Seek Justice Pty Ltd v Minister for Planning (No 2) - [2024] NSWLEC 68

Land and Environment Court

New South Wales

Medium Neutral Citation: Seek Justice Pty Ltd v Minister for Planning (No 2) [2024] NSWLEC 68
Hearing dates: 19 and 20 October 2023
Date of orders: 12 July 2024
Decision date: 12 July 2024
Jurisdiction: Class 4
Before: Pritchard J
Decision:
The Court makes the following orders:
(1) The second further amended summons filed 14 July 2023 is dismissed.
(2) The applicant to pay the third respondent’s costs in the amount of $5,000.

Catchwords:
ENVIRONMENT AND PLANNING — Consent — Validity — whether directions given by the Minister for Planning are invalid — whether there was a reasonable apprehension of bias — directions not invalid
ENVIRONMENT AND PLANNING — Development application — Validity — whether the approval of the modification application is invalid — approval of the modification application not invalid
ENVIRONMENT AND PLANNING — Consent — Conditions — whether the third respondent failed to comply with conditions 3 and 4 of the modified development consent — no relief granted
COSTS — order that the applicant pay the third respondent’s costs

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 98
Environmental Planning and Assessment Act 1979 (NSW) (as at 23 February 2018) ss 23J, 23K, 23L, 23I, 117
Environmental Planning and Assessment Act 1979 (NSW) (as at 30 June 2020) ss 2.17, 2.18, 2.19, 4.8, 9.1
Environmental Planning and Assessment Act 1979 (NSW) (as at 26 October 2022) ss 4.2, 4.5, 4.55
Local Government Act 1993 (NSW) Ch 15, Pt 10
Interpretation Act 1987 (NSW) s 32
National Parks and Wildlife Act 1974 (NSW) s 2A, Pt 12
Environmental Planning and Assessment (Greater Sydney Region Districts) Order 2017 (NSW)
Land and Environment Court Rules 2007 (NSW) r 4.2
National Parks and Wildlife Regulation 2019 (NSW) cl 25
Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited:
Alexander v Yass Valley Council (2011) 184 LGERA 123; [2011] NSWLEC 148
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Council of the City of Sydney v Mae [2009] NSWLEC 84
Creamoata Ltd v The Rice Equalization Association Ltd (1953) 89 CLR 286; [1953] HCA 40
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Great Lakes v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681
Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477
House v The King (1936) 55 CLR 499; [1936] HCA 40
In the matter of Colour Metal Pty Ltd [2021] NSWSC 1012
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Lahoud v Willoughby City Council [2022] NSWCA 214
Manly Council v Malouf (2004) 61 NSWLR 394; (2004) 135 LGERA 24; [2004] NSWCA 299
McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; (2008) 161 LGERA 170; [2008] NSWCA 209
Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812
Parramatta City Council v RA Motors Pty Ltd (1986) 59 LGRA 121
Polsen v Harrison [2021] NSWCA 23
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v City of Whyalla; Ex parte Kittel (1979) 20 SASR 386; (1979) 44 LGRA 371
Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 437; [2009] NSWLEC 213
Rouse Hill Custodian Corporation Pty Ltd v Prisma Rouse Hill Development Pty Ltd [2023] NSWLEC 48
Seek Justice Pty Ltd v Minister for Planning [2022] NSWCA 220
Seek Justice Pty Ltd v Minister for Planning [2022] NSWLEC 127
Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724

Texts Cited:
N Seddon & RA Bigwood, Cheshire & Fifoot: Law of Contract (12th edition, 2023)

Category: Principal judgment
Parties: Seek Justice Pty Ltd (Applicant)
Minister for Planning (First Respondent)
Blue Mountains Local Planning Panel/Blue Mountains City Council (Second Respondent)
USM Events Pty Ltd (Third Respondent)
Representation:
Counsel:
I Jeray, director of applicant (Applicant)
M Harker (Third Respondent)
Solicitors:
Department of Planning and Environment (First Respondent) (Submitting appearance)
Marsdens Law Group (Second Respondent) (Submitting appearance)
Sparke Helmore Lawyers (Third Respondent)

File Number(s): 2022/299420
Publication restriction: Nil

JUDGMENT

Introduction and issues

These Class 4 proceedings relate to the 2022 Ultra Trail Australia event (2022 UTA event) which took place between 27 and 30 October 2022, and consisted of a series of trail running races over distances of 11 km, 22 km, 50 km and 100 km in and around Katoomba in the Blue Mountains. The event has been held annually since 2008.
This proceeding follows that decided by Pepper J in Seek Justice Pty Ltd v Minister for Planning^[1] (Seek Justice (Pepper J)). That proceeding concerned an amended summons filed by Seek Justice Pty Ltd (the applicant) on 7 October 2022. Her Honour dismissed the applicant’s challenge to development consent no X/57/2022 determined by the Blue Mountains Local Planning Panel (the Local Planning Panel), and issued by the second respondent, Blue Mountains City Council (Council), on 19 September 2022 (the development consent) to USM Events Pty Ltd (USM), the third respondent in the proceeding before Pepper J and in this proceeding before me.
1. [2022] NSWLEC 127 (Pepper J).
The second further amended summons filed by the applicant in Court on 14 July 2023 pursuant to leave granted by Pain J raises the following three issues:

the validity of “all the current and previous Local Planning Panels directions” given by the first respondent, the Minister for Planning (the Minister) under s 9.1 of the EPA Act because they permit a conflict of interest where a local planning panel determines applications relating to council-owned land. The particular directions the applicant appears to challenge are the following:

Local Planning Panels Direction – Development Applications given by the Minister on 23 February 2018 (the applications direction). The objective of this direction is stated as follows:

… to identify the development applications that are to be determined by local planning panels on behalf of councils in the Greater Sydney Region and Wollongong.

Local Planning Panels Direction – Development Applications and Applications to Modify Development Consents given by the Minister on 30 June 2020 (an updated version of the applications direction) (the modifications direction). The objective of the modifications direction is the same as that of the applications direction. The modifications direction provides, relevantly, as follows:

1. Local planning panels of councils in the areas identified in the Table below are to determine development applications for development of a kind specified in the corresponding Schedule to this direction.
Table

Council

Development

Bayside, Blue Mountains …

Schedule 1

…
2. Local planning panels are to determine applications under section 4.55(2) of the Act for the modification of development consents granted by the panel that:
• propose amendments to a condition of development consent recommended in the council assessment report but which was amended by the panel, or
• propose amendments to a condition of development consent that was not included in the council assessment report but which was added by the panel, or
• meet the criteria for development applications set out in the Schedules to this direction relating to conflict of interest, contentious development or departure from development standards.
Note: Councils in the areas identified in the Table to this direction are generally precluded from exercising consent authority functions by operation of section 4.8(2) of the Act. This means councils should make arrangements for the determination of all other modification applications under section 4.55(2), as well as sections 4.55(1) and (1A) of the Act, by council staff …

SCHEDULE 1
1. Conflict of interest
Development for which the applicant or land owner is:
(a) the council
(b) a councillor
(c) a member of council staff who is principally involved in the exercise of council’s functions under the [EPA Act] (Issue 1);

the validity of modified development consent no XM/57/2022/A (the modified development consent) dated 26 October 2022 granted by a delegate of Council pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to USM for the use of identified sites for the four day 2022 UTA event; in particular, whether the modified development application was invalid by reason of a conflict of interest which exists where a local planning panel determines applications relating to council-owned land (Issue 2); and

whether the third respondent, USM, failed to comply with two conditions of the modified development consent, namely conditions 3 and 4, which required:

the third respondent to “ensure a valid National Parks and Wildlife Services Event Agreement- Consent is in place [for] all relevant runs…” (condition 3); and

that the 2022 UTA event “shall not commence until separate written Event Approval has been issued by Council” (condition 4), and, if so, what if any relief should follow

(Issue 3).

On 12 October 2022, Council filed a submitting appearance. On 18 October 2022, the Minister filed a submitting appearance.
At the hearing before me on 19 and 20 October 2023, the applicant was represented by Mr Ivan Jeray, the sole director of the applicant.

The second further amended summons

Applicant’s grounds

In the significantly truncated second further amended summons filed in Court on 14 July 2023 pursuant to leave granted by Pain J, the applicant relied on the following grounds:

Ground 1

Jurisdiction for grounds where applicable: Section 9.45 of the Environmental Planning and Assessment Act 1979 and sections 20 (1) (c) and 16 (1) and (1A) of the Land and Environment Court Act 1979.
Part A
1 All the current and previous Local Planning Panels Directions for “Development Applications and Applications To Modify Development Consents” issued by the NSW Minister for Planning are invalid, in so far as and because those directions wrongly permit a conflict of interest where a council is an applicant for and/or landowner of and/or supporter of and/or earns income from the proposed development, which undermines the integrity of and thus the public's confidence in all NSW Local Planning Panels, NSW Local Government, the NSW Minister for Planning, the NSW Government and the planning laws of NSW.

Ground 2a

Part C
2a The second respondent could not accept, evaluate, determine and issue development consent for development application file no. XM/57/2022/A and regulate compliance of the consent conditions because: (a) it had pecuniary and non-pecuniary conflicts of interest in development application file no. XM/57/2022/A; and (b) for the reason given in ground 1.

Ground 7

7 The event approval issued by Blue Mountains City Council to USM Events Pty Ltd for the 2022 Ultra Trail Australia event is invalid because it wrongly requires USM Events Pty Ltd to comply with development consent X/57/2022 instead of (when the event was undertaken under) development consent XM/57/2022/A.

Ground 9

9 USM Events Pty Ltd has unlawfully carried out the 2022 Ultra Trail Australia event because it has breached conditions 3 and 4 of development consent XM/57/2022/A issued by Blue Mountains City Council for the 2022 Ultra Trail Australia event, as it failed to obtain a valid event agreement consent from the NSW Department of Planning, Industry and Environment (incorporating the National Park and Wildlife Service) and a valid event approval from Blue Mountains City Council for the 2022 Ultra Trail Australia event respectively.

On the second day of the hearing, the applicant withdrew grounds 8 and 10 in the second further amended summons. These are not reproduced here.

Relief claimed by the applicant

In the second further amended summons, the applicant seeks the following relief:

Part A
1. Declare all the current and previous Local Planning Panels Directions for "Development Applications and Applications To Modify Development Consents" issued by the NSW Minister for Planning, in so far as those directions permit a conflict of interest where a council is an applicant for and/or landowner of and/or supporter of and/or earns income from the proposed development, as invalid.
…
Part C
9. Declare development consent file no. XM/57/2022/A issued by Blue Mountains City Council as invalid.
10. A declaration that USM Events Pty Ltd has unlawfully carried out the 2022 Ultra Trail Australia event from 27 to 30 October 2022 because it has breached conditions 3 and 4 of development consent XM/57/2022/A issued by Blue Mountains City Council for the 2022 Ultra Trail Australia event.
…
Costs
21. The respondents must pay for the applicant’s travelling, printing, photocopying, postage and court filing fee expenses for all proceedings in this case.

Correspondence from the applicant to the Court after the hearing

On 7 November 2023, Mr Jeray emailed my chambers, and stated as follows:

… page 30 in exhibit “C” should have also included various council-owned roads in Katoomba, Leura and Wentworth Falls in the list under the title of “Non-pecuniary conflict of interest”.

Exhibit C was a document, apparently prepared by Mr Jeray, titled “Blue Mountains City Council’s Conflicts of Interest in XM/57/2022/A”, and which listed under the heading “Non-pecuniary Conflict of Interest” some 23 properties with the commentary “Permission for USM Events Pty Ltd to use council-owned land for the 2022 UTA event (in effect the Council is a supporter of the event)”.
On 11 March 2024, Mr Jeray emailed my chambers seeking leave to file an affidavit, “subject to the third respondent’s agreement”. The attached affidavit was an affidavit of Mr Jeray dated 11 March 2024. The applicant said that the affidavit was “self-explanatory” and did not require “further argument already given at the substantive hearing”. Annexure A to Mr Jeray’s affidavit of 11 March 2024 was the Local Planning Panels Direction – Development Applications and Applications to Modify Development Consents given by the Minister on 6 September 2023. As the 2022 UTA event occurred between 27 and 30 October 2022, this direction did not apply at the relevant time.
On 11 March 2024, my chambers sent an email to the first, second and third respondents (with the applicant copied), asking whether any of them sought to make a submission in relation to the applicant’s email of 11 March 2024. On 11 March 2024, the second respondent confirmed that it did not seek to make any submission. On 12 March 2024, the first respondent likewise confirmed that it did not wish to be heard in respect of the matter raised in the applicant’s email. Also on 12 March 2024, the third respondent confirmed that it did not seek to make any submission in relation to the applicant’s email of 11 March 2024.
On 18 June 2024 at 5:49pm, Mr Jeray again emailed my chambers stating:

…
It has come to the applicant’s attention that Justice Pain has mislead the applicant at the applicant’s notice of motion hearing of 14 July 2023 of the subject proceedings that the Land and Environment Court (the Court) did not have the power or jurisdiction to include (and thus deleted) prayers of relief 13-16 and the corresponding grounds 4-6 and 10 of the applicant’s second further amended summons dated 14 July 2023 (see Court amended copy attached).
Section 193 of the National Parks and Wildlife Act 1974 (NP&W Act) clearly provides the Court with the jurisdiction to determine prayers of relief 13-15 and corresponding grounds 4-6 while section 16A of the Land and Environment Court Act 1979 authorises the Court to determine prayer of relief 16 and corresponding ground 10. The applicant considers the latter to be an ancillary matter falling within the Court’s jurisdiction.
The applicant notes that Justice Pain was aware of the power granted by section 193 of the NP&W Act in her Honour’s judgment nearly three months earlier in Nelson v Secretary, Department of Planning [2023] NSWLEC 32 at [6]. The Court of Appeal also acknowledged the power or authorisation of section 193 of the NP&W Act in the appeal of the former case in Nelson v Secretary, Department of Planning [2023] NSWCA 28” at [25], [209] and [225] to [227]. Section 193 of the NPW Act is also mentioned in the “Legislation cited” section of both cases.
The Court has also wrongly deleted prayers of relief 11-12, as they correspond with grounds 8 and 7 that have not been deleted, which clearly lie within the Court’s ancillary jurisdiction.
The applicant notes the Court’s orders of 14 July 2023 (copy attached) do not include any reasons for deleting prayers 11-16 and grounds 4-8 and 10.
Given the Land and Environment Court has inappropriately mislead the applicant about the Court’s jurisdiction, the applicant respectfully considers that it should not be necessary for the applicant to file another notice of motion to address the above issues.
Consequently, the applicant seeks a mention before Justice Pritchard to consider and appropriately address the above issues prior to any final judgment being given. The applicant is available to do so on 21 or 28 June 2024.
The third respondent has been copied into this message.
I look forward to your reply.
Please note this message may be used as evidence in the Court of Appeal…

On 19 June 2024, my chambers sent an email to the first, second and third respondents, and the applicant, asking whether any of the respondents wished to say anything in relation to Mr Jeray’s email of 18 June 2024, and noting that the attachment referred to by Mr Jeray in his email of 18 June 2024 had not been attached. On 19 June 2024, Mr Jeray sent a further email to the Court and the parties with two attachments:

... Please find attached to this message the Court's amended copy of the applicant's second further amended summons dated 14 July 2023 and the Court's copy of its orders of 14 July 2023, which I referred to in my message of 18 June 2024 below.
My message below also referred to Nelson v Secretary, Department of Planning [2023] NSWCA 28, which is incorrect. It should instead refer to Nelson v Secretary, Department of Planning [2024] NSWCA 28.
Further to my message below, I wish to highlight that section 20 (1) (cg) of the Land and Environment Court Act 1979 also provides the Court with the jurisdiction to hear and determine proceedings under section 193 of the National Parks and WIldlife Act 1974.
It is clear to the applicant that Justice Pain of the Land and Environment Court had no basis to and therefore wrongly (and unfairly) deleted prayers of relief 11-16 and grounds 4-8 and 10 of the applicant's second further amended summons dated 14 July 2023, which respectfully, should now be included in a further hearing after joining the Minister for Environment/Department of Planning, Industry and Environment (incorporating the National Parks and Wildlife Service) to the proceedings.
The respondents have been copied into this message.
I look forward to you reply.
Please note this message may also be used as evidence in the Court of Appeal.
…

On 19 June 2024, the third respondent USM confirmed its position that there was “no basis to re-open Justice Pain’s interlocutory rulings at this late stage and no appearance should be required”. On 20 June 2024, the second respondent replied, saying it did not wish to say anything as it had filed a submitting appearance. On 21 June 2024, the first respondent replied, also saying that it did not wish to say anything as it had filed a submitting appearance.
On 21 June 2024, my chambers emailed all parties, advising that I did not propose to list the matter for mention.
On 9 July 2024, my chambers received the following email from Mr Jeray:

Dear Associate,
I note no reason was provided in your message of 21 June 2024 below as to why Justice Pritchard will not relist the matter for mention.
Will the reason appear in Justice Pritchard's judgment for this matter?
…

On 9 July 2024, my chambers acknowledged receipt of Mr Jeray’s email.
I did not and do not propose to relist the matter for mention in circumstances in which Mr Jeray raises no issue in the proceedings which were heard before me. It is not for one judge of the Court to entertain an application to reopen or entertain a complaint about interlocutory rulings of another judge of the Court.

Procedural history

The procedural history is as follows.
On 19 September 2022, Council, the second respondent, granted the third respondent USM, development consent no X/57/2022 for the 2022 UTA event. On 7 October 2022, the applicant commenced these proceedings. On 19 October 2022, USM applied to Council to modify the development consent.
On 20 October 2022, an expedited hearing was held before Pepper J. On 25 October 2022, in Seek Justice (Pepper J), her Honour at [86] dismissed the applicant’s two prayers for relief. The relevant prayers for relief at [6] were:

5 Declare development consent file no. X/57/2022 issued by Blue Mountains City Council as invalid.
6 Declare the 2022-2023 eco-tourism licences issued by Blue Mountains City Council to USM Events Pty Ltd, as invalid.

On 26 October 2022, Council granted USM modified development consent no XM/57/2022/A. Also on 26 October 2022, the applicant commenced proceedings in the Court of Appeal seeking to appeal Pepper J’s decision in Seek Justice (Pepper J). On 27 October 2022, Council publicly notified the modified development consent on its website.
The 2022 UTA event took place between 27 and 30 October 2022.
On 27 October 2022, in Seek Justice Pty Ltd v Minister for Planning^[2] Kirk JA dismissed the applicant’s application for expedition of its leave application and appeal from Seek Justice (Pepper J). As of the date of judgment 12 July 2024, the application for leave to appeal and appeal had not been listed for hearing in the Court of Appeal.
2. Seek Justice Pty Ltd v Minister for Planning [2022] NSWCA 220 (Kirk JA).
On 2 December 2022, the applicant filed a further amended summons, and on 14 July 2023, the applicant filed the second further amended summons which was the subject of the hearing before me.

Factual background

No statement of agreed facts was filed by the parties. The factual findings below are largely drawn from USM’s submissions filed on 9 October 2023 and the documents relied upon by USM.

The development consent and the third respondent’s short-term licence

On 19 September 2022, the Local Planning Panel granted development consent to USM for the 2022 UTA event. The development consent was expressed:

to be a time limited consent, in force for only 4 days from 27 to 30 October 2022;

to apply to certain Crown land, roads, national park, public reserves and some private property; and

to include temporary parking at the former Katoomba Golf Course.

The former Katoomba Golf Course is owned by Council, the second respondent. On 24 October 2022, Council granted a short-term licence (the short-term licence) to USM to use part of the golf course for parking for 3.5 days from 8am on Thursday, 27 October 2022 to 2pm on Sunday, 30 October 2022, with early handover of the site for site setup from 8am Monday, 24 October 2022. On 24 October 2022, USM paid a fee of $15,000 to Council for the short-term licence.
On 19 October 2022, USM lodged an application with Council pursuant to s 4.55(1A) of the EPA Act to modify the 50 km and 100 km routes of the 2022 UTA event (the modification application). The changes to those routes were necessitated by wet weather which meant that some singletrack could not be safely used. The proposed new routes did not traverse the Megalong Valley and the Kedumba Valley. Instead, the new 100 km route added:

part of the Anderson fire trail; and

Kings Tableland road to McMahons Point.

Further, the new 50 km route added a shorter stretch of Kings Tableland road.

Both the Anderson fire trail and Kings Tableland road are within the Blue Mountains national park (the national park).

The modified development consent

On 26 October 2022, one day before the 2022 UTA event, a delegate of Council approved the modification application.
Condition 3 of the modified development consent provided as follows:

(3) The applicant is to ensure a valid National Parks and Wildlife Service Event Agreement – Consent is in place all relevant runs including UTA50 and UTA100 Contingency B. The development must comply with all requirements of the National Parks and Wildlife Services Event Agreement – Consent– ref EF21/11744, or subsequent valid Event Agreement issued by the Service.

Condition 4 provided:

(4)    The Ultra Trail Event 2022, including any temporary structures erected    at the Even Hub (KCC Oval, KCC Plaza) or at identified checkpoints,    shall not commence until separate written Event Approval has been    issued by Council.
Application for Event Approval shall include approval of:
• Traffic Management Plan as approved by the Local Traffic committee
• In the event of extreme wet weather, formalised agreement for use of    the alternative car parking locations at Council Offices (Civic Place   Katoomba) and Depot (South St Katoomba)
• All traffic management staff and volunteers are to have reasonable access to toilet facilities which are to be managed as part of the overall   provisions of toilet facilities for the event.
• Public notification of any rescheduled Event date.

The NPWS event agreement

On 7 October 2021, the Department of Planning, Industry and Environment (incorporating National Park and Wildlife Service (the NPWS) and the third respondent (trading as Ironman Group) entered into event agreement EF21/11744 (the original NPWS event agreement). The original event agreement referred to the dates of 15 and 19 May 2022, being when the 2022 UTA event was originally intended to be held, and provided as follows:

The Park Authority gives Consent under the Regulation to you undertaking the Activity in accordance with the provisions of this Agreement.

The consent of the Park Authority was required as cl 25 of the National Parks and Wildlife Regulation 2019 (NSW) (the NPW Regulation) made it an offence, at all relevant times, for any individual to conduct an organised sporting activity in a park unless done with the consent of a park authority or in accordance with a plan of management for the park.
On 22 June 2022, an employee of USM inquired of the NPWS whether a new event agreement was required for the 27 to 30 October 2022 dates. The NPWS responded that “you do not need an amended event Consent”.
After the granting of the modified development consent on 26 October 2022, the NPWS sent an email to Mr Nick Christopher of The Ironman Group attaching an amended agreement (the amended NPWS event agreement). The email provided as follows:

Please find attached the Event Agreement Consent - updated with course descriptions and maps for Oct ’22.

The cover page recorded:

UPDATED with new date: Thurs 27th - Sun 30th Oct 2022 & amended course descriptions/maps (from p.46)

Schedule 4 to the amended NPWS event agreement included a course description, and provided as follows:

ULTRA-TRAIL AUSTRALIA 100
29-30 October 2022
ULTRA-TRAIL AUSTRALIA 50
29 October 2022
ULTRA-TRAIL AUSTRALIA UTA22
28 Oct 2022
ULTRA-TRAIL AUSTRALIA UTA11
27 October 2022

The rest of the original NPWS event agreement was not updated to reflect the new dates of the event (27 to 30 October 2022), nor were the signatures updated. This appears to be the gravamen of the applicant’s complaint that the third respondent breached condition 3 of the modified development consent.

Council’s event approval

On 26 October 2022, Council issued an event approval for the 2022 UTA event (Council’s event approval). The approval recorded as follows:

Council has given consent for your event to take place on Council reserves/tracks and roads as outlined in your Traffic Management Plan in Katoomba, Leura, and Wentworth Falls and subject to the terms and conditions as outlined in your Festivals and Events Application Form and Attachments, associated Risk Assessment, Engineering Management Plan, Ecotourism Licence and Development Consent X/57/2022.

In its written submissions, the applicant said as follows in relation to Council’s event approval: (1) the approval was invalid because it records the number of development consent X/57/2022, not the number for the approval of the modification application (XM/57/2022/A); and (2) the third respondent therefore breached condition 4 of the modified development consent, being the condition which required Council’s approval of the event.

Relevant statutory provisions

Section 23J(2), (6) and (7) of the EPA Act provided (as at 23 February 2018) as follows in relation to the constitution of local planning panels and the relationship between directions of the Minister under s 117 (now s 9.1) of the EPA Act:

23J   Constitution of local planning panels
(2) The following councils must constitute a single local planning panel for the whole of the area of the council:
(a)  the council of an area that is wholly within the Greater Sydney Region,
(b)  the council of the City of Wollongong.

…
(6) A local planning panel is subject to any directions of the Minister under section 117.
(7) A local planning panel is not subject to the direction or control of the council, except in relation to any matter relating to the procedure of the panel (or to the time within which it is to deal with a matter) that is not inconsistent with any directions of the Minister under section 117.

Section 2.17(2), (6) and (7) (formerly s 23J) of the EPA Act provided (as at 30 June 2020):

2.17   Constitution of local planning panels
…
(2) The following councils must constitute a single local planning panel for the whole of the area of the council—
(a)  the council of an area that is wholly within the Greater Sydney Region,
(b)  the council of the City of Wollongong,
(c)  the council of any other area prescribed by the regulations.

…
(6) A local planning panel is subject to any directions of the Minister under section 9.1.
(7) A local planning panel is not subject to the direction or control of the council, except in relation to any matter relating to the procedure of the panel (or to the time within which it is to deal with a matter) that is not inconsistent with any direction of the Minister under section 9.1.

Section 2.18 (formerly s 23K) of the EPA Act provided (at all relevant times) in relation to the process of establishing and selecting members of local planning panels:

2.18   Members of local planning panels
(1) The members of a local planning panel are to be appointed by the relevant council.
(2) Each local planning panel is to comprise (subject to this section) the following 4 members—
(a)  an approved independent person appointed as the chairperson of the panel with relevant expertise that includes expertise in law or in government and public administration,
(b)  2 other approved independent persons with relevant expertise,
(c)  a representative of the local community who is not a councillor or mayor.

…

Section 23L of the EPA Act provided (as at 23 February 2018) in relation to the functions of local planning panels:

23L   Functions of local planning panels
(1) A local planning panel constituted by a council has the following functions:
(a)  the functions of the council as a consent authority under Part 4 in respect of the area for which the panel is constituted as provided by section 23I,
(b)  to advise the council on any planning proposal that has been prepared or is to be prepared by the council under section 55 and that is referred to the panel by the council,
(c)  to advise the council on any other planning or development matter that is to be determined by the council and that is referred to the panel by the council.

(2) Subsection (1) (a) does not exclude a delegate of the council or a regional panel exercising functions as a consent authority under this Act.
(3) The Minister may give directions to councils under section 117 (either to particular councils or to councils generally) on the planning proposals that are required to be referred to a local planning panel for advice.
(4) This section does not limit the functions that may be exercised by a local planning panel under this Act.

Section 2.19 (formerly s 23L) of the EPA Act provided (as at 30 June 2020):

2.19   Functions of local planning panels
(1) A local planning panel constituted by a council has the following functions—
(a)  the specified functions of a council as a consent authority under Part 4 that are conferred on it under this Act,
(b)  to advise the council on any planning proposal that has been prepared or is to be prepared by the council under section 3.33 and that is referred to the panel by the council,
(c)  to advise the council on any other planning or development matter that is to be determined by the council and that is referred to the panel by the council.

(2) The Minister may give directions to councils under section 9.1 (either to particular councils or to councils generally) on the planning proposals that are required to be referred to a local planning panel for advice.
(3) This section does not limit the functions that may be exercised by a local planning panel under this Act.

Section 4.2(1) of the EPA Act provided (at all relevant times) in relation to development that needs consent:

4.2   Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—
(a)  such a consent has been obtained and is in force, and
(b)  the development is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

Section 4.5 of the EPA Act defines consent authority as follows:

4.5   Designation of consent authority
For the purposes of this Act, the consent authority is as follows—
(a)  in the case of State significant development—the Independent Planning Commission (if the development is of a kind for which the Commission is declared the consent authority by an environmental planning instrument) or the Minister (if the development is not of that kind),
(b)  in the case of development of a kind that is declared by an environmental planning instrument as regionally significant development—the Sydney district or regional planning panel for the area in which the development is to be carried out,
(c)  in the case of development of a kind that is declared by an environmental planning instrument as development for which a public authority (other than a council) is the consent authority—that public authority,
(d)  in the case of any other development—the council of the area in which the development is to be carried out.

Section 4.55(1A) of the EPA Act provided (at all relevant times) in relation to the modification of consents:

4.55   Modification of consents—generally
(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—
(a)  it is satisfied that the proposed modification is of minimal environmental impact, and
(b)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c)  it has notified the application in accordance with—
(i)  the regulations, if the regulations so require, or
(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

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

Subsections (1), (2) and (5) do not apply to such a modification.

Section 23I of the EPA Act provided (as at 23 February 2018) in relation to who may exercise consent authority functions on behalf of councils as a consent authority where a local planning panel is constituted:

23I   Exercise of consent authority functions on behalf of councils where local planning panel constituted
(1) This section applies in respect of an area of a council for which a local planning panel has been constituted under this Division.
(2) The functions of a council as a consent authority under Part 4 in respect of any such area are not exercisable by the councillors. They are exercisable on behalf of the council by:
(a)  the local planning panel, or
(b)  an officer or employee of the council to whom the council delegates those functions, or
…

(3) The Minister may give directions to councils under section 117 (either to particular councils or to councils generally) on the development applications that are to be determined on behalf of the council by a local planning panel. This subsection does not apply to development applications that are required to be determined by a regional panel.
(4) For the purposes of this section, the functions of a council as consent authority under Part 4 include:
(a)  the determination of development applications and applications for the modification of development consents, and
(b)  without limiting paragraph (a), the functions of a consent authority under Divisions 2 and 2A of Part 4 and sections 89A, 93I, 94, 94A, 94B, 94C, 94CA, 94EF, 94F, 95 (2), 96 (2) and 96AA, and
(c)  the functions of a consent authority or council under this Act or any other Act that relate to the carrying out of development (including the making of development applications) and that are declared by the regulations to be functions of a council as consent authority,

but do not include the functions of a consent authority or council that the regulations declare are not the functions of a council as consent authority.

Section 4.8(2), (3), (4) and (5) (formerly s 23I) of the EPA Act (as at 30 June 2020) provided:

4.8 Exercise of consent authority functions on behalf of councils where local planning panel constituted
(2) The functions of a council as a consent authority in respect of any such area are not exercisable by the councillors. They are exercisable on behalf of the council by—
(a) the local planning panel, or
(b) an officer or employee of the council to whom the council delegates those functions.

(3) The Minister may give directions to councils under section 9.1 (either to particular councils or to councils generally) on the development applications that are to be determined on behalf of the council by a local planning panel.
(4) For the purposes of this section, the functions of a council as consent authority include—
(a)  the determination of development applications, and
(b)  without limiting paragraph (a), the functions of a consent authority under Divisions 4.3 and 4.4 and sections 4.34, 4.54(2), 4.56(2), 4.57, 7.7, 7.11, 7.12, 7.13, 7.14, 7.15, 7.24 and 7.32, and
(c)  the functions of a consent authority or council under this Act or any other Act that relate to the carrying out of development (including the making of development applications) and that are declared by the regulations to be functions of a council as consent authority,

but do not include the functions of a consent authority or council that the regulations declare are not the functions of a council as consent authority.
(5) In this section, development applications includes applications to modify development consents.

Section 9.1 (formerly s 117) of the EPA Act provided (at 30 June 2020) in relation to the Minister’s power to issue directions to a public authority or persons having functions under the Act or an environmental planning instrument:

9.1 Directions by the Minister
(1) The Minister may direct a public authority or person having functions under this Act or an environmental planning instrument to exercise those functions at or within such times as are specified in the direction.
(2) In addition to any direction which may be given under subsection (1), the Minister may direct a council—

…
(b1) on a matter relating to the establishment and procedure of a local planning panel, on the development applications (including applications to modify development consents) that are to be determined on behalf of a council by a local planning panel and on the planning proposals that are required to be referred to a local planning panel for advice, and
(c) to provide the Minister, in the manner and at the times specified in the direction, with reports, containing such information as the Minister may direct, on the council’s performance in relation to planning and development matters.

(2A) A direction under subsection (2)—
(a)  may be given to a particular council or to councils generally, and
(b)  may require the inclusion in planning proposals of provisions to achieve or give effect to particular principles, aims, objectives or policies, and
(c)  may require planning proposals to be strictly consistent or substantially consistent with the terms of the direction (or provide for the circumstances in which an inconsistency can be justified).

Any such direction may be given to councils generally by its publication in the Gazette or on a website maintained by the Department (or both).
(3) A public authority or person to whom a direction is given under subsection (1) or (2) shall comply, and is hereby empowered to comply, with the direction in accordance with the terms of the direction.
…

Section 2A(3) of the National Parks and Wildlife Act 1974 (NSW) (NPW Act) provides in relation to the objects of the Act and the public interest:

(3) In carrying out functions under this Act, the Minister, the Secretary and the Service are to give effect to the following—
(a) the objects of the Act,
(b) the public interest in the protection of the values for which land is reserved under this Act and the appropriate management of those lands.

Clause 25(1) and (3) of the NPW Regulation provided (at all relevant times) in relation to activities in a park:

25   Sporting, recreational and other activities
(1) A person must not in a park—
(a)  conduct or take part in any sporting activity that forms part of an organised competition or tournament, or
(b)  organise, attend or participate in any concert, public meeting, function, demonstration, group activity or gathering involving more than 40 persons or such other number of persons as is stated in a plan of management for the park, or stated in a notice erected in the park or given to a park user, whichever is the lesser, or
(c)  organise, attend or engage in any manoeuvre (whether of a military, naval, aerial nature or otherwise), any course of training or any similar activity, or
(d)  engage in any activity or recreational pursuit that involves risking the safety of the person or the safety of other persons or damaging the environment.

Maximum penalty—30 penalty units.
…
(3) A person does not commit an offence under this clause—
(a) for anything done or omitted to be done with the consent of a park authority and in accordance with any conditions to which the consent is subject, or
(b) if a plan of management for a park makes provision for the undertaking of an activity in the park, the person undertakes the activity in the park in accordance with the plan of management.

…

Section 32 of the Interpretation Act 1987 (NSW) (Interpretation Act) provides in relation to the construction of instruments:

(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.
(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made—
(a) it shall be a valid provision to the extent to which it is not in excess of that power, and
(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.

Issue 1: Whether the directions given by the first respondent are invalid because they permitted a conflict of interest in circumstances where a local planning panel determines applications relating to council-owned land

Applicant’s submissions in relation to Issue 1

In relation to Issue 1, the applicant submitted that “all the current and previous Local Planning Panels Directions for “Development Applications and Applications To Modify Development Consents”” issued by the first respondent pursuant to s 9.1(2)(b1) of the EPA Act are invalid “in so far as and because those directions wrongly permit a conflict of interest where a council is an applicant for and/or landowner of (and thereby effectively becomes a supporter of and/or earns income from) the proposed development which undermines the integrity of and thus the public’s confidence in all NSW Local Planning Panels, NSW Local Government, the NSW Minister for Planning, the NSW Government and the planning laws of NSW”.
The applicant submitted that a council of a local government area constitutes and appoints a local planning panel under ss 2.17 and 2.18(1) of the EPA Act, and that a local planning panel constituted by a council also performs the functions of a consent authority on behalf of the council under ss 2.19(1) and 4.8 of the EPA Act. The applicant submitted that “all three versions of the Minister for Planning’s directions for the operational procedures of local planning panels acknowledge local planning panels as committees of council”.
The applicant referred to Lahoud v Willoughby City Council^[3] (Lahoud) (Ward P and Mitchelmore JA) where the Court of Appeal at [48] held that a local planning panel is not a separate entity from council (emphasis added):

48. In our opinion, it follows from the fact that the Council is the consent authority and the Panel is exercising its statutory functions on behalf of the Council that it is the Council that is the entity “responsible for” the decision to be reviewed … and therefore that the joinder of the Panel to the judicial review proceeding in the Land and Environment Court is not mandated pursuant to r 59.3(4) of the UCPR. The fact that the legislation contemplates that in some instances the Panel may be joined as a party to proceedings (see s 2.20 of the EPA Act) or that the Panel has an obligation to give reasons for its decision does not change that conclusion. Therefore, albeit not for the reasons given by the primary judge, we consider that his Honour did not err in concluding that the joinder of the Panel was not mandatory.

Therefore, the applicant submitted, that “[c]onsequently, a local planning panel forms part of a council [and] [t]herefore the local planning panel directions for “Development Applications and Applications to Modify Development Consents” do not remove a council’s conflict of interest when determining development applications and applications to modify development consents and must be declared invalid because they undermine the integrity of planning laws in NSW”.

3. [2022] NSWCA 214 at [48] (Ward P and Mitchelmore JA).

Here, the applicant submitted, the Minister had “issued” two versions of local planning panel directions for “Development Applications and Applications to Modify Development Consents”, and “[b]oth versions permit a council to have conflicts of interest when determining development consents but only the current version allows for the modification of development consents involving conflicts of interest”. It was “therefore in the public interest that both versions are deemed invalid and “induce” the validity of development consents and modification of development consents issued across NSW being challenged where a council's conflicts of interest are alleged”.
The applicant also referred to the decision of the Court of Appeal in McGovern v Ku-ring-gai Council^[4] (McGovern v Ku-ring-gai Council) where, at [26]-[29], Spigelman CJ said as follows in relation to the distinction between pre-judgment and a conflict of interest:

26 A conflict of interest requires a different analysis as to the relationship, as reasonably perceived, between the interest and the decision. Questions of fact and degree do not arise in the same way. In a pre-judgment case it is necessary to consider the degree of ‘closure’ of the allegedly closed mind. Where a relevant conflict of interest is established the reasonable apprehension follows almost as of course.
27 Secondly, in my opinion, a different approach is appropriate when the vote or votes of the allegedly biased decision-maker(s) was not determinative. In a conflict of interest case it appears to me appropriate to conclude without further inquiry, that the statutory requirements of a valid decision-making process have not been complied with or that an adverse conclusion of what an independent observer might believe would more readily be drawn.
28 Many of the authorities upon which the appellants relied employed the language of pre-judgment but are, on their facts, cases in which one of the decision-makers has, as a matter of substance, placed himself or herself in the position of conflict of interest, indeed becoming a party to the decision-making process. Where a person’s involvement in the decision-making process can be characterised, in substance, as constituting him or her a party to the proceedings the issue is not, in my opinion, one of ‘pre-judgment’ but one of ‘conflict of interest’.
29 In Canada the basic authority is Old St Boniface Residents Association. In that case Sopinka J who delivered the judgment of the majority said at 1196:
“I would distinguish between the case of partiality by reason of pre-judgment on the one hand and by reason of personal interest on the other. It is apparent from the facts of this case, for example, that some degree of pre-judgment is inherent in the role of a councillor. That is not the case in respect of interest. There is nothing inherent in the hybrid functions, political, legislative or otherwise, of municipal councillors that would make it mandatory or desirable to excuse them from the requirement that they refrain from dealing with matters in respect of which they have a personal or other interest … Where such an interest is found, both at common law and by statute, a member of Council is disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. This is commonly referred to as a conflict of interest.”
4. (2008) 72 NSWLR 504; (2008) 161 LGERA 170; [2008] NSWCA 209 at [26]-[29] (Spigelman CJ).

In McGovern v Ku-ring-gai Council at [82], Basten JA said as follows in relation to the test of reasonable apprehension of bias which does not require evidence as to actual causal connection between the prejudicial material or interest and the decision (emphasis added):

82. The last proposition should be subject to a qualification, although one which did not arise in the present case. The fact that statements of the decision-maker may be used in this way does not mean that a party can necessarily require a decision-maker to reveal his or her processes of decision-making, nor invite an adverse inference to be drawn in circumstances where the decision-maker has not been forthcoming. The law with respect to bias, much of which has accumulated through cases considering the operations of courts and quasi-judicial tribunals, has developed a test of reasonable apprehension of bias which does not require either evidence as to actual causal connection between the prejudicial material or interest and the decision, nor any prediction about how the decision was in fact made: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ) and Zanatta v McCleary [1976] 1 NSWLR 231, 234 (Street CJ), 238-239 (Samuels JA). While a causal connection must be demonstrated (in a case involving conflict of interest) it is the capability to affect a decision, not the actual affectation, which must be established.

The applicant also referred to [161] where Basten JA said:

161. Even where the rules of natural justice apply, their content will be affected by the nature of the institution. The appellants were objectors, but were in no sense parties to any form of civil dispute. Rather, they were persons having an interest in the outcome of a development application on neighbouring property, who had exercised rights to object under a planning instrument. They, or at least Mr McGovern, had numerous communications by email with individual councillors, which do not appear to have been communicated to other councillors or to the applicant. Mr McGovern attended each Council meeting and spoke against the application. What councillors had to take into account were relevant matters, specified by s 79C of the EP&A Act. These included “the suitability of the site for the development” and “the public interest”: s 79C(1)(c) and (e). Councillors were obliged to exercise their discretionary power in accordance with such provisions. The extent to which, in the particular statutory scheme of the EP&A Act, councillors will carry out their statutory functions if they vote according to party political lines, is a matter which need not be addressed. Beyond that, it is possible to envisage cases in which an application has been invalidly determined because of conflicts of interest, corruption, refusal to address a matter on the merits or other forms of irregularity. The circumstances in which bias in favour of an applicant, based on representations made by the applicant denigatory of an objector, could invalidate a decision are less easy to envisage. It is sufficient to say the material set out above provides no basis for such a finding.

In oral submissions, Mr Jeray also referred to [38]-[39] of McGovern v Ku-ring-gai Council where Spigelman CJ said in relation to the apprehended bias principle in the context of multi-member decision making bodies:

38. In the context of multi-member decision-making bodies that are not courts, or subject to the same stringent requirements as courts, a disqualifying conflict of interest of a character which the apprehended bias principle would require the person not to participate in, indeed not even be present at, the decision-making process has been held to exist where:
• The person is the complainant or accuser with respect to the matters the subject of inquiry (Dickason v Edwards (1910) 10 CLR 243; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509).
• The person formally opposed an application and made representations to the decision-making body of which s/he was a member, where those representations were required by statute to be taken into account (R v West Coast Council; Ex parte Strahan Motor Inn (1995) 4 Tas R 411).
• The person opposed the application and instructed a lawyer to appear at the hearing to argue against its acceptance (R v London County Council; Ex parte Akkersdyk & Fermenia [1892] 1 QB 190; Frome United Breweries Company Ltd v County Borough of Bath [1926] AC 586).
• The person otherwise becomes, in substance, a party to the proceedings (see eg Cooper v Wilson [1937] 2 KB 309 at 322-324, 344-345; West Coast Council at 427).

39. All of these cases appear to me to involve a conflict of interest, rather than pre-judgment. The conduct of the particular member(s) of the multi-member decision-maker went well beyond a manifestation that s/he was or they were not open to persuasion.

Mr Jeray submitted that, here, the Local Planning Panel is part of Council as the objective in the applications direction and the modifications direction use the words “the development applications that are to be determined by local planning panels on behalf of councils in the Greater Sydney Region and Wollongong”. Mr Jeray drew attention to s 2.17(2)(a) of the EPA Act, and said that Council is within the Sydney district based on cl 4.4(c) of the Environmental Planning and Assessment (Greater Sydney Region Districts) Order 2017 (NSW). Mr Jeray submitted that s 4.5(d) of the EPA Act highlights that “the consent authority is the council” and that the “local planning panel is part of the council, not a separate identity”.
Mr Jeray also drew attention to the Local Planning Panels Direction – Operational Procedures given on 23 February 2018 (the operational procedures direction) which provided that “[l]ocal planning panels are independent committees appointed by councils”, and submitted that this feature “in no way removes any conflict of interest that the council may have because a committee is making decisions on behalf of the council”. Mr Jeray also referred to the Local Planning Panels Direction – Operational Procedures given on 30 June 2020 and the Local Planning Panels Direction – Operational Procedures given on 18 October 2022.
Mr Jeray said as follows in relation to the modifications direction:

… the applicant considers this is very inappropriate direction by the Minister to allow councils when they have a conflict of interest, to determine development applications …
It is clear to me that it was never the intention of the Environmental Planning and Assessment Act to allow that. If it was allowed, it would specifically state that in the Environmental Planning and Assessment Act …

Mr Jeray submitted that this was “a matter of public interest” referring to Seek Justice v Minister for Planning where Kirk JA said at [12]: “[f]rom my review of the materials, it is possible that the issues raised would have broader significance for the planning scheme than just resolving a dispute between the present parties”.

Third respondent’s submissions in relation to Issue 1

The third respondent referred to the broad power of the Minister in s 9.1(1) of the EPA Act to give directions, and noted that in addition to any direction that may be given under s 9.1(1), pursuant to s 9.1(2)(b1), the Minister may direct a council on a matter relating to the establishment and procedure of a local planning panel, on the development applications (including applications to modify development consents) that are to be determined on behalf of a council by a local planning panel and on the planning proposals that are required to be referred to a local planning panel for advice. Section 9.1(3) provides that: “[a] public authority or person to whom a direction is given under subsection (1) or (2) shall comply, and is hereby empowered to comply, with the direction in accordance with the terms of the direction”.
The third respondent submitted that the applicant appeared to say that the Minister has no power to give a direction that permits a local planning panel to approve a development application which relates to council-owned land, or a council officer to approve a s 4.55(1A) modification application which relates to council-owned land, because in both cases there is a conflict of interest. The existence of a vitiating conflict of interest on the part of a local planning panel was the same argument that the applicant ran and lost in Seek Justice (Pepper J), and that is presently before the Court of Appeal, and the applicant should not be permitted to run the argument again.
The third respondent submitted that a statutory power to make statutory instruments does not authorise an instrument which excludes the requirements of procedural fairness, unless there is a clear intention to the contrary: Hill v Green^[5] at [143] (Fitzgerald JA). Further, s 4.8(2) of the EPA Act limits who may exercise the functions of a council as a consent authority in respect of an area of a council for which a local planning panel has been constituted. The functions of a council as a consent authority in respect of any such area are not exercisable by the councillors. They are exercisable on behalf of the council by the local planning panel, or an officer or employee of the council to whom the council delegates those functions: s 4.8(2). That indicates an intention that irrespective of the nature of a council’s interest, it can only be one of the local planning panel or an officer or employee of the council who may determine the application.
5. (1999) 48 NSWLR 161; [1999] NSWCA 477 at [143] (Fitzgerald JA).

In similar circumstances, the Full Court of the Supreme Court of South Australia held in R v City of Whyalla; Ex parte Kittel^[6] (R v Whyalla) at 390 (King CJ):

… the legislative intention that the Council should make planning decisions is so clear and the area of potential interest, financial and otherwise, of the council in those decisions so wide, that there must be implied a statutory exclusion of the common law rule that no one may be a judge in his own cause, to the extent that the council’s interest arises out of the exercise or purported exercise of its local government functions …
6. (1979) 20 SASR 386 at 390; (1979) 44 LGRA 371 at 375 (King CJ).

Those functions were submitted by the third respondent to include those of a landowner of community and operational land. Accordingly, the third respondent submitted that the EPA Act permits a direction to be given by the Minister requiring a local planning panel or council officer or employee to determine a development application involving council-owned land.
Further, the third respondent submitted that even if the EPA Act does not authorise the giving of a direction by the Minister that limits the requirements of procedural fairness, that should not result in invalidity here. That is because s 9.1(3) provides that a public authority or person to whom a direction is given under subsection (1) or (2) shall comply, and is empowered to comply with the direction in accordance with its terms. Invalidation of the modifications direction would risk invalidation of decisions made in reliance upon that direction by councils across the State. It is unlikely that a purpose of the legislation is to produce such a result: Project Blue Sky Inc v Australian Broadcasting Authority^[7] (Project Blue Sky) at [97] (McHugh, Gummow, Kirby and Hayne JJ).
7. (1998) 194 CLR 355; [1998] HCA 28 at [97] (McHugh, Gummow, Kirby and Hayne JJ).
Alternatively, the modifications direction would be read down so as not to authorise a denial of procedural fairness: s 32 of the Interpretation Act and Hill v Green^[8] at [143] (Fitzgerald JA). This would not, the third respondent submitted, prevent a local planning panel or officer or employee of the council from determining any application that concerns council-owned land, council’s ownership of land not in and of itself meaning that there is a reasonable apprehension of bias. Rather, the third respondent submitted, “there needs to be a causal connection in respect of the capability of the conflict to affect the decision”: McGovern v Ku-ring-gai Council^[9] at [82] (Basten JA). Where there is no such causal connection: (1) there can be no apprehension of bias; (2) there is no denial of procedural fairness; and (3) “therefore the limitation on the direction-making power is not infringed”.
8. (1999) 48 NSWLR 161; [1999] NSWCA 477 at [143] (Fitzgerald JA).
9. (2008) 72 NSWLR 504; (2008) 161 LGERA 170; [2008] NSWCA 209 at [82] (Basten JA).

Applicant’s oral submissions in reply in relation to Issue 1

In reply, Mr Jeray submitted that R v Whyalla is not relevant to “our State’s jurisdiction”, and that “it does not align with” the decision in McGovern v Ku-ring-gai Council. In relation to Project Blue Sky, Mr Jeray submitted that “Project Blue Sky is actually referring to legislation and not a direction, so that does not apply”.

Conclusion in relation to Issue 1: Whether the directions given by the first respondent are invalid because they permit a conflict of interest in circumstances where a local planning panel determines applications relating to Council-owned land

The applicant has not discharged its onus of establishing that “all the current and previous Local Planning Panels Directions” given by the Minister, and in particular the applications direction and the modifications direction are invalid by reason of a local planning panel determining applications relating to Council-owned land.
It is undoubtedly correct, as submitted by Mr Jeray, that a council may constitute a local planning panel for the whole of the area of the council pursuant to s 2.17(1) of the EPA Act, and that the members of the panel are appointed by the relevant council pursuant to s 2.18(1) of the EPA Act. Likewise, it is the case that the functions of a council as a consent authority in respect of an area of a council for which a local planning panel has been constituted are not exercisable on behalf of the council by (a) the local planning panel, or (b) an officer or employee of the council to whom the council delegates those functions. And the Minister may give directions to councils under s 9.1 (either to particular councils or to councils generally) on the development applications that are to be determined on behalf of the local planning panel: s 4.8(3).
However, it does not follow that directions given by the Minister to councils under s 9.1 on development applications to be determined on behalf of council by a local planning panel are invalid by reason of the panel determining applications relating to council-owned land.
I do not accept the applicant’s submission that any of the impugned directions gives rise to a relevant conflict of interest in a local planning panel determining an application relating to council-owned land. Although the panel is exercising its statutory functions on behalf of council (Lahoud), it is not subject to the direction or control of council, except in relation to any matter relating to the procedure of the panel (or to the time within which it is to deal with a matter) that is not inconsistent with any directions of the Minister under s 9.1: s 2.17(7).
It follows that I do not accept that the impugned directions permit Council to have a conflict of interest in determining development applications. The directions place neither Council, nor the Local Planning Panel constituted by Council, in the position of conflict of interest. I reject the applicant’s submission that the impugned directions give rise to a reasonable apprehension of bias. The operational procedures direction, to which Mr Jeray drew attention, makes plain that local planning panels are independent committees appointed by councils. Likewise s 2.17(7).
To the extent that the applicant’s submission was that the Minister has no power to give a direction that permits a local planning panel to approve a development application which relates to council-owned land, or a council officer to approve a s 4.55(1A) modification application which relates to council-owned land, that argument was run unsuccessfully in Seek Justice (Pepper J). I respectfully adopt her Honour’s reasons at [54]-[67].
In summary, I find as follows:

That the consent was granted by the Local Planning Panel on behalf of Council does not mean that the panel did not act independently in determining to grant consent.

The mandated separation of the decision-making functions of the local planning panel and Council in relation to the determination of the development application ensures the independence of the panel in its assessment function.

A fair minded lay observer might not reasonably apprehend that the panel might not bring an impartial mind to bear on the assessment of the development application on behalf of Council: Ebner v Official Trustee in Bankruptcy^[10] (Ebner) at [6]; Alexander v Yass Valley Council^[11] (Alexander) at [74]-[78] (Pain J).
10. (2000) 205 CLR 337; [2000] HCA 63.
11. (2011) 184 LGERA 123; [2011] NSWLEC 148 at [52] (Pain J).

None of the illustrations of the application of the apprehended bias principle in the decided cases to multi-member decision-making bodies, such as the local planning panel here is apposite to the present case.

The circumstances here, as in Seek Justice (Pepper J), are distinguishable from Isbester v Knox City Council^[12] (Isbester) in that no member of Council was a member of the Local Planning Panel.
12. (2015) 255 CLR 135; [2015] HCA 20.

There is nothing in the scheme of the EPA Act which prohibits a direction being given by the Minister requiring a local planning panel (or Council officer or employee) to determine a development application involving Council-owned land. I find, as submitted by the third respondent, that Council’s ownership of land does not of itself give rise to a reasonable apprehension of bias when a local planning panel or officer or employee of Council determines a development application in respect of Council-owned land. The applicant failed to establish a capability to affect a decision so as to satisfy the test of reasonable apprehension of bias: McGovern v Ku-ring-gai Council, per Basten JA at [82].

The determination of the development application by the Local Planning Panel has been specifically authorised by the EPA Act, there can be no apprehension of bias, actual or apprehended, in circumstances where the Local Planning Panel discharged its functions in accordance with the provisions of the Act.

In relation to the applicant’s suggestion that by providing owners consent, Council was in effect a supporter of the development. In Sydney City Council v Claude Neon Ltd^[13] (Claude Neon) the Court of Appeal considered the question of owners consent given by council. Hope JA, Priestley and Meagher JJA agreeing, said at 728-729 (emphasis added):

If then the owner of land applies to a council for its consent as owner of the road to the erection of an advertising structure projecting over the road, the council does not have a right arbitrarily to withhold its consent as the ordinary owner of private land might do. If the proposed development is one which ought to be approved, then the council ought to give its consent. Its failure to do so simply because it wished to frustrate the right of the adjoining owner to obtain approval to a projecting structure would be a use of its power for an improper purpose, that is, it would be a mala fide abuse of power.

Claude Neon is authority for the proposition that Council as a landowner cannot refuse to give landowners consent to the making of a development application on, over or under land owned by Council as it would frustrate the process of assessment of a development application; and that if a council refuses to give consent, the Court can give consent to facilitate the determination of an application: see Rouse Hill Custodian Corporation Pty Ltd v Prisma Rouse Hill Development Pty Ltd^[14] at [124] (Pain J); and

It follows that Council does not have a right arbitrarily to withhold its consent as the ordinary owner of land might do. As Mr Harker submitted, a council by providing owner’s consent to the lodgement of a development application does not invariably mean that the council will grant consent to the development application. That is because the council is exercising different functions: one, as an owner of land, constrained in its ability to refuse consent to the lodging of a development application under the EPA Act; the other, as a responsible planning authority required to assess the merits of the application. The requirement of owner’s consent ensures that there is consent to the lodgement of the application and hence a valid application before council. It does not provide any assurance or representation that consent will be granted, nor does it provide any consent to the use of the land the subject of the application.
13. (1989) 15 NSWLR 724; (1989) 67 LGRA 181 at 728-729 (Hope JA) (Priestley and Meagher JJA agreeing); cited with approval in Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; (2006) 149 LGERA 329; [2006] NSWCA 300 at [20] (Tobias JA, Hodgson and Santow JJA agreeing).
14. [2023] NSWLEC 48 at [124] (Pain J).

Accordingly, the applicant has failed to make out the issues it seeks to agitate in relation to Issue 1.

Issue 2: Whether the approval of the modified development consent by a delegate of Council was invalid by reason of a conflict of interest

Applicant’s submissions in relation to Issue 2

A number of the applicant’s submissions set out above in relation to Issue 1 also go to Issue 2, as framed by Mr Jeray.
The applicant submitted that the second respondent “accepted, evaluated, determined and issued the modified development consent … under direction 2 of the [modifications direction]”. Unlike the development consent which was determined by the Local Planning Panel “of the second respondent”, the modified development consent was determined by an officer of the second respondent under delegated authority.
The applicant submitted that the second respondent could not accept, evaluate, determine and issue the modified development consent and regulate compliance of the consent conditions because it had pecuniary and non-pecuniary conflicts of interest in the modified development application. The applicant also referred and repeated the same reasons relied on by it in relation to Issue 1 (see above at [57]-[60]).
The alleged conflicts of interest were said to include the use of Council’s land, the income generated from licensing the former Katoomba Golf Course as a car park, and ecotourism licence fees for the 2022 UTA event. The applicant submitted that given that the modifications direction was invalid, it follows the modified development consent was invalid because the second respondent “wrongly accepted and assessed” the modification application, and then determined and issued an amended development consent when it had “disqualifying conflicts of interest”. Put another way, the second respondent “did not have the jurisdiction to perform those functions or act as a development consent authority when it was assisting and had financial interests in the third respondent’s modified development proposal”.
Mr Jeray referred to the fact that the “Development Modification Report” identified Council as one of the land owners. Further, Mr Jeray referred to the short-term licence granted to the third respondent by Council on 24 October 2022 which he said:

… speaks for itself where the council is allowing the third respondent the use of Katoomba Golf Course for the parking of the event run by the third respondent, the UTA event. You can see in that short-term licence that the council is earning a fee … for $15,000 exclusive of GST.

In relation to the Annual Licence Agreement – Ecotourism Licensing Scheme 2022/2023 granted to the third respondent by Council on 26 October 2022 (the ecotourism licence), Mr Jeray said that fees were charged by Council. He also drew attention to an email from Mr Tan Vo, manager – property and commercial services, Council, to Mr Jeray dated 1 July 2022 which advised that “… Council on 14 January 2022 provided Ultra Trail a licence to use the section of the former Katoomba Golf Course site along the Acacia Street for parking purposes for Ultra Trail event in 2022. This licence was taken as Council’s owner consent for the lodgement of the DA”.
Mr Jeray also referred to a document prepared by himself titled “Blue Mountains City Council’s Conflicts of Interest in XM/57/2022/A” in which he listed the following under the heading pecuniary conflict of interest:

Income received from USM Events Pty Ltd:
1. Licence fee to use Katoomba Golf Course for parking for the 2022 UTA event:
$15,000 (exclusive of GST)
2. Eco-tourism licence fees for the 2022 UTA event:
$22,445.68 (exclusive of GST)

In the same document, Mr Jeray listed the following under the heading non-pecuniary conflict of interest:

Permission for USM Events Pty Lid to use council-owned land for the 2022 UTA event (in effect the Council is a supporter of the event):
(23 properties)
…

In relation to Seek Justice (Pepper J), Mr Jeray submitted that her Honour did not “make some properly based decisions”, and that:

JERAY: You don’t have to follow this decision because it’s not a binding judgment.

Third respondent’s submissions in relation to Issue 2

The third respondent submitted that the second issue raised by the applicant failed to appreciate that the modification application conferred no additional benefit on Council as a landowner. The applicant’s argument appeared to be that:

Council received fees for the use of the former Katoomba Golf Course and other Council-owned land (from the short-term licence);

Council received ecotourism licence fees in relation to the 2022 UTA event; and

the delegate of Council who issued the modified development consent on 26 October 2022 was therefore affected by a conflict of interest.

The third respondent referred to the dismissal of a claim of apprehended bias based on the receipt of ecotourism fees in relation to the development consent in Seek Justice (Pepper J) at [71]-[74]. The third respondent submitted that as is the case here, in that case the ecotourism licence was not issued before the approval of the development application and that the same result should follow here.
In relation to the fees paid for use of Council-owned land, the third respondent said that the fundamental question was “whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the administrator might not bring an impartial mind to the resolution of the question to be decided”.^[15] In terms of the knowledge to be attributed to the fair-minded lay observer, the following factors identified by Bell P, Basten JA and Simpson AJA in Polsen v Harrison^[16] at [46] were submitted to apply here (footnotes removed):

14. there is to be attributed to the fair-minded observer a broad knowledge of the material objective facts as ascertained by the appellate court and the “actual circumstances of the case”;
15. the fair-minded lay observer is taken to know the nature of the decision, the circumstances which led to the decision and the context in which it was made;
16. the context which must be considered includes the legal, statutory and factual context in which the decision is made, and “the totality of the circumstances”, although the fair minded lay observer will not be taken to have a detailed knowledge of the law or legal principles’’;
17. the knowledge that the fair minded observer is taken to have is not limited to those facts and matters that were known at the time …;
18. the fair-minded lay observer will not act on “insufficient knowledge”, but will “inform himself [or herself]” of the relevant circumstances, without making “snap judgments” …
15. Citing Isbester at [57] (Gageler J); cited in Armidale Regional Council v O'Connor (2020) 245 LGERA 56; [2020] NSWLEC 77 at [41] (Preston CJ of LEC).
16. [2021] NSWCA 23 at [46] (Bell P, Basten JA and Simpson AJA).

The third respondent submitted that a fair-minded lay observer would be aware that at the time the decision to approve the modified development consent was made on 26 October 2022: (1) consent to carry out the event had already been given by another body; (2) use of Council-owned land that gave rise to the need to pay the fee had already been approved by the development consent; and (3) the fee had already been paid.
Mr Harker for the third respondent referred to Isbester where Kiefel, Bell, Keane and Nettle JJ said at [20]-[23] in relation to the principle governing cases of possible bias as follows (footnotes omitted, emphasis added):

20. The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made.
21. The principle governing cases of possible bias was said in Ebnerto require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an "interest" in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making.

22. It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.
23. How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.

Mr Harker submitted that the applicant had not established a “causal link” between Council’s ownership of the land and the approval of the modified development consent, and that a causal link was “not merely established by council’s ownership of the land”.
In relation to Seek Justice (Pepper J), which the applicant had submitted was not a “binding judgment”, Mr Harker relied on In the matter of Colour Metal Pty Ltd^[17] where Leeming JA at [35]-[37] said in relation to the approach to be followed where it is submitted that a decision of a judge of the same court is wrong:
17. [2021] NSWSC 1012 at [35]-[37] (Leeming JA).

35. Contrary to the foregoing, in Augusta Pty Ltd v Provident Capital Ltd [2011] NSWSC 807, Hammerschlag J expressed doubt, indeed “significant doubt”, as to the correctness of what Siopis J held in Anderson Formrite and, according to his Honour where an interest amount can be derived simply by “an empirical arithmetic calculation applying the statutory interest rate to the amount of the judgment” then it can “properly be regarded as part of the judgment debt.” However, Black J disagreed, stating the following at [29]:
“I do not share his Honour’s doubt as to that matter. It seems to me that the calculation of post-judgment interest is not necessarily simple or uncontroversial, where it involves the application of interest rates which may or may not be properly applied and also depends upon a factual question that may be disputed (as this case plainly illustrates) as to when the amount of the debt was paid so as to bring the period for which interest can properly be claimed to an end. Second, I find it difficult to see how an amount that arises after the judgment, and is calculated by reference to the amount of the judgment debt, can itself be part of the judgment debt.”

36. That reasoning more recently has been applied, again by Black J, in In the matter of Cooperbrown Pty Ltd [2019] NSWSC 1341 at [22]-[23], to which both parties referred, and more recently in In the matter of Ming Tian Real Property Pty Ltd [2020] NSWSC 212; 145 ACSR 329. There, Gleeson J constituting this Court was confronted with a submission that what had been said in the passages in Cooperbrown and GTH Equipment, referred to above, was to be doubted. His Honour said at [38] that:
“[a]s a matter of comity, I should follow Re Cooperbrown unless convinced that the decision is ‘plainly wrong’ in the sense referred to in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485: [1993] HCA 15. In my view, Re Cooperbrown is not plainly wrong; on the contrary, I consider the decision to be correct.”

37. The same applies today. As it happens, I think the reasoning in GTH Equipment, Cooperbrown and Ming Tian Real Property Pty Ltd is correct, but all that matters is that I am far from persuaded that it is plainly wrong.

Applicant’s submissions in reply in relation to Issue 2

In reply to the submission that Council had nothing to gain in terms of its financial and proprietary interests, Mr Jeray said that “council did gain $15,000 from permitting the former Katoomba Golf Course to be utilised as a car park for the event, plus they also received over $22,000 in fees from the ecotourism licence”. In relation to the second of the two steps said in Ebner to be required in the principle governing cases of possible bias (namely, the articulation of the logical connection between the “interest” and the feared deviation from deciding the case on its merits),^[18] Mr Jeray submitted as follows:

the council has a - is in a position … in which it has an interest. It’s in a position to determine the interest - whether it receives an interest or not. It is in no position to determine the development application when, when it stands to gain the $15,000 in, in, in the fee - the parking fee of $15,000 … and the over $22,000 in, in, in the fees for the ecotourism licence …
18. (2000) 205 CLR 337 at [8]; [2002] HCA 63 (Gleeson CJ, McHugh, Gummow and Hayne JJ); cited in Isbester at [21] (Kiefel, Bell, Keane and Nettle JJ).

Mr Jeray also referred to Alexander, where Pain J at [52] said:

52. The prohibition upon the Council determining the DA in circumstances where it is subject to a disqualifying conflict of interest arises, as an incident of procedural fairness, "unless clearly excluded" by statute: see McGovern at 517 and Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 (per Mason J) and at 612 - 613 (per Brennan J). To render the reasoning in Sidney Harrison inapplicable because the South Australian development legislation has a specific provision for referral to a panel where a conflict of interest arises, it would be necessary for the Council Respondent to point to something in the NSW legislation which clearly excludes application of the relevant part of the obligation to accord procedural fairness. The Council cannot do so. Also, McGovern is direct authority against the Council's proposition.

Conclusion in relation to Issue 2: Whether the approval of the modified development consent by a delegate of Council was invalid by reason of a conflict of interest

The applicant has not discharged its onus of establishing that the modified development consent was invalid by reason of a local planning panel determining an application relating to Council-owned land.
Alexander concerned a development application on council land over which council had a contract with the developer which would result in a windfall to council if the development application was approved because the land would be sold to the developer and council would benefit. At [64]-[65] Pain J said (emphasis added):

64. Basten JA in McGovern at [82] stated:
“ … The law with respect to bias, much of which has accumulated through cases considering the operations of courts and quasi-judicial tribunals, has developed a test of reasonable apprehension of bias which does not require either evidence as to actual causal connection between the prejudicial material or interest and the decision, nor any prediction about how the decision was in fact made: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ) and Zanatta v McCleary [1976] 1 NSWLR 231, 234 (Street CJ), 238-239 (Samuels JA). While a causal connection must be demonstrated (in a case involving conflict of interest) it is the capability to affect a decision, not the actual affectation, which must be established.”

65. This passage confirms that there must be a causal connection demonstrated between the conflict of interest and the decision. The contract for sale of the Council's land and the DA in relation to land which includes the Council's land does not establish a causal connection, rather this must be demonstrated.

In Seek Justice (Pepper J), her Honour said at [78(c)] (emphasis added):

… in respect of the fees charged to use the car park, the charging of fees for the use of public land is expressly authorised by the LGA (see generally Ch 15, Pt 10). The Council adopted the Blue Mountains Delivery Program 2022-2026 and Operational Plan for 2022-2023 pursuant to the LGA (“the Operational Plan”). The Operational Plan was subject to public submissions before adoption (s 253 of the LGA). A component of that Operational Plan is the Blue Mountains Fees & Charges 2022-2023 (“Fees & Charges”), which determines fees for a wide range of sport and recreation activities held on Council land. The fees are applied without discrimination between users or uses. The provision of services in the form of the use of public land aligns with the objects of the LGA in relation to councils (s 8) and is one of the basic service functions of a local government authority (s 24 of the LGA). The charging fees for use of Council lands is therefore an incident of landownership permitted by the [Blue Mountains Local Government Area] which does not, of itself, interfere with the impartial function of determining [development applications] under the EPAA either by the Council or the Panel; …

Here, as in Seek Justice (Pepper J), it is plain that the charging of fees for the use of Council-owned land is an incident of land ownership permitted by the Local Government Act 1993 (NSW) (LGA). The charging of fees for the use of public land is expressly authorised by the LGA: see generally Ch 15, Pt 10. Hence, the charging of fees for the use of Council-owned land (relevantly, the former Katoomba Golf Course and other Council-owned land) does not of itself interfere with the separate and independent function of determining a development application. Likewise, the charging by Council of an ecotourism licence fee in relation to the 2022 UTA event.
In Michael Realty Pty Ltd v Carr,^[19] Holland J said as follows in relation to comity at 820E-F (footnotes removed) (emphasis added):

I do not think that I am relieved by the decision of Needham J. of
my duty to bring my own judgment to bear on the point in question. There
is no rule of law which binds a judge to abide by the decision of another
judge of co-ordinate jurisdiction, but a judge of first instance will, as a
matter of judicial comity, usually follow the decision of another judge of
19. [1975] 2 NSWLR 812 at 820E-F (Holland J); cited in Natural Grass at Norman Griffiths Inc v Ku-ring-gai Council [2023] NSWLEC 84 at [112] (Duggan J) and Eniflat Pty Ltd; Karlos v Tweed Shire Council [2019] NSWLEC 150 at [154] (Pain J).
first instance in the same jurisdiction, unless convinced that the judgment was wrong …

In Rivers SOS Inc v Minister for Planning,^[20] Preston CJ of LEC at [90] said in relation to comity and where the decision of another judge at first instance is obiter dictum (emphasis added):

Judicial comity usually dictates that a judge of first instance should follow the decision of another judge of first instance unless convinced that it is wrong: see, for example, Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820; Pancho Properties Pty Ltd v Wingecarribee Shire Council [1999] NSWLEC 245; (1999) 110 LGERA 352 at [128]-[129]; Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383 at [29]; and Cracknell and Lonergan Pty Ltd v Council of the City of Sydney [2007] NSWLEC 392; (2007) 155 LGERA 291 at [57]. However, this does not apply where the decision is obiter dictum. Obiter dictum need not be followed by another judge at first instance even for reasons of judicial comity.
20. (2009) 178 LGERA 437; [2009] NSWLEC 213 at [90] (Preston CJ of LEC). Cited in Lu v Walding (No 2) (2021) 249 LGERA 1; [2021] NSWLEC 21 at [109] (Pain J).

As a matter of comity, I follow the decision in Seek Justice (Pepper J). Nothing submitted by the applicant suggests let alone convinces me that her Honour’s judgment was wrong. Nor has the applicant demonstrated that the respects in which her Honour’s reasons are said to be not “properly based” are obiter dictum. Accordingly, the applicant has failed to make out the issues it seeks to agitate in relation to Issue 2.
Further, if I be wrong in relation to the validity of the modified development consent, there would be no utility in granting the relief sought by the applicant in circumstances where the 2022 UTA event took place between 27 and 30 October 2022. As Sheahan J said in Council of the City of Sydney v Mae^[21] (Mae): “[t]he court should make declarations only where some proper and practical purpose is served”: see Great Lakes v Lani^[22] (Lani) at [16]-[25] (Preston CJ of LEC).

Issue 3: Whether the third respondent failed to comply with conditions 3 and 4 of the modified development consent, and if so what if any relief should follow

21. [2009] NSWLEC 84 at [29] (Sheahan J); cited in Willoughby City Council v Wu [2014] NSWLEC 165 at [25] (Biscoe J) and in Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127 at [32] and [37] (Pepper J).

22. (2007) 158 LGERA 1; [2007] NSWLEC 681 at [16]-[25] (Preston CJ of LEC).

Applicant’s submissions in relation to Issue 3

The applicant submitted that leaving aside the question of the validity of the modified development consent, the third respondent had “unlawfully carried out” the 2022 UTA event, effectively in breach of s 4.2(1)(b) of the EPA Act, because it breached conditions 3 and 4 of the modified development consent as it failed: (1) to obtain a valid event agreement consent from the NSW Department of Planning, Industry and Environment (incorporating the NPWS); and (2) to obtain a valid event approval from Council for the event.
The third respondent was said to have breached condition 3 because (1) the amendments to the amended NPWS event agreement were not signed, dated and witnessed; (2) items 6, 7 and 8 had not been altered, signed, dated and attested to indicate the new event dates and hours and the bump-in and out dates and hours; and (3) in accordance with cl 3.1 of the amended agreement, the development consent expired at 6pm on 19 May 2022.
The third respondent was said to have breached condition 4 because the amended NPWS event approval was “invalid as it wrongly require[d] the third respondent to comply with the development consent XM/57/2022 instead of (when the event was required to be and was undertaken under) the development consent XM/57/2022/A”. The second respondent “wrongly required” and the third respondent “unreasonably accepted compliance” with the development consent, rather than with the modified development consent as a condition of Council’s event approval.
In oral submissions, Mr Jeray said that in the amended NPWS event agreement “[n]othing [was] signed, dated, witnessed or signed”, that the amendments were “simply added to the end and a date typed on the front”, and that the agreement “expired at 6pm on 19 May [2022]” because of cl 3.1 which provided:

3 CONSENT
3.1 … This Consent will terminate on the date and at the time set out in Items 8(a) and 8(b) of Schedule 1.

Items 8(a) and 8(b) of Schedule 1 provided as follows in relation to bump out dates and hours:

Item 8 Bump out Date(s) and Hours
(a) Bump out Date(s): Sunday 15^th May – Thursday 19^th May 2022
(b) Bump out Hours: From 12:00 To 18:00

In relation to condition 4, Mr Jeray also referred to a letter from Ms Meaghan Westra of Council to Mr Christopher of The Ironman Group titled “Ultra Trail Australia 27-30 October 2022 – Event Approval” dated 26 October 2022 which referred “to the event approval issued by council” and to “X57/2022 instead of XM57/2022/A”.

Third respondent’s submissions in relation to Issue 3

In relation to condition 3 of the modified development consent, the third respondent said that in entering the amended NPWS event agreement, the NPWS granted modified development consent pursuant to cl 25 of the NPW Regulation, and entered an agreement for non-exclusive use (exclusive use requiring a licence under Part 12 of the NPW Act).^[23]
23. See Manly Council v Malouf (2004) 61 NSWLR 394; (2004) 135 LGERA 24; [2004] NSWCA 299 (Manly Council v Malouf) at [56] (Tobias JA) (Mason P and Handley JA agreeing).
The “requirement in condition 3 for a ‘valid’ event agreement needed to be considered in that context”. Clause 25 of the NPW Regulation did not prescribe how consent must be granted, rather it provided that no offence is committed where consent has been given, and the activity is carried out in compliance with any conditions attached to that consent.
The third respondent submitted that NPWS conveyed its consent for the third respondent to carry out the event held between 27 and 30 October 2022 by email dated 25 October 2022, and by issuing the amended NPWS event agreement, attaching as a schedule the new runs and dates. To say that there was no consent because there was no signed, newly dated agreement conflated the fact of consent with the agreement, the agreement being a separate exercise of power: Manly Council v Malouf at [56] (Tobias JA) (Mason P and Handley JA agreeing). The third respondent submitted that parties to an agreement can agree to vary it at any time, and can do so without signing a new contract: Creamoata Ltd v The Rice Equalization Association Ltd^[24] (Creamoata) at 306 (Williams ACJ). That is what occurred with the correspondence, and the attachment of the new course profiles and descriptions as schedules to the amended event agreement.
24. (1953) 89 CLR 286 at 306; [1953] HCA 40 (Williams ACJ).
Orally, Mr Harker submitted that cl 25(3) of the NPW Regulation is an exception to cl 25(1):

Here, a consent was granted. I obviously have to accept that it was potentially inelegantly done in circumstances where the agreement was updated to refer to on the cover page, that it extended to the events and the new courses in October 2022 and attach those courses. But what is significant is that it is clear from that conduct itself that the third respondent had the consent of National Parks and Wildlife Service to conduct the activity.
… in clause 25, there's no requirement that the consent under clause 3(a) be in the form of a licence.

Orally, Mr Harker also referred to Manly Council v Malouf which concerned an approval for footpath dining under the Roads Act 1993 (NSW), and whether or not that was a retail shop lease for the purposes of the Retail Leases Act 1994 (NSW), and therefore whether the NSW Civil and Administrative Tribunal had jurisdiction to determine the dispute. At [56] Tobias JA said (emphasis added):

… each involves a "grant" thereby referring to a unilateral exercise of power by a Council. Notably, there is no reference to the approval being the subject of, or granted in conjunction with, a consensual agreement such as a licence. Accordingly, in my opinion, the deed, insofar as it created a contractual relationship between the parties, was entered into by the Council pursuant to its general powers rather than pursuant to s 125(1). It thus appears that the Council did two things. Firstly, it granted an approval pursuant to s 125(1) subject to conditions imposed thereon under s 125(2) and, secondly and independently, it entered into a license agreement.

Mr Harker submitted by reference to Manly Council v Malouf that the Retail Leases Act 1994 (NSW) “as is the case here in the [NPW [R]egulation was silent in terms of the requirement or not for a licence”.
Mr Harker referred to emails between Mr Christopher of the Ironman Group, and Ms Thomson, commercial licencing officer, NPWS, dated 22 June 2022. Mr Christoper asked Ms Thomson: “[d]o we need to make any amendments to our licence agreement to reflect the new October 2022 event dates?” Ms Thomson’s response was: “[n]o, I have all of the correspondence and agreement stored on file, so you do not need an amended event Consent”.

On 25 October 2022, two days before the event, Ms Thomson emailed Mr Christoper, and said as follows:

Please find attached the Event Agreement Consent – updated with course descriptions and maps for Oct ’22.

Mr Harker submitted that Schedule 4 to the original NPWS event agreement was “updated for October 2022” which references the “UTA 100” and that there was “a description of the UTA 50 … those being the two courses which were relevantly the subject to the modification application”. The email correspondence between Mr Christoper and Ms Thomson was “very clearly saying that this can go ahead”. This was submitted to be “sufficient for the purposes of clause 25 … which is again a defence to a criminal charge and it’s also sufficient for the purposes of the standard that’s relied upon by Mr Jeray, the accompanying contractual relationship because a deed can be varied orally”.^[25]
25. N Seddon & RA Bigwood, Cheshire & Fifoot: Law of Contract (12th edition, 2023) ‘Variation’.
In relation to condition 4 of the modified development consent which required a separate written event approval from Council, Council’s event approval was given one day before the event which commenced on 27 October 2022. The applicant’s only contention was that Council’s event approval was invalid because it referred to the original consent number. The applicant’s “whole claim” appeared to be that “because one letter was missed from the name of the consent on the event approval, that event approval wasn’t valid”. The third respondent submitted that approval of a modification application modifies the initial consent, the modified development consent not having a new or separate existence, and that the reference to the original consent number in Council’s event approval would be properly construed as incorporating the modification. In any event, Council’s event approval did not “appear to have any statutory basis, let alone one that imposes requirements for validity”.
Mr Harker referred to an email from Mr Bryon Tully, program leader commercial development assessment, Council, to Mr Christopher and other employees of the third respondent sent at 10:07am on 26 October 2022 which stated: “Please find attached … a copy of the modified Development Consent XM/57/2022/a for the 2022 Ultra Trail Event and additional plans approved under the consent …”. At 4:45pm on 26 October 2022, the event approval was provided to USM, and at 11:45pm on 26 October 2022, an employee of the third respondent acknowledged receipt of the event approval. Mr Harker said:

In essence, the event approval was issued after the approval of the modification application. It was approved in the context of the modification application and it was approved in the context of … a condition that required an event approval to be obtained. Considered in that context, the council could only have been referring to the modified development consent …The mere failure to include the letter M [and A] doesn’t change the fact that the previous development consent, the previous unmodified development consent doesn’t have an independent existence, once development consent is modified, that is the consent that is in force. The reference in our submission is properly regarded as being reference to the consent as it exists at the relevant time which would be the consent as modified. In any event, it's de minimis because one letter is missing. Two letters, M and A sorry.

In relation to relief, the third respondent submitted that any breach of conditions 3 or 4 of the modified development consent was a technical one, there being no evidence that it resulted in environmental harm. Accordingly, declaratory relief should be refused: Parramatta City Council v RA Motors Pty Ltd^[26] (Parramatta City Council v RA Motors) at 125 (Stein J). Further, Mr Harker said as follows:

in terms of discretion, your Honour's dealing with an event that took place in October 2022. There's been another event that has come and gone since then, the consent was a time limited consent confined to only this event. There will be no utility in our submission to the declarations that are sought by Mr Jeray.

26. (1986) 59 LGRA 121 at 125 (Stein J).

Applicant’s oral submissions in reply in relation to Issue 3

In relation to condition 4, Mr Jeray submitted that Parramatta City Council v RA Motors was a case “that’s discretional whether to make declaratory relief”, and referred to Warringah Shire Council v Sedevcic^[27] where Cripps CJ of LEC said at 344:

As a general proposition failure to prove specific harm would not necessarily result in no order being made. It may be accepted, I think, that the court will take cognisance of the general harm resulting from breach of a statute and will not normally require proof of specific harm for an injunction to go at the suit of the attorney general or a local council.
27. (1986) 57 LGRA 335 at 344 (Cripps CJ of LEC); cited in Parramatta City Council v RA Motors at 126 (Stein J).

Mr Jeray referred to the well-known passage in House v The King,^[28] at 505 (Starke J), in relation to the exercise of discretion, and also to the objects of the EPA Act, and submitted as follows:

If there is no accountability, then there is no point in having any law or a Court. These are very important issues and someone who preaches the law should not escape the consequences of doing so.

Conclusion in relation to Issue 3: Whether the third respondent failed to comply with conditions 3 and 4 of the modified development consent and, if so, what if any relief should follow

28. (1936) 55 CLR 499 at 505; [1936] HCA 40 (Starke J).

Nor has the applicant established that the third respondent, USM, failed to comply with conditions 3 and 4 of the modified development consent.
In relation to condition 3, I accept the third respondent’s submission that the amended NPWS agreement did not need to be signed and newly dated because parties to an agreement can agree to vary it at any time, without signing a new contract: Creamoata at 306. To say there was no consent because there was no signed, newly dated agreement conflated that fact of consent with the agreement: Manly Council v Malouf at [56].
It is clear from the conduct of the NPWS that the third respondent had its consent to conduct the event held between 27 and 30 October 2022. This is demonstrated in the emails between Mr Christopher and Ms Thomson on 22 June 2022, and Ms Thomson’s email to Mr Christopher on 25 October 2022. That correspondence was sufficient to satisfy cl 25 of the NPW Regulation.
In relation to condition 4, I accept the third respondent’s submission that the applicant’s whole claim appears to be that “because one letter was missed from the name on the consent on the event approval, that event approval wasn’t valid”. I accept the third respondent’s submissions in relation to condition 4 set out above at [124]-[125].
In relation to relief, I also find that any breach of conditions 3 and 4 of the modified development consent was technical in nature and therefore decline to grant declaratory relief: Parramatta City Council v RA Motors at 25. There is no evidence that any breach of either condition resulted in environmental harm. And, significantly, as in relation to Issue 2, there would be no utility in granting such relief in circumstances where the 2022 UTA event took place between 27 and 30 October 2022. As Sheahan J said in Mae: “[t]he court should make declarations only where some proper and practical purpose is served”: see Lani at [16]-[25] (Preston CJ of LEC).

Issue raised by Mr Jeray at the hearing in relation to approval of the traffic management plan

On day 1 of the hearing, Mr Jeray raised a further issue not foreshadowed in the second further amended summons. Mr Jeray said as follows:

JERAY: I claim that the event approval could not actually be issued because the traffic management plan was not approved by the local traffic committee. That’s an issue I wish to raise. I haven’t put that in my submissions.
…
I claim that the Blue Mountains local traffic committee did not approve the traffic management plan as required in condition of consent number 4 there because there are no minutes that show that the committee recommends the approval of the traffic management plan.

In relation to this further issue, Mr Harker for the third respondent, referred to Aon Risk Services Australia Limited v Australian National University,^[29] and submitted:

HARKER: In relation to as I understand it, the traffic management plan wasn’t approved by the local traffic committee. That was the first we've been aware of that claim for the over a year since this matter's been on foot. My instructions are to resist any application by Mr Jeray to amend his summons in order to plead that claim. We are already on the second further amended summons. Mr Jeray has had three goes at articulating his claim. It could have been included some time ago and as the Court makes clear, the High Court made clear on Aon that there is not an unlimited right to amend, particularly when those applications are put on at the heel of the hunt here during the hearing.
It's not responsive to anything we have put in submissions. It's not a matter that we're equipped here to respond to, and I might add, apart from the assertion from Mr Jeray that the matter wasn’t considered by the local traffic committee, there is no evidence before your Honour of that at all. There's also the utility point that we're dealing with something, an event that concluded one a bit years ago.
29. (2009) 239 CLR 175; [2009] HCA 27.

In relation to this issue sought to be raised by Mr Jeray during the course of the hearing, and not the subject of any formal application for leave to amend the second further amended summons, I find that Mr Jeray is not permitted to agitate the issue in the manner in which he sought to raise it, and that in any event, there would be no utility in permitting him to do so.

Costs

Third respondent’s submissions in relation to costs

In relation to costs, the third respondent submitted that the second further amended summons should be dismissed with costs in the amount of $5,000.

Applicant’s submissions on costs

In the second further amended summons, the applicant sought that the respondents pay the applicant’s “travelling, printing, photocopying, postage and court filing fee expenses for all proceedings in this case”. In oral submissions, Mr Jeray said as follows in relation to the third respondent seeking its costs in the amount of $5,000:

JERAY: … The applicant opposes those costs. …
the issues raised are of public importance given that the, the direction affects all, all councils in the state and that’s being contested. … I consider it a matter of public importance also given that the council has made a decision based on that direction which allows the conflict. …
JERAY: --two matters are tied in and I don’t think it’s appropriate that, that the - and the applicant also is, is contesting this issue in the public interest without any, any gain. It has nothing to gain from it financially or otherwise except for the public good. …
JERAY: The applicant has already borne lots of costs for - and preparation and time and the time that the applicant cannot be compensated for because it’s, it’s, it’s being done without payment. The Court doesn’t entertain, I understand, litigants who are not legally represented, the fees, because they do not have … to pay the fees of the legal representatives.

Conclusion in relation to costs

There was no evidence or submission capable of satisfying me that the proceeding was brought in the public interest within the meaning of r 4.2 of the Land and Environment Court Rules 2007 (NSW).
Pursuant to s 98 of the Civil Procedure Act 2005 (NSW) and r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), the general rule is that costs follow the event. I will make an order that the applicant pay the third respondent’s costs in the amount of $5,000.

Conclusion and orders

The Court makes the following orders:

The second further amended summons filed 14 July 2023 is dismissed.

The applicant to pay the third respondent’s costs in the amount of $5,000.

**********

Endnotes

Decision last updated: 12 July 2024

Medium Neutral Citation:	Seek Justice Pty Ltd v Minister for Planning (No 2) [2024] NSWLEC 68
Hearing dates:	19 and 20 October 2023
Date of orders:	12 July 2024
Decision date:	12 July 2024
Jurisdiction:	Class 4
Before:	Pritchard J
Decision:	The Court makes the following orders: (1) The second further amended summons filed 14 July 2023 is dismissed. (2) The applicant to pay the third respondent’s costs in the amount of $5,000.
Catchwords:	ENVIRONMENT AND PLANNING — Consent — Validity — whether directions given by the Minister for Planning are invalid — whether there was a reasonable apprehension of bias — directions not invalid ENVIRONMENT AND PLANNING — Development application — Validity — whether the approval of the modification application is invalid — approval of the modification application not invalid ENVIRONMENT AND PLANNING — Consent — Conditions — whether the third respondent failed to comply with conditions 3 and 4 of the modified development consent — no relief granted COSTS — order that the applicant pay the third respondent’s costs
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 98 Environmental Planning and Assessment Act 1979 (NSW) (as at 23 February 2018) ss 23J, 23K, 23L, 23I, 117 Environmental Planning and Assessment Act 1979 (NSW) (as at 30 June 2020) ss 2.17, 2.18, 2.19, 4.8, 9.1 Environmental Planning and Assessment Act 1979 (NSW) (as at 26 October 2022) ss 4.2, 4.5, 4.55 Local Government Act 1993 (NSW) Ch 15, Pt 10 Interpretation Act 1987 (NSW) s 32 National Parks and Wildlife Act 1974 (NSW) s 2A, Pt 12 Environmental Planning and Assessment (Greater Sydney Region Districts) Order 2017 (NSW) Land and Environment Court Rules 2007 (NSW) r 4.2 National Parks and Wildlife Regulation 2019 (NSW) cl 25 Uniform Civil Procedure Rules 2005 (NSW) r 42.1
Cases Cited:	Alexander v Yass Valley Council (2011) 184 LGERA 123; [2011] NSWLEC 148 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Council of the City of Sydney v Mae [2009] NSWLEC 84 Creamoata Ltd v The Rice Equalization Association Ltd (1953) 89 CLR 286; [1953] HCA 40 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Great Lakes v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477 House v The King (1936) 55 CLR 499; [1936] HCA 40 In the matter of Colour Metal Pty Ltd [2021] NSWSC 1012 Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 Lahoud v Willoughby City Council [2022] NSWCA 214 Manly Council v Malouf (2004) 61 NSWLR 394; (2004) 135 LGERA 24; [2004] NSWCA 299 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; (2008) 161 LGERA 170; [2008] NSWCA 209 Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 Parramatta City Council v RA Motors Pty Ltd (1986) 59 LGRA 121 Polsen v Harrison [2021] NSWCA 23 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v City of Whyalla; Ex parte Kittel (1979) 20 SASR 386; (1979) 44 LGRA 371 Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 437; [2009] NSWLEC 213 Rouse Hill Custodian Corporation Pty Ltd v Prisma Rouse Hill Development Pty Ltd [2023] NSWLEC 48 Seek Justice Pty Ltd v Minister for Planning [2022] NSWCA 220 Seek Justice Pty Ltd v Minister for Planning [2022] NSWLEC 127 Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724
Texts Cited:	N Seddon & RA Bigwood, Cheshire & Fifoot: Law of Contract (12th edition, 2023)
Category:	Principal judgment
Parties:	Seek Justice Pty Ltd (Applicant) Minister for Planning (First Respondent) Blue Mountains Local Planning Panel/Blue Mountains City Council (Second Respondent) USM Events Pty Ltd (Third Respondent)
Representation:	Counsel: I Jeray, director of applicant (Applicant) M Harker (Third Respondent) Solicitors: Department of Planning and Environment (First Respondent) (Submitting appearance) Marsdens Law Group (Second Respondent) (Submitting appearance) Sparke Helmore Lawyers (Third Respondent)
File Number(s):	2022/299420
Publication restriction:	Nil