Scott v Wollongong City Council

[1989] NSWLEC 236

Land and Environment Court

of New South Wales

CITATION:

Scott & Ors v Wollongong City Council & Anor [1989] NSWLEC 236

PARTIES:

APPLICANTS
Phillip Scott
George Gedge
Shirley Hughes

FIRST RESPONDENT
Wollongong City Council

SECOND RESPONDENT
Job Creators Pty Ltd

FILE NUMBER(S):

40090 of 1989

CORAM:

Cripps J

KEY ISSUES:

:-

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Local Government Act 1919
Rivers and Foreshore Improvements Act1948
Metropolitan Water Sewage and Drainage Board Act 1924

CASES CITED:

King v Great Lakes Shire Council 58 LGRA 366 at 371 and 372,;
Associated Provincial Picture Houses Limited v Wednesbury Corporation 1948 1KB 223 at 229);
Hale v Parramtta City Council 47 LGRA;
Minister for Aboriginal Affairs v Peko-Wallsend Limited 60 ALJR 560;
Legal and General Life of Australia v North Sydney Municipal Council 22 June 1989;
Puhlhofer & Anor v Hillingdon London Borough Council [1986] AC 484 at 518;
Dentham & Anor v Kiama Municipal Council 59 LGRA 94;
Pioneer Concrete v Port Macquarie Municipal Council 20 July 1984;
Leichhardt Municipal Council v Maritime Services Board & Ors 4 December 1985 ;
Weigall Constructions Pty Limited v Melbourne and Metropolitan Board of Works 30 LGRA 333;
Barry v The Minister Administering the Environmental Planning and Assessment Act 1979 7 December 1983

DATES OF HEARING:

DATE OF JUDGMENT:

09/01/1989

LEGAL REPRESENTATIVES:

JUDGMENT:

His Honour: On 7 April 1989 the applicants, Philip Scott, George Gedge and Shirley Hughes claiming to act on behalf of a group known as the Residents of Belmore Basin, commenced proceedings in the Class 4 jurisdiction of the Court seeking a declaration that a development consent granted by the Wollongong City Council on 24 February 1989 for the erection of a motel on the corner of Cliff Road and Harbour Street" is invalid and of no force and effect. They also sought consequential orders that the Council and Job Creators Pty Ltd (the Developer) be restrained from acting upon the development consent.

On 21 October 1988 the Developer made a development application for the erection of a five level 80 unit motel on five separate allotments of land located at the corner of Cliff Road and Harbour Street, Wollongong. The motel building was designed to have a basement level for 86 vehicles, a ground floor lobby, a foyer, a kitchen, a lounge, a coffee shop and a games room, four floors of motel units and a roof level containing pool, cabana, recreation and store room.

At all material times, the subject land is zoned 2(c) residential "C" (high density) under the Wollongong Local Environmental Plan No 38. The erection of buildings and the use of buildings and land for the purposes of a motel is permissible with the consent of the Council. The zoning permits development for purposes which are not specifically prohibited. Relevantly, prohibited development includes "refreshment rooms", "taverns", and "tourist facilities (other than motels)".

Pursuant to the provisions of s 92 of the Environmental Planning and Assessment Act the Council forwarded to the Developer its Notice of Determination that the development application was consented to subject to a number of conditions including condition 27 which provides as follows:

"The applicants shall, at its cost, carry out the work in Belmore Basin and Osborne Park specified in the attached document entitled "Wollongong Foreshore Development" and in the attached plan entitled "Wollongong Harbour Precinct", subject to final determination by Council of that document and plan or the relevant sections thereof".

Attached to the development consent was a document headed "Wollongong Foreshore Development" which set out the work to be undertaken in Belmore Basin and Osborne Park. I shall return to this matter in due course.

The Notice of Determination provided that the consent became effective and operated from the 24 February

1989 being the date of consent endorsed upon the Notice given pursuant to s 92.

The applicants claim that the development consent granted by the Council was void because:

A. The Developer had failed to obtain the consents to the making of the development application of the owners of the five allotments the subject of the application.

B. The action of the Council in granting consent was unlawful because:

i) the provisions of Development Control Plans 6 and 9 with respect to floor space ratio, height, setbacks, parking and traffic, design, illumination signs and the likelihood of flooding were ignored or not adequately considered.

ii) a) In breach of clause 10A(3) of LEP 38 (the relevant planning instrument) the Council consented to development for the purpose of a "restaurant", a "tavern" and a "tourist facility".

(b) In breach of clause 10A(2) of LEP 38 the Council failed to have regard to floor space ratio standard as set out in clause 16 of LEP 38 and that he failed to assess the dispensation application made and granted pursuant to SEPP No 1 according to law.

(c) In breach of cl 32 of LEP 38 the Council failed to assess heritage items as required.

(d) In breach of the draft LEP the development included prohibited uses namely "refreshment rooms", "tourist facilities" and "taverns".

(e) In breach of clause 12 of the draft LEP the development exceeded the floor space ratio as set out.

(f) In breach of clause 35 of the draft LEP it failed adequately to assess the effect of the development of items of environmental heritage.

iii)

(a) The development "offends" against clause 105 of the Illawarra Regional Environmental Plan No 1 because the height of the buildings to be constructed will affect the "scenic, recreational and natural values of REP No 1 being certain objectives therein set out.

(b) The development will "offend" against cl 118 of REP No 1 because it will bring about a "dramatic change in the character of the precinct".

(c) The Council failed to assess the development as required by cl 128 of REP No 1 with respect to items of environmental heritage.

(d) The height of the proposed building "offends" against cl 138 of REP No 1 and because it is in excess of 11 metres and the consent authority did not have the concurrence of the Director of Environment and Planning.

iv) The Council failed to give proper weight to matters referred to in s 90 of the Environmental Planning and Assessment Act. It is alleged the Council failed to give proper weight to the development control plan (s 90 (1)(a)(iv)), the impact on the environment (s 90 (1)(b)), the effect on scenic quality (s 90(1)(c)), character, location, size, scale, bulk etc (s 90(1)(e)), siting (s 90(1)(f)), flooding (s 90(1)(g)), height (s 90(1)(h)), means of entrance and exit s 90(1)(i)), traffic (s 90(1)(j)), landscaping (s 90(1)(m)), amenity (s 90(1)(o)), the provisions of relevant planning instruments (s 90(1)(p1)) and that it failed to consult with the public works department (s 90(1)(n)) and failed to have regard to the public interest (s 90(1)(r)).

(v) The Council in granting development consent was in breach of s 308(2) of the Local Government Act because of the provisions of Ordinance 70 clause 11.1.

(vi) At the time consent was granted the Public Works Department had not "approved of the proposed excavation" the action of the Council was in breach of s 23A of the Rivers and Foreshore Improvement Act 1948.

C. That the consent was void because the Council was influenced by extraneous considerations particularised as follows:

i) "The encouragement of "tourism" in Wollongong which overrode all consideration or all proper consideration of Town Planning and Environmental requirements". The particulars in support of this assertion referred to a television interview by Mr Winterbottom, the City Planner, in which he acknowledged that the development did not comply with Council's codes but that the site was "exactly the place that we want this kind of development to take place" and that the development would be a "great boost to our tourism strategy".

ii) That an offer made by the Developer to undertake an extensive programme of works in the immediate vicinity, for example, the construction of a kiosk and amenity building was such that its attractiveness and magnanimity" became "an extraneous circumstance" which ought not to have been taken into account.

D. Condition 27 of the consent granted by the Council was void because it had no relevant connection with the subject land and because it was uncertain in its meaning and application. (At the hearing it was submitted also that condition 27 was not relevantly severable).

E. The Director had no power to delegate her functions under cl 139 of the Illawarra REP 1 to the Wollongong City Council's Town Planner and for that reason the "alleged concurrence of the Director purported to be exercised by the City Planner to permit the erection of a building in excess of 11 metres" was ineffective and in breach of the requirements of the Environmental Planning and Assessment Act.

F. That the Council had no power to "amend, alter or modify any of the conditions imposed by the City Planner "and that such action was in the circumstances" illegal and void" - the particulars being:

consented the development subject to appropriate to be determined by the City Planner the requirement for the payment of a contribution, the amount of which was to ii) On 30 January 1989 the Development and Planning stipulated a number of conditions iii) On 20 February 1989 the first respondent resolved the proposed condition of consent should be at a meeting with objectors before being back for final determination by the respondent and an amendment was proposed to to the works to be carried out by the second as part of the first respondent's iv) On 24 February 1989 the Council granted consent to development subject to conditions, which involved condition 27 which had been appeared to be the applicant's case that the abovementioned alleged breaches singularly and cumulatively resulted in the consent of the Council on 24 February 1989 being a nullity. During the hearing a few of the allegations were withdrawn. For example, it is now no longer alleged that the Council consented to a "tavern" as defined or that

the development was relevantly a "tourist facility" (which, as I have mentioned above, is defined to exclude a motel). Although not withdrawn in terms, no evidence was led and no submissions were made seeking to persuade the Court that s 77 of the Environmental Planning and Assessment Act was breached because the owners of land the subject of the application did not give their consent before the Council granted its consent on 24 February 1989. Furthermore, it would seem that the claims that the consent was void because, if implemented, it would be in breach of s 308(2) of the Local Government Act because of the provisions of Ordinance 70 or that it would be in breach of s 23A of the Rivers and Foreshore Improvement Act 1948 were all but abandoned for reasons which I can only describe as obvious and I will, therefore, not deal further with them.

As can be seen from the applicants' formulation of their claim, no apparent distinction is drawn between the failure of the Council to have regard to the provisions of the statute or the statutory planning instrument (if that happened) and the failure of Council to have regard to a development control plan or a draft planning instrument (if that happened). The scatter gun approach adopted by the applicants in the formulation and presentation of their case has given the litigation an appearance of complexity beyond that which a proper consideration of the issues requires. The allegation (manifestly incorrect) that the Council had, in effect, failed to give any or any sufficient weight to almost every head of consideration listed in s 90 of the Environmental Planning and Assessment Act with the exception of s 90 (1)(d), ie the social and economic effect of the development in the locality, is an illustration of what I am referring to. Such an allegation doubtless serves to publicise the objectors' sense of griev

ance. Unfortunately, it may, as seems probable in the present case, also serve to raise ill founded expectations in people who do not understand the system, that the Court could and would set aside the Council's decision because it was one with which they did not agree.

The applicants' case was presented as if it were a planning appeal. The evidence of the expert planner was wholly inadmissible. Because to have excluded oral evidence from the Planner might have denied the applicants the opportunity of having their case presented properly, I allowed a further affidavit to be read. However, I believe the time is fast approaching when the directions of the Court concerning the filing of affidavits in Class 4 matters should be more rigorously enforced than has hitherto been the case. If, as a consequence, objectors are denied the opportunity to put additional material before the Court in a legally admissible form, their grievance should be laid, not at the door of the Court which has the obligation and function of ensuring that its time is efficiently and productively used for all litigants waiting to be heard, but at the door of the legal advisers who either do not understand or, if they do, ignore the directions of the Court and the rules of evidence.

In support of its case the applicants tendered documents from the Council's file and called Mr Turnbull, a Town Planner, who had worked for the Council until 1981 before going into private practice. Mr Turnbull is a certified Town Planner and Survey Draftsman. He lives in close proximity to the proposed development and is recorded as being on the Committee of the Residents of Belmore Basin. The greater part of Mr Turnbull's evidence was directed to merit town planning considerations almost all of which he presented to the Council prior to the Council making its decision to grant development consent in February 1989. Because the issue before the Court is not whether Mr Turnbull thinks the development is good or bad but whether the Council understood its planning function and, if it did, whether it misapplied its discretion, much of Mr Turnbull's evidence was not relevant. By way of illustration, the Council was not obliged to have regard to Mr Turnbull's opinion that if the development went ahead there would b

e too much overshadowing or that the privacy of the surrounding area would be adversely affected or that the development will be "visually intrusive on the recreational and residential amenity" or that it will form a "discordant blot". Likewise, Mr Turnbull's opinion that the coffee shop and bar was not a "use which is ancillary to the motel use" was not a matter which the Council was bound to have regard to.

In King v Great Lakes Shire Council 58 LGRA 366 at 371 and 372, the Court emphasised that in Class 4 proceedings, evidence must be presented in a legally admissible form and must be properly directed to matters in issue. In the present case, and even after leave was granted to read a further affidavit, much of the material was legally inadmissible and very little was directed to the general issue before the Court which, as I have said, was whether the Council, when it determined the development application made its determination according to law.

In King, the Court acknowledged that expert planning evidence is admissible in certain circumstances to assist the Court to understand what a council, acting reasonably, ought to have done with respect to a particular development application. I shall, in due course, refer in detail to Mr Turnbull's evidence. It is, however, relevant to note that it emerged from the cross examination of Mr Turnbull that, in fact, the Council heard oral representations from Mr Turnbull on behalf of the Residents of Belmore Basin prior to making its determination to grant development consent. Almost all merit planning matters relied on by the applicant in the present case were clearly and succinctly put before the Council by Mr Turnbull before it determined the application. The last mentioned circumstance illustrates, I think, the essential misconception in the applicants' case and probably helps to

explain the manner of its presentation, ie as if it were a third party merit planning appeal.

In the presentation of their case, the applicants made no distinction between matters which the Council was required by law to observe as, for example, the provisions of the statutory planning instrument itself and the provisions of SEPP No 1, on the one hand, and those matters which the Council was only required to have regard to, such as its codes and draft plans, on the other. For example, the Council was required by law to have regard to its development control plan but it was free to depart from it if it believed it should in the circumstances of the case. The presentation also appeared to assume that provided only the applicants could point to some adverse environmental impact likely to be caused by the development, they had proved that the Council had failed to discharge its planning function properly or that, at the very least, some evidentiary burden shifted to the Council requiring it to justify its conduct. In this regard, it is not inappropriate, I think, to once again emphasise that the legislatu

re has granted to councils the power and function to administer the planning laws of the State subject to certain rights of appeal by developers and, in respect of designated development, by third party objectors. The subject development application was not for designated development and the present litigation is not a third party appeal. Where such a right of appeal exists, the Court has the power to substitute its own planning opinion for that of the Council. In the exercise of its supervisory jurisdiction it does not have the power to substitute its own planning opinion for that of the council.

In making the above observations, I have not ignored the claim of the applicants that the decision of the Council was so unreasonable that no council acting reasonably could have reached it - what was said to be "Wednesbury unreasonableness" (see Associated Provincial Picture Houses Limited v Wednesbury Corporation 1948 1KB 223 at 229). In Hale v Parramtta City Council 47 LGRA, McClelland J characterised a decision of the Parramatta City Council to grant development consent for a sports stadium at Parramatta as relevantly "unreasonable". In the Court of Appeal the decision was upheld upon the basis that the Council failed to take into account matters required to be considered under s 90 (see 47 LGRA 319). It must be remembered that Hale was concerned with the decision of a local council to establish a stadium to seat 40,000 people in Parramatta Park. The environmental consequences were self evidently complicated and large. When making its speedy decision to grant consent, the Council ignored the recommendatio

ns of its own officers and government departments. The facts in Hale are remote from the facts in the present case. In Minister for Aboriginal Affairs v Peko-Wallsend Limited 60 ALJR 560, Mason J (as he then was) reviewed many of the authorities and cautioned that with respect to such a claim:

the context of administrative law a court proceed with caution when reviewing an does it its supervisory role by reviewing the particular relevance when such a challenge is made to a planning decision of elected aldermen of a local council. The terms of s 90 of the Environmental Planning and Assessment Act makes it clear that councils have a wide discretion. Local aldermen are assumed to have local knowledge. When a decision to grant planning consent is made by elected aldermen, a challenger undertakes a heavy burden to satisfy the Court that the decision is so unreasonable that no council acting reasonably could have reached it (Legal and General Life of Australia v North Sydney Municipal Council 22 June 1989. The decision must be proved to be outside the permissible range which has been described as being "from the obvious to the debatable to the just conceivable" (Puhlhofer & Anor v Hillingdon London Borough Council [1986] AC 484 at 518). In order to set aside a decision of a local council upon what is des

cribed as "Wednesbury unreasonableness", the challenger must demonstrate that the decision verges on an absurdity.

In opening the case for the applicants, Mr Parker QC submitted that the foundation of his case was not to be found in Hale but in Warringah Shire Council v Sedevcic 63 LGRA 361. It was submitted that Sedevcic was authority for the proposition that the Court will intervene in its Class 4 jurisdiction to prevent councils departing from development control plans and the like. However, with respect, Sedevcic had almost no relevance to the issue before the Court. In Sedevcic the Court was concerned with the discretion to be exercised by the Court where a breach of the planning law had been established. In my opinion, Sedevcic is no authority for the proposition that the Land and Environment Court in its supervisory jurisdiction is at liberty to set aside a council's planning decision under the guise of what is said to be "orderly planning".

Before turning to the nominated breaches of the Planning Act, it is necessary for me to shortly outline the planning history of the subject development between October 1988 and February 1989. The development application was lodged with the Council in October 1988. It was accompanied by a statement of environmental effects and a traffic assessment report. The development application did not use the word "restaurant". It referred to part of the motel being used as a "coffee shop". The traffic report made reference to the same area as a "restaurant/coffee shop" and referred to the fact that the restaurant would have a capacity for 145 patrons. The report then referred to the circumstance that if 50-60% of the people using the restaurant might not also be guests of the motel additional parking spaces should be provided. It would seem to me questionable whether the statement in the traffic report really had any significance other than as a statement that if the restaurant is used the way the traffic consultants th

ink it might be used (ie a little more than half the time by non-motel guests) a certain amount of car movements would be generated around the site. However, I will assume in favour of the applicants that the Council was bound to assume that a "coffee shop" would be available to members of the public and that standing alone the "restaurant/coffee shop" was capable of being characterised as a "refreshment room" within the meaning of LEP 38.

The development application was assessed by the Council's Planning Department. In the various reports, reference is made to the permissible floor space ratio of 1.45:1, the setback, the height, the requirements of the parking code etc. Floor space ratio was estimated at 1.91:1. The proposal was advertised and a number of objections were received. Relevantly, the Council told the Secretary of the Department of Planning that the building proposed would be in excess of 11 metres and hence would require the concurrence of the Director pursuant to cl 139 of the Illawarra REP 1. Landscaping and engineering works were referred to. Of significance in the present application is the circumstance that there were two calculations with respect to floor space ratio - one taking into account the voids and another without the voids.

A number of objections were received. Mr Turnbull on behalf of the Residents of Belmore Basin first wrote to the Council in November 1988. Letters were written to the local newspaper referring to the subject site as being of significance in the history of Wollongong and exhorting Council not to over-emphasise the value of tourism. It is fairly clear from the documents in the Council's file that the development was regarded by the general community as being of significance. The Council resolved to hear submissions on behalf of the opponents. Mr Turnbull addressed the Council on 12 December. I shall return shortly to the details of Mr Turnbull's address.

The file also shows that each head of consideration referred to in s 90 of relevance to the development was the subject of comment and assessment. Regard was had to the provisions of LEP 38 with respect to floor space ratio and the objection lodged pursuant to SEPP No 1 which was to the effect that Council should have regard to the tourist potential of the site and dispense with the relevant floor space ratio standard. There has been no challenge to the delegation of the Director's function under SEPP No 1 or the exercise of that delegation by the planner.

The Town Planner was in favour of the development and expressed his support in a television interview. The Council had before it its own draft LEP which, incidentally, made permissible a "tourist facility" on the subject land. DCPs 6 and 9 were considered. Matters of environmental heritage were identified and reference was made to the drill hall, the harbour and the tramway bridge as being items of environmental heritage. There is a note on the files signed by Mr Winterbottom to the effect that in his opinion the impact on the above items of environmental heritage would be minimal.

On 12 December the Development and Planning Committee considered a report and the recommendation that the application be consented to. The recommendation was that the Director's concurrence be sought with respect to cl 39 of Illawarra REP No 1 (limiting the height to 11 metres unless the Director concurred) to permit the height of approximately 20 metres. The report also recommended that the application "be approved under the provisions of the Environmental Planning and Assessment Act 1979 subject to appropriate conditions to be determined by the City Planner, and including a requirement for the payment of a monetary contribution (the amount to be determined by the City Planner) for landscaping, demolition and construction works to be undertaken within Osborne Park and the Wollongong Harbour Precinct".

The Planner's report set out the objections received, the reasons for objections, the provisions of the Scheme, the codes with respect to height, setbacks, parking, etc etc. At the bottom of the report the Town Planner advised: "In conclusion it is now necessary for Council to weigh up the benefits of the proposal in terms of encouraging tourism and the general community good to be created by the works to be carried out along the foreshore, against the disadvantages of the development in terms of overshadowing of adjacent properties. While the proposal clearly does not comply with Council policies in respect of height and floor space, the building is well designed and I consider that the development would be in the public interest based on the works to be undertaken by the applicant along the foreshore. However, should Council consider the floor space and height concessions requested by the applicant to be unacceptable, Council may wish to delete one floor of the development, thereby reducing the total number

of units to 60".

On 12 December 1988, Mr Turnbull addressed the council on behalf of the Residents of Belmore Basin. He handed the Council an eleven page copy of his address. The address dealt with a number of matters and Mr Turnbull tried to persuade the Council to reject the development application. All the matters raised by Mr Turnbull, with one exception, have been canvassed again in these proceedings. Mr Turnbull did not mention to the Council that the development should be refused because of the possibility that the subject land might be inundated as a result of unusual meteorological conditions.

On 19 December 1988, Council resolved to grant development consent. Two aldermen asked that their names be recorded as being opposed to the motion. It is fairly clear that on 19 December the Council believed it had actually given consent to the project and that it had left to the Planner the function to attach any condition to the consent he thought fit. In January the members of the public were so informed. On 4 January 1989 the City Planner, after referring to his delegation and noting that there had been no notice of revocation of it, exercised the delegation to concur in the consent being granted as required pursuant to s 139 of Illawarra REP No 1.

In January the Council was advised by lawyers representing the Residents of Belmore Basin that the resolution on 19 December was a nullity. The advice was based, apparently, on a decision of the Land and Environment Court in Lend Lease Management Pty Limited v The Council of the City of Sydney 17 July 1986 (unreported). In Lend Lease, the Court held, in the circumstances there established, that a development consent of the Sydney City Council was void because it purported to grant consent and leave to some other person the question whether a building would have a floor space ratio of something between 5.5:1 and 12.5:1. It was held that the Council's planning discretion had miscarried. The lawyers representing the Residents of Belmore Basin threatened to institute proceedings in the Land and Environment Court and seek a declaration that the consent was invalid because it was not open to the Council to grant consent and leave the fixing of significant conditions to the Planner.

On 30 January Mr Winterbottom advised the Council that a "recent court case" (a reference, I infer, to New World) had "cast some doubt on the validity of consents granted by Council ... where conditions are to be imposed subsequently". He advised the Council that to put the matter beyond doubt the "Council should approve the application in principle and specifically delegate the detailed determination and conditions taking into account the requirements of the Act". It would seem at this stage that Mr Winterbottom failed to understand the significance of the decision in New World but as the Council later gave its consent, I do not think anything turns on this. At all events, no submission was made on behalf of the applicants that Mr Winterbottom's advice caused the Council's planning discretion to miscarry. Quite the contrary it is alleged that the Council had no right to fix conditions other than those suggested by Mr Winterbottom and because it did, the consent was void.

Significantly, on 3 February 1989 the solicitors for the Residents of Belmore Basin wrote to the Town Clerk advising him that in view of the fact that "the development application has not been finally determined" they would discontinue the challenge in the Land and Environment Court. The solicitors requested that when a Notice of Determination was made it be advertised pursuant to s 104A.

On 6 February 1989 a motion was before the Council that the development application be approved subject to "a further condition being attached requiring the submission of a landscape plan" and the condition "in terms of Attachment 1". At that stage, Attachment 1 did not include what is now cl 27. The matter was put before Council and the motion was carried. On 15 February 1989 the Water Board wrote to the Council referring to the fact that the proposed development "may not be able to be serviced with water from the Board's existing system and that it may therefore be necessary to amplify the system". After stating that the Board was not at that time in a position to determine the exact amount of amplification, the letter continued: "I would request that the Council require as a condition of development consent that the applicant consult with the Board for arrangements to be made for the provision of water and sewerage facilities". This last mentioned matter has relevance in the light of cl 29 of LEP 38, the t

erms of which I shall set out in due course. I note in passing, however, that there is no evidence of any dissatisfaction by the Metropolitan Water Sewerage and Drainage Board to the terms of the development consent. Furthermore, I note that alleged non-compliance with cl 29 of LEP 38 was not referred to in the amended points of claim filed on 12 May 1989, either as being a factor directed towards "Wednesbury unreasonableness" or as being a breach of a mandatory requirement having as a consequence the nullification of the development consent. A question arises, therefore, whether it should be permitted to be raised at all. But in view of my later findings with respect to the claim, the matter is academic.

The application came before the Council in the planner's report on 20 February 1989 report. The planner's report referred to a meeting on 15 February which was attended by approximately 100 people and at which concern was expressed with respect to a number of conditions including condition 4 (which is no longer relevant in these proceedings), condition 23 (concerning the question of bar facilities and whether the development could be described as a tavern - a matter now no longer relevant) and condition 27. Previously condition 27 was that "the applicant shall at its cost, carry out the work in the Belmore Basin and Osborne Park specified in the attached document entitled 'Wollongong Foreshore Development' and the attached plan entitled 'Wollongong Harbour Precinct'". The Council was advised that the purpose of condition 27 was "to commit the applicant to carry out the package of works along the lines of those specified ... but subject to Council's final determination of the Foreshore Plan". The foreshore pla

n had not been finally determined at that stage and the planner said: "I have amended the wording of the condition to make this absolutely clear and I have also amended the schedule of works to specifically leave open the question of

the possible redevelopment of the kiosk which is the most contentious of the issues being raised".

Reference was made to the circumstance that on 6 February the Council had resolved that the conditions of consent should be tabled at a meeting with objectors and that this had been done on 15 February. The Council discussed three specific conditions including clause 27. It was resolved that the application be consented to in accordance with the acting planner's Report of 17 February 1989 (which set out clause 27 in its present form). The consent annexed a schedule entitled "Wollongong Foreshore Development" setting out a number of items, some of which were costed by reference to prime cost, and others by reference to "LS" which had the meaning "lump sum cost to be determined". An amendment that the application be referred back to the Development and Planning Committee meeting was lost. The consent was advertised in accordance with s 104A and was notified on 24 February 1989.

The subject land is zoned residential 2(c) residential "C" (High Density). Clause 16(1) of LEP No 38 fixes the maximum floor space ratio as 1.45:1. Clause 32 of LEP 38 provides that:

out development in the vicinity of an item of the heritage unless it has made an out affect the historic, scientific, cultural, social, significance of the item or its site".

A similar though not identical provision is to be found in Illawarra REP No 1.

Clause 29 of Wollongong LEP 38 provides:

out development on any land to which this plan

or disposal of sewage and facilities for (b) arrangements satisfactory to the Metropolitan Sewerage and Drainage Board have been for the provision of that supply and 139 of Illawarra REP provides, in effect, that no building in excess of 11 metres can be erected without the concurrence of the Minister. The subject building will be 20 metres high.

I do not propose to deal with the submissions that the failure to apply the provisions of development control plans or draft instruments resulted in the consent being invalid. It is plain that the Council had regard to them. Although it is submitted that the development has a floor space ratio in excess of that permissible under the instrument, there has been no submission that the dispensing power available under SEPP No 1 was not validly exercised. With respect to the allegation that items of environmental heritage were not properly assessed, I need say no more, I think, than that many of the items nominated by the applicants were not in the vicinity of the proposed development. At all events, it was open to the Council to so conclude. I have already referred to the fact that certain nominated items were referred to in the written reports. The material from the Council's files and the assumption that I make concerning the local knowledge of the councils leads to the conclusion that it has not been establish

ed that items of environmental heritage were not relevantly considered. In my opinion, it has not been demonstrated that the planning discretion miscarried either on the basis originally claimed viz over-emphasis on tourism and because an improper attempt to have the Developer expend money on the foreshore area or at all. In my opinion, the Council was quite entitled to have regard to the tourist potential of the site and to the fact that the Developer was prepared, at its own costs, to spend $500,000 to upgrade the foreshore area. The Council was entitled to take the view that the need to upgrade the foreshore area was directly connected with the proposed development. The Council did not claim the sum of $500,000. It required the Developer to undertake work which was estimated to cost $500,000.

As I have said, it is also alleged that the Council consented to a development for the purpose of a "restaurant", a "tavern" and a "tourist facility" which was prohibited under the Local Environmental Plan. The application before the Council was for a motel. It will be remembered that the use of land for the purpose of a motel is an innominate permissible use. "Tourist facilities (other than motels)" are prohibited. Mr Parker abandoned, in terms, the submission that the Council consented to the use of the land for the purpose of a "tavern" because, presumably, of the decision of the Court in Hunter Valley Vineyards & Anor v Council of the City of Cessnock 7 October 1988. He did not formally withdraw the submission that what was proposed was a "tourist facility" but his failure to pursue the matter was doubtless influenced by the circumstance that "motels" are expressly excluded from "tourist facilities".

Nonetheless, he persisted in his submission that the consent is unlawful because the Council consented to the land being used for the purpose of a "restaurant". Mr Parker has not submitted that the application was a sham or that development consent was not granted for a "motel". He submits that because one part of the building might (or probably will) be used by members of the public not staying at the motel, the Council was bound to refuse the application on the ground, apparently, that when the motel is built part of it will be used for a purpose which is not permitted under the planning scheme. As I have said above, the plans designate part of the building as a "coffee shop". The traffic report makes reference to the same area as a "restaurant/coffee shop" with a capacity for 145 patrons. The report mentions that if 60% of the people using the restaurant are not guests, certain traffic problems might result. However, as I have said above, I will assume in favour of the applicants that the Council was bound

to assume that the "coffee shop" would be available to members of the general public. Clause 8 of LEP 38 adopts the Model Provisions made pursuant to the Environmental Planning and Assessment Act. The Model Provisions define "refreshment rooms" as meaning a "restaurant". More relevantly, it defines a motel as meaning a "building or buildings (other than a hotel, boarding house or residential flat building) substantially used for the overnight accommodation of travellers and the vehicles used by them whether or not the building or buildings are also used in the provision of meals to those travellers or to the general public". It would seem to me, with respect, that the definition of "motel" concludes the matter against the applicants. But even if there were no definition of "motel", I am of the opinion that the restaurant facility, of the type envisaged in the subject application, is such that it was open to the Council to conclude that it should be viewed as being ancillary to the dominant purpose of a motel

. Most motels in New South Wales have restaurants which serve members of the public not staying at the motel. In my opinion, the circumstance that the restaurant might (or probably will) be used by members of the public does not invalidate the consent granted by the Council. Mr Parker was not able to tell me how many members of the public had to use the motel restaurant before its use became illegal. He submits that he discharged the onus by establishing that there was material before the Council suggesting that more than 50% of the use would be by members of the public. In my opinion, the submission must be rejected.

In Hunter Valley Vineyards (supra pp 21 and 22), I expressed the opinion that it is for the Council to determine, if it is open to it, that a development is within a particular category. In Bentham & Anor v Kiama Municipal Council 59 LGRA 94, Stein J expressed the opinion that a factual assessment having been made by the Council that a development was within a nominated category, the Court would not intervene unless the decision was one that was not reasonably open to it (see also Pioneer Concrete v Port Macquarie Municipal Council 20 July 1984 ((unreported)) and Leichhardt Municipal Council v Maritime Services Board & Ors 4 December 1985 ((unreported)). To my mind to have rejected the subject development application upon the sole ground that the area set aside as the "coffee shop" would probably be used by members of the public not staying at the motel would probably itself have been a misapplication of the Council's discretion. However that may be, I am of the opinion that it has not been established that t

he Council either misunderstood its function or misapplied its planning discretion.

As I have said, it was alleged at the hearing that the consent is void because it was given in breach of cl 29 of REP 38. On 23 November 1988, the Council advised the Water Board of the proposed development because the Water Board was the owner of adjoining land. On 15 December 1988, the Water Board said it had no objection to the grant of development consent. The letter referred to cl 29 and said:

Consultation has not yet occurred, yet it that the proposed development may not be to be serviced with water from the Board's system. Therefore, it is suggested that Council and the proponent arrange to have soon as possible".

On 15 February 1989, the Board wrote to the Council responding to the Council's request that the Board attend a meeting to discuss the development application. The Board said:

appears that the proposed development may not Board's system and that it may therefore be to amplify the system. This would charge. the Board is not currently in a position to the exact amount of the amplification I request that the Council require as a consult with the Board for arrangements to be made the provision of water and sewerage development consent was not conditioned by a requirement that the applicant consult with the Board. However, the Council consulted with the Board and, notwithstanding the absence of a condition, I am not satisfied that the Board was dissatisfied by the course the Council took. It would seem to me, however, that a water supply and facilities for the removal and disposal of sewerage and facilities for drainage are available to the land. The Water Board has not said that they were not. It merely pointed to the possibility that it might be necessary to amplify the system. In my opinion, it has not been established that there was relevantly a "breach" of cl 29. It is, therefore,

unnecessary for me to determine whether compliance with cl 29 is "mandatory" or "directory" and/or whether there has been substantial compliance (see Attorney-General and ex res Franklins Stores Pty Ltd v Lizelle 1977 2 NSWLR 955. I think I should make it clear, however, that upon the assumption that there was relevantly a "breach" of cl 29, I would not, for that reason alone, have declared the consent to be invalid. The "requirements" of the Water Board were no more, for all practical purposes, than that required by reason of s 44 of the Metropolitan Water Sewerage and Drainage Board Act 1924. As I have said, there is no evidence that the Board is dissatisfied with the terms of the consent. If it is, it would be open to the Council to condition the building approval to give effect to the Board's requirements if that were appropriate. Had I determined that there was relevantly a "breach" of cl 29, the appropriate order would have been that the Developer not commence development (or perhaps that the Council no

t issue a building approval) until such time as arrangements satisfactory to the Board have been made (see F Hannan Pty Limited v Electricity Commission of New South Wales (No 3) 66 LGRA 306).

Clause 139 of Illawarra REP provides, in effect, that no building in excess of 11 metres can be erected without the concurrence of the Minister (see the clause).

Section 23 of the Environmental Planning and Assessment Act provides as follows:

"(1) The Minister, corporation or Director may, by instrument in writing, under seal (in the case of the corporation), delegate any of his or its functions conferred or imposed by or under this or any other Act as are specified in the instrument to -

(a) ...

(b) ...

(c) ...

(d) ...

(e) an officer or servant of a council".

On 4 January 1989, Mr Winterbottom resolved in the purported exercise of his delegation to grant consent to the development application notwithstanding that it was in excess of 11 metres. Mr Winterbottom certified that he had received no notice of the revocation of delegation. Mr Parker's first submission was that it was not open to the Director to delegate his function to the City Planner. Later, his submission was that the function of the Minister under REP 139 was not relevantly a "function conferred or imposed by or under this or any other Act". In my opinion, the function of the Director under cl 139 of Illawarra REP No 1 is plainly a function conferred or imposed under the Environmental Planning and Assessment Act. Regional plans are made by the Minister under the Environmental Planning and Assessment Act. Section 23(6) provides:

"An instrument purporting to be signed by a delegate of the Minister, corporation or Director, in his capacity as such a delegate, shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Minister, corporation or Director, as the case may be, under seal (in the case of the corporation), and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Minister, corporation or Director, as the case may be, under this section".

In my opinion, Mr Parker's second submission must be rejected.

I have already referred to the provision of the local environmental planning instrument with respect to floor space ratios. For present purposes and for reasons which I believe to be obvious, I put to one side the provisions of any code or draft planning instrument. Floor space ratio is defined to mean:

"in relation to a building, means the ratio of the gross floor area of the building to the site area of the allotment on which the building is or is proposed to be erected".

The definition of "gross floor area" is to be found in the Model Provisions. "Gross floor area" means:

" ... the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the outer face of the external enclosing walls as measured at a height of 1400 millimeters above each floor level excluding ... ".

The subject building has an internal space. Mr Parker has submitted that when fixing the gross floor area the Council was required to assume a notional floor space on each level which was, in fact, void. The Council took the view that it was required to include the floor area which was to be built in fact but was not required to include as notional floor the area of each level within the void. The Council points to the definition of "floor" in the Model Provisions viz the "space within a building which is situated between one floor level and the floor level next above or if there is no floor level above, the ceiling or roof above". Upon this interpretation, the Council considered that it could disregard any of the six or seven notional "floors" because they were not within the "gross floor area". I am prepared to assume that the Council miscalculated what should have been the proper calculation of the floor space ratio although I am by no means satisfied this is so. However, on any view of the matter, the bui

lding exceeded the floor space ratio of 1.45:1. There was an objection lodged pursuant to SEPP No 1 and compliance with the standard was dispensed with. The exercise of discretion under SEPP No 1 has not been challenged. The circumstance that the Council might have made a calculation error (if it did) with respect to the new proposal would not mean that its planning discretion under SEPP No 1 miscarried.

Mr Parker has submitted that at the meeting in December 1988 the Council relevantly "delegated" to the planner the exclusive function of drafting conditions of consent with the result that it was not open to the Council on 19 February 1989 to impose conditions of consent different from those suggested by the planner. It was his submission, made in terms, that there was only one decision the Council could make in February 1989 and that was to grant development consent subject to whatever conditions the planner suggested. In my opinion, the submission must be rejected. In my opinion, there are many answers to this submission. The first is that the decision taken by the Council in December 1988 was, in law, a nullity - that being the applicant's case throughout. It would follow that the delegation to the planner was also of no effect. But even if the decision to grant development consent was a nullity but the direction to the planner to prepare conditions was not, in my opinion there was nothing, in law, that pr

evented the Council from fixing conditions of consent different from those recommended by its planner. Indeed, the Council would have erred in law had it determined that it was not at liberty to depart from the conditions drafted by Mr Winterbottom without first revoking his delegation. In my opinion, it was open, in law, for the Council to exercise the function itself without revoking the delegation to the planner (see s 530A of the Local Government Act 1919).

Mr Parker submits that condition 27 is uncertain in its meaning and in its application and that because the condition cannot be severed, the consent is void. Mr Parker submits that the words "subject to final determination by Council of that document and plan or the relevant sections thereof" demonstrate the uncertainty. It has been judicially accepted that a planning condition may be so uncertain as to be invalid. But the courts have repeatedly stressed that conditions should be struck down only in extreme cases of unintelligibility (see Fawcett Properties Limited v Buckinghamshire C C [1961] AC 636). In my opinion, condition 27 is not uncertain as to be unintelligible. It would seem to me, with respect to Mr Parker, that its meaning is plain. Furthermore, I do not think it is relevantly "unreasonable" because it purports to impose on the applicant an obligation the extent of which cannot be ascertained. It would seem to me, with respect, that the words complained of mean no more than that the details of the

work required to be undertaken have not been finally determined and that it is left to the Council to do that (see Weigall Constructions Pty Limited v Melbourne and Metropolitan Board of Works 30 LGRA 333 and Barry v The Minister Administering the Environmental Planning and Assessment Act 1979 7 December 1983 (unreported)). If a limitation is to be placed upon the condition, it is that the nominated work may be modified by being reduced but may not be modified by being increased. As Lord Denning observed in Fawcett Properties Limited at page 678:

" ... A planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results. It is the daily task of the courts to resolve ambiguities of language and to choose between them; and to construe words so as to avoid absurdities or to put up with them".

It thus becomes unnecessary for me to determine whether the condition, or any part of it, could be severed. I should state, however, that upon the assumption that the words selected by Mr Parker operate to make cl 27 uncertain, the appropriate course would be to sever those words from cl 27. As I have already mentioned, the upgrading of the surrounding area will be of obvious benefit to the development. The circumstance that it might cost in the vicinity of $500,000 is of no consequence bearing in mind that the cost of the development would probably be in excess of $20 million. If condition 27 was invalid, a question would have arisen whether the permission would have been granted without that condition. In my opinion, upon that assumption, there probably could have been no severance. But to sever the words complained of by Mr Parker would not effect the condition itself or the consent. For these reasons, I am of the opinion that the submission must be rejected.

I reject the submission that the Council was in breach of cl 32 of LEP 38 and cl 128 of Illawarra REP No 1 because it fails to make an assessment of the effect of the development on items of heritage significance. I have already referred to the fact that the Council's records demonstrate that it had regard to matters of environmental heritage. It is a matter for the Council to determine what items of environmental heritage might be effected by the development. The Court will not interfere unless the decision of the Council is relevantly perverse or absurd (see Hunter Valley Vineyards). In the present proceedings, the applicants have nominated the number of items of heritage significance which it is said the Council should not have ignored. As I have said, it is for the Council to determine what matters it will have regard to. I must assume that local aldermen were aware of matters of environmental heritage of relevance to the present application. It is not inappropriate to observe that the items said to be ig

nored in the present case were matters put before the Council by Mr Turnbull on behalf of the Residents of Belmore Basin.

I have not dealt with the submission that certain provisions of draft plans or codes were ignored. It is sufficient for me to note that the failure to apply a code is not in itself an error of law nor is it a reason for concluding that the decision of the Council was one which was not reasonably open to it (see Legal & General Ltd v Lane Cove Municipal Council 23 June unreported). For the abovementioned reasons, I am of the opinion that the application should be dismissed and I so order. I reserve the question of costs.