Sharples v Minister for Local Government - [2010] NSWCA 36

No judgment structure available for this case.

Reported Decision: 174 LGERA 129

New South Wales

Court of Appeal

CITATION: Sharples v Minister for Local Government [2010] NSWCA 36

HEARING DATE(S): 15 February 2010

JUDGMENT DATE:
17 March 2010

JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; McColl JA at 128

DECISION: (a) Grant leave to appeal in respect of Grounds 1 and 2 of the appellant’s Amended Notice of Appeal filed on 18 May 2009;
(b) Dismiss the appellant’s appeals against the interlocutory decisions of Biscoe J made on 7 November 2008 and the orders of his Honour made on 30 December 2008 and 29 April 2009;
(c) The appellant to pay one half of the third respondent’s costs of the appeal.

CATCHWORDS: ADMINISTRATIVE LAW – Judicial review – Grounds of review – Error of law – Failure to take into account a relevant consideration – Determinations by Minister to increase council’s general income – Power of Minister to determine only on application of council made in accordance with applicable guidelines issued by Director-General – Applicable guidelines specified minimum requirements for applications including evidence of community support for proposal and how community was consulted – Requirement of community support and consultation not satisfied – Whether the primary judge erred in not declaring the determinations invalid - ENVIRONMENT AND PLANNING – Courts with environmental jurisdiction – New South Wales – Land and Environment Court – Costs – Public interest – Whether primary judge erred in dealing differentially with each limb of the appellant’s case when assessing costs - PROCEDURE – Application for leave to amend points of claim – Application made on fifth day of hearing when evidence virtually closed and after relevant witnesses had been cross-examined – Application to read an affidavit – Application made on third day of the hearing although affidavit had been served two days previously – Applications dismissed by primary judge – Prejudice to respondents – Adverse effect on timely disposal of the proceedings – No explanation for delay – Whether primary judge erred in dismissing applications

LEGISLATION CITED: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Local Government Act 1993
National Parks and Wildlife Act 1974
Supreme Court Rules 1970
Threatened Species Conservation Act 1995
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 168 LGERA 43
Bi v Mourad [2010] NSWCA 17
Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; (2000) 50 NSWLR 312
Cranky Rock Road v Cowra Shire Council [2006] NSWCA 339; (2006) 150 LGERA 81
Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365
Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388; (2006) 69 NSWLR 156
Helman v Byron Shire Council (1995) 87 LGERA 349
James & Ors v Surf Road Nominees Pty Ltd & Ors [No 2] [2005] NSWCA 296
Leichhardt Municipal Council v Minister for Planning [1992] 78 LGERA 306
Minister for Planning v Walker (No 2) [2008] NSWCA 334
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Sharples v Minister for Local Government [2008] NSWLEC 67
Sharples v Minister for Local Government [2008] NSWLEC 308
Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302
Sharples v Minister for Local Government (No 2) [2009] NSWLEC 62
Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148
State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Tasker v Fullwood [1978] 1 NSWLR 20
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55

PARTIES: Terry Patrick Sharples,
Minister for Local Government
Department of Local Government
Tweed Shire Council

FILE NUMBER(S): CA 40089/09

COUNSEL: A: Dr A Greinke
1&2R: Submitting appearance
3R: C Leggat SC / M D Seymour

SOLICITORS: A: Dr A Greinke
1&2R: Crown Solicitor's Office, Sydney
3R: Marsdens Law Group, Campbelltown

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): L&E 40959/07

LOWER COURT JUDICIAL OFFICER: Biscoe J

LOWER COURT DATE OF DECISION: 7 November 2008; 30 December 2008; 29 April 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Sharples v Minister for Local Government [2008] NSWLEC 308; Sharples v Minister for Local Government [2008] NSWLEC 328; Sharples v Minister for Local Government [2009] NSWLEC 62

CA 40089/09
LEC 40959/07

BEAZLEY JA
TOBIAS JA
McCOLL JA
Wednesday 17 March 2010

TERRY PATRICK SHARPLES v MINISTER FOR LOCAL GOVERNMENT & ORS

Judgment

1 BEAZLEY JA: I agree with Tobias JA.

2 TOBIAS JA: On 10 July 2006 the first respondent (the Minister) determined pursuant to s 508A(1) of the Local Government Act 1993 (the Act) an application made by the third respondent (the Council) that its general income for the 2006/07 and the 2007/08 years be varied by a specified percentage (the 2006 determination). On 15 August 2007 the Minister determined a further application by the Council that its general income for the years 2008/09 to 2012/13 be varied by a specified percentage (the 2007 determination) (together the Determinations).

3 By his further amended Class 4 application filed in the Land and Environment Court on 3 November 2008, the appellant, Mr Terry Sharples (a council ratepayer) sought amongst other things, declarations that the Determinations were void and of no effect upon the grounds that first, the Council’s applications to the Minister for the variations were made in contravention of s 508A(3) of the Act and, second, the applications upon which the Determinations were made had misled the Minister and thus vitiated his decisions to determine the applications in the Council’s favour.

4 The proceedings were heard by Biscoe J who, on 30 December 2008, rejected the appellant’s challenges to the validity of the Determinations, ordered that his further amended application be dismissed and reserved the question of costs: Sharples v MemberMinister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302. In a separate judgment on 29 April 2009 the primary judge ordered that the appellant pay one third of the Council’s costs of the proceedings: Sharples v Minister for Local Government (No 2) [2009] NSWLEC 62.

5 The hearing before the primary judge commenced on 3 November 2008. On 7 November 2008 the appellant applied to his Honour, after the evidence had concluded, to further amend his points of claim - an application which was rejected by his Honour on that date: Sharples v Minister for Local Government [2008] NSWLEC 308. On the same day an application was made by the appellant to read an affidavit of a Miss Pamela Margieson that had been served two days previously, on the third day of the hearing. His Honour delivered an ex tempore judgment in which he refused to exercise his discretion to permit Miss Margieson’s affidavit to be read and accordingly it was rejected.

6 The appellant appeals to this Court against all four decisions of the primary judge, namely, his refusal on 7 November 2008 to permit the appellant to further amend his points of claim; his rejection on 7 November 2008 of Miss Margieson’s affidavit; his dismissal on 30 December 2008 of the substantive proceedings and his decision on 29 April 2009 with respect to the payment by the appellant of one third of the Council’s costs of those proceedings. On 4 May 2009, the Council filed a Notice of Contention in which it submitted that the substantive decision of the primary judge on 30 December 2008 should be affirmed on a ground other than that relied upon by the primary judge.

7 Although the first respondent, the Minister, and the second respondent, the Department of Local Government, were represented and took an active part in the proceedings before the primary judge, neither of those respondents took part in the hearing of the appeal. Each filed a submitting appearance except as to costs.

8 So far as the two interlocutory decisions of the primary judge are concerned, the appellant indicated at the commencement of the hearing of the appeal that he did not propose to supplement his written submissions with any oral submissions. At this point it is necessary to note that the appellant only has an appeal as of right to this Court with respect to the primary judge’s decision dismissing his further amended application: Land and Environment Court Act 1979, s 58(1). His appeal against his Honour’s interlocutory decisions and his costs order is only by leave: s 58(3). However, no summons for leave has been filed and no mention of this requirement for leave was made either in the parties’ written or oral submissions. Nevertheless, this Court is bound by s 58(3) and, therefore, must consider whether to grant leave with respect to the three decisions requiring leave or any of them. In this respect it is both appropriate and convenient to deal with the question of leave and the appeals with respect to those decisions concurrently.

The interlocutory appeals

9 The primary judge’s interlocutory judgments of 7 November 2008 in respect of both the application by the appellant to further amend his points of claim on the one hand and to read the affidavit of Ms Margieson on the other, pre-dated the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. That decision was handed down on 5 August 2009. Nevertheless, it is apparent that his Honour essentially applied the principles later articulated by the High Court in that case.

10 With respect to the application by the appellant to further amend his points of claim, his Honour in his ex tempore judgment stated the applicable principles and referred to the relevant provisions of the Civil Procedure Act 2005, noting that the decision of the High Court in State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 was not decided on legislation such as now controls the power of amendment of documents in civil proceedings in New South Wales. Nevertheless, his Honour remarked that even in J L Holdings significant prejudice to an opposing party was likely to defeat an application to amend.

11 The primary judge then noted that the motion for leave to amend was made on the fifth day of the hearing (originally fixed for two days but which had extended to five days) at a time when the evidence had just concluded. Because the original hearing time had been extended to five days, no doubt to enable the evidence to be concluded in one hit, his Honour acknowledged that it would be necessary to adjourn the hearing for some weeks for the purpose of hearing submissions. It was in fact adjourned to 2 December.

12 His Honour then stated the nature of the proposed amendment and summarised the parties’ submissions with respect thereto. In this respect it is to be noted that both the Minister and the Department opposed the amendment on three grounds, of which his Honour upheld two.

13 The proposed amendments went to the issue of a survey by the Council of its ratepayers seeking their approval of the proposed variance of the Council’s general income which would increase the rates made and levied during the years in respect of which the variance was sought. At [17] his Honour indicated that the proposed amendments raised a new issue as to whether there was a better way of conducting the Council’s survey and which was the subject of criticism in the appellant’s existing points of claim.

14 His Honour therefore accepted that if the amendment was to be allowed, the respondents would be prejudiced due to the lateness in seeking it. Had it been sought out in a timely way, it was likely that the Council would have called other or additional evidence and conducted its cross-examination differently. Further, if the amendment was to be allowed, the respondents would need to be afforded the opportunity to call further evidence and to recall two expert witnesses for further questioning.

15 His Honour thus held that to allow the amendment would disrupt and extend the further hearing of the case and adversely affect its timely disposal. He also considered that there had been insufficient explanation of the delay in seeking leave to amend the points of claim until the fifth day of the hearing when the evidence had concluded.

16 In his written submissions the appellant acknowledged that J L Holdings was no longer good law in view of the decision of the High Court in Aon Risk. Nevertheless, he submitted that the matter, the subject of the amendment, had been foreshadowed in the appellant’s opening submissions on the Friday before the trial and had arisen out of the statement made in an expert report by a Mr Sargeant (who was called by the Council) and which had been served shortly before trial. It was noted that although opposed to the amendment, the Minister and the Department did not suggest that they would be prejudiced if it were to be allowed. It was only the Council that asserted such prejudice.

17 It was submitted that his Honour erred in finding that the Council would be prejudiced or that there would be any prejudice to the administration of the Court’s lists. Even if the Council considered it necessary to call further evidence (which the appellant denied), as the proceedings were to be adjourned in any event for several weeks, any such prejudice in relation to the calling of further evidence or the recalling of expert witnesses would be ameliorated.

18 The foregoing submissions overlook the fact that at the time the application for amendment was made the evidence had concluded; the hearing of the evidence had taken five rather than the two days allotted and the reason for the adjournment (which was purely for the purpose of addresses) was due to the fact that the hearing of the evidence had overrun its allotted time.

19 His Honour accepted, as in my view he was entitled to do, that in the event that the amendment was allowed, any further evidence would need to be called by the Council on at least the first of the two days set aside for the hearing of submissions. This may well have caused those two days to be extended and to potentially take up time that might have been allotted to the hearing of other litigants’ cases.

20 In Aon Risk all the Justices were at one in emphasising the importance of case management considerations and proper use of court resources when dealing with an amendment such as that proposed in the present case as well as the prejudice to the opposing party or parties and the lack of any proper explanation for the delay in making the relevant application.

21 Furthermore, ss 57 and 58 of the Civil Procedure Act 2005, which applies to the Land and Environment Court as it is a court referred to in Schedule 1 to that Act, required that court, in deciding whether to make an order for the amendment of a document, to “seek to act in accordance with the dictates of justice” and, for this purpose, to have regard to, inter alia, “the efficient disposal of the business of the court”, “the efficient use of available judicial and administrative resources” and “the timely disposal of the proceedings … at a cost affordable by the respective parties”.

22 The observation of Allsop P in Bi v Mourad [2010] NSWCA 17 at [47] is also instructive:

Civil Procedure Act

’

23 In the present case the primary judge found that there was prejudice and, importantly, considered that allowing the amendment would disrupt and extend the hearing of the case and thus adversely affect its timely disposal. That problem would not have been alleviated by the fact that due to the overrun of the hearing of the evidence it was necessary to adjourn the proceedings for some weeks for the purpose of hearing submissions.

24 Accordingly, in my view the appellant has not demonstrated that his Honour’s exercise of discretion to refuse the amendment has miscarried with the consequence that the appeal against that refusal should be dismissed.

25 So far as his Honour’s rejection of Ms Margieson’s affidavit is concerned, it is to be noted that that affidavit was sworn on 3 November 2008 (the first day of the trial) but not served until 5 November. Again, the Council asserted that it was prejudiced by the late serving of that affidavit, a submission which his Honour accepted. In it Ms Margieson, a ratepayer, deposed to a conversation she had had with a person conducting a telephone survey on behalf of the Council with respect to a matter that was allegedly relevant to the issues in the substantive proceedings.

26 The matter of concern to the Council by the late service of the affidavit was that it wished to find and speak to the person who undertook the survey and with whom allegedly Ms Margieson had spoken, in order to confirm the accuracy of the conversation to which she had deposed. It also wished to ascertain whether Ms Margieson had objected to the extra rates she would have to pay over the next seven years if that was necessary to advance the projects in respect of which the Council had sought a variance of its general income.

27 It appeared that the person who had conducted the survey had left the employ of the marketing firm engaged by Council to conduct the survey. Its prejudice, which his Honour accepted, was its inability to make enquiries as to the whereabouts of the person who conducted the survey and with whom Ms Margieson asserted she had had the conversation.

28 The appellant submitted that his Honour erred in finding prejudice given that the marketing company had destroyed its worksheets, making it impossible to check whether the person conducting the survey had actually telephoned Ms Margieson notwithstanding that her number was on a list of numbers to be called during the survey. His Honour accepted the Council’s submission that had the affidavit been served in a timely way instead of on the third day of the hearing, there would have been a reasonable opportunity for it to make further enquiries as to the whereabouts of the person who conducted the survey.

29 Finally, his Honour gave weight to the fact that there had been no satisfactory explanation provided by the appellant for the late service of Ms Margieson’s affidavit.

30 The appellant submitted that even if the Council was initially prejudiced by the lack of time within which it could investigate the whereabouts of the person who conducted the survey, nevertheless his Honour had erred in failing to take into account the fact that that prejudice would be mitigated given the necessity for there to be an adjournment for some weeks between the conclusion of the evidence on 7 November and the commencement of submissions on 2 December.

31 The Council submitted that his Honour was entitled to reject Ms Margieson’s evidence merely by virtue of the appellant’s delay in seeking to adduce her evidence well after directions had been made to serve all evidence prior to the trial commencing – a delay which remained unexplained. That was sufficient of itself for the Court to reject the appellant’s submissions: Aon Risk at [103].

32 In my view the appellant’s submissions should be rejected. Although his Honour did not expressly take into account the fact that the hearing was to be adjourned for the purpose of submissions as a consequence of the overrun of the evidence, nevertheless the late service of Ms Margieson’s affidavit of itself deprived the Council of the opportunity to ascertain the whereabouts of the person who conducted the survey, an opportunity it would have had had the affidavit been filed in accordance with the directions for the filing of evidence.

33 Again, in my view the failure to explain that delay is fatal to the appellant’s application. Accordingly, I see no proper basis upon which it can be suggested that his Honour’s discretion to reject Ms Margieson’s affidavit miscarried.

34 For the foregoing reasons I would grant leave to appeal against the interlocutory decisions of 7 November 2008, but dismiss each appeal. I now turn to the substantive appeal.

The relevant statutory scheme

35 Councils in New South Wales are subject to what is popularly known as rate-pegging. The general income from rates and charges for a specified year cannot be varied by more than the percentage fixed by the Minister for Local Government under s 506 of the Act (with the exceptions noted in s 505(a)). The Minister’s practice has been to peg this variation to the Consumer Price Index, unless a council has persuaded him or her to support a special variation for between two and seven years. The machinery for doing so appears in s 508A, which relevantly provides:

508A

Special variation over a period of years

The determination may be made only on the application of the council made in accordance with any applicable guidelines issued by the Director-General under this Act

(a) vary the determination, including, for example, by varying or revoking any conditions of the determination or by including new conditions, or

(b) revoke the determination.

36 The appellant also relied upon ss 509(1) and 512 which relevantly provide:

“509(1) A council must not make rates and charges for a year so as to produce general income of an amount that exceeds the notional general income of the council for the previous year as varied by the percentage (if any) applicable to the council under section 506, 508 (2) or 508A for the year for which the rates and charges are made, except as provided by section 511 or 511A.”

(2) The Minister may, by order published in the Gazette, exempt a specified council from the operation of subsection (1) (b) for a specified year.”

37 The provision critical to the appellant’s case was s 508A(3) which refers to a council making the relevant application

“in accordance with any applicable guidelines issued by the Director-General under this Act”.

38 The power of the Director-General to issue such guidelines is to be found in s 23A, the relevant provisions of which are as follows:

23A Director-General’s guidelines

(1) For the purposes of this Act, the Director-General may from time to time prepare, adopt or vary guidelines relating to the exercise by a council of any of its functions.

…

(3) A council must take any relevant guidelines issued under this section into consideration before exercising any of its functions.”

39 It was common ground that the applicable guidelines referred to in s 508A(3) were issued by the Director-General on 28 February 2006 (the Guidelines). The document issued by the Director-General was headed “SPECIAL VARIATION GUIDELINES”. Under the sub-heading “Applications made under Section 508A” the following relevantly appeared:

“Prior to preparing an application, the council should refer to Council Circular 05-04 to determine that an application under section 508A is the most appropriate application to meet the council’s needs.

Due to the comprehensive planning and financial reporting requirements supporting the application

It should be noted that section 508A(9)(b) enables the Minister for Local Government to vary or revoke a determination if the council has contravened any conditions or guidelines applicable to the determination

As the application is to include a detailed assessment of council’s financial and planning operations,

Applications under this section should be made by way of a written submission covering the following minimum requirements

40 The “Minimum Requirements” were divided into three sections under the headings “General”, “Financial” and “Rating”. Altogether there were 20 “Minimum Requirements”, of which only the third under the heading “General” is relevant to the present case. It is in the following terms:

Evidence of community support for the proposal and how the community was consulted

● A council should consider conducting a public meeting (or meetings) to discuss the proposal and any other submissions concerning the draft management plan.” (Emphasis added)

The factual ingredients of the appellant’s challenge to the validity of the Determinations

41 The Council made an application under s 508A to the Minister on 14 June 2006 (the 2006 application). Accompanying that application was a copy of a 20 page special edition of the Council newspaper Tweed Link published on 28 February 2006. His Honour noted (at [19]) that the special edition comprised an open letter to the Tweed community from the Council Administrators, the Council’s proposed “Seven Year Infrastructure and Services Plan” (the Plan) and a survey containing 15 questions to which ratepayers were invited to respond.

42 The Plan listed $133.6 million of proposed Council projects and invited its residents to have their say by completing and returning the survey form. It noted that residents might also be contacted by Market Facts, an independent market research firm who had been engaged to conduct a random survey of 330 ratepayers asking the same questions as the survey contained in the newsletter (the telephone survey).

43 The open letter from the Administrators referred to their intention at the time they were appointed to plan infrastructure provisions over a seven year period and

“to seek your endorsement to implement a series of rate rises above the CPI in order to finance any new initiatives.”

44 The Plan set out in the special edition of Tweed Link contained the heading “What will it Cost?” It relevantly stated:

“The plan is quite ambitious and with the inclusion of additional ‘running’ costs a rate increase (above CPI) of around 6% per annum for the next 7 years would be required to deliver the program in full.”

The effect of the proposed 6% increase will be that 83% of ratepayers will pay around $1.00 per week extra for every year of the program.

45 As I have indicated, the special edition of Tweed Link also contained a survey questionnaire (the paper survey). Question 5 was as follows:

“The Council has estimated 6% per year as a workable increase. This would mean most residents would only be paying an additional $52 per year. How do you feel about that increase to pay for the necessary important projects?”

46 Subsequent to the publication of the special edition it was appreciated within the Council that the statement in the Plan that I have emphasised above was inaccurate as it failed to take account of the compounding effect of the rate increases. Accordingly, on 7 March 2006 Tweed Link carried the following short qualifying article on its third page:

Various factors influence rating

The rating increase associated with the Tweed Shire Council 7 Year Plan is complex due to various factors that influence rating.

On page 12 of the special edition of the Tweed Link there is a table, which is based on the present rating structure…that 83 per cent of ratepayers will pay an extra $1 a week with the rate rise proposed.

…

Residents should remember that what is proposed is 6 per cent a year increase above the Consumer Price Index (CPI) and this of course compounds. …

…

If Council is successful in obtaining the Minister for Local Government’s approval for rate rises proposed in the 7 Year Plan it would be a matter for Council each year to determine the annual increase up to the amount approved, not including CPI.”

47 The Council’s summary of the paper survey responses included in the 2006 application to the Minister was as follows:

Response	No.	%
Positive	992	40.24%
Negative	969	39.31%
Undecided	504	20.45%
Total	2,465	100%

48 Before the primary judge the appellant challenged the accuracy of these responses and called an expert witness, Mr Barry Elliott, who gave evidence that the correct summary was as follows:

%
Positive responses	38.5
Negative responses	46.4
Undecided/irrelevant/no answer/ missing	15.1
100%

49 As I have indicated the Council engaged a market research firm to conduct and independently analyse the telephone survey responses of 330 selected residents using the same question format as the paper survey. The results of that survey were according to the Council as follows:

Positive	38.3%
Negative	57.4%
With reservations	2.3%
No response	2.0%
Total	100%

50 However, the results of that survey were not conveyed to the Minister in the 2006 application. Rather, the following appeared under the heading “External Polls”:

“As an integrity check, an independent marketing company undertook a statistically correct telephone survey of 330 residents spread over all areas of the Shire.”

“Major criticism to date has come from the president of the Tweed Heads Chamber of Commerce and dismissed Councillor John Murray, who claims the special edition is misleading.

Tweed Link

Responses received indicate this was not necessary because of the large number of responses that indicated they were very aware that the increases were for each year of the 7 year plan and that the increases compounded.”

51 In fact prior to making his determination with respect to the 2006 application, the Minister received some 19 letters or emails including four from the appellant dated 26, 28, 29 June 2006 and 3 July 2006 respectively.

52 The primary judge set out extracts from a deal of this correspondence at [39]-[49] of his judgment. He summarised the material at [38] noting that the Minister had received a good number of letters in opposition to the proposal from ratepayers, including the appellant, and other associations. Some understood the actual effect of the proposed rate increase including that it was to be cumulative, compounding and above the CPI. Some alleged that there had been a misrepresentation to the public. It was not apparent from the letters, his Honour observed, that all the correspondents understood the actual effect of the proposed increase.

53 Nevertheless, there was no doubt that at the very least the appellant asserted to the Minister, particularly in his letter of 3 July 2006 (which his Honour extracted at [48]), that there was a huge variation between the telephone survey and the paper survey results with the result that, so the appellant contended to the Minister, no data existed that could satisfy him that there was evidence of community support to the proposed rate increases.

54 A further application under s 508A was made by the Council to the Minister on or about 20 July 2007 (the 2007 application). According to his Honour (at [51]) that application illustrated the impact on ratepayers in a series of tables that showed the cumulative and compounding effect of rate increases in each of the seven years the subject of that application. It then repeated the section on community consultation which had appeared in the 2006 application and which referred to the 20 page special edition of Tweed Link and to the special article in the following edition. The 2007 application then summarised the community consultation that reportedly occurred in 2007 and which his Honour recorded at [52] of his judgment.

55 Subsequent to the 2006 determination and prior to the 2007 determination a number of submissions were made to the Minister, particularly by the appellant, who wrote that the Minister had been seriously misled and had consequently fallen into jurisdictional error by failing to take into account a mandatory consideration, being “evidence of community support for the proposal” – the latter being a reference to the relevant requirement of the Guidelines upon which the appellant relied in the proceedings.

56 By letter dated 26 July 2006 the appellant also forwarded to the Minister a submission dated 25 July 2006 that he had made to the Council to the effect that it should resolve not to adopt the Minister’s 2006 determination. That submission set out the result of the appellant’s own audit of the paper and telephone survey results as follows:

Positive	Negative	Unquantifiable
Paper survey	29.1%	59.3%	11.6%
Telephone survey	29.7%	58.3%	12%

57 As his Honour noted at [56], the appellant did not attempt to support these figures in the proceedings. Their relevance is that they conveyed to the Minister the appellant’s view as to the inaccuracy of the survey results provided to him by the Council.

58 On 27 September 2006 the Minister replied to the appellant’s letter of 26 July 2006 saying, amongst other things, that evidence of community support for a special variation was just one of the factors taken into consideration during the assessment process. The Minister made a similar response to a further letter from the appellant to him dated 31 October 2006 which alleged “falsification” of the paper survey results by the Council and the telephone survey results by Market Facts.

59 Each of the 2006 and 2007 determinations was preceded by a departmental submission to the Minister. With respect to the 2006 application, the Department relevantly stated the following on the issue of community consultation:

“Feedback from the community consultation on the Seven Year Plan raised issues of affordability for ratepayers on pensions either government funded or those who are self-funding retirees on fixed incomes. … Following the consultation period a number of projects were deleted from the Seven Year Plan which was scaled back by $16 million.

Since then the community feedback as part of the Management Plan exhibition has been generally positive, although not without some negative feedback.”

60 The departmental submission with respect to the 2007 application stated under the heading “Community Consultation”:

“● The main community consultation process was undertaken in March-May 2006, at the time of the original application. Details are provided in A50455.

● Council’s original 7-year plan was also included in the 2007/08 Management Plan, which went on public exhibition from 10 May-8 June 2007.

● A special edition of the Tweed Link (local paper) on the 7-year Infrastructure & Services Plan was published on Wednesday 15 May 2007 and was distributed to 35,500 households in the Shire. According to council, 18 written responses were received.”

61 The departmental submission also referred to complaints received by the Minister and the Department, stating:

“A submission was received from Mr T Sharples of 45 Charles Street Tweed Heads. Mr Sharples had provided the department with a range of information, which has been reviewed in light of this assessment, however it was not considered to have any adverse effect on the assessment.”

62 Pursuant to an order of the primary judge made under r 4.3(b) of the Land and Environment Court Rules 2007 (LECR), the Minister was required to state his reasons for each of the 2006 and 2007 determinations. By this time the 2006 incumbent Minister had changed and the 2007 incumbent provided the Statement of Reasons for the 2006 determination. Relevantly with respect to the latter, the Minister in his Reasons noted that he had been advised that the 2006 Minister had received correspondence regarding the 2006 application from a number of interested parties prior to his determination of 10 July 2006. He then listed the 19 letters to which I have referred at [51] above. The Statement of Reasons also sets out the other material provided with the 2006 application to the Minister in support thereof.

63 Under the heading “Reasoning processes leading to the decision”, the Minister stated:

“Following consideration of material before him, the Minister at that time made a determination in accordance with the recommendations contains in the 2006/07 Submission.”

64 As his reasons for the 2007 determination, the Minister noted that the main community consultation process had been undertaken in March/May 2006 at the time of the 2006 application and that the appellant had made submissions to both himself and the Department and had provided the Department with a range of information which was reviewed by the Department as part of its assessment of the 2007 application.

65 Under the heading “Reasoning processes leading to the decision”, the Minister stated:

“Having considered the material before me, I formed the view that I had power to make a determination under s 508A, and that I should determine that Tweed Shire Council could vary its general income by the percentages sought for the period of 2008/09 through to 2012/13.

I noted the submission of Mr Sharples and was aware that some ratepayers would not agree with my decision to approve the Council’s application. However, I anticipated that the long term benefits of granting the 2008/09 Application would greatly outweigh the disadvantages that may arise.”

66 I have set out above in some detail what I perceive to be the relevant facts particularly with respect to what was referred to by the primary judge as the second limb of the appellant’s challenge to the validity of the Determinations. To those challenges I now turn.

The nature of the appellant’s challenges to the Determinations before the primary judge

67 At [14] his Honour stated that there were two discrete limbs to the appellant’s case as ultimately refined, namely that:

(a) both Determinations were invalid because under the Guidelines the Council was required to demonstrate to the Minister that there was evidence of community support but in seeking to obtain such evidence, it misleadingly understated to the ratepaying community the effect of the proposed rate increase in the Council newspaper Tweed Link . The appellant called this limb of his case “ misleading the public ”;

misleading the Minister

68 The legal underpinning of the first limb was the allegation that as the evidence of community support for the proposal was flawed due to the fact that the responses to both the paper and telephone surveys were based on false information, it followed that the requirement of the Guidelines that the applications provide evidence of community support for the proposal was contravened. Determinations were made by the Minister on applications which had not been made by the Council in accordance with the Guidelines, thus resulting in a breach of s 508A(3).

69 The second limb was stated by the primary judge at [95] to have four legal bases, namely,

The Minister was materially misled by

(b) in breach of the Guidelines, the council failed to provide valid evidence of community support;

finding

(d) by reason of (a) to (c) above, the Minister’s determinations were manifestly unreasonable.”

70 On the hearing of the appeal the appellant expressly abandoned his assertion (rejected by the primary judge at [127]) that the Determinations were manifestly unreasonable in the Wednesbury sense. In essence it was submitted that the Determinations were invalid as the Minister failed to take into consideration a relevant matter, namely, that the survey results as notified to the Minister by the Council were misleading in the respects alleged by the appellant in reliance upon the evidence of his expert, Mr Elliott. That is to say, the appellant submitted that the results of the paper survey provided by the Council to the Minister, and to which I have referred at [47] above, were incorrect so that the Minister was misled into believing that a lesser number of respondents had provided a negative response than was in fact the case.

The decision of the primary judge with respect to the first limb

71 As the primary judge noted at [65], the appellant’s argument included the following process of reasoning:

(a) the relevant guideline required the Council to provide the Minister with “ evidence of community support for the proposal ” based on consultation with the community;

(b) the Council could not be said to have provided such evidence to the Minister because the misleading representation as to the extent of the annual rate increase over the seven years of the Plan (due to the failure of the Council to make clear in the special edition of Tweed Link that the rate increases would be compounded over those seven years) so infected the evidence of community support for the proposal as to render that evidence meaningless;

in accordance with

72 Having discussed the evidence, his Honour’s conclusion with respect to the evidence was relevantly as follows:

Tweed Link

As the 2006 and 2007 Applications relied on evidence of community support which flowed from the materially misleading representation, I accept the applicant’s submission that the 2006 and 2007 Applications were not in accordance with the Guidelines because they did not satisfy the minimum requirement of “Evidence of community support for the proposal” based on community consultation

73 Although the relevant guideline does not directly state that the community must be consulted to a particular extent or at all, his Honour found (at [75]), and it was not challenged, that a requirement of consultation with the community and the obtaining of evidence of community support to a proposal was “embedded in the Guidelines”.

74 Having found that there was a material misrepresentation with a consequential flawed community consultation, the primary judge then turned to the question of the legal effect of those findings upon the validity of the Determinations.

75 At [77] his Honour accepted that materially misleading statements have the capacity to vitiate a decision in some statutory contexts. Something that is materially misleading may not constitute what the statute requires for validity. He then exemplified a notice mandated by s 66(1)(a) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) as part of the exhibition process for a draft local environmental plan which had been held to be invalid if it was materially misleading: see, for example, Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388; (2006) 69 NSWLR 156 at [110]. In the present case there was no mandatory requirement in the Act itself to consult. That requirement was to be found only in the Guidelines that formed part of the statutory process under ss 23A and 508A.

76 His Honour then noted that although s 23A(3) mandated councils to take any applicable guidelines into consideration, the Act did not mandate compliance with the Guidelines. Nevertheless failure to comply carried the risk that a s 508A application might be refused by the Minister pursuant to s 508A(1) or a determination might be revoked or varied by the Minister pursuant to the combined operation of ss 508A(8) and (9)(b).

77 At [79] his Honour referred to and accepted the appellant’s submission that under s 508A(3) it was a condition precedent to the Minister’s power to make a determination under s 508A(1) for the Council’s application to be made in accordance with the Guidelines. Accordingly, if an application that is in accordance with the Guidelines is a precondition on which the power depended, the exercise of the power in the present case was invalid. However, if a “Guidelines discordant application” did not affect the existence of the power, the purported exercise thereof was valid.

78 At [80] his Honour noted that the issue was one of construction. Relevantly, having found there to be a breach of s 508A(3), the test as to whether that breach resulted in invalidity was whether

“it was a purpose of the legislation that an act done in breach of the provision should be invalid”

Project Blue Sky Inc v Australian Broadcasting Authority

79 His Honour then continued in the following terms (omitting citations):

.

80 His Honour then cited a passage from [91] of the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky which I set out in full:

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.”

81 It is convenient here to note that the joint judgment in Project Blue Sky (at [93]) approved the decision of this Court in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 criticising the continued use of the distinction between directory and mandatory requirements. Their Honours said:

“A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”

82 Returning to his Honour’s reasons, at [82] he noted that the contestable judgment referred to at [91] of Project Blue Sky often involved in finding the legislative purpose could be illustrated by reference to cases concerning a statutory requirement being disregarded that have fallen on either side of the invalidity line. Reference was then made to the decisions of this Court in Helman v Byron Shire Council (1995) 87 LGERA 349 and Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [106]. Each of those cases involved the requirement of the then s 77(3) of the EP&A Act that an application in respect of a development which was likely to significantly affect the environment of protected fauna be accompanied by a fauna impact statement in accordance with s 92D of the National Parks &and Wildlife Act 1974 (in the case of Helman) and in accordance with the provisions of the Threatened Species Conservation Act 1995 (in respect of Timbarra).

83 In Helman a fauna impact statement had been made available to the council but only after the public consultation process had taken place. The issue before this Court concerned the effect of the failure to make the statement available to the public. It was held to be fatal to the validity of the development application. In Timbarra no species impact statement was provided. It was also held to be fatal to the validity of the application. It is noteworthy that in both cases the relevant requirement to provide a fauna impact statement was a specific requirement of the statute. In the present case, as the primary judge observed at [78], the requirement to consult and to provide evidence of community support for the proposal was a requirement of the Guidelines and not of s 508A(3).

84 His Honour (at [87]) placed particular reliance upon the decision of this Court in Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148 which he regarded as “helpful in the present context”. The case concerned the failure of the council to comply with a direction made by the Minister under s 117 of the EP&A Act with respect to the preparation of a draft local environmental plan. Section 117(3) mandated that a council to whom such a direction was given shall comply with the direction in accordance with its terms. The majority of this Court (Spigelman CJ, Sheller JA agreeing) decided that a failure to comply with such a direction did not, of itself, invalidate the resultant local environmental plan. On the other hand, the whole Court (which included myself) decided that a breach of s 66(1) of the EP&A Act, which required the council to publicly exhibit a copy of any relevant s 117 direction, did result in invalidity.

85 In holding that failure to comply with the s 117 direction did not result in invalidity the majority, referring to the terminology at [95] of Project Blue Sky, considered that s 117(2), where it used the term “principles”, did not have a “rule-like quality which can be easily identified and applied”. Their Honours further held that a finding of invalidity would have serious consequences and cause serious public inconvenience so that such a finding was neither necessary nor desirable to ensure compliance with the direction.

86 As to the last-mentioned factor, which his Honour considered relevant in the present case, he cited the following passage from the judgment of the Chief Justice in Smith at [43]:

“A failure to comply with a Direction that a council should prepare local environmental plans in a particular way may cover a wide range of defaults. Such failures may be major or minor, deliberate or inadvertent, fundamental or marginal. Indeed, in the present case, the failure appears to have arisen from an error of interpretation as to whether ‘any land’ involved each parcel of land, a matter on which reasonable minds may differ. Furthermore, the failure meant that certain specific areas of land were down-zoned, contrary to the policy reflected in the Direction, in a context where the Amendment, considered as a whole, implemented the policy behind the Direction by increasing the permitted densities in the LEP area to a substantial degree.”

87 At [89] his Honour considered that the statutory direction specifying “principles” considered in Smith was analogous to the statutory “guidelines” under s 508A(3).

88 The primary judge then considered the factors that he regarded as pointing both towards validity and invalidity of the Determinations. With respect to the former, he referred to three considerations. First, the use of the word “only” in s 508A(3); second, that the process of public consultation for which the Guidelines were relevantly directed was consistent with one of the important purposes of the Act “to encourage and assist the effective participation of local communities in the affairs of local government”: s 7(c); and third, that s 508A was a gateway to the imposition of rates and charges – that is, taxes – and it was a fundamental right of a citizen not to be taxed except in accordance with parliamentary authority.

89 At [92] his Honour considered a number of factors pointing to the opposite conclusion, some of which the Chief Justice had identified as also being present in Smith. Relevantly those factors were:

(a) ‘Guidelines’ do not have a rule-like quality which can be easily identified and applied. Furthermore, what constitutes the making of an application ‘in accordance with’ the applicable guidelines was a matter on which reasonable minds might differ;

(I interpose that it is in my view noteworthy that s 508A(3) uses the words “ made in accordance with ” rather than “ made in compliance with ”)

(b) Section 508A(3) in terms is directed not to councils but to the Minister. It directs the Minister only to approve an application that is in accordance with the applicable guidelines. It tells a council how the Director-General wishes the application to be made and to use the old terminology discarded in Project Blue Sky , it suggests that s 508A(3) is directory rather than mandatory;

(c) The power given to the Minister to revoke or vary a determination if the council has contravened any applicable guideline assumes the determination is valid, s 508A(9)(b).

(Again I interpolate that the Minister’s power to revoke pursuant to ss 508A(8) and (9)(b) may only be exercised on the Minister’s own initiative where he is satisfied that a council has contravened any applicable guidelines issued by the Director-General under the Act. In my view this conveys a clear legislative intention that a contravention of any applicable guideline is not to result in invalidity of the determination but only to engage the Minister’s power to revoke.)

90 Invalidity, his Honour observed, applies irrespective of the circumstances and regardless of the merits of the individual case. This suggested to him that the risk of an application being rejected or a determination being revoked or varied – rather than invalidity – was the legislature’s way of deterring councils from making what his Honour referred to as “guidelines discordant applications”. In other words, the legislature has preferred to vest appropriate remedies in the Minister with respect to applications that are made in contravention of the applicable guidelines.

91 Accordingly, weighing the competing factors, his Honour concluded (at [93]) that it was not a legislative purpose that a “guidelines discordant application” should result in invalidity of the resultant determination. He therefore rejected the first limb of the appellant’s challenge to the validity of the Determinations.

The appeal with respect to the first limb

92 The appellant’s submissions may be summarised as follows: in applying Project Blue Sky the primary judge misdirected himself by applying the wrong test, namely, whether it was the purpose of the legislation that a determination made on a “Guidelines discordant application” should be invalid. This was because

(a) the concept of a “ guidelines discordant application ” as adopted by the primary judge does not distinguish between what he referred to as “ minor, inadvertent or marginal ” breaches of the Guidelines and fundamental breaches of the Guidelines (such as the requirement for consultation in the present case);

(b) the various requirements within the Guidelines do not rank equally in importance in the legislative scheme as a consequence whereof it was necessary for his Honour to consider the particular provision – the requirement for community consultation – upon which reliance was placed and its place within the legislative scheme;

(c) the concept of a “ Guidelines discordant application ” involved a failure to consider the extent of the particular departure by the Council from the “ statutory requirement ” and thus resulted in his Honour treating the departure at too high a level of abstraction;

(d) his Honour erred by failing to treat the Guidelines as both precise and having a rule-like quality in that they dictated the “ Minimum Requirements ” for valid applications to the Minister under s 508A, which requirements were not only capable of being identified and applied but were mandated for that specific purpose. Accordingly his Honour’s reliance upon the decision of this Court in Smith was misplaced;

(i) that provision was predicated upon a valid determination so that the subsection had no application to a determination which was invalid;

(ii) in any event subsection 9(b) was intended to redress only minor or marginal breaches of the Guidelines rather than breaches that went to the issue of invalidity;

(i) where a power directly affects private rights and in particular when the exercise of the power imposes a financial burden on members of the public (as the primary judge acknowledged at [91] in his third consideration), the legislative intention is typically that strict compliance is necessary;

(ii) community consultation and the evidence of public support for the proposal would be expected to play a critical part in the decision of the Minister to approve what would be an abnormal rates increase;

Helman

Timbarra

Smith

Cranky Rock Road v Cowra Shire Council

Project Blue Sky

Guidelines discordant application

drastic consequences

deterrent

Guidelines discordant applications

(iii) accordingly, the failure to comply with the community consultation requirement of the Guidelines was a matter central to the statutory scheme and thus pointed to invalidity.

93 In my opinion the appellant’s submissions should be rejected for the following reasons:

(a) It is clear from a consideration of his Honour’s judgment that his reference to a “ Guidelines discordant application ” was utilised by him merely as a convenient description of the 2006 and 2007 applications which he had expressly found contained a material misrepresentation with respect to the information upon which the responses to the surveys were based and which thus resulted in his finding that the Council’s community consultation was flawed.

(b) His Honour therefore expressly accepted (at [72]) the appellant’s submission that the 2006 and 2007 applications were not in accordance with the Guidelines within the meaning of s 508A(3) because they did not satisfy the minimum requirement of “ Evidence of community support for the proposal ” based on community consultation.

(c) Nevertheless, he was at pains to point out (at [8]) that the requirement of the Guidelines was merely for evidence of community support and was not a requirement for evidence of a majority or of any particular level of community support. Nor did the Guidelines seek to differentiate between the 20 minimum requirements so as to require the Minister to place more emphasis on one requirement rather than another or others.

(d) It follows that the requirement implicit in the Guidelines for community consultation was not one intended by the legislature to be critical to the Minister’s decision to approve an application or that it was a matter central to the statutory scheme. In this respect it needs to be noted that the statute does not mandate the content of the Guidelines to be issued by the Director-General for the purpose of the making of an application pursuant to s 508A. On the contrary, their content is left to the discretion of the Director-General whose guidelines they are.

(e) In any event, a consideration of the preamble to the “ Minimum Requirements ” (see [39] above) indicates, if anything in this regard is indicated, that the Director-General was particularly concerned that the application include “ a detailed assessment of council’s financial and planning operations ” and that, if anything, emphasis was intended to be placed on those matters and particular weight accorded to them. Furthermore, the last sentence of the fourth paragraph to the preamble mandates only that the Council’s written submission in support of its application under s 508A should be one “ covering ” the minimum requirements which follow.

(f) In the foregoing circumstances, and as the Minister himself advised the appellant in the correspondence between them, evidence of community support for a special variation was just one of the factors to be taken into consideration during the assessment process. The appellant did not challenge the validity of that statement. As a consequence it is clear that the weight to be placed upon any particular requirement was entirely a matter for the Minister. It follows that the appellant’s submission that the legislative scheme itself evidenced an intention that the particular requirement relied on by the appellant was intended to play a critical part in the Minister’s decision, cannot be sustained. Evidence of community support for the proposal was merely but one of 20 requirements in the legislative scheme and then only because it was a requirement of the Director-General and not the legislature.

(g) Accordingly, I would reject the appellant’s emphasis upon the place of public consultation in the legislative process. Although I accept that there was a requirement for public consultation, the method of achieving and the nature of that consultation was entirely left to the council concerned: hence the examples referred to in the subject requirement of “ use of meetings, surveys, etc .” It is important to note that the relevant guideline provided only that a council “ should consider ” conducting a public meeting or meetings to discuss the proposal: such meetings are not mandated.

(h) Having adopted a form of consultation by way of survey only, the Council was dependent upon those who voluntarily responded to the survey questions. Whether the number of responses received were generally representative of community support was not a mandated consideration, although it may well have been in the mind of the particular Minister.

(i) Accordingly, the present case is distinguishable from the legislative requirements for public consultation upon which the appellant placed reliance and which were the subject of the decisions of this Court, in Helman; Timbarra ; Leichhardt Municipal Council v Minister for Planning [1992] 78 LGERA 306; and Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; (2000) 50 NSWLR 312 (referred to by the primary judge at [84]). The context of the legislative provisions in those cases specifically requiring public consultation which could only effectively occur in the event that there was compliance with the statutory mandate that an application be accompanied by a relevant impact statement, is, in my view, quite different from the context of the implicit requirement for consultation in the Guidelines.

Project Blue Sky

“not every obligation imposed by [the statutory provision] has a rule-like quality which can be easily identified and applied”.

Project Blue Sky

language of the relevant provision and the scope and object of the whole statute

Project Blue Sky

“courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the Act.”

(k) In my opinion if a contravention of the Guidelines necessarily led to invalidity of a determination made by the Minister, then such a result is highly likely to follow where rates and charges have been made and levied pursuant to the determination and, a fortiori, where those rates and charges have been collected and expended.

(l) In my view, as the primary judge held, ss 508A(8) and (9)(b) made specific provision with respect to the consequence of contravention by a council of the applicable guidelines referred to in s 508A(3). More than any other provision in the Act, those provisions evince a clear intention that contravention by a council of any applicable Guidelines was not intended to result in invalidity of the determination but only to empower the Minister to revoke or vary the determination. Of course, if the Minister becomes aware of any such contravention before he makes a determination, he is empowered by s 508A(1) to refuse to make the determination.

(m) The appellant relied upon s 512 as evidencing an intention that contravention of the Guidelines was intended to result in invalidity of the determination. However, the contravention referred to in s 512(1)(a) is one by a council of, inter alia, s 509 which proceeds on the assumption that, contrary to the prohibition contained in s 509(1), the council has made a rate so as to produce general income of an amount exceeding the general income of the council for the previous year as varied by a percentage, the subject of a determination under s 508A. In my view, it is neutral with respect to the intended purpose of the legislature where there has been a contravention of a guideline in the making of an application for such a variance.

(n) Accordingly, in my opinion and in contrast to the decisions of this Court in Helman and Timbarra , the flawed survey results which his Honour found were not such as to justify the conclusion that the contravention of the relevant requirement of the Guidelines constituted a breach of an “ essential condition ” to a valid decision making process by the Minister with respect to the applications: cf Timbarra at [106]; Cranky Rock Road at [49]. In other words, it cannot be inferred that the legislature intended that a contravention of one of the requirements of the Guidelines had such a significant role in the legislative scheme as to be properly regarded as an “ essential condition ” ( Timbarra ) or a “ condition precedent ” ( Helman ) to the valid making by the Minister of a determination based on the application which otherwise complied with the other 19 minimum requirements.

(o) In support of its submissions the appellant referred to [58] – [60] of Sackville AJA’s judgment in Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 168 LGERA 43. His Honour was there dealing with the provisions of s 75W of the EP&A Act which provided that a proponent might request the Minister to modify his approval of a project. It was held that the making of such a request to the Minister was a precondition to the exercise of the power to modify. Sackville AJA, in the paragraphs referred to, opined that the precise consequences of the failure to comply with the procedural requirements of that provision depended on the particular circumstances. Thus a proponent who mistakenly lodged the request with the Minister himself rather than with the Director-General as required by s 75W(3) where the request finds its way to the Director-General who then proceeds to discharge his or her statutory responsibilities, might not expose any subsequent approval of the request by the Minister to attack on the ground that the Minister’s decision was invalid. On the other hand, if the request never found its way to the Director-General so that the latter never gave consideration to imposing environmental assessment requirements, the position might be quite different in that a purported approval of the request by the Minister in those circumstances might well be held to be unauthorised by the statute.

94 Accordingly, for the foregoing reasons in my opinion the appellant has not demonstrated that his Honour erred in his application of the test laid down by the High Court in Project Blue Sky or was otherwise in error in his approach to the application of that test to the present case. I would therefore reject the appellant’s challenge to his Honour’s conclusion with respect to the first limb of the appellant’s case.

The decision of the primary judge with respect to the second limb

95 As articulated at [94] of his judgment, the primary judge considered that the second limb was discreet from the first limb insofar as it alleged a misleading representation to the Minister (as distinct from the public) in that in the 2006 and 2007 applications the Council misrepresented the responses to its paper and telephone surveys of ratepayers’ feelings towards the proposal.

96 The appellant submitted before his Honour that:

(a) the Council’s representation as to the paper survey responses was misleading because it overstated the extent of the positive responses and understated the extent of the negative responses. He contended that the correct summary of the responses was that contended for by the appellant’s expert, Mr Elliott, which I have recorded at [48] above;

97 At [95] his Honour stated four legal bases upon which the appellant relied as justifying a finding that the determinations were invalid as a consequence of the Council’s misleading conduct. As I have already indicated, the fourth, manifest unreasonableness has now been abandoned. It is convenient to repeat his Honour’s summary of the classifications of the paper survey by the Council and by Mr Elliott. It was as follows:

Positive	Negative	Undecided
Council	40.24%	39.31%	20.45%
Mr Elliott	38.5%	46.4%	15.1%

98 His Honour then observed in respect of that summary that

“the differences seem to me to be relatively minor, particularly in relation to the positive responses. If Mr Elliott’s figures were to be accepted, they would constitute ‘evidence of community support for the proposal’ as required by the Guidelines. …”

99 Apparently there was a deal of cross-examination of the analyses adopted by each of the relevant experts. His Honour concluded (at [104]) that a “correct” summary probably lay somewhere between the Council’s summary and Mr Elliott’s summary and that it was both unnecessary and difficult, if not impossible, to be more precise. He thus concluded that he was not satisfied that the Council’s representations of the paper survey results were materially misleading.

100 At [105] his Honour set out the appellant’s summary of the paper and telephone responses which he disclosed to the Minister before the 2007 determination. At [106] he noted, however, that the Council did not disclose the telephone survey results to the Minister and that this could reasonably be understood as not conveying any information as to the results of the telephone survey. On the other hand, it could also be reasonably understood to indicate that the telephone survey results were reasonably consistent with the paper survey results. His Honour noted that that would be correct concerning the positive responses but incorrect concerning the negative responses.

101 His Honour then continued in the following terms (at [107]):

“To the extent, if any, that the paper survey representation and the telephone survey representation were materially misleading, their alleged misleading content was brought home to the Minister and countered, in my view, by the submissions the Minister received from Mr Sharples before he made the 2006 Determination: see [45]-[49] above. Mr Sharples informed the Minister of the results of his audit of the survey results and submitted that the council had misrepresented the survey results. Before the Minister made the 2007 Determination he was fully informed by Mr Sharples as to the actual telephone survey results.”

102 The effect of his Honour’s summary of the information at [45]–[49] of his judgment provided by the appellant to the Minister with respect to both the paper and telephone survey responses and, in particular, the former’s letter of 3 July 2006, was that the appellant was alleging that no data existed to satisfy anyone that there was evidence of community support for the proposal.

103 Having made the finding referred to at [107] of his judgment, the primary judge observed (at [108]) that the appellant sought to avoid the conclusion that he had come to by submitting that the Minister, at most, had merely “adverted” to the correspondence from the appellant and had not considered it. After referring to the authorities with respect to the content of the obligation to “consider” addressed by this Court in numerous decisions that his Honour then identified (and which it is unnecessary to cite), he then concluded (at [112]) that he did not accept the appellant’s submission that the Minister did not consider but, rather, merely adverted to the correspondence that he had received from the appellant. That correspondence was before the Minister and the Statement of Reasons for the Determinations indicated that the respective Ministers who made the 2006 and 2007 determinations did consider that correspondence: see [63] and [65] above. I interpolate that that was a finding of fact which, in his written submissions to this Court, the appellant challenged upon the basis that it was a finding not reasonably open to his Honour. However, in his oral submissions that challenge was abandoned.

104 In the paragraphs following that finding his Honour proceeded on the assumption that he was in error in finding that the Council’s misleading representation as to the results of the surveys was not “countered” by the appellant’s correspondence to the Minister. However, having found that the Minister had considered the correspondence and was thus aware of the appellant’s assertions as to the misleading nature of the survey results, what followed in his Honour’s judgment on the assumption that that finding was incorrect now falls away. This must be so as the appellant’s submission that simply because the survey results were misleading the Determinations were invalid, is dependent upon a finding that the Minister was materially misled when he made those determinations. If he was not and what was asserted to be the true position was brought to his notice, then it must follow that the Minister was no longer affected by the initially misleading misrepresentation.

105 As I have already noted, the third of the four legal bases advanced by the appellant with respect to the misleading of the Minister was that as a consequence of the misleading representation regarding the survey results conveyed to him by the Council, he failed to give proper consideration as to whether there was community support for the proposal. His Honour’s answer to that submission at [126] was that the Minister was not bound to find that there was community support for the proposal and its absence was insufficient to demonstrate that he did not consider whether there was such community support.

106 As his Honour noted, the Guidelines required “evidence” of community support. Neither the Guidelines nor s 508A(3) mandated the Minister to accept that evidence or to give it any particular weight. As he had already noted at [8] of his judgment, and which he now repeated (at [126]), the Guidelines did not require any particular level of community support. It was thus within the Minister’s discretion to accept or reject a guidelines discordant application.

107 His Honour’s conclusion was in the following terms (at [126]):

“In any event, in my opinion, the Minister did consider the issue of community consultation, or at least it has not been established that the Minister did not do so. The Minister’s tendered statement of reasons evidences that the Minister took into consideration a range of material which went to the very issue of whether there was community support for the proposal.”

The appeal with regard to the second limb

108 The appellant’s submissions on the appeal with respect to the second limb were truncated by the abandonment of his written submissions challenging the primary judge’s finding that the Minister had considered, as distinct from merely adverted to, the correspondence received by him from the appellant. Further, no reliance was placed on his written submissions that it was not necessary, for an administrative decision to be vitiated by a misleading representation, that that representation be characterised as fraudulent or made in bad faith.

109 In his oral submissions the appellant therefore accepted that his challenge to the primary judge’s decision with respect to the second limb could only succeed if it was established that the Minister failed to take into account a relevant consideration, namely, that the survey results as notified to him by the Council were misleading in the respects alleged by the appellant. His Honour’s finding (no longer challenged) that he was not so misled because he did take into consideration the survey results as asserted by the appellant, mandated the rejection of the appellant’s second limb of his case.

110 I would add that there was some debate during the course of the hearing of the appeal as to what his Honour meant by “countered” at [107] of his judgment when he found that the alleged misleading content of the survey results was brought home to the Minister “and countered” by the submissions received by him from the appellant before he made the 2006 determination.

111 In my opinion his Honour was using that expression in the sense that whereas in the absence of the appellant’s correspondence the survey results as conveyed to him by the Council may have been misleading, their misleading nature was negatived by the submissions received from the appellant.

112 It follows from the foregoing that in my view the appellant’s appeal against his Honour’s conclusion with respect to the second limb of the appellant’s case should be rejected.

The Council’s Notice of Contention

113 In view of my conclusion to the effect that the appellant’s appeal fails, it is unnecessary to deal with the Council’s Notice of Contention.

The costs appeal

114 On 29 April 2009 his Honour delivered his judgment in respect of the application by the Council as the successful respondent, that the appellant pay its costs of the proceedings. Although costs normally follow the event in Class 4 proceedings, the appellant resisted a costs order on the basis of r 4.2(1) of the LECR which provides as follows:

“(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.”

115 After referring at [5] to the decision of Lloyd J in Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 at [15] where his Honour identified five matters that may be considered in determining whether proceedings can be categorised as having been brought in the public interest, the primary judge noted at [13] the concession of the Council at an interlocutory stage of the proceedings on a security for costs application that the proceedings did concern a matter of public interest: Sharples v Minister for Local Government [2008] NSWLEC 67 at [20]-[21].

116 With respect to the five matters identified by Lloyd J in Engadine his Honour found that each of those matters was satisfied and so supported the conclusion that the proceedings had been brought by the appellant in the public interest within the meaning of r 4.2(1).

117 At [20] his Honour considered that in the circumstances of the present case more was necessary for the exercise of the discretion under r 4.2(1) than the fact that the proceedings had been brought in the public interest. He said:

“… This was, I think, recognised by the applicant who submits that the finding that the council misled the public is a special factor justifying the exercise of the discretion under r 4.2, and is also a factor relevant to the Court’s general discretion on costs. I accept that that factor has significant weight in relation to the first limb of the applicant’s case. However, on the second limb, the applicant failed completely. The second limb was fairly weak.”

118 His Honour then dealt with the issues of novelty and importance. Relevantly, he considered that the first limb of the appellant’s case raised a novel issue (the effect of s 508A). He accepted that the raising of novel legal issues of general importance could be a sufficient reason for not ordering costs against an unsuccessful applicant under the general law, even apart from r 4.2(1): Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [20] and [49]. At [23] his Honour concluded that the first limb of the appellant’s case did raise questions of novelty and general significance but the second did not.

119 In the foregoing circumstances, his Honour concluded (at [24]) that under r 4.2(1) there should be no order as to costs in relation to the first limb of the appellant’s case but that in relation to the second limb, he was not persuaded that he should depart from the usual order that costs follow the event. His Honour then apportioned the costs between the two limbs and concluded that one third of the costs of the proceedings related to the second limb which the appellant should be ordered to pay. The order was limited to the costs of the Council.

120 In this Court the appellant did not challenge the proposition that even where the Land and Environment Court was satisfied that the proceedings had been brought in the public interest, it was still invested with a discretion by r 4.2(1) whether or not to make an order for the payment of costs against an unsuccessful applicant. Nor did the appellant challenge the proposition that considerations of novelty and general significance were relevant considerations in the exercise of that discretion.

121 The appellant nevertheless submitted that his Honour’s discretion had miscarried for the following reasons:

(a) The primary judge was in error in distinguishing between the first and second limbs of the appellant’s case, for each raised public interest considerations.

(b) It was an error for his Honour, having found that the Council had in fact misled the public and that that was a special factor justifying the exercise of the discretion under the rule, then to weight that factor differentially between the two limbs of the appellant’s case. This was so given that the second limb turned in part on the question of whether the evidence of community support presented by the Council to the Minister was vitiated by the misrepresentations to the public, the subject of the first limb.

(c) His Honour erred in incorrectly characterising the two limbs as independent of each other with the result that the appellant had succeeded on one but “ failed completely ” on the other. This was because the failure of the second limb followed from the failure of the first limb in which the appellant had enjoyed a measure of success.

(d) In any event the second limb had features of novelty and general significance in common with the first limb. There was no relevant difference between the Council misleading its ratepayers as opposed to it misleading the Minister. Furthermore, both limbs were concerned with the operation of s 508A which was, of itself, accepted as a matter of general significance.

(e) Rule 4.2(1) proceeds on the basis that the proceedings (as distinct from the issues in the proceedings) have been brought in the public interest. It was therefore an error for his Honour to divide the case for the purposes of assessing costs into two independent limbs and then ask whether the usual order for costs in favour of the successful party should be departed from discretely in relation to each limb. Such an approach is inconsistent with the rule.

(f) Even if his Honour was correct in treating as a relevant factor the measure of success on particular issues, the proper approach where the parties each had a measure of success on the separate issues was either to apportion those costs or to make no order as to costs of the proceedings.

(g) It was therefore incorrect in principle for the primary judge to apportion costs only in favour of the Council and not in favour of the appellant with respect to the element of the first limb upon which it was successful. On this basis the appellant ought to have been awarded two thirds of his costs of the proceedings on the basis that he had succeeded on the dominant issue in the proceedings.

122 Notwithstanding the penultimate submission referred to in the preceding paragraph, the appellant submitted that his Honour’s order for costs should be set aside and in lieu thereof there should be no order as to the costs of the proceedings at first instance. It was also submitted that with respect to the costs of the appeal, similar considerations should apply so that even if the appellant was unsuccessful, as in my opinion he is, there should be no order as to costs as the appeal was agitated in respect of a matter of public interest and concerned issues both of novelty and general importance.

123 In my opinion the appellant’s submissions should be rejected for the following reasons:

(a) His Honour’s finding was that r 4.2(1) of the LECR was engaged as the proceedings had been brought in the public interest. The appellant was correct when he submitted that the question of public interest applied to the proceedings as a whole rather than to particular issues in the proceedings. His Honour’s finding at [14] of his judgment was that the public interest was served by the litigation generally. Proceedings to which Pt 4 of the LECR apply are also subject to the provisions of the Uniform Civil Procedure Rules 2005 (UCPR, Schedule 1). Rule 42.1 of the UCPR, which is the general rule that costs follow the event, enables the court to make “some other order … as to the whole or any part of the costs”. Rule 4.2(1) prevails over r 42.1 “to the extent only of any inconsistency”: Civil Procedure Act 2005, s 11; UCPR 1.7 and Schedule 2. I can detect no inconsistency between r 4.2(1) of the LECR and r 42.1 of the UCPA so that the latter rule assumes some relevance to the present case.

(b) In James & Ors v Surf Road Nominees Pty Ltd & Ors [No 2] [2005] NSWCA 296, this Court (Beazley, Tobias and McColl JJA) considered the predecessor of UCPR 42.1 (Supreme Court Rules 52A.11) and stated at [32] that that rule entitled the Court to make a different order as to costs where there were multiple issues involved in the proceedings. In my opinion, therefore, UCPR 42.1 justified the primary judge dealing differentially with each limb of the appellant’s case when it came to a determination of whether the discretion not to order costs should be exercised in whole or in part.

(c) Although the appellant failed on the first limb as his Honour found, he had a measure of success in that he established that the 2006 and 2007 applications were not in accordance with the Guidelines as they did not satisfy the minimum requirement of “ Evidence of community support for the proposal ” based on community consultation. That finding was based upon his Honour’s further finding that the public or a substantial proportion of them were misled by the statements in the special edition of Tweed Link that 83% of ratepayers would only pay around $1 a week extra for each of the seven years of the Plan when in fact the variance being sought by the Council required that extra $1 to be compounded. Accordingly, his Honour’s finding was that the Council’s community consultation was significantly flawed for that reason.

(d) On the other hand, the second limb of the appellant’s case asserted misrepresentation by the Council as to the percentage of positive/negative responses to the surveys resulting in the Minister being misled. This limb of the appellant’s case was conceptually different to the first limb. In any event, his Honour found (at [104]) that he was not satisfied that the Council’s representations as to the paper survey results were materially misleading. So far as the telephone survey was concerned, although he found (at [106]) that the representation to the Minister with respect to that survey could reasonably be understood as indicating that the results were reasonably consistent with those of the paper survey, it was only incorrect so far as concerned the negative responses but was generally correct as concerned the positive responses. It was the latter that were relevant to the question of the extent of community support for the proposal.

(e) Furthermore, his Honour found that the Minister was in fact informed, albeit by the appellant, as to the telephone survey results, which he therefore had before him at the time of making each of the Determinations.

(f) Accordingly I do not accept the appellants’ proposition that the second limb was held by his Honour to turn in part on the question of what he found to be flawed evidence of community support due to the misrepresentation found in respect of the first limb.

(g) It also follows from the foregoing that in my view his Honour was entitled to characterise the two limbs as being independent of each other and that although the appellant had a measure of success with respect to the first limb, he “ failed completely ” with respect to the second limb which his Honour characterised at [20] of the costs judgment as being “ fairly weak ’. This finding was confirmed by the appellant on the hearing of the appeal: he accepted that he had difficulty establishing the second limb. Accordingly, I would reject the submission that failure of the second limb was dependent upon failure of the first limb.

(h) Given his Honour’s findings with respect to the second limb to the effect that the Minister was not relevantly misled, it was in my view open to his Honour to find that the second limb did not raise any relevant question of novelty and as that limb did not depend upon the construction of s 508A, it was equally open to him to find that it did not raise an issue of general importance. In fact, the second limb ultimately became a question of judicial review of the Minister’s determinations on the basis that he failed to take into account a relevant consideration. In my opinion there was nothing novel or significant about the issue so raised the misuse or failure of which wholly depended on the facts as found.

(i) Nor would I accept the appellant’s submission that his Honour failed to give reasons as to why the second limb did not raise questions of novelty and general significance. In this respect, it is proper for his costs judgment to be read in conjunction with his substantive judgment which, for the reasons I have indicated above, contains findings which justify his Honour's conclusion that the second limb did not raise questions of novelty and general significance. I would therefore reject the appellant’s argument based on lack of adequate reasons.

124 For the foregoing reasons in my opinion, the appellant has failed to demonstrate that his Honour’s discretion with respect to the making of the limited order for costs in favour of the Council miscarried. I would therefore reject the appellant’s challenge to his Honour’s costs order.

The costs of the appeal

125 The appellant has in my opinion failed with respect to all his challenges. It is to be noted that r 4.2(1) applies only to the Land and Environment Court and not to this Court. Accordingly, this Court is governed by general law principles relating to costs in which the consideration of whether the proceedings are brought in the public interest is a relevant, although not necessarily a determinative, consideration: Oshlack; Minister for Planning v Walker (No 2) [2008] NSWCA 334 at [9]. In my opinion, similar considerations should apply to the costs of the appeal as apply to the costs at first instance.

126 I am prepared to accept that the appellant’s challenge to his Honour’s finding with respect to the first limb was reasonably arguable even though it failed before the primary judge and should fail on appeal. On the other hand, the second limb is subject to different considerations not the least of which was the proper acceptance by the appellant that his appeal with respect to the second limb was fraught with difficulty. Further, the costs appeal has failed and of itself does not give rise to any relevant question of public interest. The same comment applies to the appellant’s appeal against the interlocutory decisions of his Honour with respect to the further amendment to his points of claim and to the admission of the affidavit evidence of Ms Margieson.

127 In all the circumstances, in my opinion the appellant should pay one half of the costs of the Council with respect to the appeal. I would therefore propose the following orders:

(a) Grant leave to appeal in respect of Grounds 1 and 2 of the appellant’s Amended Notice of Appeal filed on 18 May 2009;

(b) Dismiss the appellant’s appeals against the interlocutory decisions of Biscoe J made on 7 November 2008 and the orders of his Honour made on 30 December 2008 and 29 April 2009;

128 McCOLL JA: I have had the benefit of reading Tobias JA’s reasons in draft. I agree with his Honour’s reasons and the orders he proposes.

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Citations

Sharples v Minister for Local Government [2010] NSWCA 36

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CITATION:	Sharples v Minister for Local Government [2010] NSWCA 36
HEARING DATE(S):	15 February 2010
JUDGMENT DATE:	17 March 2010
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 2; McColl JA at 128
DECISION:	(a) Grant leave to appeal in respect of Grounds 1 and 2 of the appellant’s Amended Notice of Appeal filed on 18 May 2009; (b) Dismiss the appellant’s appeals against the interlocutory decisions of Biscoe J made on 7 November 2008 and the orders of his Honour made on 30 December 2008 and 29 April 2009; (c) The appellant to pay one half of the third respondent’s costs of the appeal.
CATCHWORDS:	ADMINISTRATIVE LAW – Judicial review – Grounds of review – Error of law – Failure to take into account a relevant consideration – Determinations by Minister to increase council’s general income – Power of Minister to determine only on application of council made in accordance with applicable guidelines issued by Director-General – Applicable guidelines specified minimum requirements for applications including evidence of community support for proposal and how community was consulted – Requirement of community support and consultation not satisfied – Whether the primary judge erred in not declaring the determinations invalid - ENVIRONMENT AND PLANNING – Courts with environmental jurisdiction – New South Wales – Land and Environment Court – Costs – Public interest – Whether primary judge erred in dealing differentially with each limb of the appellant’s case when assessing costs - PROCEDURE – Application for leave to amend points of claim – Application made on fifth day of hearing when evidence virtually closed and after relevant witnesses had been cross-examined – Application to read an affidavit – Application made on third day of the hearing although affidavit had been served two days previously – Applications dismissed by primary judge – Prejudice to respondents – Adverse effect on timely disposal of the proceedings – No explanation for delay – Whether primary judge erred in dismissing applications
LEGISLATION CITED:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Local Government Act 1993 National Parks and Wildlife Act 1974 Supreme Court Rules 1970 Threatened Species Conservation Act 1995 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 168 LGERA 43 Bi v Mourad [2010] NSWCA 17 Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; (2000) 50 NSWLR 312 Cranky Rock Road v Cowra Shire Council [2006] NSWCA 339; (2006) 150 LGERA 81 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388; (2006) 69 NSWLR 156 Helman v Byron Shire Council (1995) 87 LGERA 349 James & Ors v Surf Road Nominees Pty Ltd & Ors [No 2] [2005] NSWCA 296 Leichhardt Municipal Council v Minister for Planning [1992] 78 LGERA 306 Minister for Planning v Walker (No 2) [2008] NSWCA 334 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Sharples v Minister for Local Government [2008] NSWLEC 67 Sharples v Minister for Local Government [2008] NSWLEC 308 Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302 Sharples v Minister for Local Government (No 2) [2009] NSWLEC 62 Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148 State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 Tasker v Fullwood [1978] 1 NSWLR 20 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
PARTIES:	Terry Patrick Sharples, Minister for Local Government Department of Local Government Tweed Shire Council
FILE NUMBER(S):	CA 40089/09
COUNSEL:	A: Dr A Greinke 1&2R: Submitting appearance 3R: C Leggat SC / M D Seymour
SOLICITORS:	A: Dr A Greinke 1&2R: Crown Solicitor's Office, Sydney 3R: Marsdens Law Group, Campbelltown
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	L&E 40959/07
LOWER COURT JUDICIAL OFFICER:	Biscoe J
LOWER COURT DATE OF DECISION:	7 November 2008; 30 December 2008; 29 April 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Sharples v Minister for Local Government [2008] NSWLEC 308; Sharples v Minister for Local Government [2008] NSWLEC 328; Sharples v Minister for Local Government [2009] NSWLEC 62