apply to all conditions: rather it appears to be intended permissively to allow a condition to be formulated in a particular manner. Thus, in referring to the identification of an outcome or objective and clear criteria against which the achievement of the outcome or objective “must be assessed”, the inference is that it is dealing with a condition which requires a change in a development which may perhaps take one of a number of forms, leaving to the proponent an element of discretion, subject to compliance with criteria against which the selected variation can and will be assessed. The intention appears to be to allow an initial level of uncertainty and lack of finality. It does not mean, however, that a condition cannot be imposed in order to satisfy a broad objective, without specifying matters of detail. For example, if condition (b) had merely required the enclosure of the open sections of the carpark without referring to the objective of “providing visual relief and interest”, it would have been difficult to argue that the condition fell within the terms of subs 80A(4) as a condition which stated an objective. The addition of reference to an objective should not lead to the imposition of some requirement for greater precision than would otherwise have been intended.
[58] The need to apply a purposive approach to this provision is clear also from its use of the term “outcomes”. That should not be understood in its ordinary meaning of a result or a visible effect, but rather in the sense of a broader objective, which will not be sufficient to identify any particular result. Furthermore, there is no reason to apply the section in a mechanical way involving the separate identification of an outcome or objective and the criteria against which the achievement of that outcome or objective can be assessed. Objectives can be identified in a manner which includes the criteria, although the important qualification is that the criteria must be “clear”.

[59] The apparent purpose of the provision is to allow a condition to require a variation of a proposal where the intended result is sufficiently identified, but the means of achieving it are left to the proponent. In my view neither of the conditions in question falls within these requirements. There is a danger that the adoption of an overly prescriptive approach will have the result of imposing on the consent authority an obligation to specify a level of detail which it did not intend to require and which was not necessary to comply with its regulatory functions. A consequential danger would be to permit an analysis of such matters which may encourage a court to cross the borderline into impermissible merit review of the decision.

106 Section 80A(1) and (4) of the EPAA provide:

80A Imposition of conditions
(1) Conditions—generally

A condition of development consent may be imposed if:

(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or

(b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or

(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

(d) it limits the period during which development may be carried out in accordance with the consent so granted, or

(e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or

(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or

(g) it modifies details of the development the subject of the development application, or

(h) it is authorised to be imposed under section 80 (3) or (5), subsections (5)–(9) of this section or section 94, 94A, 94EF or 94F.

…
(4) Conditions expressed in terms of outcomes or objectives

A consent may be granted subject to a condition expressed in a manner that identifies both of the following:
(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b) clear criteria against which achievement of the outcome or objective must be assessed.

107 Before the council on 16 December 2008 was a report from its Director of Environmental Services. The report noted that concurrence had not been granted by the Department of Planning to vary cl 30(2) of the LEP and therefore three possible options were suggested, one of which was to “request the Applicant to amend plans comprising the DA to show no buildings being located within 60 m of the nearest high bank of the Murray River”. It was this option that was recommended because, amongst other things, “if no building structures are proposed within 60 m of the nearest high bank of the Murray River there is no need for a SEPP1 objection to clause 30(2)(b) of the LEP”. It was this option that was endorsed by the council resulting in the granting of the December consent which included conditions 3(a) and 9.

108 In my opinion, there was nothing uncertain about the consent insofar as it required the subsequent provision of an amended site plan and an amended development plan that conformed with the substance of cl 30(2) of the LEP. The absence of these documents in December, especially in light of the material that was before the council on this matter at the time of its determinaton, did not prevent the council from performing its statutory duty under the EPAA (Cranky Rock Road Action Group Inc v Cowra Shire Council (2006) 150 LGERA 81 at [73]). Furthermore, the conditions did not fall outside the class of conditions permitted by s 80A the EPAA. Not dissimilar to the conditions in Kindimindi, conditions 3(a) and 9 were in respect of the matters the subject of s 80A(1)(a) and (g) and were therefore supportable under s 80A(1). They were also separately supportable under s 80A(4).

109 Accordingly, it follows that I do not accept that this aspect of the consent is void for uncertainty.

sewage treatment plant

110 Clause 7.2 of the Murray Development Control Plan required an assessment of the provision of waste disposal facilities prior to the granting of the consent. This clause relevantly states:

7.2 Council shall not grant consent to the development of tourist facilities unless it has made an assessment of:

…
(e) provision of permanent water supply;
(f) provision of waste disposal facilities;

111 Reid’s Farms orally argued that condition 15 did not properly deal with an important aspect of the DA, namely, approval of the sewage treatment plant insofar as this issue, identified as significant by cl 7.2, was left for further determination.

112 However, again this argument cannot, in my view, be sustained. The evidence reveals that the substance of cl 7.2 was given a significant degree of consideration by the council. It was the subject of a number of submissions that were before the council when assessing the DA. It was discussed in detail in the blueprint report (at pp 27, 28, 34-35, 38, 50 and 55-56), which was before the council when it was determining whether or not to grant the consent. The blueprint report noted at paragraphs 15, 19, 20, 23 and 63 (respectively) of Appendix B entitled “Recommended Conditions of Approval” that:

(a) prior to the issue of a subdivision or building construction certificate a fresh development application was to be lodged with the council showing on a plan all the land comprising the site, including the sewerage treatment plant;

(b) prior to the issuing of a building occupancy certificate or the commissioning of the sewerage treatment plant the contingency for the possible need for an offsite disposal of treated wastewater or disposal of overflow stormwater had to be addressed by legal agreement between the parties;

(c) KSK had to obtain an approval under s 68 of the Local Government Act 1993 to carry out water supply work and sewerage work;

(d) the approved sewerage treatment plant was to be used as an ancillary component of the approved tourist facility and is to be established and fully commissioned to the satisfaction of the council prior to the issuing of the first occupation certificate for any building that has a toilet or greywater system; and
(e) that certain conditions of the Department of Environment and Conservation (including from the Environment Protection Authority) relating to the sewage treatment system be complied with.

113 It was also referred to in the EDM report (at pp 6 and 30-31) and in detail in a traffic impact assessment report prepared by EarthTech, dated April 2008 (“the EarthTech report”) (at Appendices 13 and 14).

114 Viewed against this material, and when regard is had not just to condition 15 of the December consent but in addition, conditions 14, 19, 20, 23 and 35, there is nothing uncertain about the consent with respect to the sewage treatment plant. Condition 15 of the consent was, consistent with the reasoning in Kindimindi and Cranky Rock Road, properly imposed pursuant to s 80A(1) and 80A(4) of the EPAA.

115 Having determined that the consent cannot be impugned on the ground of uncertainty, this contention must fail.

Did the Council Fail to Take Into Account Clause 13(2) of the LEP Which Was a Mandatory Relevant Consideration?

116 Reid’s Farms contended that by reason of the council’s failure to prepare a report that would satisfy cl 13(2) of the LEP, it failed to take into account a mandatory consideration. In the alternative, it contended that if it did, there was no proper, genuine and realistic consideration given to the substance of cl 13(2). The characterisation of cl 13(2) as a mandatory relevant consideration was not a matter of controversy (s 79C(1)(a) of the EPAA).

117 Clause 13 of the LEP states as follows:

13 Subdivision for other purposes in Zone No 1 (a)

(1) The Council shall not consent to an application to subdivide land within Zone No 1 (a) if any allotment to be created by the subdivision is to be used primarily for purposes other than agriculture or a dwelling-house, unless, in the opinion of the Council:
(a) none of the land the subject of the application is prime crop and pasture land, and
(b) the area of each allotment to be created by the subdivision is appropriate having regard to the purpose for which it is being created.

(2) Nothing in subclause (1) prevents the Council from granting consent to an application to subdivide land to create an allotment to be used for a purpose other than agriculture or a dwelling-house if the Council is satisfied that:
(a) the purpose for which the allotment is to be used involves the supply of goods or services for which there is a demand in the locality,
(b) no other land in the locality could reasonably be used for that purpose, and
(c) the level of demand for the goods or services which are to be supplied from the allotment and the extent to which that allotment is proposed to be used to meet that demand justifies the creation of the allotment notwithstanding its agricultural value.

118 Accordingly, the applicant stated, the council was required to prepare a report that addressed the three matters on which the council had to be satisfied prior to approving an application for subdivision on land zoned 1(a) which is prime crop and pasture land.

119 The onus rests on Reid’s Farms as the challenger of the consent to establish that the council did not take into consideration cl 13(2) of the LEP (GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 at [83]). In my opinion, the applicant’s assertion that the council failed to consider cl 13(2) cannot be sustained in light of the considerable discussion of the content of that clause in:

(a) the blueprint report (at pp 20, 32-34, 37, 40-42, 47-49 and 52); and

120 Reid’s Farms further asserted that while the blueprint report acknowledges that the land is prime crop and pasture land, the report “undertakes no investigation or provides any evidence to support these statements. It is submitted that the Court would not accept that the Council had satisfied itself under clause 13(2).”

121 However, that is not what the council was obliged to do. There was nothing impermissible about the council relying on and adopting the discussion and recommendations contained in the blueprint report or the EDM report concerning the matters referred to in cl 13(2) when assessing the DA. In the absence of any evidence to the contrary, it may be inferred that this material was within the council’s contemplation at the time the December consent was determined (see the authorities cited above at [75]). It may therefore also be inferred that the council reached the requisite level of satisfaction required by cl 13(2) of the LEP.

122 More specifically, Reid’s Farms complains that no or insufficient consideration was given to the matters contained in cl 13(2)(b) and (c). However, when regard is had to the blueprint report (at, for example, pp 40-42) and the EDM report (at, for example, pp 8-15 and 26-29), it is again apparent that this assertion cannot be maintained. These reports evidence that more than mere advertence or lip service was paid to the substance of cl 13(2) and that ‘proper, genuine and realistic consideration’ was given to the content of that clause (Sharples v Minister for Local Government (2008) 166 LGERA 302 at [108]-[111] and The Village McEvoy Pty Limited v Council of the City of Sydney (No 2) [2010] NSWLEC 17 at [74]-[77]). As the above quote from the applicant’s submissions reveals, this ground of review essentially concerns dissatisfaction with the merits of the council’s decision in this regard, a matter into which this Court cannot trespass.

123 For these reasons, this ground of review must also be dismissed.

Was the Council’s Decision Manifestly Unreasonable?

124 Reid’s Farms submitted that for the same reasons as those put forward in respect of the two grounds of review discussed immediately above, the decision of the council to grant the December consent was manifestly unreasonable.

125 In Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145 Tobias JA (at [104]-[109]) set out the various formulations of manifest or ‘Wednesbury’ unreasonableness:

104 Finally, as her Honour noted at [115], in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11 Spigelman CJ, with whom Beazley JA and myself agreed, stated at [129]:

“Perhaps the most appropriate formulation [of Wednesbury unreasonableness] is whether the decision is ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’.”

105 This formulation was adopted by myself in Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [71]. It was also adopted and applied by myself, with the agreement of Mason P and Hodgson JA, in Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [122]. In Notaras I cited (at [124]) [31] of the judgment of Biscoe J in Save Our Streets Inc v Settree [2006] NSWLEC 570; (2006) 149 LGERA 30 where his Honour drew a distinction between a decision which the court considers is unreasonable and a decision which the court considers is so unreasonable that no reasonable body could have come to it. The latter required “ something overwhelming ”: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [44].

106 In Wednesbury itself, Lord Greene MR at 229 referred to the relevant unreasonableness as “something so absurd that no sensible person could ever dream that it lay within the power of the authority”. In Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821, Lord Diplock defined Wednesbury unreasonable decisions as those which “looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them”. In Puhlhofer v Hillingdon London Borough Council [1986] 1 AC 484 at 518, Lord Brightman said that the unreasonableness must be “verging on an absurdity”.

107 Other synonyms have been described in the authorities. They are collected in Aronson, Dyer and Groves, Judicial Review of Administrative Action , 4 ^th ed (2009) Lawbook Co at 376-377 [6.215].

108 What Lord Brightman said in Puhlhofer at 518 and, in particular, his Lordship’s reference to the relevant body’s decisions being, in effect, immune unless it was acting perversely, was cited by Gleeson CJ and McHugh J in Eshetu at [41]. The essential point relevant to the present appeal which their Honours made in that case was, as Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 42, the necessity for a court to “proceed with caution … lest it exceed its supervisory role by reviewing the decision on its merits ”.
109 The cases are replete with this warning with the consequence that the success of a challenge on the Wednesbury unreasonable ground is confined to extreme cases involving, as Aronson et al opine at 376, “ demonstrably absurd decisions ”. (emphasis added)

126 As Basten JA pithily noted (at [208]), “where it can be seen that the power has been exercised for a proper purpose, and no mandatory considerations have been ignored, nor impermissible considerations taken into account, the challenge of irrationality will be hard to make good.” Given the findings I have made above, the applicant’s challenge to the December consent on this basis is indeed “hard to make good”.

127 In the present case, the matters upon which Reid’s Farms relies to support a finding of manifest unreasonableness, namely, the compendium of the issues raised by the preceding two grounds of review, do not come close to satisfying any of the tests set out above. While reasonable minds may differ as to whether or not the council made the correct decision on 16 December 2008, it cannot be said that of the three choices presented to the council in the Director of Environmental Sciences report, viz, to:

1. request the Applicant to amend plans comprising the DA to show no buildings being located within 60 m of the nearest high bank of the Murray River, or

2. approve the DA subject to a condition that no buildings are located within 60 m of the nearest high bank of the Murray River, or
3. refuse the DA as concurrence to the proposed variation of 30(2)(b) of the LEP has not been granted by the DoP,

that by electing to endorse the second option, the council’s decision was
demonstrably absurd.

128 This ground must therefore be rejected.

Discretion and s 25B of the Land and Environment Court Act

129 The logical outcome of these reasons is that the consent has neither lapsed nor is invalidated. It therefore follows that neither the question of whether the relief sought in the amended application ought to be withheld in the general exercise of my discretion nor the question of whether the Court should make an order under s 25B of the Land and Environment Court Act 1979 enabling a process for the conditional validity of the instrument, require determination.

130 Having said this, the following comments are worth noting. Reid’s Farms submitted that if the consent had lapsed the application of s 25B would not assist the respondents. While s 25B is not limited to invalidity arising from preliminary steps (Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333 at [32]-[33]. Relevant considerations in relation to s 25B were canvassed in Clark & Davis v Wollongong City Council (No 2) [2008] NSWLEC 226 at [21]-[29] per Sheahan J, Aldous v Great Taree City Council (2009) 167 LGERA 13 at [93]-[101] per Biscoe J and Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133 at [20]-[31] per Pain J), the applicant’s submissions in this regard are preliminarily compelling.

131 However, assuming for present purposes that the consent has not expired but is invalid by reason of a failure to notify, a lack of certainty as to its terms or a failure to consider cl 13(2) of the LEP, then scope for the application of s 25B may nonetheless remain (for example, in light of the actual notice given to Mr Kinnane on behalf of Reid’s Farms of the purported s 82A application - although often in cases of a failure to consider a mandatory relevant matter the Court has generally found it inappropriate to make an order under this provision: Aldous at [100] and Nambucca at [242]. Similar reticence is demonstrated with respect to a failure to notify: Boral (No 2) at [31]).

132 In any event, the parties had requested that further submissions be permitted on the question of relief, a request that I would have readily acceded to.

Costs

133 Typically costs follow the event and the appropriate order would be that Reid’s Farms is to pay the respondents’ costs. However, the respondents were not successful in resisting all of the issues raised by the applicant.

134 The parties have requested that the costs be separately argued. In all the circumstances, the request is not inappropriate. Accordingly, costs are reserved.

Conclusion and Orders

135 Having determined that the December consent has not lapsed and is otherwise valid, the application must be dismissed.

136 The orders of the Court are:

(1) the amended application is dismissed;
(2) the costs are reserved; and

(3) the exhibits are returned.

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Citations

Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127

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CITATION:	Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127
PARTIES:	APPLICANT Reid's Farms Pty Ltd FIRST RESPONDENT Murray Shire Council SECOND RESPONDENT KSK Developments Pty Ltd
FILE NUMBER(S):	40145 of 2009
CORAM:	Pepper J
KEY ISSUES:	DEVELOPMENT CONSENT :- whether or not development consent lapsed - whether s 82A review permissible because review was of a determination in respect of integrated development prohibited by s 82A(1)(c) - whether there was a failure to notify the request for the s 82A review - whether there was a legitimate expectation of notification of the s 82A review - whether any “practical injustice” arose as a consequence of failure to notify - whether s 96(1A) modification was an alternative source of power to support review – whether s95(6) can be used to extend time for compliance with deferred conditions of consent – whether s 95A validly extended time for compliance with deferred commencement conditions – effect of consent discontinuance of Class 1 appeal on operation of consent – whether consent void for uncertainty because the council left for future consideration of matters the subject of the consent - whether a failure to take into account a mandatory relevant consideration - whether the decision of the council manifestly unreasonable – consent not lapsed – application dismissed STATUTORY INTERPRETATION:- whether review of determination of an application for integrated development “integrated development” for the purpose of s 82A(1)(c) – whether a consent discontinuance a “determination” of an appeal for purpose of s 83(2)(a)
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 80A, 82A, 83(2)(a), 95(6),95A, 96(1A), 97 Land and Environment Court Act 1979 s 25B
CASES CITED:	Aldous v Great Taree City Council [2009] NSWLEC 17; (2009) 167 LGERA 13 Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 74 NSWLR 733 Boral Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81; (2009) 167 LGERA 134 Boral Resources (Country) Pty Ltd v Clarence Valley Council (No 2) [2009] NSWLEC 133 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Clark & Davis v Wollongong City Council (No 2) [2008] NSWLEC 226 Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; (2006) 150 LGERA 81 GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647 Gunning Sustainable Development Assn Inc v Upper Lachlan Council [2005] NSWLEC 23; (2005) 138 LGERA 281 Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737; (2005) 143 LGERA 237 Kindimindi Investments Pty Ltd v Land Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145 Maule v Liporoni [2002] NSWLEC 25; (2002) 122 LGERA 140 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Nambucca Valley Conservation Association Inc v Nambucca Shire Council [2010] NSWLEC 38 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Pselletes v Randwick City Council [2009] NSWCA 262; (2009) 168 LGERA 59 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302 Swadling v Sutherland Shire Council [1994] NSWLEC 45; (1994) 82 LGERA 431 The Village McEvoy Pty Limited v Council of the City of Sydney (No 2) [2010] NSWLEC 17 Vaw (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631 Wingecarribee Shire Council v Pancho Properties Pty Ltd [2001] NSWCA 271; (2001) 117 LGERA 104
DATES OF HEARING:	16-18 November 2009
DATE OF JUDGMENT:	23 July 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr M Baird SOLICITORS Chris Kinnane FIRST RESPONDENT Mr M Seymour SOLICITORS Kell Moore Solicitors Pty Ltd SECOND RESPONDENT Mr N Eastman SOLICITORS Cosgriff Orchard Legal

Act	Provision	Approval
…
Rural Fires Act 1997	s 100B	authorisation under section 100B in respect of bush fire safety of subdivision of land that could lawfully be used for residential or rural residential purposes or development of land for special fire protection purposes
Water Management Act 2000	ss 89, 90, 91	water use approval, water management work approval or activity approval under Part 3 of Chapter 3