Richmond v Minister for Urban Affairs & Planning
[2000] NSWLEC 23
•02/15/2000
Land and Environment Court
of New South Wales
CITATION: Richmond v Minister for Urban Affairs & Planning [2000] NSWLEC 23 PARTIES: APPLICANTS:
Paul Richmond and Elva Richmond
RESPONDENT:
Minister for Urban Affairs & PlanningFILE NUMBER(S): 40141 of 1999 CORAM: Sheahan J KEY ISSUES: Injunctions and Declarations :- Declarations - powers of Minister to make plans - Minister's discretion - whether Minister's decision invalid through misinformation - power to review own decision and reverse it - whether whole process must be repeated
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Interpretation Act 1987
The North Coast Regional Environmental Plan 1988
Byron Local Environmental Plan 1988 (Amendment No.61)CASES CITED: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, Attorney General (NSW) v Quin (1990) 170 CLR 1, Chan v Minister for Immigration & Ethnic Affairs 169 CLR 379, Leung v Minister (1997) 79 FCR 399 or 150 ALR 76, Luu v Renevier (1989) 91 ALR 39, Minister for Aboriginal Affairs v Peko-Wallsend 162 CLR 24, Nettheim v Minister for Planning & Local Government & Anor (No.40139 of 1988, Cripps J, 21 September 1998), Parkes Rural Distributions Pty Ltd v Glasson & Anor (1986) 7 NSWLR 332, Parramatta City Council v Pestell 128 CLR 305, Parramatta City Councill & Anor v Hale & Ors, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, Rosemount Estates Pty Ltd v Cleland & Ors (1994-1995) 86 LGERA 1, Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [1999] LEC 251, Videto & Anor v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167 DATES OF HEARING: 14/09/99, written submissions 17/09/99, 22/10/99, DATE OF JUDGMENT:
02/15/2000LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANTS:
14/09/99 and 17/9/99
Mr T Hale (Barrister)
SOLICITORS:
Wroth Wall
22/10/99
Mr P Richmond (in person)
Mr P McClellan SC, with Mr A Galasso (Barrister)
SOLICITORS:
Mr J Scholtz, Department of Urban Affairs & Planning
JUDGMENT:
IN THE LAND AND Matter No: 40141 OF 1999
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 15 February 2000
Applicants
v
MINISTER FOR URBAN AFFAIRS AND PLANNING
Respondent
JUDGMENT
Introduction
1. The applicants, mother and son, are the registered proprietors of land known as lot 5 in deposited plan 707671, situated off Fowlers Lane approximately 5km north-west of Bangalow, within the local government area of Byron Shire Council (“ the subject land ”).
2. The Richmonds intend to subdivide that land into 13 residential and 1 community lot, and, with this in view, after negotiations with Council Officers, submitted a rezoning proposal to the Council.
3. In these Class 4 proceedings, they seek two declarations in respect of a decision by the respondent Minister, on or about 20 July 1998, “ not to make Byron Local Environmental Plan 1988 (Amendment No. 61) ” (“ the DLEP ”), which would have rezoned their land.
4. The first declaration sought would be to the effect that that decision of the Minister was flawed and is invalid.
5. The second declaration sought would be to the effect that the Minister, although he has already exercised “ his discretion pursuant to s 70(1) of the Environmental Planning & Assessment Act 1979 ” (“ the EP & A Act ”), on or about 20 July 1998, has the power to revisit the question and now make the amending plan.
6. The applicants have not asked the court for any specific orders against the Minister, because they “ presume he would do his duty ” in the event that this court grants declaratory relief.
7. Before turning at some length to the factual complexities of the case, I need to describe in some detail the relevant statutory provisions and various other relevant documents and instruments.
The EP & A Act and the making of plans
8. The statutory provisions which define the various roles of the Minister, the Secretary of his Department, the Director of Planning, and others, in the making and altering of plans and other environmental planning instruments, are those of the EP & A Act as they stood prior to the commencement, on 1 July 1998, of what are referred to as the Integrated Development Assessment reforms.
9. Section 4(1) defines an “environmental planning instrument” (“ EPI ”) as follows:
a State environmental planning policy, a regional environmental plan, or a local environmental plan, and except where otherwise expressly provided by this Act, includes a deemed environmental planning instrument.
10. Section 4(8) provides:
A power, express or implied, to give a direction under this Act includes a power to revoke or amend the direction. (Emphasis added to make clear that a direction is different from a plan or other EPI).
11. Section 5 lists the objects of the Act, including the following:
(b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State.
12. Part 3 of the Act, (ss 24 to 74) deals with the making of EPIs.
13. Section 34 relevantly provides:
…
(2) Judicial notice shall be taken of an environmental planning instrument and of the date of its publication.
(3) It shall be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of an environmental planning instrument have been complied with and performed.
(4) The amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect:
(a) the previous operation of the instrument or anything duly suffered, done or commenced under the instrument,
(b) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument, or
(c) any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation or liability,
and any such investigation, legal proceedings or remedy may be instituted, continued and enforced as if the amendment, alteration, variation or repeal had not occurred.
(5) An environmental planning instrument shall:
(a) be published in the Gazette, and
(b) take effect on and from the date of publication or a later date specified in the instrument.
…
(9) An environmental planning instrument shall be deemed to have been published in the Gazette notwithstanding that any planning map or other instrument or material referred to, embodied or incorporated in the environmental planning instrument is not so published.
…
14. Section 71 provides:
Subject to this Act and the regulations, the format, structure and subject-matter of a local environmental plan or draft local environmental plan shall be as determined by the Minister and notified to the council concerned.
15. Section 74 provides that an EPI may be amended in whole or in part by a subsequent EPI, which shall be made generally in accordance with the provisions of Part 3 .
The planmaking process
16. Section 54 deals with the decision taken by a Council to “ decide to prepare a draft ” Local Environmental Plan (“ LEP ”), its notification to the Secretary, and its preparation of the draft plan.
17. Section 55 deals with directions which may be given by the Minister to perform any functions under s 54. Section 57 requires the Council to prepare an environmental study of the land to which the draft is intended to apply in accordance with any specifications as may be notified by the Director, and Section 61 requires the Council to have regard to any such study in the preparation of the draft LEP.
18. Section 62 requires that, in the preparation of a study or draft plan, the Council shall consult any public bodies affected, any Council whose area abuts the boundary of the relevant land, and “ such other persons as the Council determines ”. Section 63 obliges public authorities to cooperate with Councils in the preparation of the relevant study or draft plan. Section 64 provides that when a draft plan has been prepared, a copy should be submitted by Council to the Secretary, together with a statement specifying the names of the public authorities, bodies and other persons with whom the Council has consulted pursuant to s 62.
19. Section 65 provides that upon receipt of the draft, the Director may cause the issue of a certificate certifying “ that the draft plan may be publicly exhibited in accordance with s 66 ”. The certificate may require the draft to be amended prior to exhibition. If a certificate is not issued the Director must give his/her reasons, together with directions regarding the amendment of the draft, such that the certificate might issue. Section 66 provides for the public exhibition of the plan so certified.
20. Section 67 provides:
Any person may, during the period referred to in section 66(1)(c), make submissions in writing to the council with respect to the provisions of a draft local environmental plan publicly exhibited under section 66(1)(b).
21. Section 68 deals with the consideration of any submissions made, including the possible holding of a public hearing. Section 68(4) requires the Council, subject to the Regulations, to submit to the Secretary details of all submissions, the report of any public hearing, the draft plan and the reasons for any alterations made, and:
(d) a statement:
(i) to the effect that the provisions of sections 66 and 67 and this section relating to public involvement in the preparation of the draft plan have been complied with,
(ii) specifying the environmental planning instruments and directions under section 117 that have been taken into consideration,
(iii) giving details of any inconsistency between the draft plan and any instrument or direction referred to in subparagraph (ii) and the reasons justifying the inconsistency, and
(iv) giving details of the reasons justifying the exclusion of provisions of the draft plan under subsection (5) or the exclusion from the application of the draft plan of any land under that subsection.
22. Section 69 requires the Director to furnish a report to the Minister as to:
(a) whether the draft local environmental plan submitted under section 68(4) is inconsistent with any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft plan applies,
(b) if there is such an inconsistency - whether the inconsistency is justifiable in the circumstances,
(c) whether the provisions of sections 66, 67 and 68 relating to public involvement in the preparation of the draft plan have been complied with,
(d) the relationship between the draft plan, and other proposed and any existing environmental planning instruments, and any relevant directions under section 117, applying to the land to which the draft plan applies, and
(e) such other matters (if any) relating to the draft plan as the Director thinks appropriate.
23. Section 70(1) provides that the Minister may (my emphasis) “ after considering the Director’s Report made under s 69 ” do any one of three things, namely:
(a) make a local environmental plan:
(i) in accordance with the draft local environmental plan as submitted by the council under section 68(4), or
(ii) in accordance with that draft plan with such alterations as he thinks fit relating to any matter which in the opinion of the Minister is of significance for State or regional environmental planning,
(b) direct that action be taken in accordance with subsection (3), or
(c) decide not to proceed with the draft local environmental plan.
24. Subsection (3) of s 70, referred to in s 70(1)(b), provides as follows:
The Minister may (but need not) direct the council to publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to this section or section 68, and the provisions of this section and sections 66, 67, 68 and 69 shall, with any necessary adaptations, apply to that plan.
25. Section 70 goes on to provide, relevantly:
(6) Where the Minister decides not to proceed with a draft local environmental plan under subsection (1)(c), he shall give such directions to the council as he considers necessary in relation to that decision.
(7) The Minister shall inform the council of his decision under subsection (1) and, except where the Minister decides to make a local environmental plan in accordance with the draft local environmental plan as submitted by the council under section 68(4), the reasons therefor, and may at the same time give directions to the council as to the procedure to be followed in connection with making his decision known to the public.
Other relevant statutes, documents and instruments
The Interpretation Act 1987
26. Mr Hale, for the applicants, sought to rely on the following sections of the Interpretation Act :
48. Exercise of statutory functions5. Application of Act
(2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned.
(1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires.
(2) If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned.
The 1988 Regional Environmental Plan
27. The North Coast Regional Environmental Plan 1988 (” the REP ”) ( Exhibit M1 ) was signed by the then Minister on 18 December 1987, and the relevant clauses in Div 4 - Rural Housing, are as follows:
Objective
19. The objective of this plan in relation to rural housing is to ensure that any opportunities for rural housing area are available only as part of a planned strategy for rural living areas.
Plan preparation - rural land release strategy
20. (1) The council should not prepare a draft local environmental plan for rural land permitting rural residential or small holding development unless:
(a) it has prepared a rural land release strategy for the whole of its area; and
(b) the Director has approved of the strategy; and
(c) the draft plan is generally consistent with that strategy.
(2) A copy of any such rural land release strategy should:
(i) be available without charge, for public inspection and comment at the office of the council during normal office hours; and
(ii) be forwarded by the council for their information to such public authorities as, in the opinion of the council, have responsibilities reasonably requiring them to be aware of the strategy.
(3) In identifying land suitable for rural housing, any such strategy is to give preference to areas which:
(a) are physically capable of supporting rural housing; and
(b) are close to existing settlements which already have services and community facilities, or can otherwise be efficiently and economically serviced; and
(c) are physically suitable for septic effluent disposal; and
(d) are not required or likely to be required for future urban expansion of existing settlements; and
(e) do not comprise prime crop or pasture land; and
(f) are not subject to significant environmental hazard; and
(g) are not of significant value for the conservation of wildlife.
(4) Any such strategy is to be based on the average number of allotments needed annually to meet genuine demand for rural residential and small holding development.
(5) The average annual number of allotments needed to meet such demand over any period agreed by the Director is not to exceed 130 percent of the average number of building approvals granted for the erection of dwellings (in the course of rural residential and small holding development) in the area in each of the preceding 5 years.
The 1994 Residential Strategy
28. The Byron Residential Development Strategy (“ the Strateg y ”) ( Exhibit R3 ) was developed in 1992-93. Although it is dated, and was adopted at a special meeting held on, 1 December 1993, it was not published until it received the conditional agreement of the Director, given on 11 April 1994 , pursuant to cl 20(3) of the REP.
29. The Director required that copies of the Department’s letter setting out the following four conditions of his/her approval should be included in the Strategy document, which should be made available to interested members of the public:
(a) Council’s preferred population projection for the short to medium term (3-5 years) being accepted only. Beyond this period the projections would not provide a reliable basis for land release in the long term. Council is therefore requested to monitor this situation and undertake a full review of population projections within five years.
(b) Recognition that the potential urban areas identified in the Strategy for short to medium term release amount to an area considerably in excess of that likely to be needed during that time. Council should therefore review the medium and long term classification and ensure that future rezoning only proceeds according to a staged release plan. Rezonings should only proceed where there is a demonstrated capacity to fund necessary improvements to sewerage, water and utility infrastructure and programs are in place to deliver such services.
(c) Rezoning of any new areas for rural residential development being accompanied by an amendment to Byron LEP which includes a clause referring to an agreement between Council and the Director on an average rural residential lot production rate over a five year period. On current evidence additional lot releases in this regard should not exceed 400 lots over a five year period.
(d) Inclusion of land in the Strategy does not negate the requirement for local environmental studies to support some rezonings. In particular, a number of areas such as land at Broken Head which is affected by the NSW Coast: Government Policy have inherent physical and/or servicing constraints which may limit the quantity of land ultimately rezoned.
30. Chapter 6 (pp 25ff) deals with “Development Areas” and opens with the following paragraph:
The Strategy identifies a number of areas for positive future urban residential release as well as indicative timings for their release. This will be dependent upon any further detailed studies required as part of the draft local environmental plan process. Many of these areas have already been identified in Council’s 1986 Strategy and in its Development Control Plans for the various town centres.
31. The chapter deals with the Bangalow area in s 6.3 (p 30):
Urban residential growth in Bangalow is most suited to the southwest along the Lismore Road, being Area 8 on Figure 6.3. This area already adjoins an area which is currently being developed for urban purposes. There is also scope for some possible urban expansion between the Lismore Road and Byron Creek between the main roundabout near the railway overpass and the intersection of Rifle Range Road and Lismore Road. Other areas for possible urban expansion exist south of the Park with the swimming pool and to the East of the Pacific Highway on the eastern side of the township (Areas 9 and 10). All of these areas have to a large extent already been previously identified in Council’s Development Control Plan for Bangalow and its 1986 Residential Development Strategy.
Timing (Long Term): The existing land supply/demand figures indicate that Bangalow has sufficient existing zoned land for urban residential purposes beyond 1997. In this regard, there is no priority need to rezone any additional land for urban residential purposes at this stage. Land take-up rates should, however, be closely monitored and should the take up rate increase significantly, it would then be appropriate for Council to commence the rezoning process to allow the lag time for undertaking any necessary studies and land becoming available on the market and ensure that adequate land is available for development.Constraints : Likely constraints over the identified urban expansion areas related to the presence of prime agricultural lands, the need for buffers, access to and from Lismore Road, access over the existing railway line, flooding and the need for buffers between agricultural lands and any future urban areas.
32. Section 6.8 (pp 36ff) sets out specific criteria for the consideration of rezoning proposals for rural residential development, and that type of development is further dealt with in s 7.2 (pp 39ff).
The 1995 Rural Settlement Guidelines
33. The document prepared by the Department and entitled “ Guidelines on Rural Settlement on the North Coast of NSW ” (“ the Guidelines ”) ( Exhibit R2 ) was dated September 1995 but not released until December 1995.
34. The Minister authored a foreword to the Guidelines which included the following:
As part of the government’s general approach to protecting the North Coast, local environmental plans for rural settlement will only be approved if the matters contained in these guidelines are reflected in the local planning process. I also expect councils to ensure that development applications conform with these guidelines. I believe that the impacts of this kind of closer development on the region and its communities will be more positive by using this approach.
35. The first section (“ 1.1 ”) of the Guidelines includes the following comments:
While it raises a number of difficulties, rural residential development is an important component of human settlement. When linked with urban living it can cater for diverse human needs, revitalise social and economic networks and enhance an area or region. Many problems can be avoided by adopting a catchment based approach to rural residential development. In summary this is based on:The challenge is to design and locate rural residential living to avoid environmental damage and to integrate such development with the landscape and other land uses. Rural residential development needs to result in sustainable communities incorporated within the overall pattern of human settlement.
…
The purpose of this document is to introduce the catchment based approach for rural settlement to the North Coast community. It is expected that any future rezonings for rural settlement in the region will conform to this approach.
· adopting a regional vision to give direction to rural residential development
· establishing clear planning objectives to support the regional vision
· implementing four main planning principles which ensure a comprehensive planning approach.
36. The Guidelines then continue:
1.2 VISION
A suitable regional vision for rural settlement on the North Coast of NSW is:The intention is to establish a land development pattern and a management process which addresses the issues of existing inappropriate rural residential forms and location, while encouraging better forms of development in appropriate locations.rural settlement on the North Coast will provide a range of lifestyle options in harmony with the natural and cultural opportunities and unique character of the region. At the same time rural settlement will minimise the economic, social and environmental costs to the whole community.
37. The document then lists a number of regional planning objectives in s 1.3 and relevant planning principles in s 1.4.
38. I now turn to the factual complexities of this case.
A chronology of relevant events
39. An examination of the documents tendered throughout the hearing (especially those in Exhibit R5 , but also Exhibits R4 , and R6-R8 ) enables compilation of the following chronology of relevant documents and events.
40. When submitting to the Department the final draft of its Strategy , Council in its letter of 22 March 1994 referred to its discussions with the Department regarding it, in these terms:
The amendments suggested by officers of your Department, … have been incorporated into the final document as requested. Council would now formally like to request an agreement from the Director of Planning to the Strategy included with this letter as required under Clauses 20(3) and 38(3) respectively of the North Coast Regional Environmental Plan 1988 in order that the preparation of draft Local Environmental Plans for residential release purposes can proceed within Byron .
41. The Department replied on 11 April 1994 with the letter which now appears at the front of the Strategy document (par 29 above), which was published at about that time.
42. During this same period it would appear that there were some congenial negotiations between the Richmonds and the Council regarding the Richmonds’ rezoning/subdivision proposal for the subject land, and a formal application was made on or about 6 June 1994 .
43. At the Council meeting on 13 June 1995 , Council’s Planning Manager made the following recommendation:
1. That pursuant to Section 54(1) of the Environmental Planning and Assessment Act, 1979, Council resolves to amend Byron Local Environmental Plan 1988 to permit a fourteen (14) lot cluster style rural residential development to take place on Lot 5, DP 707671, Fowlers Lane, Bangalow.
2. That pursuant to Section 54(4) of the Environmental Planning and Assessment Act, Council notify the Secretary of the Department of Planning of its decision.
3. That pursuant to Section 66 (and after receiving the Director’s Section 65 Certificate) of the Environmental Planning and Assessment Act, the Plan be placed on exhibition for a period of 28 days during which time public comment can be received.
4. That Council amend its Residential Development Strategy to specifically include the subject land, in accordance with the North Coast Regional Environmental Plan 1988.
5. That the matter be reported back to Council through the Strategy’s Review Committee, following exhibition of the plan, an assessment of the appropriate access option for the development, and the appropriate amendment to Council’s Residential Development Strategy having taken place.
44. A Minute within the Department concerning the Strategy, dated 23 June 1995 , dealt with a meeting held on 21 June 1995 between the Council and the Department as follows:
2. The Council’s concern arose from the need to ensure that dealings with the Strategy were fair and accountable. The Strategy was considered by Council to be inflexible and could not easily accommodate changes in demand, particularly to satisfy the ‘shortfall’ in mapped rural residential release areas. The Council has looked at additional rural residential proposals at Tyagarah (Grays Lane) and for a ‘cluster’ agricultural development at Fowlers Lane near Bangalow, and wants to prepare local environmental plans to release these areas.
3. The philosophy of the Strategy and other ways of accommodating rural residential demand and perceived demand for detached rural dual occupancy (eg Lismore LEP clause 15A), were discussed. The Council representatives considered that the matter needed to be properly discussed in full Council and a thorough revision of the Strategy made.
4. In the meantime, it was agreed that Council could proceed with LEPs for the two new release areas, provided that amendments to the Strategy were made at the same time, and the section 65 certificate was issued by the Department. However, we advised that this would be a one-off occurrence - future release proposals should await comprehensive revision of the Strategy.
45. On 27 June 1995 , Council resolved, pursuant to s 54, to proceed with the rezoning, and prepare the DLEP to apply to the applicants’ land.
46. On 6 July 1995 , the Council wrote to the Regional Manager of the Department (Prior) regarding its resolution of 27 June 1995 and dealing specifically with the subject land. The letter comprised formal advice to the Secretary pursuant to s 54(4) and relevantly included the following:
(d) Matters to be dealt with by this plan include rezoning the land to permit rural residential development in accordance with Byron’s Residential Development Strategy.
…
(f) known environment - The land comprises of 29.2 hectares at the western end of Fowler’s Lane. The land is currently overgrown with camphor laurels with limited agricultural potential.
(g) The need for an LES - Council submits that an LES is not considered to be warranted due to the minimal environmental impact envisaged by the proposal.
…
Council also advise that it is of the view that a Certificate pursuant to Section 65 of the Act cannot be issued by the Council in respect of the matter as the draft plan may not be considered to be consistent with its Residential Development Strategy. A copy of the draft plan, once finalised, will be sent to your Department with a request for a Certificate.However, if in the interim Council decides to exhibit amendments to its Residential Development Strategy in accordance with the provisions of the North Coast Regional Environmental Plan 1988, the draft plan would be exhibited concurrently. Should the Council conclude that the Strategy should not be amended, then the draft plan would proceed no further.
47. The Department responded on 21 July 1995 , advising that no direction had been made to the effect that s 57 and s 61 should apply in respect of the DLEP. “ No environmental study is therefore necessary ”. The Department noted Council’s resolution to amend the Strategy to include the subject land. “ The Department considers that it would be appropriate for the Strategy amendment and the draft plan to be prepared and exhibited simultaneously to ensure that the public is fully aware of the process ”.
48. On 6 September 1995 , Council prepared a draft one page cadastral map ( Exhibit R8 ), purporting to be (a draft?) Amendment No.14/95 to the 1988 LEP, indicating that lot 5 of DP 707671 (the applicants’ land) was “ to be included in Schedule 12 ”.
49. On 7 September 1995 the Council wrote again to the Department enclosing a copy of the DLEP for certification under s 65. “… Council wishes to confirm that an amendment to Byron’s Residential Strategy is not required where the number of lots to be created by the draft LEP does not exceed 50 (10% of Council’s 500 lot quota)”. [That number is incorrect, and should be 40, being 10% of 400].
50. On 19 September 1995 the Department replied to Council, correcting the number of lots, and the letter continued:
4. It would also be appropriate for the allotments to be released to be included in the agreed ‘quota’ established under clause 11A of Byron Local Environmental Plan. Accordingly, a conditional certificate under section 65(2) of the Act has been issued to require a connection with clause 11A and is attached. Exhibition of the draft plan should proceed in accordance with the amendments required.3. Notwithstanding the above, the Department is concerned that numerous small rezonings outside the areas identified in Council’s Strategy serves to undermine that Strategy and encourage dispersed ad hoc development. It was the Department’s understanding (Council’s resolution of 27 June 1995 and letter dated 6 July) that Council was to exhibit this rezoning concurrently with an amendment to the Strategy. As confirmed by my letter dated 21 July 1995, the Department considers this to be the appropriate course of action to maintain the Strategy’s integrity and to keep the public fully informed of the process.
51. The DLEP was certified by the delegate of the Director pursuant to s 65, on 19 September 1995 ( Exhibit R6 , doc 4). The s 65 certificate applies to only the subject land.
52. On 3 October 1995 Council resolved that “ no new applications for rezoning of rural land for residential purposes be accepted until the Rural Residential Strategy has been reviewed by the Rural Residential Strategy Review Committee and recommendations for change adopted by Council”. ( Exhibit R6 , doc 3, Item 5877). The Council staff provided a copy of this resolution when subsequently asked by the applicants to produce the resolution which created the alleged “ inconsistency with cl 20 ”.
53. The DLEP was publicly exhibited pursuant to s 66 during November 1995 , and was the subject of some 30 submissions pursuant to s 67, and then a statement and report submitted by the Council to the Director, pursuant to s 68(4), in December 1995 .
54. The Guidelines ( Exhibit R2 ) were released in December 1995 .
55. On 26 March 1996 , Council considered a report of its Strategic Planning Committee ( Exhibit R6 , doc 1) which, among 27 items set out, recommended “ 10. That the rural component of the Residential Development Strategy be formally withdrawn ”. The minutes of that meeting record that the Council picked up on some particular items in that report ( Exhibit R6 , doc 2, Item 6199), but then, in respect of others such as Item 10, resolved only “ that the report be received ”. ( Exhibit R6 , doc 2, Item 6201). There was no recommendation or decision in items 6199 or 6201 that the rural component of the Strategy be formally withdrawn.
56. On 10 April 1996 Council wrote to Prior in the following terms ( Exhibit R7 ):
Council’s letter of 12th March, 1996 regarding Guidelines on Rural Settlement on the North Coast of New South Wales advised your Department that the Council’s Strategic Planning Committee resolved to support a recommendation that the rural component of the Residential Development Strategy be formally withdrawn.
Council has commenced preparation of a new rural land release strategy pursuant to Clause 20 of the North Coast Regional Environmental Plan, 1988, and the Guidelines on Rural Settlement on the North Coast of New South Wales. Council has formed a community based committee, the Rural Strategic Planning Committee to assist in this regard.Council’s Ordinary Meeting on 26th March, 1996, resolved to endorse the Strategic Planning Committee’s recommendation to receive the Strategic Planning Manager’s Report. Consequently, Council has formally withdrawn the rural component of the Byron Residential Development Strategy. As noted in Council’s letter of 12th March, 1996, the existing applications for rezoning to rural residential development shall continue to be processed as if the former rural residential development component in the Byron Residential Development Strategy is still operative. The withdrawal of the rural residential development component is therefore not retrospective.
57. On 25 June 1996 the Strategic Planning Manager reported on progress with rezoning applications. The DLEP and other rezonings had progressed past the s 66 stage and the report estimated that the “ above higher priority rezoning applications will take six (6) months to complete ”.
58. In or about June 1997 the applicants submitted to Council their combined rezoning and development application.
59. On 12 December 1997 , the Council referred the DLEP to the Department for gazettal. Council invited the Department to prepare the s 69 report and forward it to the Minister with the DLEP. Council explained that the delay in forwarding the DLEP was caused by the need to satisfy the second part of Council’s resolution regarding access to the land. “ That issue has now been resolved and information in that regard … is attached ”. The letter went on to list the information required by s 68.
60. Relevantly, in respect of the preparation of the plan, that letter of 12 December 1997 says (in par 4(c)):
at the time of exhibiting the draft LEP Council also exhibited an amendment to its (then) Residential Development Strategy so that they would be consistent. Since that time, Council has revoked the rural section of the Residential Development Strategy and is currently progressing towards the completion of a draft Rural Settlement Strategy. At this stage, in the development of the draft strategy, it is not possible to give any clear indication as to whether the draft LEP would be consistent with its provisions.
61. On 14 January 1998 the Parliamentary Counsel gave the opinion that a plan in the form of the DLEP could legally be made.
62. On 16 January 1998 Departmental Officer Clark sent a minute to Departmental Officer Olive. The minute included the following comments:
The LEP has no basis in any agreed rural-residential strategy and is not consistent with the Rural Settlement Guidelines. Council has accordingly not used its section 69 delegations to recommend the plan to the Minister.
…
Council supported it as a ‘one-off’ and expressed its intention to amend the strategy for the reasons that it considered the proposal conformed with its criteria for rural-residential land selection, and only a relatively small release was proposed .
…
Council, in 1996 decided to revoke its own rural-residential strategy and is progressing towards the completion of a revised strategy prepared in accordance with the Guidelines .
After Council considered a report on the exhibition of the LEP (December 1995), there was considerable delay while Council negotiated with the landowner and neighbours a suitable flood-resistant access to the land … The Council also considered whether the form of the LEP … was appropriate. The Amendment was eventually submitted unchanged to the Department for making, in December 1997, a delay of almost two years during which the policy changes described above have taken place. Council’s submission makes no comment on the delay and the reason for now submitting the plan contrary to the Rural Settlement Guidelines and its own strategic planning work, except to say … ‘it is not possible to give any clear indication as to whether the draft LEP would be consistent with …’ the provisions of the draft revised rural strategy.
…
Considerable work (and expense) has obviously gone into the planning report. There is no doubt that on an individual property basis and perhaps on a catchment basis, the proposal is consistent with the Rural Settlement Guidelines. However the difficulty is that the proposal does not fit clearly in a strategic planning framework and in this regard it is not consistent with the Guidelines.
…
The amendment was not ‘agreed’ by the Department as the North Coast REP requires. In addition the claim is that the proposal is consistent with the proposed new strategy. While that may be so on the basis of preliminary mapping, Council has not completed its strategy and is presently considering a road hierarchy and awaiting completion of vegetation studies. The completed strategy is not expected until mid-1998. Council is not agreeing that this proposal is consistent with the new strategy…
The Department has consistently applied the Minister’s Foreword to the Rural Settlement Guidelines that no LEPs inconsistent with the strategic planning requirements will be processed. There have been two or three exceptions, but in these cases, the landowners have had previously-existing rights to development extinguished by occurrences outside their control, often to do with anomalies in the relevant council’s approach to rural settlement.
That cannot be argued in this instance because it was never clear that the proposal fitted Council’s original rural strategy. The only relevant issue is that the matter has been delayed for two years by Council considering access issues, and the delay has not been entirely within the landowner’s control. In these circumstances it would be preferable not to compromise the expressed position on the Guidelines, but to defer further consideration of the LEP until Council can complete its new rural residential strategy, and reconsider the matter then.
63. The Minute then recommended that the Council be advised that “ the Amendment should be deferred for reconsideration once Council’s revised rural residential strategy is complete ”.
64. The Department wrote to the Council on 16 January 1998 in the following terms:
Under the circumstances, the proposed rezoning is inconsistent with clause 20 of the North Coast Regional Environmental Plan, 1988. In addition, there appears little indication of support for this Amendment in the documentation supplied by the Council. In particular:When the Council initially resolved to support this Amendment in 1995, it was not consistent with the Council’s then Residential Development Strategy (RDS). It was the Department’s clear understanding that the proposed rezoning would be exhibited along with a proposed amendment to the Rural Residential Component of its RDS. We understood this occurred. Since then, however, the Council has abandoned its previous rural-residential strategy and commenced preparing a new strategy consistent with the Department’s Rural Strategy Guidelines.
· there is no support for the consultant’s claim that the Amendment is consistent with the Council’s draft rural-residential strategy. The Council’s comment is that it is not possible to give any clear indication in this regard (paragraph 4(c) of the Council’s letter); and
· there is no indication of whether the Council endorses the consultant’s view that the Amendment is consistent with the Department’s Rural Settlement Guidelines.
In the Department’s view:
· the draft plan has been delayed while the Council and the applicants negotiate suitable road access and decide on the appropriate legal drafting of the instrument. The Department’s records do not indicate that the plan was agreed to be consistent with the original RDS. As mentioned above, while it is understood the plan met the then strategy’s rural-residential selection criteria and an amendment to the strategy was exhibited, the Department does not appear to have ‘agreed’ to the amended strategy as the Regional Environmental Plan requires; and
· the Amendment may be consistent with the Rural Settlement Guidelines on a property and/or catchment basis, however, in the absence of a finalised agreed strategy, the overall consistency with the Guidelines has not been established at this stage.
65. On 23 January 1998 Council replied, noting the Department’s views and agreeing that it would reconsider the Amendment when the (new) Rural Settlement Strategy had been “ completed and agreed to by the Department ”.
66. At its meeting of 10 March 1998 , Council resolved (apparently 5 votes to 4) to request the Department to reconsider its response, and stressed that:
·
The Council’s 1993 Residential Development Strategy as it relates to rural areas and to this specific proposal still applies to this amendment and in any event, at a meeting held on 21 June 1995 the Department and the Council agreed to this amendment proceeding.
· The proposal generally complies to the Rural Settlement Guidelines as they apply to site specific theme developments using Community Titles as a basis for land management.
· The Council believes the amendment should be progressed in line with its resolution as this is essentially a local matter and does not involve issues of State and regional concern; except to the extent this amendment provides a prototype for the Department’s own Rural Settlement Guidelines.
67. On 18 March 1998 the Council then wrote to the Department (Exhibit R4) , setting out the resolution and requesting a reconsideration of the Department’s response. In effect, what the Council sought was a reversion to its old strategy.
68. The Department’s response to Exhibit R4 was a letter dated 26 March 1998 :
The Parliamentary Counsel has made substantial alterations to the draft plan previously submitted by the Council. A copy of the Parliamentary Counsel’s opinion is attached. Council may care to make the amendments suggested as well as the additional amendments mentioned in Council’s resolution 7631, and resubmit the draft so that an agreed version of the Amendment can be submitted to the Minister.The arguments put forward by Council in its resolution will be reported to the Minister. I understand however, from examination of the Council’s draft rural residential strategy, that the land in question does not fall within proposed strategic release areas. Any further advice from Council on this aspect which could be included in the Department’s report to the Minister, would be appreciated.
69. In or about April 1998 , the applicants sought the assistance of Hon. Janelle Saffin MLC, and, on 28 April 1998, Mr Richmond faxed to her a copy of a “ peer-reviewed ” paper he had presented to a RAPI Conference in September 1997, and adapted for publication as an article in the journal “ Australian Planner ”, ( Exhibit R6 , doc 5). The paper recounted the history of the applicants’ proposal, and their dealings with the Council, and argued in favour of the proposal as demonstrating “ best practice under the sustainable criteria developed by the planning departments of the … State Government and local Council ”.
70. Mr Richmond asserted in oral argument on 22 October 1999 (T10 L35ff) that Ms Saffin had presented that paper on his behalf to the Minister two months before the Minister made his decision on the DLEP.
71. On 13 May 1998 , the delegate of the Director furnished a report to the Minister pursuant to s 69 ( Exhibit R1 ), recommending that the Minister not make the plan. Further detailed reference will be made to this report in due course.
72. At about that time, Ms Saffin arranged for members of the Minister’s staff to meet with Mr Richmond to discuss the DLEP. That meeting is recounted in a Minute dated 1 June 1998 .
73. On 4 June 1998 Prior noted a conversation of that date with Council’s Strategic Planner (Kanaley). The new Rural Settlement Strategy had been placed on public exhibition until 7 July 1998, and it was not likely to be submitted to the Department for approval until early September 1998. Fowlers Lane was referred to as being unlikely to end up in the Strategy because the lane itself was of a poor standard and did not have the capacity to carry the development.
74. The note comments that Kanaley spoke to Prior to the following effect:
…
(iii) if Mr Richmond’s LEP proceeds it will be difficult not to agree to other rural residential in Fowlers Lane - which ultimately has enough area to consume all the Shire’s rural residential needs. This could also set a precedent which could eventually lead to arguments to break down the Strategy in other areas .
…
(v) Mr Richmond’s rural residential development did not comply with Council’s ‘Preferred Areas’ of its previous Rural Residential Strategy. The claim that it did comply is only on the basis of the ‘exception’ clause which raised the expectations of many people. As a result of the exception clause Council received between 30-50 rural residential proposals which Council has still to formally determine whether or not to support, i.e. following exhibition of its Draft Rural Settlement Strategy;
…
75. On 9 June 1998 further information was provided by Prior to the Minister’s office:
…
3. There is no disagreement that the proposal meets the Department’s Rural Settlement Guidelines on an individual property basis . However, Council’s investigations exclude this area for future rural-residential development. In this regard, it is not within the social or services catchment of any existing town. Rather, it would be an isolated enclave, dependent upon vehicle transport via the Pacific Highway to the nearest service centre. There is, therefore, no strategic Shire-wide planning basis to support it. The land’s location has been considered in the Council’s recent draft rural-residential strategy and excluded from future release. Unfortunately, it seems to be the right type of development in the wrong location.
4. The comment that the exclusion is ‘based on broad criteria applied very crudely’ is not supported. The draft strategy prepared by Council is a thorough exercise, aimed at encouraging rural-residential development in areas where it can be easily and economically serviced. In addition to the exclusion criteria mentioned, the land is at the end of a two kilometre length of poorly-constructed road (photograph folio 66). This road is already operating beyond its capacity, and the development would rely on a sub-standard intersection with the Pacific Highway for travel to all service centres. While the proposal may be ’10 minutes from Byron Bay’ (although this is considered a significant under-estimate), the Pacific Highway must be negotiated to get there or to Bangalow. This is different from the Wollumbin case in the Tweed Shire, which is within 10 minutes drive from the service centre of Uki, over reasonable, relatively lightly-trafficked roads. Refer to folio 98 for other comparisons and extracts from the Tweed matter in the file wallet.
5. Given that the proposal is excluded from the Council’s draft rural-residential strategy, it would set an undesirable (even dangerous) precedent to make an exception on an individual property basis. It will then be difficult for further non-complying rural-residential proposals to be resisted. In this regard, Council’s Planner has advised that Council has at least 30 proposals which may similarly seek to be exemptions to the strategy, which Council may find difficult not to support if this exception is agreed to. This effectively begins to break down the strategy before it is finalised. Such action is inconsistent with the Minister’s Foreword to the Rural Settlement Guidelines where it is stated that ‘local environmental plans for rural-residential development will only be approved where the matters contained in these Guidelines are reflected in the local planning process’.
6. The information provided concerning a multiple occupancy (MO) development for 15 dwellings in the Fowlers Lane area is not correct. Advice from the Council is that that application was approved by Order of the Land and Environment Court in late 1996, and has not so far been developed. Approval was granted under the specific MO provisions of the Byron LEP. Multiple occupancy is distinguished from rural-residential development in view of its communal tenancy requirement, however, its locational criteria should be similar. In this regard, Council’s exhibited draft rural settlement strategy does not provide for MO in this area. Therefore, if the previous MO application was considered now, it is more likely that refusal of it would be sustained in an appeal.
CONCLUSION
7. The quality of the proposed development at the property level and the history of this proposal makes a decision difficult. However, getting the ‘location’ right is fundamental to complying with the Rural Settlement Guidelines. As Council has faithfully and thoroughly followed the Guidelines and excluded this location for rural-residential purposes any approval is likely to undermine both Council’s strategy and future application of the Guidelines. For this reason planning support for the proposed LEP amendment has not been recommended.
76. On 20 July 1998 , the Minister made his decision on the s 69 report, approving the recommendation that he not make the plan.
77. On 22 July 1998 , Prior communicated the Minister’s decision to the Council in the following terms:
The Minister, pursuant to section 70(1)(c) of the Act has decided not to make the draft plan for the reasons that:
· the proposal is inconsistent with the ‘Guidelines on Rural Settlement on the North Coast of NSW’ as it is not within a strategically planned release area for rural-residential development; and
· the draft plan is inconsistent with clause 20 of the North Coast Regional Environmental Plan, 1988 in that the Byron Shire Council, in April 1996, abandoned its rural residential strategy (which was originally amended to accommodate this proposal), and the new draft strategy prepared by the Council does not provide for the proposed development.
- The delays to this project were not considered mitigating circumstances in this case. Rather, the intervening period, through Council’s strategic planning work, has demonstrated that the land is not appropriate for the proposed development. (My emphasis).
The Director’s s 69 Report
78. The s 69 report to the Minister ( Exhibit R1 ) notes (in par 5) that an environmental study was not required, and that the s 65 certificate was issued on 19 September 1995 “ on the understanding that the development would be counted in Council’s quota for rural-residential development, and that an amendment to the Council’s then Residential Development Strategy would be exhibited with the draft plan”.
79. The report also notes (in par 6) that of the thirty submissions received, 23 were letters of support, 6 were letters of individual objection and one was advice from the RTA indicating that a key intersection between Fowlers Lane and the Pacific Highway would need to be upgraded if substantial development proceeded. The Council (par (7)) decided in December 1995 to support the proposal “ but not to forward it for the Minister’s consideration until better road access arrangements could be negotiated ”. During 1996, Council’s engineers agreed with a proposal to improve the access road, and the DLEP was submitted by Council to the Department in December 1997.
80. Both parties are agreed that the most relevant contents of the s 69 report are to be found in two paragraphs which are, unfortunately, both numbered “8 ”, as follows:
(8) Since Council’s original resolution (December, 1995) to proceed with this draft plan, there have been certain policy changes which now make it difficult to support it. The changes are:
· the Rural Settlement Guidelines have been released to assist councils in preparing rural residential strategies. The Minister’s Foreword to the Guidelines states that ‘local environmental plans for rural residential development will only be approved if the matters contained in the Guidelines are reflected in the local planning process’. The applicant has attempted to demonstrate compliance with the Guidelines on an individual property basis, and the Council has supported this to the extent that it considers the proposal a ‘prototype’ for the operation of the Guidelines. However, there can be no compliance with the Guidelines unless the proposal is consistent with a Shire-wide strategy for rural-residential development prepared under the Guidelines (and the North Coast REP);
· The Council in April, 1996, decided to abandon its previous rural-residential strategy. This meant that the amendment to the Strategy made at the time of exhibition of the LEP Amendment was no longer of any effect. Council has expressed the view that at a meeting in June, 1995, the Department agreed to the Amendment proceeding. While this is correct, that was before release of the Rural Settlement Guidelines and the Council’s decision to abandon its strategy. It is also now three years ago; and
· the Council has now prepared a draft revised rural-residential strategy. While the strategy has not been finalised, it is clear at this stage, that the proposal does not fall within any of the rural-residential release areas contemplated by the draft strategy (see map folio 96).
- (8) The draft plan is therefore inconsistent with the Rural Settlement Guidelines, and clause 20(3) of the North Coast REP. While otherwise the plan is consistent with State Environmental Planning Policies, and relevant directions under section 117 of the Act, approval would set an undesirable precedent for plans inconsistent with the Guidelines. The fact that delays have occurred in Council’s processing of the Amendment has allowed time for it to be demonstrated by Council’s own strategic planning work, that the proposal’s’ location is not appropriate for the proposed development.
The contentions of the parties summarised
81. In the final analysis, this case turns upon the adequacy of the Director’s s 69 report, and on the question whether, having already decided under s 71(c) not to make the plan, the Minister has power to change his mind, in response to representations or submissions made to him, or perhaps any negotiations between the applicants and the Council, but without the whole process outlined in Part 3 of the EP & A Act having to be followed again.
82. Judgment was originally reserved on the basis of submissions made on those two questions - on the applicants’ behalf by Mr Hale, and on the Minister’s behalf by Mr McClellan.
83. Then, after supplementary written submissions on one point, leave was granted to Mr Richmond, by then appearing in person for himself and his mother, to reopen the applicants’ case. In consequence, there were some additional nuances of the central arguments which now need to be considered in coming to the court’s final decision on those two key issues.
The applicants’ case
84. The applicants submit that the 1994 Strategy acknowledged that by the end of 1997 the Council would face a shortfall of about 170 lots in the amount of land available for rural residential development, as agreed upon when the Strategy was published (see par (c) of the Department’s letter of 11 April 1994), and that the Council said it lacked the resources it needed to identify land suitable to make up that shortfall.
85. The applicants contend that the original exercise of the Minister’s s 70 discretion is infected by the flawed and/or erroneous s 69 report upon which he relied, and from which he “ wrongly ” got the impression that Council had abandoned its rural residential strategy. The Council told the Department it had abandoned it, but it had, in fact, never specifically so resolved.
86. The Minister should have required proof of a Council resolution, and not relied simply on assertions of what occurred. To not inquire further was manifestly unreasonable ( Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors 162 CLR 24 at 41, Chan v Minister for Immigration & Ethnic Affairs 169 CLR 379 at 433), and was “ unreasonable - and, therefore, an improper exercise of the power - because it lacked a legally defensible foundation in the factual material or in logic ”. ( Luu v Renevier (1989) 91 ALR 39 at 50). An opinion formed must not only be justifiable, it must be sound . Parramatta City Council v Pestell 1 28 CLR 305 at 323.
87. Mr Hale also relied on the doctrine expounded by Wilcox J in the Federal Court in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 65 ALR 549 and endorsed and applied by Toohey J in Videto & Anor v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167. In Prasad (at 168-70 and 562-3) Wilcox J said:
I have been unable to find any discussion in the authorities of this question, possibly because the facts will often be clear. Consequently, I express no more than a tentative view. But in principle, as it seems to me, the intermediate position is correct … A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.An intermediate position is that the court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him.
88. Mr Hale relied also on this comment made by the Full Federal Court in Luu (at 50):
But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision maker, there is readily available … other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.
89. The applicants say that once the decision is demonstrated to have been “ infected ”, it is void, and the Minister should be entitled to revisit the matter and proceed to make as a plan the DLEP supported by the applicants. They say that, even if the court holds that the Minister has already exercised his discretion, the applicants submit that he is entitled to revisit it in any event and make a different decision, as the DLEP is still before him .
90. Mr Hale relied on the Interpretation Act s 48 (par 26 above), Parkes Rural Distributions Pty Ltd v Glasson & Anor (1986) 7 NSWLR 332 and Nettheim v Minister for Planning & Local Government & Anor (No.40139 of 1988, Cripps J, 21 September 1988).
91. In Parkes , State legislation formulated a scheme whereby financial assistance was given to distributors to enable petroleum products to be sold in outlying areas at prices comparable to those charged in capital cities. An authorised officer could investigate and certify the place and date of all sales as a basis for calculating the amount payable including amounts payable back by the supplier to the State. The basis of each certificate was the satisfaction of the authorised officer that the prime documents (invoices) falsely specified the places of sale so as to enable the recovery of a subsidy greater than that properly recoverable. The Court of Appeal, upholding Hunt J, applied s 48 of the Interpretation Act to the power to issue certificates and found it to be a power exercisable “ from time to time ”. Accordingly, the court held that it may be exercised so as to add to, subtract from, or reverse, the result of the previous exercise. (See Glass JA, with whom Samuels and Priestley JJA agreed, at 335-6).
92. The applicants lastly claim an error of law was made in the Director’s assertion that the Guidelines “ amounted to an instrument to which s 69(a) applied ”, and a further error of law in that the Director’s s 69 report was affected by irrelevant considerations, and/or came to a conclusion not reasonably open when it found the DLEP to be inconsistent with the purposes of cl 20(3) of the REP, as such a finding was based on the false premise that the Strategy had been abandoned. (Mr Richmond argued on 22 October a slightly different point, namely that the DLEP was inconsistent with the Strategy, not through some environmental planning instrument or assessment, but only as a direct consequence of the recognised shortfall in land suitable for rural residential development; hence the preparation of the Council’s map in Exhibit R8 ).
The Minister’s case
93. On behalf of the Minister, Mr McClellan contends that, if any of Mr Hale’s submissions are valid, unless an LEP is actually made by the Minister when the Part 3 processes follow through to that point (ss 69-70), it never “ dies ”; the DLEP is either made as a plan, or it stays unmade and can be revived at any time.
94. On the Interpretation Act point, Mr McClellan submits that Parkes must be looked at in its peculiar statutory context. Section 5 of the Interpretation Act means that a function may be exercised from time to time except to the extent that the contrary intention appears from the relevant Act.
95. Mr McClellan contends that strong policy considerations dictate that such a contrary intention is revealed in the EP & A Act. The objectives of the EP & A Act require orderliness in decision making and plan making. The Minister’s power to make an LEP is quite specific and is not given at large. An LEP cannot be made until the processes contemplated by the EP & A Act are satisfied. The legislature has specified a process which contemplates a decision made upon consideration of the s 69 report and not otherwise. The Minister has a duty to notify his decision and give reasons under s 70, so it is clear on the face of the statute that his decision must be final. The Departmental confirmation of the Minister’s decision must close the matter, and the DLEP document as it then stood cannot have a life beyond such a decision not to make it as a plan.
96. The Minister’s decision comes at the end of a protracted statutory process, involving the public, and the Minister can make his “ final ” determination only after that process is exhausted. It is the only process by which an LEP can be made even though the Minister may have other powers of intervention elsewhere. Once the statutory power has been exercised the purpose for its creation has been fulfilled and the power is exhausted. See Leung v Minister (1997) 79 FCR 399 or 150 ALR 76 per Finkelstein J at FCR 410. If made , the LEP may not be amended or revoked otherwise than by the procedures under Div 4 of Pt 3, and any decision to amend or revoke can only be initiated under s 54 or s 55. (Mr Hale sought, in response, to limit any contrary intention apparent in the EP & A Act to the circumstances where the LEP has been gazetted and thereby takes effect (s 34(5)). He denied that any contrary intention appears, and therefore, s 48 of the Interpretation Act enables the Minister to re-exercise his discretion).
97. In this particular case the Minister actually made one of the decisions the statute allowed and required of him, and it was then communicated. Mr McClellan submits that any such decision taken by the Minister has far reaching consequences for people having some interest in the subject matter, and the Minister must be regarded as functus officio until something new is put up to him/her, fully in accordance with the statutory procedures described above. It would be against the public interest for the court to imply a power in the Minister to revisit a decision without that process being pursued again. When the decision is publicly made well known, as it was in this case, and people act to their cost in reliance upon it, the argument must be even stronger against its being capable of revisitation.
98. On the question of inadequate information underpinning the Minister’s decision, Mr McClellan submits that the Minister was at all times entitled to accept and act upon the advice relayed to him from the Council and his Department ( Exhibit R7 ), whether or not there was, in fact, any resolution to abandon the relevant strategy.
99. The Minister is keen to ensure that an orderly process is conducted and followed - proper planning requires, in this case, the necessary consistency between the DLEP and the strategy and that consistency did not, as a matter of fact, here exist.
100. The REP requires that there must be a strategy in place (cl 20) and that any DLEP must be generally consistent with it. In this case the inconsistency was recognised and disclosed in the recommendation made on 13 June 1995 (par 43 above) and that inconsistency was never rectified. Thereafter, the picture emerges of the old strategy being systematically undermined with some cooperation from the Department. The fact that there was no resolution to abandon the strategy does not found an error of law in the Minister’s decision, made on that basis. The Minister concedes that it is unfortunate for the applicants that their land may well meet the criteria for rural residential use, but nothing can be done about its not having been identified and embraced as part of the relevant strategy as required by the REP. Hence the inconsistency remains, and, whether or not the Minister relied on the communication, or on the absence of consistency, he had to reject the DLEP.
101. In respect of the applicants’ Peko point , the Minister’s written submissions make the following points:
18. Even if references in the Report were erroneous (which is rejected):
a. having identified relevant matters for the determination of the making of the LEP, the question of the weight to be given to those matters (as is the real approach adopted by the s.69 report) is a matter for the draftsman of the Report, and furthermore is not a matter properly the subject of judicial review: see Minister for Aboriginal Affairs -v- Peko Wallsend (1986) 162 CLR 24 at 41 per Mason J.
c. the scope of the Courts on judicial review does not include curing administrative errors. The Court’s role is limited to determining the scope of the exercise of the relevant power; i.e. to ensure that jurisdiction is not exceeded. But that role does not extend to revisiting the merits of the decision: see Attorney General (NSW) -v- Quin (1990) 170 CLR 1 at 35-36. In this way it can be seen that provided the matters referred in the Report fall within jurisdiction, the applicant truly seeks that the Court substitute or revisit views referred in the Report. Such is not the role of the Courts in judicial review. Errors contained within a proper exercise of the power are not and cannot be the subject of review: Minister for Aboriginal Affairs -v- Peko Wallsend, Ibid, Rosemount Estates -v- Cleland (1995) 86 LGERA 1 at 17 & 19, and Anisminic -v- Foreign Compensation Commission [1969] 2 AC 147.
19. The applicant claims that references to the Guidelines and the REP were not reasonably open to the author of the Report. On no judicial formulation of what has become known as the test of Wednesbury reasonableness can it be said that such references were not open to the author of the Report: see for example the formulation of the Wednesbury test set out in Minister for Aboriginal Affairs -v- Peko Wallsend, Ibid.
Discussion
102. Before turning to the major assault on the s 69 report, I should deal with the submissions of the applicants regarding the status of the Guidelines, and the so-called Prasad doctrine.
Are the Guidelines an EPI?
103. The Guidelines were referred to in the relevant s 69 report in this case, and part of the argument concerned whether or not they are an EPI within the meaning of s 69(a). It was submitted that an inconsistency averred in the report is beyond the reach of s 69 because the Guidelines document is not such an instrument. Section 4(1) of the EP & A Act would not seem to me to embrace such a document, and I know of no authority that would elevate it to the status of an EPI.
104. I, therefore, reject Mr Hale’s submission in this respect.
Does the Prasad Doctrine apply?
105. There is no established obligation on the Department or the Minister to make further enquiries, given particularly the contents of the s 68 letter in this case. However, the Minister’s officer in fact made further enquiries and established the necessary inconsistency before the Minister made his decision.
106. In respect of the question of abandonment of the Strategy, the following comments of the Chief Judge in the context of a Prasad point taken in Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [1999] LEC 251 are apposite to this case, and I respectfully adopt them:
78. The present case is not such a case. There is no obvious material which, had the council made an inquiry, would have provided additional facts to it. The gathering of factual information of the social and economic effect of the proposed development had finished, and there were no additional facts ‘readily available’ or ‘centrally relevant’ on that issue. Rather, the position had been reached where the council, in the conventional manner, was required to assess the responses to its concerns provided by Fabcot, and to determine whether the risk of unacceptable social and economic impact had been mitigated. It was entitled to seek planning advice on that issue, and it was not unreasonable for the council to seek that advice from its own officer rather than from its consultants.
79. Nor was a revision of the Nowra CBD Strategy ‘readily available’ or ‘centrally relevant’ . No evidence was adduced to show that a revision of the Nowra CBD Strategy would have provided the council with additional material. This was not a case where it was obvious that additional facts would have become available to the council if it had awaited revision of the Nowra CBD Strategy - the council already had before it four reports on the social and economic effect as well as other material which I have outlined.
107. Like Pearlman J, I conclude in this case, therefore, that the principle set out in Prasad has no application.
The challenge to the s 69 report
108. In Parramatta City Council & Anor v Hale & Ors (1982) 47 LGRA 319, Street CJ said (at 335):
All of these three grounds of invalidity have three points in common. In the first place, in each of them proof of the invalidity rests upon the challenger. In the second place, none will lead to invalidity unless it was a material error such as to justify the intervention of the court; it need not be shown to be of critical or decisive significance in the council’s decision; on the other hand de minimus non curat lex. In the third place the reference in each to ‘the council’ is to the council as a group; it is the council’s collective state of mind, as found by the court, which will be of critical significance.
The law is clear that a provision such as s.90(1) necessitates, as a precondition to the validity of a council’s decision, consideration being given to such of the matters listed therein as objectively are of relevance to the application. Secondly, if a council takes into account irrelevant considerations, that will vitiate the decision. Thirdly, if a council misdirects itself in law as to the scope or content of its statutory powers or duties, that, too, will vitiate the decision.
109. Section 69(a) requires the Director to furnish the Minister with a report on the consistency or otherwise of the draft LEP with certain identified instruments. In the event there is such an inconsistency, s 69(b) requires the Director to report whether that inconsistency is justifiable. The Minister must, as a prerequisite to making a decision under s 70(1), give consideration to the s 69 report and hence to the matters upon which the Director is required by that section to report to him. The Minister must have before him the material which enables proper consideration of the questions of consistency with the instruments and if the report does not properly address the Minister on these questions, he cannot properly consider the matters in s 69.
110. As I understand them, Mr Hale’s submissions for the applicants are as follows.
111. Mr Hale notes that the Department advised on 11 April 1994 that, pursuant to cl 20(1)(b), the Director had approved the Council’s Strategy prepared pursuant to cl 20(1)(a). There was no basis for the assertion that it had been abandoned and the court should infer in the absence of evidence from the respondent that there was no basis for such an assertion of abandonment. The strategy is a formal planning document which requires not only the formal approval of the Director, but must be available for public inspection, etc. Having been prepared and approved, it fulfils the requirements unless and until it is revoked by amendment or otherwise.
112. The two paragraphs numbered “8” in the s 69 report (par 80 above) assert that the draft plan is inconsistent with the Guidelines and REP cl 20(3), and that those inconsistencies are not justifiable in the circumstances. The Guidelines are not an instrument to which s 69(a) refers, and Mr Hale, therefore, submits that the basis upon which it was concluded that there was some inconsistency with the REP, was simply not open.
113. The inconsistency with the REP is based upon the assumption that there was relevantly no rural land release strategy approved by the Director in place pursuant to cl 20 of the REP, in that the existing strategy no longer applied. (See par 4(c) of the letter of 12 December 1997 in par 60 above).
114. As at December 1997 it was too early to give a clear indication as to whether the draft LEP would be consistent or inconsistent with the provisions of such a strategy. (See also Exhibit R4 , the letter of 18 March 1998 which asserts that the 1993 Residential Development Strategy as it relates to rural areas and to the specific proposal still applies to the amendment).
115. The resolution of the Council on 10 March 1998 also asserted that the Richmonds’ proposal generally complied with the Guidelines. Council believed the amendment should proceed as it was essentially a local matter and involved no issues of state or regional concern except to the extent that it provided a prototype for the Department’s own Guidelines.
116. Mr Hale concludes, therefore, that it was not open to the Director to report that there was an inconsistency. One must construe cl 20 as to either having an approved strategy or not. The s 69 report simply reports an inferred abandonment, so the strategy must still be on foot, and it was not open to the Director to conclude either that there was no strategy or that the Guidelines are relevant.
117. Mr McClellan on the Minister’s behalf submits that the s 69 report and the decision are not amenable to the court’s intervention. The report faithfully reported the information that the Department had received from the Council and concluded there was relevantly no strategy to support the amended plan. Even if that conclusion were wrong, it was open to the decision maker and not Wednesbury unreasonable.
118. He rejects the assertion by Mr Hale that the s 69 report by its terms refers to the Guidelines as an instrument under s 69(a). References to the Guidelines were made as matters forming part of the general body of information relevant to the determination of the issues that the Minister had to decide. They did not limit, and could not be construed as having limited, their relevance to a particular limb of s 69.
119. The Guidelines were relevant because they formed part of the process contemplated by the REP cl 21. They are not material extrinsic to that process. They form part of the matters relevant to the determination under s 69(e). As such, the Guidelines do not represent an instrument operating, despite the REP, as determinative of the matters for consideration in the making of the LEP. Their relevance is related to the requirements in the REP for an approved strategy to be in existence. The Guidelines relate to the preparation of the strategy and they thereby relate to the preparation of the LEP.
120. The REP is relevant to the making of an LEP and, both the REP, and compliance with any strategy made pursuant to it, are, accordingly, relevant matters for the Minister. Council and/or the Department identified that it was necessary to amend the strategy because of its inconsistency with the LEP. No such amendment was ever effected or approved by the Director so the relevant inconsistency remained at all times with the REP. As Mr McClellan’s original written submissions say:
Where there is required to be effected an amendment to an instrument required by an REP as part of the making of the LEP, and there is no such amendment, the LEP cannot be said to be consistent with the Strategy, and hence the REP.
121. Accordingly, there is no legal error committed in reporting inconsistency, and no legal error in taking that inconsistency into account.
122. Mr McClellan does not concede that any references in the report are erroneous but even if there were erroneous references in the report:
(a) the question of weight given to identified relevant matters is a matter for the author and not properly the subject of judicial review. ( Peko Wallsend at 41).
(b) the Minister has an independent discretion to make or reject the LEP ie to accept or reject the recommendations. Acceptance of the recommendation does not taint the decision with any error in that report.
(c) the court cannot revisit the merits of the Minister’s decision ( Attorney General (NSW) v Quin (1990) 170 CLR 1).
123. Mr McClellan further makes the point in his final written submissions that no judicial formulation as to the Wednesbury test would find that references to the Guidelines and the REP in the report were not open to the author. Even the authorities relied upon by the applicants:
… support the proposition advanced by the Minister at the hearing, namely that on no judicial formulation of what has become known as the Wednesbury test of reasonableness can it be said that statements made in the Report were not open to the author of the Report:
a. that the Strategy was said to have been revoked is a matter specifically advised by the Council itself - see document 7A (the s.68 letter);
b. Clearly, on no proper regard to the facts could it be said that the draft LEP was consistent with the REP.
124. Pursuant to s 69(e), the author of the s 69 report in this case directed the Minister’s attention to the Guidelines document. Those Guidelines are embraced by the REP and had to be addressed in the Director’s report. In this regard, as in others, the Department can be seen to have been relying, quite properly, upon communications to it from the Council. Relevantly no factual error occurs in the consideration of the matter by the Director and the Minister.
125. Mr McClellan goes further and says that even if there were such a factual error in the report, it would be an “ error within jurisdiction ”. In coming to a decision, a decision-maker is entitled to make a mistake, provided the decision does not become manifestly unreasonable. The court will only intervene if the decision is shown to be manifestly unreasonable. Mr McClellan’s submission is that any error found in the work of the tribunal below must be so gross that its basis does not exist in law. In this case no inaccuracy in the Director’s report could be raised to that level.
126. In RosemountEstates Pty Ltd v Cleland & Ors (1994-5) 86 LGERA 1 it was suggested that, subject to the question of procedural fairness, if the report of a Commissioner of Inquiry complied with all the statutory requirements, any error in the reasoning which led to the findings and the recommendations would not be open to review. Waddell AJ referred to Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and to the clear distinction between, on the one hand, an error of law going to jurisdiction or to compliance with legal requirements to be fulfilled by the body under review, and, on the other hand, an error of law committed in the valid exercise of power.
127. Waddell AJ came to the conclusion that the material before the Commissioner of Inquiry overwhelmingly led to the conclusion that the subject development would, despite screening, intrude into large parts of the surrounding countryside and be visible to people as an unwelcome addition to the landscape. “ The conclusion that it would not do so is manifestly unreasonable ”. His Honour further concluded that there were no grounds upon which he could conclude that a recommendation which gave greater weight to economic benefits than to ameliorated adverse impacts was manifestly unreasonable. The Inquiry’s recommendations having been put forward on the basis of that finding, those recommendations themselves became manifestly unreasonable. A manifestly unreasonable recommendation cannot be regarded as complying with the statutory requirements.
128. The REP is legislative in its effect. It is not just simply a statement of policy. Clause 20(1) states three necessary elements. The importance of the rural release strategy is clear from cl 20(2) - it is to be available freely and speaks to the world at large. The real content of the strategy is specified in cl 20(3) and the planning concern in cl 20(4) and cl 20(5). The whole purpose is to confine the number of lots. The discussions on 4 June 1998 indicate the “ wavering attitude ” of the Council.
129. Mr McClellan asserts that the s 69 report properly identifies the REP and the Guidelines as matters to be taken into account in the determination of the question as to the making of the LEP. He puts the argument this way in his final written submissions:
2. The Applicant persists to focus upon one aspect of the facts, in ignorance of the facts as a whole. That (improper) focus in turn also improperly assumes that the mere existence of the Strategy equates to consistency of the draft LEP with the Strategy, and hence the REP. It is to be noted that at all times it has been the position that the draft LEP was inconsistent with the strategy, and that the Strategy was required to be amended: see documents 3, 3A, 4, 4A, 4B, and 5B.
3. Notwithstanding this fundamental inconsistency of the draft LEP, the Applicant’s entire case is based upon establishing that whereas the reporter (of the s.69 Report) stated that the Strategy had been revoked, as a matter of fact no such revocation had occurred, and (somehow) consequently the Report was Wednesbury unreasonable, or at the least erroneous. However, on the facts before the Court either:
i. the Strategy was in fact revoked; or
ii. the Strategy was not revoked. If not revoked there had still not ever been effected an amendment to incorporate the subject land.
4. On either alternative, the draft LEP could not be said to be consistent with the REP (the REP requiring a Strategy, and an LEP to be made in accordance with the Strategy). Accordingly, on those alternatives either:
i. there was no Strategy upon which to base the LEP; or
ii. there was a Strategy, but the terms of the Strategy were not consistent with the effect of the LEP (see Documents 3, 3A, 4, 4A, 4B, and 5B).
In either case, it could not be said that the draft LEP was consistent with a Strategy, which the REP required, and hence the draft LEP was inconsistent with the REP.
5. It is consistency of the LEP with the REP which is the true subject matter of the discussion in the s.69 Report, which the author properly identified, i.e. “…inconsistency with the REP…”. There is no merit in focussing upon the truth of a statement of revocation of the Strategy, because on the facts nothing turns on that statement alone, as even if the Strategy had not been revoked it then remained “…inconsistent with the draft LEP…”.
…
7. Furthermore, and as set out above, the Applicant has focused upon the wrong question - the proper question to be asked by dint of s.69(a) is “…consistency with [an REP]…”. This question was, on the facts, properly answered by the reporter - in the result it cannot be said that the draft LEP was consistent with a Strategy, which is required by the REP, and hence it could not be said that the draft LEP was consistent with the REP.
8. Having thus addressed the proper question (which in any case is the limit of the Court’s role - to determining the scope of the exercise of the relevant power to ensure that jurisdiction is not exceeded) it is not within the realm of judicial review to revisit the merits of the decision: see Attorney General (NSW) -v- Quin (1990) 170 CLR 1 at 35-36.
Conclusion and orders
130. The court is satisfied that Mr McClellan’s submissions, in their various alternative formulations, correctly state the law and correctly apply it to the factual complexities of this case.
131. It is common ground that the planning process set out in comprehensive detail in Part 3 of the EP & A Act was pursued in this case.
132. Where the parties disagree is on the effect and consequences of that process concluding with the Minister choosing the option of deciding not to make the draft plan, which had been submitted to him in pursuit of the Richmonds’ objectives.
133. Section 70 gives the Minister four options when he/she considers the s 69 report:
1. make the plan as per the draft submitted (s 70(1)(a)(i)), or
2. make an altered version of it (in certain cases where there are issues of State or regional significance) (s 70(1)(a)(ii)), or
3. if the draft has been varied during the process, direct it be re-exhibited (s 70(1)(b) and s 70(3)), or
4. decide not to proceed with the DLEP (s 70(1)(c)).
134. Section 70 is clear on its face - the Minister has an independent discretion to exercise when considering the Director’s s 69 report and any recommendation it makes. The Minister must consider the report, but is not bound by its contents or its recommendations.
135. Here the Minister considered the report, and, in adopting its recommendation, he exercised his statutory option not to proceed with the DLEP.
136. I can find no error of law in the pursuit of the Part 3 processes in this case, nor in the failure of the Minister and his department to pursue any other enquiries before the Department made the relevant recommendations, and the Minister made his decision ( Prasad, Schroders ).
137. In so far as there may have been some error of a factual nature, in respect of the continued applicability or otherwise of the strategy, any such factual error cannot infect the legality of the Director’s s 69 report, nor that of the Minister’s independent decision based thereon. ( Rosemount ).
138. I, therefore, decline to make the declaration of invalidity.
139. The Part 3 process having been pursued to the point of a firm decision by the Minister not to make the plan, his role as the final stage decision maker in any Part 3 process is concluded. He exercised his statutory power in one of the four ways available to him, but not in that one of the four (s 70(3)) which keeps the plan making process “ alive ”. He chose to act in one of the three ways which clearly, on the plain wording of s 70(1) and s 74, conclude the process, and he must, therefore, be regarded as functus officio . ( Leung ).
140. In the court’s view, the clear consequence of that is that the rejected draft plan is exhausted, and, for it to be made now, the process must begin afresh.
141. I, therefore, decline also to make the second declaration sought.
142. Accordingly, the Richmonds’ Class 4 application must be dismissed .
143. The question of costs having not been argued, I indicate only a tentative view that the normal order should probably be made in favour of the Minister. I formally reserve the question for later argument if required.
144. The formal orders of the Court will, therefore, be:
1. Application dismissed.
2. Costs reserved.
3. All the exhibits may be returned.
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