Schroders Australia Property Management Ltd v Shoalhaven City Council

[1999] NSWLEC 251

Land and Environment Court

of New South Wales

CITATION:

Schroders Australia Property Management Ltd v Shoalhaven City Council and Anor [1999] NSWLEC 251

PARTIES

APPLICANT
Schroders Australia Property Management Ltd

RESPONDENTS
Shoalhaven City Council and Anor

NUMBER:

40010 of 1999

CORAM:

Pearlman J

KEY ISSUES:

Judicial Review :- consistency with zone objectives - social and economic effect - failure to notify - "new" development application - failure to consider - manifest unreasonableness

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
City of Shoalhaven Local Environmental Plan 1985

DATES OF HEARING:

09/20/1999; 09/21/1999; 09/22/1999; 09/28/1999

DATE OF JUDGMENT DELIVERY:

11/23/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr S B Austin QC with Mr T S Hale (Barrister)

SOLICITORS
Middletons Moore & Bevins

FIRST RESPONDENT
Mr J J Webster (Barrister)

SOLICITORS
Morton & Harris

SECOND RESPONDENT
Mr B J Preston (Barrister)

SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

Contents

Section Paragraph Number

Introduction 1 to 2

Background 3 to 5

The grounds of challenge 6 to 8

Ground 1 - consistency with zone objectives

The statutory basis 9 to 12
The factal background 13 to 16
The argument about failure to consider 17 to 21
Did the council fail to consider the consistency issue? 22 to 28
Was the council’s opinion reasonably open to it? 29 to 34

Ground 2 - the social and economic effect

The basis for the challenge 35 to 38
The factual background 39 to 59
Did the council fail to properly consider the social and economic effects? 60 to 65
Was the council’s decision manifestly unreasonable? 66 to 80

Ground 3 - failure to notify 81 to 100

Orders 101 to 102

IN THE LAND AND 40010 of 1999

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 23 November 1999

SCHRODERS AUSTRALIA PROPERTY MANAGEMENT LTD

Applicant

v

SHOALHAVEN CITY COUNCIL

First Respondent

FABCOT PTY LTD

Second Respondent

JUDGMENT

Introduction

1. These proceedings involve a challenge to the validity of a development consent.

2. The applicant, Schroders Australia Property Management Ltd (“Schroders”), seeks a declaration that a development consent granted by the first respondent, Shoalhaven City Council (“the council”) to the second respondent, Fabcot Pty Ltd (“Fabcot”) is invalid and of no force or effect. Schroders seeks a consequential order restraining Fabcot from undertaking any development pursuant to the development consent.

Background

3. The development consent was granted subject to conditions on 15 October 1998. It relates to a site in Nowra, bounded by Osborne, North, Junction and Berry Streets.

4. The proposed development is a Woolworths retail development, comprising a supermarket, a discount department store, specialty shops, a community centre, and associated carparking, streetscaping and landscaping. It is to be known as the Nowra Marketplace.

5. The site is partly within the 3(b) (Business “B” (Transitional)) zone and partly within the 3(g) (Business “G” (Development Area)) zone under the City of Shoalhaven Local Environmental Plan 1985 (“the LEP”).

The grounds of challenge

6. The challenge is made on three grounds as follows:

(1) The council failed to consider at all, or to properly consider, whether the proposed development was consistent with the objectives of the 3(g) zone, or, alternatively, it was not reasonably open to the council to form the opinion that the proposed development was consistent with those objectives;

(2) The council failed to properly consider the social and economic effect of the proposed development in the locality or, alternatively, it was not reasonably open to the council to consider the social and economic effect of the proposed development in the locality or to grant development consent in the absence of any studies of the impacts of the proposed development on the Nowra town centre or central business district (“the CBD”) or a development strategy or plan for the Nowra town centre or the CBD;

(3) The council failed to notify the development application and associated off-site works in the form that was approved, pursuant to cl 37A of the LEP.

7. Before considering each of the grounds of challenge it is appropriate to set out the general principles to be applied where a challenge of this nature is made. In Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 at 195 - 197, I set those principles out at length. It is unnecessary to repeat them in detail in this case, but it will be sufficient if I outline them as follows:

(a) The task of the Court is to review the lawfulness of the council’s determination, not to reconsider the development application on its merits ( Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd and Ors (1986) 162 CLR 24 at 40);

(b) The onus is upon the challenger to show that the council’s determination is unlawful and should be declared to be invalid and of no effect, and the challenger must show the collegiate mind of the council by inference and not by suspicion ( Parramatta City Council and Anor v Hale and Ors (1982) 47 LGRA 319 at 345);

(c) The material from which the council’s collegiate mind may be inferred extends to material actually before the council at its meeting, but also to material constructively before the council, that is, for example, as was in the council’s files (Minister for Aboriginal Affairs v Peko-Wallsend at 31);

(d) The council is presumed to have knowledge of the subject matter of its decision, including the relevant provisions of its local environmental plan ( Lakeside Plaza Pty Ltd v Legal and General Properties No 2 Ltd and Anor (1992) 76 LGRA 60 at 65).

8. I now deal with each ground in turn.

Ground 1 - consistency with zone objectives

The statutory basis

9. Before granting development consent, the council was required to form an opinion as to whether the proposed development was consistent with the objectives of the 3(g) zone. I shall refer to the issue as to whether or not it did so as “the consistency issue”.

10. The council’s obligation in this regard arose under cl 9(3) of the LEP, which provides as follows:

9(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on or of land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

11. The objectives of the 3(g) zone are as follows:

The objectives are to provide a strategic development area providing both for a variety of uses and for varying combinations of such uses including higher density residential, commercial and tourist combinations but not including ordinary retail uses that would compete with the local retail centre. The development is subject to a development control plan which will give guidelines for the type and scale of development.

12. The consistency issue is a threshold question which goes to the permissibility of the proposed development. If the proposed development is inconsistent with the objectives of the relevant zone, then, pursuant to cl 9(3), the council is not empowered to grant development consent to it ( Franklins Ltd v Penrith City Council and Anor [1999] NSWCA 134 at [18] and [28]).

The factual background

13. The council engaged Gary Shiels & Associates Pty Ltd to assess the development application, and it is common ground that its report (“the GSA report”) was before the council when it determined to grant development consent.

14. The GSA report dealt with the consistency issue in several places, as follows:

(a) In its executive summary (at p viii) under the heading “Planning Controls”, the GSA report made the following statement:

The proposed development is permissible with development consent in both the 3(b) and 3(g) zones on the subject site … The issues relating to the consistency with the objectives of the 3(b) and 3(g) zones have been considered by Council’s solicitors, and, as Nowra is a regional centre, the proposal is not inconsistent with these objectives.

(b) In section 7.4 (at pp 30 - 32), the GSA report outlined the LEP and set out in full the provisions of cl 9(3) and the objectives of the 3(g) zone. In its comment on those provisions at p 32, it noted the consistency issue and referred to section 8.2 of the GSA report for a detailed discussion of it.

(c) In section 8.2 (at p 35), under the heading of “Statutory and Policy Compliance”, the GSA report contained the following statement:

In relation to the consistency of the proposed development with the objectives of the 3(g) (Business “G” (Development Area) Zone), advice has been received from Counsel. The advice is that as Nowra is a regional centre, the proposal is not inconsistent with the objectives.

(d) In annexure 4, the GSA report summarised submissions received during the public exhibition of the development application. Three of those submissions referred specifically to the consistency issue. Two were made by BBC Consulting Planners on behalf of Schroders, and stated explicitly that the proposal was not consistent, and hence the council could not grant consent (ann 4 pp 4 - 5). A submission by A T Cocks Consulting on behalf of ISL Investments also stated that the proposed development was inconsistent with the objectives of the 3(g) zone (ann 4 p 7).

15. I interpose here the facts surrounding the ultimate fate of the recommendations in the GSA report. There were a number of strategic issues and concerns identified in the GSA report. Having regard to those issues and concerns, the GSA report recommended deferral of the development application, so that those issues and concerns (especially in relation to design aspects and the need for a revision of the council’s strategy for the Nowra town centre) could be resolved. The council did not adopt this recommendation. Instead, on 15 October 1998, it resolved to grant the development consent upon conditions including deferred commencement conditions.

16. I return to the material dealing with the consistency issue. There were in addition to the GSA report a number of documents on the council files which referred to the consistency issue. It is unnecessary to list every single one of them, but the following are the more important references:

(a) In a report to the policy and planning committee of the council dated 20 January 1998 the general manager noted the 3(g) zone objectives and indicated that, if the proposed development were to proceed, it would be appropriate to rezone that part of the site which fell within the 3(g) zone to 3(a) (Business “A” (Retail)). On 27 January 1998, the council resolved to defer consideration of that proposed rezoning “pending further information regarding legal issues” .

(b) On 3 February 1998, the council’s research planner, Ms M Chapman, wrote to Fabcot seeking information on how the proposed development was consistent with the 3(g) zone objectives. Fabcot responded on 6 February 1998, expressing surprise that this was an issue in view of discussions held about it at a recent meeting. However, its architects, Giles & Associates, wrote to Ms Chapman on 13 February 1998, giving an explanation of why the proposed development was consistent with the 3(g) zone objectives. Receipt of this statement was acknowledged by Ms Chapman in a letter to Fabcot dated 3 March 1998.

(c) A lengthy submission objecting to the proposed development was provided to the council by BBC Consulting Planners on behalf of Schroders in March 1998. (I have already referred to this document - it was summarised in the GSA report). This submission expressly referred to the consistency issue, and took the position (in statements appearing on p i, pp 2 - 3 and p 17) that the proposal was inconsistent.

(d) A file note discussing the consistency issue was prepared by Mr E Royston, the council’s planning services manager, on 27 April 1998;

(e) Gary Shiels & Associates wrote to the council on 19 June 1998, suggesting that legal advice should be obtained on the consistency issue. That advice was given by Mr Webster, of counsel, on 24 June 1998;

(f) On 17 July 1998, Mr A Bishop wrote to the mayor and councillors raising the consistency issue in express terms. He explained why he thought the proposed development might be inconsistent with the 3(g) zone objectives, and sought access to the legal advice on the issue. A similar point of view was taken by the Gray family in a letter addressed to the general manager on 4 August 1998, and the consistency issue was also raised in a letter dated 7 August 1998 from Mr H Jones to the mayor and general manager (to which the mayor responded on 11 August 1998 referring to the legal advice).

The argument about failure to consider

17. Schroders’ case rests upon the words “… but not including ordinary retail uses that would compete with the local retail centre” as they appear in the 3(g) zone objective. Schroders submits that the council was required to form an opinion as to whether the proposed development included ordinary retail uses, and then whether they would compete with the local retail centre. It claims that the council did not form that opinion at all, because it failed to address those questions. In Schroders’ submission, the council simply adopted the passages in the GSA report (which I have quoted above) which presented a conclusion on the consistency issue to the council rather than presenting an issue for the council to determine. In other words, the council did not pose for itself the question as to whether the proposed development was consistent with the 3(g) zone objectives.

18. In Schroders’ submission, the effect of the passages I have quoted from the GSA report was that the council was told that it did not need to address the consistency issue because the issue had already been addressed by its legal advice and that issue formed the basis of an opinion that the proposed development was permissible.

19. The council and Fabcot each assert that not only did the council consider the consistency issue but it properly considered it. In support of this, they pointed to the number of documents in the council files which explicitly raised the consistency issue, and in addition they asserted that the references to it in the GSA report did not have the effect of usurping the decision on the consistency issue from the council. Further, they each claimed that Schroders did not discharge its onus to show that the council failed to consider the consistency issue. Rather, they argued that the only inference to be drawn from the documents on the council files and by the references in the GSA report is that the council considered whether the development was consistent with the objectives of the 3(g) and decided that it was.

20. It was central to the case put on behalf of Schroders by Mr Austin QC that the principle to be applied is that, so that the council may fulfil its obligation to form an opinion on the relevant issue, the relevant question must be framed for the council’s consideration. Authority for this proposition is said to be found in the decision of the Court of Appeal in Currey v Sutherland Shire Council and Ors (1998) 100 LGERA 365. However, I do not think, with respect, that the Court of Appeal’s decision goes so far as to require an inference of failure to consider unless the relevant question was actually posed or framed.

21. I derive that understanding of Currey v Sutherland Shire Council from the particular facts of that case. One of the issues for the Court of Appeal was whether Sutherland Council had failed to consider a relevant matter pursuant to a particular clause (cl 19) under the relevant local environmental plan. In inferring that it did so fail, Stein JA said, at p 374, that the consideration of that relevant matter “… requires some positive attention by the council”. That passage must be understood in the light of his Honour’s conclusions. At p 373, he noted that, “while it may be reasonable to assume that councillors will have a general knowledge of their principal planning instrument, there is no reason to assume that such knowledge will extend to the detail …” of the relevant provision there under consideration. Accordingly, his Honour concluded (again at p 373) that the question of whether the inference of a failure to consider should be drawn “… comes down essentially to the report and its recommendations (and the appendices) which were before the council and upon which it based its decision”. Stein JA found, at p 375, that the report contained no more than a bare reference to the relevant clause, it did not refer to the prohibition which was contained in that clause, and that the bare reference was capable of misleading the council in its task without “… some elucidation…” of the relevant clause to the particular development application and its factual context. It is in the light of his Honour’s findings that his reference to “… some positive attention …” must, with respect, be understood. It is to be understood, I think, as authority for the proposition that the inference of failure to consider a relevant matter can legitimately be drawn if the material before the council gave no more than a mere reference to the relevant matter rather than positive attention to the question for determination.

Did the council fail to consider the consistency issue?

22. For this claim to succeed, the Court is required to draw an inference from the facts that the council failed to form the opinion that the proposed development was consistent with the objectives of the 3(g) zone. I do not consider that such an inference can be drawn.

23. The thrust of Schroders’ argument is that the references in the GSA report to the consistency issue presented a fait accompli, and that the council did not turn its mind to determining the issue for itself. That, I think, is too literal a reading of what was actually said in the GSA report, and it ignores the whole of the references in the GSA report. The GSA report contained, on the one hand, copies of submissions which unequivocally stated that the proposed development was not consistent with the zone objectives, but it also contained, on the other hand, references to the fact that, legal advice having been received, the proposed development was so consistent. The inclusion of these alternatives in the GSA report indicates, I think, that there was an issue about whether or not there was consistency, and it belies a finding that the council was unaware that there was such an issue.

24. But there was additional material constructively before the council, being the material in the council’s files ( Minister for Aboriginal Affairs v Peko-Wallsend at 31). On the consistency issue, the most important document in those files was counsel’s advice. That advice squarely raised the consistency issue, stated that it was a question of fact for the council to decide, and outlined the considerations relevant to the determination of the issue. Furthermore, it was not a matter of counsel’s legal advice simply being on the file. As I have earlier outlined, the council itself had resolved to seek legal advice on the relevant issues, and Gary Shiels & Associates wrote to one of the council officers suggesting that legal advice on the consistency issue be obtained. It is reasonable to infer from these circumstances that the council knew directly or indirectly of the legal advice which it itself had sought.

25. Another relevant fact is the councillors’ own actual or constructive knowledge ( Lakeside Plaza v Legal and General at 65). There are three matters which support an inference that the councillors were aware of the consistency issue and of the need to form an opinion about it as a threshold determination. First , cl 9(3) of the LEP is a conventional type of clause. It has appeared in the LEP since the LEP’s adoption in 1985 (although it was amended in a minor way by amendment No 70 in 1993). It applies to all development in all zones under the LEP. The inference must be drawn that cl 9(3) had been applied by the council regularly and frequently. In this regard, cl 9(3) is quite different from the clause under consideration in Currey v Sutherland Shire Council, which was specific and detailed. Secondly , the consistency issue had been raised in the submissions leading up to the grant of development consent. I refer in this connection to the letters to the mayor, councillors and council officers from A T Cocks, from Mr Bishop, from the Gray family, from Mr Jones and to the report from Schroders consultants. Councillors do not make decisions in a vacuum, and they bring to bear a knowledge of the issues which they acquire in the lead up to a final determination ( Lakeside Plaza v Legal and General at 65; Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135 at 140). Thirdly , the council officers had raised the consistency issue. Ms Chapman had done so in a letter to Fabcot (and had received a response on the issue from its architects) and Mr Royston had outlined the consistency issue in an internal memorandum to the council’s general manager.

26. One of the planks in Mr Austin’s argument was a submission that the Court could not draw inferences from material constructively before the council, that is, in the council files, because there was no evidence to establish that any councillor had actually inspected those files. Hence, in Mr Austin’s submission, the only factual matters from which inferences could be drawn were those set out in the GSA report, and, having regard to those matters alone, an inference could be drawn that the council failed to pose for itself the question of consistency with the 3(g) zone objectives. Mr Austin pointed to the fact that no councillor was called to give evidence as to the matters which he or she took into account on the consistency issue, or as to whether he or she inspected the council’s files. Accordingly, it was said that, applying Jones v Dunkel and Anor (1959) 101 CLR 298, the inference must be drawn that no councillor could have given evidence to assist the case of the council or Fabcot.

27. I reject this argument. Ms Chapman gave evidence that the council files were in her control, and were available (either in whole or part) in the council chambers at times when the proposed development was under consideration. Furthermore, the council files were available for inspection in her office at other times. The onus is upon Schroders to establish its ground of challenge. It must establish facts from which an appropriate inference can safely be drawn ( Parramatta City Council v Hale at 345). I decline, however, to draw an inference adverse to the council in the absence of any facts other than that there was opportunity for the councillors to have access to the files.

28. Having regard to the foregoing, I decline to draw the inference that the council failed to consider or properly consider whether or not the proposed development was consistent with the objectives of the 3(g) zone.

Was the council’s opinion reasonably open to it?

29. Schroders’ alternative claim on the consistency issue was that it was not reasonably open to the council to form the opinion that the Nowra Marketplace development was consistent with the objectives of the 3(g) zone. This claim is based on “Wednesbury unreasonableness”, that is, that it was an opinion so unreasonable that no reasonable council could have come to it ( Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 233 - 234).

30. The basis for this claim, as I understood it (and it was but faintly put by Mr Austin) was twofold. First it was said that, having rejected the recommendation contained in the GSA report, the council effectively rejected the whole of that report, which left it with no foundation upon which to base such an opinion.

31. Secondly , it was said that the conclusion in the GSA report that “… as Nowra is a regional centre, the proposal is not inconsistent with the objectives …” was flawed. It was apparently based upon the draft Illawarra Regional Plan in which, in relation to the Shoalhaven area shopping hierarchy, Nowra was designated as a “sub-regional centre” rather than a “local centre”. That designation was not precisely carried through to the Illawarra Regional Environmental Plan No 1 (“the Illawarra REP”) when it was made in 1986, but cl 77 of the Illawarra REP provides that the Nowra “commercial centre … should be developed to serve as the prime business and retail area …” for the subregion, and in the plans annexed to the Illawarra REP, the area (which includes the site of the Nowra Marketplace) is identified as “subregional commercial centre Nowra”. In Mr Austin’s submission, these designations have nothing to do with the consistency issue. In other words, whether or not Nowra is a regional centre does not answer the question as to whether the proposed development is or is not consistent with the zone objectives. The GSA report was also flawed in that, in Mr Austin’s submission, it misconstrued counsel’s advice. Counsel did not determine that the proposed development was consistent with the 3(g) zone objectives. Rather, counsel advised that the question was one for the council itself to determine, but that it was open to council to form the opinion that it was so consistent.

32. Hence, in Schroders’ submission, the council “… lacked a legally defensible foundation in the factual material” and its opinion was accordingly unreasonable and an improper exercise of its power ( Luu and Anor v Renevier (1989) 91 ALR 39 at 50).

33. In my opinion, however, this claim must fail. I would not be prepared to infer from the fact that the council did not follow the recommendation in the GSA report that the council rejected that report in its entirety. The facts show that the contrary is the case. The recommendation which the council chose not to follow was that consideration of the development application be deferred until the council had reviewed its strategy for the Nowra town centre. But there were other recommendations in the GSA report which the council did follow. These concerned the integration of the Nowra Marketplace with the Nowra town centre (a matter to which I will return in connection with the second ground of challenge). On 7 July 1998, the council resolved to defer consideration of the proposed development until those matters had been resolved.

34. Accordingly, the council did not form its opinion in a vacuum. It had before it, actually or constructively, the whole of the GSA report, submissions which asserted that the proposed development was inconsistent with the 3(g) zone objectives, and counsel’s advice. There was a foundation for the council to form the opinion that the proposed development was consistent, and there is no basis upon which the Court could conclude that the council’s opinion was so unreasonable that no reasonable council could have come to it.

Ground 2 - the social and economic effect

The basis for the challenge

35. The Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in its unamended form applied to the council’s determination of the development application. Section 90(1) of the unamended EP&A Act provides that, in determining a development application, the council shall take into consideration such of specified matters which are of relevance to the development the subject of that development application. One of those matters is set out in s 90(1)(d) as being “the social effect and the economic effect of that development in the locality”.

36. This second ground of challenge arises principally out of the s 90(1)(d) consideration and is based upon two claims. The first claim is that, in granting the development consent for the Nowra Marketplace, the council failed to properly consider the social effect and economic effect of the proposed development upon the CBD, the Nowra town centre or Nowra in general.

37. The second claim is that it was not reasonably open to the council to consider the social and economic effects of the proposed development in the locality, or to grant development consent, in the absence of any studies of the impacts of the proposed development on the CBD or the Nowra town centre or in the absence of a development strategy or plan for the CBD or the Nowra town centre.

38. Linked to the second ground of challenge was a third claim made by Schroders, arising out of s 90(1)(b) and s 90(1)(o) of the unamended EP&A Act. Section 90(1)(b) requires the council to take into consideration, if relevant, “the impact of … [the] … development on the environment … and, where harm to the environment is likely to be caused, any means that … [might] … be employed to protect the environment or to mitigate … [the] … harm” . Section 90(1)(o) refers, in the same manner, to “the existing and likely future amenity of the neighbourhood” . The impact to which this third claim refers is the impact upon the environment of the Nowra CBD, the Nowra town centre and Nowra generally consequent upon the social and economic impact of the proposed development. This third claim accordingly forms part of the general issue of the social and economic effect. It was not put by Schroders upon any different basis to that general issue and accordingly I have not treated it separately.

The factual background

39. The development application was lodged on 16 January 1998. It sought development consent for a shopping centre at a time when there was already two other comparable shopping centres in Nowra. One of them was Nowra Mall (containing a Coles supermarket), extensions to which were already the subject of a development application which was ultimately granted. The other shopping centre was Nowra Fair which is owned by Schroders.

40. In that context, the social and economic effect was likely to be, and was in fact, regarded by the council as a relevant consideration in its determination of the development application. Fabcot lodged with the council, in March 1998, an economic impact assessment prepared by Jebb Holland Dimasi (“the JHD report”), which examined the economic impact under two scenarios - first, if Nowra Marketplace alone proceeded, and, secondly, if both Nowra Marketplace and the extensions to Nowra Mall proceeded. The JHD report concluded (on p v), that “… by the year 2000 there would be ample market scope for both proposals to trade successfully, without any significant impact on the current trading performance of existing retailers at Nowra Fair or in the Nowra CBD” .

41. From an early point in their consultancy to the council, Gary Shiels & Associates indicated their concern about economic impact. In a preliminary letter of advice to the council’s general manager dated 19 February 1998, they noted concerns with the “location of the proposal being inconsistent with the Nowra Town Centre Strategy” and the “economic impact on the surrounding retailers” .

42. Their reference to the “Nowra Town Centre Strategy” was a reference to the council’s strategy called “Future Traffic and Parking Strategy” which the GSA report called the Nowra Central Business District Traffic and Car Parking Strategy and which I will call “the Nowra CBD Strategy”. As the GSA report noted (at p 33), the purpose of the Nowra CBD Strategy was to suggest action for the growth of the CBD over the next 20 years. The Nowra CBD Strategy contained the following statement of principle:

Maintain the compactness of the retail core by encouraging future large traffic generating retail developments to the east and south of the town. This effectively requires the prohibition of such developments to the west of Berry Street.

43. Nowra Marketplace was to be located to the west of Berry Street, and, as Mr J Flett, a council planner, noted in his memorandum of 25 February 1998, that had implications for the economic impact on traditional shopping streets.

44. As I have earlier noted, BBC Consultant Planners lodged with the council on behalf of Schroders a detailed submission opposing the Nowra Marketplace development. Annexed to that submission was a report (“the KPMG report”) entitled “Nowra economic impact assessment” prepared by KPMG Management Consulting. The KPMG report concluded that the likely economic impact of the Nowra Marketplace would be a “blighting” of the existing retail heart of Nowra. The KPMG report also contained detailed criticism of the material in the JHD report. Mr B Salt, who is a director of KPMG Consulting Pty Ltd and who prepared the KPMG report, gave evidence during the hearing as to his methodology and as to the limited nature of his presentation of the KPMG report to the council meeting held on 30 June 1998.

45. There was also in the council’s files a further economic impact assessment carried out by Leyshon Consulting (“the Leyshon report”) in January 1998 for the extensions to Nowra Mall.

46. Mr E Royston, the council’s planning services manager, reviewed the JHD report, the KPMG report and the Leyshon report, and, in a report to the council’s development services manager dated 31 March 1998, concluded that all three reports were unreliable.

47. Council then engaged Intergrowth Property Group to provide an economic overview and to assess the JHD report and the Leyshon report. In its report (“the Intergrowth report”) which was dated 26 May 1998, Intergrowth considered that the CBD was likely to be adversely affected by the Nowra Marketplace development, and it outlined a number of economic consequences if that development was to proceed.

48. The GSA report dealt at some length in section 8.7 (pp 38 - 41) with social and economic effects as a relevant consideration under s 90(1)(d). It reviewed the JHD report, the Leyshon report and the Intergrowth report, and urged the council to read each of them to fully appreciate those parts which had been quoted in their context. The GSA report then concluded (at p 41):

In summary, the proposal in its present form would seem likely to have adverse social and economic effects on the Nowra Town Centre. Locating Woolworths Market Place outside the designated strategic development zone creates a donut effect which has the potential to polarise shoppers patterns at the eastern and western ends of the Nowra Town Centre to the detriment of existing traders. In our opinion, there needs to be a development strategy to provide for a major attraction and or town square that links the eastern and western ends of the shopping centre with Junction Street before the Woolworths development can reasonably be approved.

49. As I have earlier noted, the GSA report recommended deferral of the development application. It stated (at p xi, p 8 and p 60) that the design aspects of the development application should be revised so as to promote integration of the proposed development with the Nowra town centre, and also that the council should revise the Nowra CBD Strategy which it found to be at odds with the proposed development.

50. I interpolate here a summary of the oral evidence given during the hearing on the issue as to what a competent town planner would advise on the social and economic effect impact having regard to the information which was available to the council. Mr D H Brindle, who is a town planner and a principal of BBC Consulting Planners, gave evidence on behalf of Schroders. He concluded, as did the GSA report, that the proposed development amounted to a de facto change to the Nowra CBD Strategy, and stated that, in his opinion, expressed in par 38 of his affidavit of 1 June 1999, no “… reasonable town planner could advise or recommend in relation to a development such as the proposed development in a township such as Nowra to approve the development prior to revising or investigating the CBD strategy” . He concluded that a competent town planner would recommend deferral pending a revision of the Nowra CBD Strategy.

51. Mr H M Sanders, a town planner and director of Design Collaborative Pty Ltd, who gave evidence on behalf of Fabcot, took issue with Mr Brindle’s evidence. His opinion, as expressed in par 25(c), par 25(d) and par 25(f) of his affidavit of 22 July 1999, was that “… consistency with an existing policy does not necessarily enable a town planner to better judge the implications of a proposed development” and that “… there is no practical or other requirement that a fresh policy be formally formulated and adopted before a development inconsistent with an existing policy may proceed” . In his opinion, a competent town planner could readily have come to the view that the proposed development should proceed and the Nowra CBD Strategy reviewed later.

52. On 3 June 1998, Jebb Holland Dimasi responded to the Intergrowth report, claiming that its conclusions were “seriously flawed” and that it misinterpreted the JHD report. That letter was directed to a representative of Fabcot, but a copy appears on the council files.

53. Coles Myer Ltd wrote to the mayor and all councillors on 30 June 1998, setting out its concerns with the economic impact of the Nowra Marketplace development, and urging the council to careful consideration of all the relevant information.

54. On 30 June 1998, the council’s policy and planning committee resolved to recommend to the council that the development application be deferred pending the resolution of a number of specified matters, all of which involved modification of the design of the Nowra Marketplace and upgrading of adjacent streets so as to integrate the proposed development into the CBD. The two most relevant concerns were expressed as follows:

b(i) A redesign of the pedestrian access to Berry Street to improve the integration of the development with the streetscape;

…

b(v) How the Woolworths development can contribute to the integration of their development with Junction Street and the eastern end of the Town Centre.

The council also resolved to recommend that the council undertake an urgent review of the Nowra CBD Strategy, but that the review proceed independently of the determination of the development application so that the latter would not be delayed. That recommendation was adopted by the council on 7 July 1998.

55. On 10 July 1998, the council wrote to Fabcot’s representative, forwarding a copy of the council’s resolution of 7 July 1998, and urging resolution of the matters specified in the that resolution. In particular, in the council’s letter, under the heading “Design Concerns” , the following points were made:

(a) a contribution was required to improve pedestrian linkages to the town centre by redesigning the footpath treatment in Berry Street and the partial reconstruction of Egans Lane;

(b) setbacks and embellishment of the North and Osborne Street elevations to satisfactorily address concerns raised;

(c) the car parking layout and the proposed access arrangements off Collins Way should be redesigned.

56. Although the council’s general manager recommended that the council consult further with Gary Shiels & Associates, the council, on 21 July 1998, resolved that the council staff report on the response to the matters which required resolution.

57. About this time, the Minister for Urban Affairs and Planning became involved. He wrote to the council on 6 August 1998 requesting it to defer its decision on the development application until it had undertaken a review of the Nowra CBD Strategy. He stated that he was concerned that the cumulative impacts of the Nowra Mall and Nowra Marketplace proposals “…could significantly affect the viability of the [Nowra town centre] as a subregional centre”. The council’s response was to seek an urgent meeting with the Minister and the opportunity to place submissions before him as to why the development application should proceed to determination. Those submissions were apparently successful, because, in a letter dated 6 October 1998, the Minister withdrew his recommendation for deferral.

58. In the meantime, however, Fabcot responded to the matters requiring resolution in a letter dated 30 July 1998. In a report to the policy and planning committee on 6 August 1998, the council’s general manager noted the response to each such matter, and concluded as follows:

The applicant and their consultants have moved a long way towards final resolution of all the issues which Council required to be addressed before development consent could be issued.

There are some matters which need to be explored further, however, it would not be unreasonable to deal with these via the imposition of conditions of development consent.

There are two issues which cannot be resolved this way. The first is redesign of the carpark to fully comply with Council’s Carparking Code and the second is the closure of Collins Way.

59. The general manager stated that the council’s staff recommended that development consent be granted subject to conditions, including conditions deferring commencement until those two issues had been satisfied. That recommendation was adopted in full by the council at its meeting on 15 October 1998.

Did the council fail to properly consider the social and economic effects?

60. There can be no doubt that the council took into account the social effect and economic effect of the Nowra Marketplace development in the locality. It had before it, actually or constructively, four reports which dealt with the issue. The challenge is directed, therefore, to the manner in which the council considered the issue. The claim is that it failed to consider the issue properly.

61. As I understood his argument, Mr Austin, pointed to a number of facts and circumstances from which, he asserted, the Court should draw an inference that the council failed properly to consider the social effect and the economic effect. Those facts were:

(a) The council rejected the recommendation for deferral in the GSA report, which was based on adverse social and economic impacts on the CBD;

(b) As a consequence of that rejection, it granted development consent without first having reviewed the Nowra CBD Strategy;

(c) The JHD report, the Leyshon report and the KPMG report were contradictory, in the sense that their respective predictions as to the social and economic effect of the Nowra Marketplace were different;

(d) The council, through Gary Shiels & Associates, commissioned the Intergrowth report to review the JHD report and the Leyshon report, and the Intergrowth report concluded that the JHD report and the Leyshon report were inadequate, and that reports of this nature are likely to be misleading;

(e) The Intergrowth report stated that there was a serious risk in allowing the Nowra Marketplace development to proceed;

(f) The council had an opportunity to obtain further town planning advice from GSA for a small fee ($500 to $1,000), but chose not to do so, and chose instead to rely on further assessment by the council officers;

(g) As the council’s submissions to the Minister show, the council had been supporting the development of a Woolworths shopping centre for over five years, and that support outweighed the social and economic impacts identified by the GSA report and the Intergrowth report;

(h) No real assessment of Fabcot’s response to the council resolution of 7 July 1998 was undertaken. The council could not have been satisfied that the social and economic impact had been ameliorated by that response, yet it proceeded ultimately to grant development consent

62. In Mr Austin’s submission, the issue of the social and economic effect was a complex issue, and the council was required to comprehend and evaluate complex material. In his submission, the facts and circumstances set out above demonstrate that the council had neither an adequate understanding of the issue nor a comprehension of its implications, and it must be inferred that it failed properly to discharge its function under s 90(1)(d).

63. In my opinion, however, Schroders’ claim amounts to no more than an assertion that the council made the wrong decision. Such an assertion cannot sustain a claim for invalidity. I refer in this connection to the dictum of Menzies J in The Council of the City of Parramatta v Pestell (1972) 128 CLR 305 at 327 namely, that “A court has no power to override the council’s opinion on such a matter simply because it considers it to be wrong”.

64. In the alternative, this claim amounts to an assertion that the council failed to give the appropriate weight to the social and economic effect of Nowra Marketplace as a factor in its decision-making for, had it done so, it would have deferred the development application or refused development consent. But it is for the council, and not the Court, “to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power” (per Mason J in Minister for Aboriginal Affairs v Peko-Wallsend at 41).

65. I conclude, for these reasons, that the council did properly consider the social and economic effects of the proposed development in the locality.

Was the council’s decision manifestly unreasonable?

66. As Mason J pointed out in Peko-Wallsend at 41, a failure to give adequate weight to a relevant factor may constitute a ground for setting aside a decision where it is demonstrated that the decision was so unreasonable that no reasonable person could have come to it. Schroders contends that is the case here. In Mr Austin’s submission, the decision to grant development consent without first having reviewed and investigated the Nowra CBD Strategy was of such character. The Nowra Marketplace development was at odds with the Nowra CBD Strategy and, having regard to the risk of a “blight” on the CBD, an investigation and review was a critical step to take before the Nowra Marketplace development was approved. In Mr Austin’s submission, the council closed its mind to these implications, and its decision was accordingly devoid of plausible justification.

67. In my opinion, the facts do not bear out Schroders’ claim of manifest unreasonableness. It is true that the council was faced with contradictory opinion. On the one hand, the JHD report identified no significant and certainly no adverse social or economic effects if the Nowra Marketplace development was to proceed. On the other hand, the KPMG report presented a contrary opinion. Both the JHD report and the Leyshon report were reviewed in the Intergrowth report, which was critical of the adequacy of those reports. But the Intergrowth report did not conclude that the social and economic effect of the Nowra Marketplace development was of such a magnitude as to be unacceptable. Rather, it recognised that the Nowra Marketplace development, in comparison with the Nowra Mall development, “has the greatest potential to damage the town” (p 20) and recommended that the risk be ameliorated by integration of the proposed development with the town centre.

68. The council deferred the development application on 7 July 1998, and resolved, as I have earlier outlined, to advise Fabcot that certain matters required resolution. Mr Austin claimed that the council’s letter of 10 July 1998 to Fabcot’s representative (which I have earlier noted) misunderstood the social and economic effect implications because it merely sought contribution to redesign of Berry Street and the partial reconstruction of Egans Lane. I find, however, that the letter outlined the concerns, enclosed the council’s resolution, and suggested methods to meet those concerns.

69. Fabcot responded on 30 July 1998, suggesting redesign of some elements of the proposed development and some off-site works. In his report to the policy and planning committee on 6 August 1998, the general manager reviewed Fabcot’s response against each of the matters in respect of which the council had required resolution.

70. In relation to the first requirement (the contribution to works in Berry Street and Egans Lane), the general manager concluded:

The proposed works in Berry Street and Egans Lane would be Woolworths’ contribution towards the establishment of a Town Square that links with Junction Street and provides a “heart” for the Nowra Town Centre as recommended by Council’s consultant, Gary Sheils. The works proposed to be undertaken by Woolworths would represent the first stage in a program of works which would eventually provide this focus for the town and the necessary links to both Junction Street and the proposed Nowra Mall development.

71. Furthermore, in relation to the integration of the development with Junction Street and the eastern end of the town centre, the general manager concluded:

This point has already been addressed in other sections of this report. It is proposed that this can best be achieved by the applicant carrying out works which will result in the creation of identifiable pedestrian links from the shopping centre, down Egan’s Lane to the Main Arcade in the general direction of a Town Square, as recommended by Council’s consultant. The creation of a focus for Nowra was considered to be … essential to integrate this development, Junction Street and the Nowra Mall at the eastern end of the Town Centre.

72. The policy and planning committee adopted the general manager’s recommendation that a “deferred commencement consent” be prepared, and ultimately, as has been seen, the council granted development consent upon conditions, including deferred commencement conditions.

73. Minds might differ upon the question of whether or not any adverse social and economic effect of the Nowra Marketplace development would be mitigated by integration with the Nowra town centre, and whether or not the design and other modifications as well as off-site works suggested by Fabcot would meet the requirement of integration. But “… the fact that minds might differ and conclude otherwise than did the council is no reason to vitiate its decision” (per Stein J (as he then was) in Bentham and Anor v Kiama Municipal Council and Ors (1986) 59 LGRA 94 at 98 - 99).

74. The council sought independent advice on the information furnished to it about the social and economic effect of the proposed development. It followed that advice in seeking resolution of issues concerning integration with the Nowra town centre. It relied upon its general manager’s assessment of Fabcot’s response to its requirements. I am unable to conclude that its decision in these circumstances was manifestly unreasonable.

75. There is one further matter, which I may conveniently call “the Prasad point”. It arises in two ways. First, the council had, on 7 July 1998, raised requirements for resolution by Fabcot, and after Fabcot had responded, the council’s general manager raised with the council’s policy and planning committee a question as to whether Fabcot’s response should be assessed by Gary Shiels & Associates. They were available and ready to make that assessment for very little cost. The council rejected the course of obtaining further assessment from them, and instead resolved to rely on the assessment of Fabcot’s response by its own officers. Secondly, the council failed to defer consideration of the development application while it revised the Nowra CBD Strategy (as the GSA report had recommended).

76. Relying upon Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549, Mr Austin contended that the council’s failure to obtain a further report from Gary Shiels & Associates, or to await revision of the Nowra CBD Strategy, demonstrated that the council made its decision in a manifestly unreasonable manner.

77. In Prasad v Minister for Immigration, Wilcox J dealt (at pp 562 - 563) with the correct approach to the relevance of material on the issue of reasonableness. His Honour considered as correct an “intermediate” approach, namely, 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”. His Honour went on to explain that approach in the following passage (at p 563):

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.

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.

80. I conclude therefore that the principle set out in Prasad v Minister for Immigration and Ethnic Affairs has no application in this case.

Ground 3 - failure to notify

81. Clause 37A of the LEP provides as follows:

37A (1) All development applications require notification to be given by the Council, except for those for consent to development that the Council considers to be of a minor nature.

(2) The form and extent of any such notification are to be determined by the Council with regard to the circumstances in the case.

(3) Nothing in this clause affects the giving of notice in respect of designated development.

82. It was common ground that the development application was publicly notified pursuant to cl 37A from January 1998 to March 1998. The issue turns, however, upon whether it was necessary to notify the development application again after amendments to it had been made, and, if it was, whether the council failed to do so.

83. The set of plans which accompanied the development application were identified as “issue A”. Amendments were made in another set of plans, identified as “issue B” and dated 10 June 1998, and yet again in a further set of plans identified as “issue C”, and dated 3 August 1998. It is not in dispute that the plans which are incorporated in the development consent comprise issue B and issue C.

84. Schroders’ case is that the amendments which were made to the development application by means of the issue B and issue C plans substantially changed the proposed development with the consequence that the development application became, in effect, a “new” development application. Schroders claims that, as a consequence, cl 37A applied, and required the council to notify the “new” development application in accordance with its provisions, which the council failed to do.

85. Both the council and Fabcot take issue with this claim. They each assert that the amendments constituted by issue B and issue C did not substantially change the proposed development, that no “new” development application came into existence, and that, accordingly, the council had fulfilled its obligation under cl 37A when it advertised the development application with the issue A plans. In the alternative, the council and Fabcot claim that the council did in fact notify the development application incorporating the issue B and issue C plans within the terms of cl 37A.

86. A number of things may be noticed about cl 37A. First, it adopts the expression “notification” which is not defined or otherwise explained in the LEP. The parties approached that expression on the basis that it meant “public notice”, and I am content to follow that approach. Secondly , it is silent as to amendment of a development application, and it may be accepted that it does not require the council to publicly notify amendments of themselves. That point is, however, of limited relevance, since Schroders’ case is based, not on an obligation to notify amendments, but an obligation to notify a “new” development application. Thirdly , the council has an unfettered discretion as to the form and extent of any notification.

87. Evidence as to the nature of the amendments made by the issue B and issue C plans was given on behalf of Schroders by Mr J P Daubney, an architect, on behalf of the council by Ms Chapman, and on behalf of Fabcot, by Mr W M Giles, the architect who prepared all the plans and by Mr H M Sanders, a town planner. Mr Giles prepared a schedule of all the amendments which were made by the issue B and issue C plans, and Mr Daubney, Mr Sanders and Ms Chapman reviewed the amendments with the assistance of that schedule. In relation to each amendment, each expert presented his conclusion as to whether it was minor or significant.

88. There were 43 amendments in total. In his affidavit Mr Daubney described the amendments in general terms (as well as by reference to the schedule). Based on the schedule and Mr Daubney’s description the general nature of the amendments may be set out as follows:

(a) the floor space area of the speciality shops was increased;

(b) the setback of the building to the street boundaries of Osborne and North Streets was decreased;

(c) the setback, retail use and visual nature of the building to Berry Street was changed as a consequence of increased retailing in the forecourt, shopfronts located directly to Berry Street, and associated fenestration and pedestrian access;

(d) the facade to Osborne Street was changed, including introduction of a major corner structure at Osborne and North Street, changes to fenestration and signage, changes to the parapet line and introduction of balconies and associated sails to the food court;

(e) there was an increase in the number of cars that may be parked on the site, and the configuration of car parking was changed, as well as ingress and egress and distance from boundaries.

89. I turn to the question of whether these changes had the effect of constituting a development application which had never been notified to the public. Mr Austin relied upon Cambridge Credit Corporation Ltd and Anor v Parkes Developments Pty Ltd [1974] 2 NSWLR 590 for the proposition that, if the development the subject of a development application is substantially different from the development as originally proposed, then that warrants a fresh public notification. I accept this proposition, although strictly speaking Cambridge Credit v Parkes Developments is not authority for it, because the decision of the Court of Appeal in that case turned on the fact that a development application had been lodged and notified but had been impliedly withdrawn and replaced by a fresh development application which had not been notified (see Hope JA at p 599 and Glass JA at p 616). In my opinion, however, a logical extension of the decision reached in that case is that, if amendments are made which in effect constitute a new development application, then, unless re-notified, it will follow that the new development application has not been subject to public notice.

90. The question then is whether, on the facts, the changes made in the issue B and issue C plans so substantially or significantly changed the development that it can be said that in effect a new development application has been made. In my opinion, the appropriate test for determining that issue is to be found in Vacik Pty Ltd v Penrith City Council (Stein J, 24 February 1992, unreported) which dealt with s 102(a) of the unamended EP&A Act. That section permits modification of a development consent if “… the development to which the consent as modified relates is substantially the same development”. Stein J at p 3 stated the test in the following terms:

… ‘substantially’ when used in the section means essentially or materially or having the same essence”.

91. That formulation of the test was expressly approved by Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433 at 440.

92. This is not a case where the question of substantial compliance with a statutory requirement is in issue. There is no dispute that the council initially complied with cl 37A. A question of failure to comply with cl 37A could only arise if the amendments to the plans were such as to constitute a new development application. It is for this reason that I adopt the test enunciated in Vacik v Penrith City Council, and put aside a test which depends upon whether proper public participation in the planning process has been satisfied. As a consequence, cases such as Curac v Shoalhaven City Council and Anor (1993) 81 LGERA 124 (where the council failed to comply with the requirements for the length of public exhibition) or Helman v Byron Shire Council and Anor (1995) 87 LGERA 349 (where the council failed to place on exhibition a fauna impact statement which accompanied the development application) are distinguishable.

93. Despite Mr Daubney’s opinion (which was not shared by Mr Sanders, Mr Giles or Ms Chapman) that the amendments were significant either in their own right or considered in totality as part of the whole of the proposed development, I have concluded that they are not so substantial or significant as to constitute in effect a new development application. In my opinion, the essential nature of the proposed development remained the same before the amendments as after them. It was a development comprising a discount department store, a supermarket, specialty shops, a community centre, car parking and landscaping, and it remained of that essential or material nature after the amendments had been made. The amendments are, in my opinion, matters of design, configuration and appearance. Whilst some of them may be significant, they do not change the essence of the development as initially proposed.

94. It was submitted by Mr Austin that, if the Court should come to such a conclusion, then it must follow that the amendments made by the issue B and issue C plans could not have been regarded by the council as sufficiently significant to meet its concerns about the social and economic effect of the proposed development, and that, accordingly, the council’s decision on that aspect must be found to be manifestly unreasonable. I reject that argument. The council’s consideration of the social and economic effect of the proposed development in the locality did not depend either for its adequacy or its reasonableness on the significance or otherwise of the amendments which were put forward by Fabcot in response to the council’s requirement for integration with the Nowra town centre. It depended, rather, upon whether the council gave proper consideration to the social and economic effect of the proposed development and whether it could reasonably conclude that the risk of its social and economic impact was mitigated by those responses. For the reasons I have earlier outlined, I consider that the council’s decision on that matter cannot be disturbed by the Court. Furthermore, Fabcot’s responses are not entirely encapsulated in the amendments made by the issue B and issue C plans. They are the subject of conditions of consent relating to urban design, being conditions 35 to 38 inclusive, and, in particular, condition 37 which relates to streetscape works for the intersection of Egans Lane and Berry Street to the Main Arcade. Accordingly, it is not simply the amendments made by the issue B and issue C plans which are relevant to the issue of social and economic effect, it is also the matters required to be satisfied by the conditions of consent.

95. For completeness I should add that, whatever the significance of the amendments made by the issue B and issue C plans, I have concluded that amendments per se do not fall within the obligation imposed upon the council by cl 37A. That is because, absent cl 37A, there is no obligation for public notification of a development such as the Nowra Marketplace to be found in the unamended EP&A Act or in other parts of the LEP. Such an obligation would, absent cl 37A, exist in relation to designated development, which the Nowra Marketplace development is not. In that context, the fact that cl 37A is silent about notification of an amended development application does not suggest that an obligation to notify an amended development application is to be implied. The contrary is the case. Clause 48 of the Environmental Planning and Assessment Regulation 1994 expressly contemplates amendment to a development application, by providing that the applicant may at any time amend or vary the development application, but only with the agreement of the consent authority. Furthermore, section 3.1.10.1 of the council’s Community Consultation Policy provides for circumstances which “… may give rise to Council not following the notification procedure …” in respect of building and combined development/building applications, and one of those circumstances is stated to be “Amendments made in response to objections received”. Although I am unable to discern from the evidence whether any of the amendments were specifically made “in response to objections received” , I take the reference in the council’s policy to indicate that amendment of a development application does not automatically give rise to an obligation for public notification. (In his affidavit, Mr Giles gave evidence as to the reason why he made each of the 43 amendments, and although about 75 per cent of the amendments were made, according to his unchallenged evidence, as a consequence of direct request by the council, it is unclear whether such requests resulted from objections received or from the assessment of the development application by the council and its consultant).

96. Lastly, I turn to the question of whether, if, (contrary to my earlier conclusion) there was an obligation upon the council to notify the amendments made by the issue B and issue C plans, the council complied with that obligation. The council contended that it did undertake a form of notification of the amendments, and that it accordingly complied with an obligation to notify, if in truth cl 37A cast that obligation upon it.

97. Ms Chapman gave evidence that, in respect of the meetings of the council scheduled for 6 August 1998 and 11 August 1998, written notice was given to persons who had made submissions in relation to the Nowra Marketplace development. That is corroborated by the council files, which contain a pro forma letter dated 31 July 1998 containing notification of those meetings for “Council’s further consideration” of the Nowra Marketplace development, and it appears that the letter was sent to approximately 200 people. No notice was placed in any newspaper, according to Ms Chapman, but at each of the meetings, about 100 to 150 people were present. Ms Chapman stated that, at each of those meetings, the plans were pinned to the wall of the council chamber, and could be seen by councillors, staff and the public.

98. According to Ms Chapman’s evidence, similar letters to people who had made submissions were sent in relation to the council meeting on 15 October 1998 (at which development consent was granted), although no specific advertisement was placed in any newspaper. Again, she said, the public gallery was full - about 100 to 150 people were in attendance, but at that meeting, the plans were not pinned to the wall, although they were in the council’s files which were in the council chamber.

99. Critical to a determination of whether the council complied with an obligation under cl 37A (if it had such an obligation in relation to the amended plans) is the unfettered discretion which cl 37A(2) confers upon the council. As I have already indicated, the expression “notification” is not defined, and cl 37A(2) entitled the council to determine in its discretion what form “notification” should take. It is also significant that the council was entitled under cl 37A(2) to exercise that discretion “with regard to the circumstances in each case”. It seems to me to be well within the parameters of an obligation under cl 37A for the council to decide, in the circumstances of the Nowra Marketplace development, that it would notify further meetings to consider the development to those persons who had expressed concern or interest in the proposed development. I would hold that, if the council did have an obligation to re-notify the development application with the issue B and issue C plans, it fulfilled that obligation in the manner I have set out, having regard to the width of the discretion conferred upon it by cl 37A(2).

100. In summary, I conclude that the council had no obligation under cl 37A to re-notify the development application with the issue B and issue C plans, but if, contrary to that conclusion, such an obligation did in fact arise, then the council complied with it.

Orders

101. For the foregoing reasons, I have concluded that Schroders has failed to establish any of its grounds of challenge to the validity of the development application. Accordingly, its application must be dismissed.

102. My formal orders are therefore as follows:

(1) The application is dismissed.

(2) The applicant must pay the costs of the first respondent and second respondent as agreed or as assessed.

(3) The exhibits may be returned.