Smith v Wyong Shire Council - [2002] NSWLEC 173

Reported Decision: 123 LGERA 141

Land and Environment Court

of New South Wales

CITATION: Smith v Wyong Shire Council and Anor. [2002] NSWLEC 173

PARTIES:
APPLICANT:
Darcy Smith
RESPONDENTS:
Wyong Shire Council and Anor.

FILE NUMBER(S): 40034 of 2001

CORAM: Bignold J

KEY ISSUES: Judicial Review :- Alleged invalidity of LEP Amendment for breaches by Council in procedures for public exhibition of draft plan-allegations of factual error in Report submitted to Minister.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 66, 68, 69 and 70

CASES CITED: Asquith v Minister for Planning (1989) NSWLEC 104);
Belongil Progress Association Inc v Byron Shire Council (1999) 106 LGERA;
Byron Bay Everglades Resort Pty Ltd v Byron Shire Council (2000) NSWLEC 81;
Jessop v W R Willcocks Pty Ltd (1988) NSWLEC 106;
Legal and General Life of Australia Ltd v North Sydney Council (1990) 69 LGRA 201;
Litevale Pty Ltd v Lismore City Council (1997) 96LGERA 91;
Monaro Acclimatisation County v Minister for Planning (1989) NSWLEC 13;
Premier State Developments Pty Ltd v North Sydney Council (1999) 104 LGERA 215);
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355;
Scurr v Brisbane City Council (1973) 133 CLR 242;
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319;
Tasker v Fullwood (1978) 1 NSWLR 20;
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78;
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55

DATES OF HEARING: 17/06/02, 21/06/02, 05/07/02, 05/08/02

DATE OF JUDGMENT:
10/25/2002

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Tomasetti, Barrister
SOLICITORS
Wilshire Webb
RESPONDENTS:
1st Respondent Mr B Preston SC
2nd Respondent Submitting Appearance
SOLICITORS
1st Respondent Abbott Tout
2nd Respondent Submitting appearance

JUDGMENT:

NEW SOUTH WALES

Matter No . 40034 of 2001

Coram : Bignold J

25 October 2002

DARCY SMITH

Applicant

WYONG SHIRE COUNCIL

Respondent

MINISTER FOR URBAN AFFAIRS AND PLANNING

Respondent

JUDGMENT

A. INTRODUCTION

1. These are class 4 proceedings in which the Applicant challenges the validity of Wyong Local Environmental Plan 1991 (Amendment No 118) (the Amending LEP) which was made by the Minister pursuant to the Environmental Planning and Assessment Act 1979, s 70 (the EP&A Act) on 17 December 2000 and was published in Government Gazette No 168 of 22 December 2000 upon which date it took effect by virtue of s 34(5) of that Act. The Amending LEP amended Wyong Local Environmental Plan 1991 (the LEP) by inter alia rezoning designated parcels of land “to achieve greater densities” (cl 2(a)) but it also introduced “more stringent height controls on development at The Entrance and Long Jetty” (cl 2(a)).

2. The class 4 proceedings were commenced on 15 March 2001 and hence were commenced within the limitation period of three months prescribed by the EP&A Act, s 35.

3. The Applicant owns land fronting Toowoon Bay Road, Long Jetty which was zoned 2(d) High Density Residential under the LEP. That land was “down zoned” to the Medium Density Residential 2(c) Zone by the Amending LEP in which zone a 12 m height control applies. This “down zoning” of the Applicant’s land has obviously aggrieved the Applicant, manifested most particularly by the fact that after the Amending LEP had come into force the first Respondent (the Council) determined the Applicant’s then pending development application for a high rise residential development of the Applicant’s land at Long Jetty comprising 14 storeys and providing 199 flats (which application had been lodged in May 2000) by refusing development consent on the ground that the proposed development was absolutely prohibited by the provisions of the Amending LEP. (It is to be noted that the Amending LEP contained no savings or transitional provisions in respect of any pending and undetermined development applications at the time the Amending LEP came into force.)

4. The original proceedings had nominated as the third Respondent, the Director-General of the Department of Urban Affairs and Planning and in the Applicant’s original Points of Claim filed on 6 June 2001, it was alleged that the report prepared by the third Respondent pursuant to the EP&A Act, s 69 in respect of the Amending LEP when in draft form, was legally deficient. However, by his amended Points of Claim filed 1 August 2001, the Applicant withdrew his allegations against the third Respondent and discontinued the proceedings against the third Respondent.

5. On 28 August 2001, the second Respondent filed a submitting appearance save as to costs, presumably on account of the Applicant’s withdrawal of allegations against the third Respondent.

6. On 14 June 2002, the Applicant filed further Amended Points of Claim in support of his challenge to the validity of the Amending LEP, and the hearing of the case proceeded on the basis of those Further Amended Points of Claim and the Council’s Points of Defence. The hearing took place on 17 June 2002 and was then adjourned at the request of the Applicant so that his Counsel could reply in writing to the Council’s address by the end of the week. At the hearing, the only bases or grounds for alleging invalidity of the Amending LEP were concerned with stages in the statutory plan making procedures of Part 3 of the EP&A Act that involved the Council (the Council), namely (i) the requirements of s 66 for the public exhibition of the draft local environmental plan and (ii) the requirements of s 68(4) for submitting the draft local environmental plan to the Director-General for consideration by the Minister.

7. On 21 June 2002, the Applicant’s written submissions in reply were received by the Court. In those written submissions following reference being made to two decisions of Cowdroy J (namely Belongil Progress Association Inc v Byron Shire Council (1999) 106 LGERA 202 and Byron Bay Everglades Resort Pty Ltd v Byron Shire Council (2000) NSWLEC 81) the following submissions were made:

1.5.9 This case is on all fours with

. The Minister was not informed of the factual basis necessary to make his discretion

decision

1.5.10 The applicant should succeed on this point alone. As the s.69 report was not available to the applicant until the first day of hearing the Court may take the view that the pleading needs amendment to raise this point. If that view is taken by the Court leave is sought to amend the pleading at this stage.

8. This submission, not surprisingly, provoked a strong reaction from the Solicitor for the Council who objected to any amendment of the Applicant’s case as it had been pleaded and presented at the hearing, or to any re-opening of the case.

9. This objection in turn, gave rise to the Applicant on 1 July 2002 filing a Notice of Motion seeking leave to amend the Further Amended Points of Claim so that he could rely upon the submissions in reply that had provoked the Council’s objection.

10. On 5 July 2002, after a contested hearing, for the reasons given in my extempore judgment I granted leave to the Applicant to re-open his case to rely upon the Further Amended Points of Claim filed in Court that day upon the terms that the Applicant pay the costs reasonably incurred by the Respondents in consequence of the re-opening of the case and the Further Amendments of the Points of Claim. In so ordering, I gave directions for the completion of the hearing. Those Further Amended Points of Claim contained the following separate and additional allegations of invalidity of the Amending LEP based upon the contents of the s 69 Report that had been provided to the second Respondent prior to his exercising the power conferred upon him by s 70 to make the Amending LEP:

33A In the said s69 report the second respondent was:

(a) Incorrectly advised that there were no relevant REP’s or s117 directions that effected the draft LEP;

(b) Not advised that the draft Lep was inconsistent with SEPP1 or s117 direction G9 applying to the land to which the draft plan applied;

(c) Not advised whether the inconsistency was justifiable in the circumstances;

(d) Not advised that the provisions of s66, 67 and 68 relating to public involvement in the preparation of the draft plan had not been complied with; and

(e) Not advised of the relationship between the draft plan, SEPP 1 and s117 direction G9 applying to the land to which the draft plan applies.

35. The second respondent made the draft plan submitted under section 68(4) of the Act and the LEP however in so doing failed to take into account relevant considerations to the proper exercise of his discretion under s70 of the Act.

11. By letter dated 31 July 2002, the second Respondent informed the Court that the second Respondent had decided to maintain his submitting appearance in the proceedings and did not wish to make any submissions in response to the further issues that had been raised by the Applicant’s Further Amended Points of Claim in respect of which the Court had granted leave on 5 July 2002.

12. By letter of the same day, the Applicant’s Solicitors informed the Court that he did not intend to file any further written submissions in relation to his amended pleading. He relied upon the submissions in reply which had been filed in Court on 21 June 2002.

13. By letter dated 5 August 2002, the Council’s Solicitor informed the Court that the Council did not wish to make any further submissions in respect of the Applicant’s Further Amended Points of Claim filed pursuant to leave granted on 5 July 2002. No formal response was made to the Applicant’s additional pleading
B. THE APPLICANT’S ATTACK UPON THE VALIDITY OF THE AMENDING LEP

14. As has been indicated, ultimately there are two separate bases or foci for the Applicant’s claim that the Amending LEP is invalid, namely:—

(i) alleged breaches by the Council of the statutory obligations imposed upon it by the EP&A Act, s 66(1)(b) and s 68(4); and
(ii) alleged factual errors contained in the s 69 Report provided to the second Respondent before he made the Amending LEP pursuant to s 70 resulting in an alleged failure by the second Respondent to take into account relevant considerations in exercising his power under s 70.

15. There are independent attacks on the validity of the Amending LEP which must be separately considered.

16. However, it is to be noted that they are based upon a common factor, namely the allegation that the Amending LEP in its draft from was inconsistent with an applicable State Environmental Planning Policy (namely SEPP No 1 – Development Standards (SEPP No 1) and one applicable direction given to all local councils generally by the second Respondent pursuant to the EP&A Act, s 117(2) (namely “Direction G9”). It is to be noted that the attacks on the validity of the Amending LEP are not based upon its contents—rather they are based upon allegations of breaches or error in the statutory processes prescribed by Part 3 of the EP&A Act for the making of a local environmental plan.

17. However, before further considering in greater detail the Applicant’s allegations of invalidity (which are denied by the Council as being both factually and legally unsustainable) it is first necessary to note the relevant statutory regime for the making of a local environmental plan (which is the type of environmental planning instrument that may be made under the EP&A Act, that the Amending LEP is) and to make relevant findings of fact (noting that the evidence in the case was entirely documentary).
C. THE STATUTORY REGIME FOR MAKING A LOCAL ENVIRONMENTAL PLAN

18. In his judgment in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, Spigelman CJ at pp 85/86 compendiously summarises the sequence of steps or procedures for the preparation of a local environmental plan under Part 3 of the EP&A Act, as follows:

(i) Decision by the council or by the minister, to prepare a local environment plan (s 54 and s 55).

(ii) Preparation of an environmental study (s 57).

(iii) Consultation with public authorities (s 62 and s 63).

(iv) Preparation of draft local environment plan (s 61).

(v) Submission of draft local environment plan to the director (s 64).

(vi) Certificate from the director to permit public exhibition (s 65).

(vii) Public exhibition, after notice, of the draft local environment plan and environmental study, specifying the period during which submissions may be made (s 66).

(viii) Any person may make submissions in writing (s 67).

(ix) Holding of a public hearing in respect of a submission, where requested and so resolved by council (s 68(2)).

(x) Report of the public hearing (s 68(2)).

(xi) Council may make alterations to the draft local environment plan, with or without further public exhibition (s 68(3), (3A) and (3B).

(xii) Submissions of public submission, report and draft local environment plan to the director (s 68(4)).

(xiii) Report by the director to the minister (s 69).

(xiv) Making of the local environment plan by the minister (s 20).

(xv) Publication of the local environment plan in the Gazette (s 34(5)).

(xvi) Public access to the local environment plan at the department and the Council (s 34(6) and (8).

19. To this compendious statement, it is only necessary to add reference to the effect of s 74 which is applicable to the present case and which provides as follows:

74. Amendment of environmental planning instruments

(1) An environmental planning instrument may be amended in whole or in part by a subsequent environmental planning instrument whether of the same or a different type.

(2) A subsequent environmental planning instrument shall be made in accordance with the provisions of this Part except that:

(a) where the subsequent instrument is a regional environmental plan---the provisions of sections 41 and 44 (b) shall not apply, unless the Minister directs to the contrary, or

(b) where the subsequent instrument is a local environmental plan---the provisions of sections 57 and 61 shall not apply, unless the Director-General directs to the contrary.

(3) In this section, "amended" includes altered, varied or repealed.

20. The important consequence of this provision is that amending and repealing environmental planning instruments are generally prepared without any prior environmental study being undertaken (as occurred in the present case).

21. Because the Applicant’s challenges to the validity of the Amending LEP focus upon the procedural obligations imposed by ss 66, 68, 69 and 70 it is necessary to fully recite these provisions, together with the related provisions contained in ss 64, 65 and 67. The relevant statutory provisions are as follows:

64. Submission of copy of draft local environmental plan to Department

When a draft local environmental plan has been prepared, the council shall submit a copy of the draft plan to the Director-General, together with a statement specifying the names of the public authorities, bodies and other persons the council has consulted with pursuant to section 62.

65. Certificate of Director-General

(1) Where the Director-General receives a copy of a draft local environmental plan from a council under section 64, the Director-General may cause to be issued to the council a certificate certifying that the draft plan may be publicly exhibited in accordance with section 66.

(2) A certificate issued under this section may be granted subject to the condition that the draft local environmental plan be amended in the manner specified in the certificate before it is publicly exhibited in accordance with section 66.

(3) Where a certificate is not issued under this section, the Director-General shall return the draft plan to the council, giving the reasons why the certificate was not issued, and directing the council to amend the draft plan in such a manner as to enable a certificate to be issued, or to take such other action as is appropriate.

(4) The council shall comply with a direction given under subsection (3).

66. Public exhibition of draft local environmental plan

(1) Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall, after complying with any condition subject to which the certificate was granted and subject to the regulations:

(a) give public notice, in a form and manner determined by the council, of the place at which, the dates on which, and the times during which, the environmental study prepared by the council under section 57 of the land to which the draft local environmental plan applies and the draft local environmental plan may be inspected by the public,

(b) publicly exhibit at the place, on the dates and during the times set out in the notice:

(i) a copy of that environmental study and draft local environmental plan,

(ii) a copy of any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft local environmental plan is intended to apply, and

(iii) if such a policy, plan or direction does so apply---a statement to the effect that the policy, plan or direction referred to in subparagraph (ii) substantially governs the content and operation of the draft local environmental plan and that any submission made pursuant to section 67 should be made having regard thereto,

(c) specify, in the notice, the period (being a period which is or includes the period referred to in subsection (2)) during which submissions may be made to the council in accordance with section 67, and

(d) publicly exhibit such other matter as it considers appropriate or necessary to better enable the draft plan and its implications to be understood.

(2) A draft local environmental plan shall be publicly exhibited for a period being not less than the prescribed period.

(3) Where, for the purposes of informing the public generally, a council decides to publicly exhibit a draft local environmental plan otherwise than in accordance with subsection (1), or to publicly exhibit any other matter which could be construed or represented as having a similar purpose to a draft local environmental plan, it shall at the same time publicly exhibit a statement to the effect that the exhibition is not to be regarded as an exhibition for the purposes of this Act.

67. Making of submissions

Any person may, during the period referred to in section 66 (1) (c), make submissions in writing to the council with respect to the provisions of a draft local environmental plan publicly exhibited under section 66 (1) (b).

68. Consideration of submissions

(1) Where:

(a) a person making a submission so requests, and

(b) the council considers that the issues raised in a submission are of such significance that they should be the subject of a hearing before the council decides whether and, if so, what alterations should be made,

the council shall, in the prescribed manner, arrange a public hearing in respect of the submission.

(2) A report of the public hearing shall be furnished to the council and the council shall make public the report.

(3) The council shall consider the submission and the report furnished pursuant to subsection (2) and may make any alterations it considers are necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing.

(3A) An alteration made by a council pursuant to subsection (3) need not relate to a submission.

(3B) The council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3). The provisions of this section and sections 66 and 67, with any necessary adaptations, apply to any such exhibition of a draft plan, but not so as to require a further certificate under section 65.

(4) The council shall, subject to and except as may be provided by the regulations, submit to the Director-General:

(a) details of all submissions,

(b) the report of any public hearing,

(c) the draft local environmental plan and the reasons for any alterations made to the plan pursuant to subsection (3), and

(d) a statement:

(i) to the effect that the provisions of sections 66 and 67 and this section relating to public involvement in the preparation of the draft plan have been complied with,

(ii) specifying the environmental planning instruments and directions under section 117 that have been taken into consideration,

(iii) giving details of any inconsistency between the draft plan and any instrument or direction referred to in subparagraph (ii) and the reasons justifying the inconsistency, and

(iv) giving details of the reasons justifying the exclusion of provisions of the draft plan under subsection (5) or the exclusion from the application of the draft plan of any land under that subsection.

(5) In submitting the draft local environmental plan, the council may exclude certain provisions of the draft plan or exclude part of the land from the draft plan, or both (in this section referred to as "the deferred matter") which, in its opinion, require or requires further consideration but which should not prejudice the consideration by the Director-General and the Minister of the draft plan as submitted.

(6) The council may subsequently take action under this section in respect of the deferred matter, without having to publicly re-exhibit that deferred matter, as if it were a draft local environmental plan.

(7) More than one public hearing may be held in respect of any submissions, and one hearing may be held in respect of more than one submission.

(8) The regulations may make provision for or with respect to the conduct of a public hearing.

69. Report by Director-General

The Director-General shall furnish a report to the Minister as to:

(a) whether the draft local environmental plan submitted under section 68 (4) is inconsistent with any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft plan applies,

(b) if there is such an inconsistency---whether the inconsistency is justifiable in the circumstances,

(c) whether the provisions of sections 66, 67 and 68 relating to public involvement in the preparation of the draft plan have been complied with,

(d) the relationship between the draft plan, and other proposed and any existing environmental planning instruments, and any relevant directions under section 117, applying to the land to which the draft plan applies, and

(e) such other matters (if any) relating to the draft plan as the Director-General thinks appropriate.

70. Making of local environmental plan

(1) After considering the Director-General's report made under section 69, the Minister may:

(a) make a local environmental plan:

(i) in accordance with the draft local environmental plan as submitted by the council under section 68 (4), or

(ii) in accordance with that draft plan with such alterations as the Minister thinks fit relating to any matter which in the opinion of the Minister is of significance for State or regional environmental planning,

(b) direct that action be taken in accordance with subsection (3), or

(c) decide not to proceed with the draft local environmental plan.

(1A) Without limiting subsection (1) (a) (ii), the alterations that may be made by the Minister relating to any matters which in the opinion of the Minister are of significance for State or regional environmental planning may comprise changes of substance to the draft local environmental plan and may arise from submissions or otherwise from the Minister's consideration of the matters in the draft plan.

(2) A local environmental plan shall apply to such area or part of such area as is described in that plan.

(3) The Minister may (but need not) direct the council to publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to this section or section 68, and the provisions of this section and sections 66, 67, 68 and 69 shall, with any necessary adaptations, apply to that plan.

(4) Where the Minister decides to make a plan in accordance with subsection (1), the Minister may exclude certain provisions of the draft plan or exclude part of the land from the draft plan, or both (in this section referred to as "the deferred matter") which, in his or her opinion, require or requires further consideration but which should not prejudice the making of the local environmental plan.

(5) The Minister may subsequently take action in accordance with this section in respect of the deferred matter as if it were a draft local environmental plan submitted under section 68 (4).

(6) Where the Minister decides not to proceed with a draft local environmental plan under subsection (1) (c), the Minister shall give such directions to the council as the Minister considers necessary in relation to that decision.

(7) The Minister shall inform the council of his or her decision under subsection (1) and, except where the Minister decides to make a local environmental plan in accordance with the draft local environmental plan as submitted by the council under section 68 (4), the reasons therefor, and may at the same time give directions to the council as to the procedure to be followed in connection with making his or her decision known to the public.

(8) Notwithstanding anything in this section and without affecting the power to make alterations pursuant to subsection (1), the Minister may make a local environmental plan with such alterations as the Minister thinks fit, being alterations that do not affect the substance of the provisions of the plan as submitted by the council or as altered pursuant to subsection (1).

D. THE RELEVANT FACTS

22. As I have earlier mentioned, the relevant facts are to be derived from the pleadings (the Further Amended Points of Claim and the Council’s Points of Defence) and the documentary evidence.

23. It will be convenient to separately present the facts relevant to the alleged breaches by the Council of its statutory obligations under ss 66 and 68 and the facts relevant to the alleged invalidity of the actions of the second Respondent in making the Amending LEP pursuant to s 70.

24. It may be noted at this point that there is a significant difference in the Applicant’s pleading in the way he puts his case against the Council, and his case against the second Respondent. True it is that it is the Applicant’s case that the Amending LEP is invalidated by the acts or omissions alleged against both Respondents—either jointly or severally—but in the case against the Council, the allegation is that it breached the statutory obligations imposed by ss 66 and 68 whereas in the case against the second Respondent, the allegation as pleaded is not one of “breach of statutory obligation”. Rather, it is that the s 69 Report on the Amending LEP when in final draft form was factually incorrect (para 33A of the Further Amended Points of Claim) and that (presumably in consequence of the factually incorrect s 69 Report) the second Respondent, when making the Amending LEP pursuant to s 70 “failed to take into account relevant considerations” (par 35 of the Further Amended Points of Claim), namely the relevant “correct” facts.

25. Before stating the facts relevant to the Applicant’s separate challenges to the validity of the Amending LEP, I should briefly note according to the documentary evidence the chronological history of the Amending LEP culminating in its being made by the Minister on 17 December 2000 pursuant to s 70, and coming into force on 22 December 2000 pursuant to s 34(5).

26. On 11 November 1998, the Council resolved to prepare a draft local environmental plan for lands situate at The Entrance, a coastal town within the Shire.

27. On 18 November 1998, the Council pursuant to the EP&A Act, s 54(4) by letter notified the Director of Urban Affairs and Planning (the Director) of the Council’s resolution. The letter noted “(T)he amendments relate to a revision of the current planning provisions applying to the area. The Entrance Precinct Study has recently been exhibited and public comment received (refer to report enclosed) A draft strategy document including specific details of the proposed LEP amendments and revised DCP will be prepared over the coming months”. The letter also stated:

It is considered that the proposal does not warrant an environmental study. It is anticipated that the draft Plan will not be inconsistent with any Section 117 Direction, REP or SEPP. However, this will be further examined once a specific draft Plan has been prepared. The information required under Section 54(4) is outlined in the attached schedule.

28. On 9 November 1999 pursuant to s 64 of the Council submitted to the Director a copy of the draft local environmental plan (the Amending LEP in its original draft form) requesting the issue of a Certificate pursuant to s 65 to enable the public exhibition of the draft plan. The letter included the following statement:

The draft LEP has been reviewed in relation to consistency with other Planning Instruments and I advise that with the exception of SEPP 1, the draft Plan is consistent. Justification for the inconsistency with SEPP 1 is attached. There are no inconsistencies with any REPP or Section 117 Directions.

29. The attachments to the Council’s letter included—

(i) a copy of the draft local environmental plan including two plans which depicted the lands situate at The Entrance and Long Jetty to which the draft plan was intended to apply; and

(ii) written justification for inconsistency of the draft plan with SEPP No 1.

30. That written justification, after stating that it was the Council’s intention to not have SEPP 1 applicable to the development standards relating to the height of buildings at The Entrance justified the inconsistency in the following terms:

1) Since the completion of the Town Centre improvements in 1997, Council has received an increasing number of applications and enquires in relation to larger scale development at The Entrance. Whilst there is a height map in the current planning provisions, the existing clause 42C(3) allows Council to consider proposals that exceed the heights. Through precedent, applications seeking to exceed the heights are now common place and the expectations of developers have become unrealistic. The current

Council has determined that it is desirable to establish more stringent limits on the height of buildings in The Entrance thereby providing more certainty to developers and the community alike.

Given the level of developer interest being experienced, it is considered that this approach will not hinder development but rather will result in a less impacting and better quality of development in the area.

2) Council has sought to establish maximum acceptable height limits based on an analysis of viability, precedent and, in particular, compatibility with the broad urban context of The Entrance peninsula. These issues were examined in The Entrance precinct Study referred to previously.

3) It is proposed that the height of a building under the specific clauses applicable to The Entrance, will be measured vertically from the natural ground level to the topmost ceiling level at any point. As such, a degree of flexibility in the overall height and the design of buildings remains inherent in the approach to be adopted. The considerations contained in the controls will also assist in creating an interesting and attractive skyline rather than a proliferation of flat roofed buildings that often results from an overall height measurement approach.

4) To ensure that larger scale development will only occur on larger land parcels thereby reducing the potential for adverse impacts, Council is seeking to introduce a qualifying lot size (1500m2) for medium and high-rise development. This area is based on the need to amalgamate (in most cases three) residential lots before higher development will be considered. This approach, together with increasing setbacks with height, will ensure that there is separation between buildings allowing for greater solar access, sharing of views, additional landscaping and private open space, and articulation of the streetscape. It is considered that having the ability to apply to vary this development standard would lead to the undermining of this desirable outcome.

5) While it is acknowledged that the proposed controls will offer less flexibility, Council is of the opinion that the circumstances applying at the Entrance require a more stringent approach to heights to ensure that the unique character of The Entrance will be protected for future generations. (emphasis is made in the original Text)

31. On 12 April 2000 the Director-General (by her authorised delegate) issued a certificate pursuant to EP&A Act, s 65 that the draft plan may be publicly exhibited in accordance with s 66. The Departmental Minute recording the decision of the Director’s delegate to issue the certificate, contains the following statement under the heading “Consistencies with s 117 Directions, REP’s and State Policies”: The draft plan is not considered to be inconsistent with any of the above instruments”. This brief statement is amplified later in the Minute in its discussion of “Significant Issues” where under the sub-heading “Heights” the following comments are made:

The maximum heights which could be achieved (through the amalgamation bonuses) are identified on the

sheet of the draft plan (

folio 139

), and range from 12m above natural ground level (NGL)—(approx. 4 storeys) to 39m (approx. 13 storeys, at the

location on Marine Parade). Two other locations would permit development up to 30m (10 storeys), however the majority of the land subject to the bonuses would allow for development from 18m (6 storeys) to 24m (8 storeys). These heights are the

maximum

, with Council deliberately determining that these standards

not

be subject to an objection pursuant to SEPP 1. This approach, whilst limiting the Council’s flexibility when dealing with height, enables them to set a firm framework which provides an appropriate and well considered approach to future development.

The Department should support this restricted approach at The Entrance so as to prevent ad-hoc applications to exceed the established height provisions, as is possible under the current planning controls.

32. The draft plan was publicly exhibited pursuant to s 66 for the period from 27 April 2000 to 8 June 2000.

33. During the exhibition period, two public meetings were held and numerous individual interviews were conducted by Council’s staff. A total of 47 written submissions were received during the public exhibition period and an additional 6 written submissions were received after the closing date of the public exhibition period (The submissions received by the Council included a detailed submission prepared on behalf of the Applicant by a planning Consultant, Mr Paul de Fina, objecting to the proposed re-zoning of his property on the ground that the proposal lacked legitimate planning justification).

34. On 9 August 2000, the Council, after considering a written report (comprising some 65 typed pages) prepared by its Strategic Planning Department resolved inter alia to amend the draft plan in specified respects and requested the Minister “to create the Local Environmental Plan”.

35. On 17 August 2000, the Council, pursuant to the EP&A Act, s 68(4) submitted the draft plan to the Director with the following information by way of attachments:

(i) a copy of the report prepared by the Council’s Strategic Planning Department that had been submitted to the Council’s meeting held on 9 August 2000;

(ii) an Urban Deign Principles Map (“which outlines the broad urban strategy adopted as a basis for the proposed LEP amendments and development controls for The Entrance peninsula”) and;
(ii) copies of the draft LEP (including a copy with the amendments made to the publicly exhibited version highlighted).

36. In its letter the Council summarised the outcomes of the public exhibition process and noted that there had been no requirement in any submission for the holding of a public hearing in respect of any submission. The letter also included the following content under the heading “Consistency with SEPPs REPs and Directions under s 117 of the Act”:

The draft Plan has been assessed in relation to its consistency with the range of policies and directions under the Act. In this regard, Council has acknowledged in its correspondence pursuant to Section 64 of the Act (dated November 9 1999), that the draft Plan is inconsistent with SEPP 1 in relation to the variation of development standards relating to building heights and qualifying area. Justification was provided as an attachment to that correspondence.

A submission received as a result of the exhibition process has questioned whether there is an inconsistency between the draft Plan and Section 117 Direction G9 Residential Zones. In particular, Direction G9 sub-clause (v) states that a draft local environmental plan shall not increase existing standards relating to residential flat development. Council contends that LEP 1991 does not contain any existing standards specifically applicable to residential flat development. Therefore, there is no inconsistency between the draft Plan and Direction G9.

However, the draft Plan does seek to rezone the land the subject of the submission from Residential 2(d), which currently has no height limit, to Residential 2(c), and to introduce a qualifying area of 1800 square metres and a 12 metre height limit for the site. If the introduction of these new controls applying to any development on this land is interpreted by the Department as an inconsistency with the Direction, it is considered justified on the basis of compatibility of development on the site with the existing and future neighbourhood character of 1-3 storey mixed residential housing. (Note: the applicant has recently lodged a development application for a 14 storey development on the site).

37. On 12 December 2000, the Director-General (by her authorised delegate) submitted to the Minister the Report required by s 69, recommending that the Minister make the plan as submitted by the Council but with alterations reducing the permissible height of development along the foreshore at The Entrance. Under the heading “Community Agency Views” the Report notes the fact of the public exhibition of the draft plan, the receipt of public submissions and the fact that the issues raised in all submissions have been addressed by the Council in the report of the Council’s Strategic Planning Department.

38. The s 69 Report notes that “(A) significant number of submissions have raised concerns in relation to the proposed building heights”. It also notes that the Department had itself received “numerous representations from a number of landowners or community representatives outlining concerns/issues relating to the draft LEP”.

39. Under this heading, the Report includes the following comment in respect of representations which the Department had received from the present Applicant:

The Department has also received representations from the owner of land at Kitchener St & Toowoon Bay Road at Long Jetty (Mr D Smith), which is to be rezoned from 2(d) High Density Residential to 2(c) Medium Density Residential with a 12m height applied. The site was identified historically as an appropriate

site and amalgamation for this purpose was encouraged by Council, despite it being over 1km south from The Entrance CBD. This appeared to be the only block identified for such development in the area, and the current surrounding property and zones reflect a lower intensity of development. Council has decided to rezone the land to 2(c) and establish a 12m height to better reflect the nature of the area whilst still providing for a higher level of development than permitted on adjacent land.

40. Under the heading “Consistency with State Policies, Environmental Plans and s 117 Directions”, the Report states:

There are no relevant REP’s or s 117 Directions which affect the draft LEP

41. The s 69 Report includes three Appendices including Appendix 3 (“which provides more detail as to the history of The Entrance Strategy, previous height controls and Development Control Plan No 60”).

42. There is included in Appendix 3 the following statement in respect of the non-application of SEPP No 1 to the height controls prescribed by the draft plan:
· The heights reflected on the map are definitive, and will not be subject to SEPP 1, which means they will not be able to vary these controls in an ad-hoc manner, as possible under the current regime. Height and building profiles for the retail and other important streetscapes along The Entrance Road have been set in the LEP to reduce shadowing and to create and promote a pedestrian oriented area.

43. On 17 December 2000, the Minister adopted the recommendations contained in the s 69 Report, including the recommendation that he make the plan as submitted by the Council but with further alterations reducing the permissible heights for certain development sites from 39 metres and 30 metres respectively to 24 metres.

44. Having stated the sequencing of actions taken pursuant to the statutory processes prescribed by Part 3 of the EP&A Act, culminating in the coming into force of the Amending LEP, I now can focus upon the facts particularly relevant to the Applicant’s allegations of invalidity of the Amending LEP.

45. Firstly, in respect of the alleged breaches by the Council of its obligations under s 66 and s 68, the following facts are particularly relevant—

(i) there was not publicly exhibited with the draft local environmental plan a copy of SEPP No 1 or State Environmental Planning Policy No 6—Number of Storeys in a Building (SEPP No 6) or the s 117 Direction G9.

(ii) SEPP No 1 and SEPP No 6 (in common with most State Environmental Planning Policies of which there were approximately 60 at the time the Draft Amending LEP was publicly exhibited) are expressed to apply to “all land within the State”: see the EP&A Act, s 39(5).

(ii) Direction G9 which is one of many general directions issued by the Minister to all local councils pursuant to the EP&A Act, s 117(2) is in the following terms:

G9. Residential zones

(i) Draft local environmental plans shall contain a requirement that residential development is not permitted until land is adequately serviced with water and sewerage (or arrangements satisfactory to the council, or other appropriate authority, have been made to service it).

(ii) Draft local environmental plans shall retain existing provisions enabling a dwelling house to be erected on an existing allotment.

(iii) Provisions in environmental planning instruments relating to the minimum lot size for a dwelling house shall not be increased in draft local environmental plans.

(iv) Draft local environmental plans which zone land for residential purposes:

(a) shall not contain provisions which will result in a reduction of the permissible residential density on any land to which the plan applies;

(b) shall in as much as is practicable and compatible with the environmental quality of the area, provide for a variety of housing forms and increase the permissible residential density on the land; and

(v) Draft local environmental plans shall not increase existing standards relating to residential flat development (except in rural regions, where justified by an environmental study).

(vi) Draft local environmental plans in the Sydney region shall retain provisions to allow dual occupancy of dwelling houses; in other regions, draft local environmental plans may include such provisions.

46. The content and operation of SEPP No 1 is probably the most widely known environmental planning instrument that has ever been made under the EP&A Act. By clause 6 it enables a person to make a development application in circumstances where the proposed development could “but for any development standard, be carried out” supported by a written objection that “compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection” and by cl 7 it empowers a consent authority which “is satisfied that the objection is well founded….” to grant consent to that development application, with the concurrence of the Director “notwithstanding the development standard…”

47. The breadth and generality of the power conferred by SEPP No 1 was recognised by the Court of Appeal in its decision in Legal and General Life of Australia Ltd v North Sydney Council (1990) 69 LGRA 201 but there have been a multitude of subsequent decisions concerning the often vexed question of construction whether or not a particular provision of a particular environmental planning instrument is relevantly “a development standard” as that term is defined by the Act, one of the latest decisions being that of the Court of Appeal in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319.

48. More relevant for present purposes is the fact that although cl 5 declares SEPP No 1 to prevail over any inconsistency between it and any other environmental planning instrument “whenever made” SEPP No 1 operates in the overriding manner provided by cl 7 based upon the existence of other environmental planning instruments and not by way of textually amending those instruments.

49. SEPP No 6 contains only one substantive provision, namely clause 6 which provides as follows:

(1) Where the application of a provision of an environmental planning instrument requires a determination of the number of storeys, floors or levels which a building contains, that number shall, for the purposes of applying the provision, be deemed to be the maximum number of storeys, floors or levels, as the case may be, of the building which may be intersected by the same vertical line, not being a line which passes through any wall of the building.

(2) Except as provided by subclause (3), when applying subclause (1) in relation to a provision referred to in that subclause, a reference in subclause (1) to storeys, floors or levels shall be treated as a reference to storeys, floors or levels, within the meaning of the provision.

(3) The second reference in subclause (1) to storeys, floors or levels does not include a reference to the whole or any part of a roof used as an uncovered garden, terrace or deck.

50. The facts relevant to the Applicant’s allegations made in respect of the s 69 Report submitted to the Minister and in respect of the Minister’s decision pursuant to s 70 to make the Amending LEP have already been stated and are included in my findings concerning the progress of the Amending LEP from the time (November 1998) that the Council resolved to prepare a draft local environmental plan for lands situate at The Entrance and Long Jetty until the time (December 2000) when the Minister made the Amending LEP.

51. According to the Council’s Points of Defence, the Applicant’s allegations of breaches by the Council of its statutory obligations in terms of s 66(1) (b)(ii) and (iii) and s 68(4) and the consequent alleged invalidity of the Amending LEP are each denied. The Council’s denial of breaches of ss 66(1)(b)(ii) and (iii) and 68(4) raise for adjudication mixed factual/legal issues whereas the Council’s denial of the alleged invalidity of the Amending LEP (based upon those alleged breaches of ss 66(1)(b)(iii) and 68(4)) raises for adjudication the legal issue whether assuming the alleged breaches are factually established, the legal consequence is that the Amending LEP is thereby invalidated.

52. As earlier noted, there was no formal response by the Council to the allegations of invalidity by the Amending LEP by virtue of the allegations (i) that the s 69 Report was factually incorrect; and that (ii) in consequence, the Minister had failed to take into consideration relevant matters when making the Amending LEP pursuant to s 70, which allegations arose only after the Applicant was given leave to re-open his case to allege these additional grounds for the invalidity of the Amending LEP.

53. Again, I propose to determine the Applicant’s claims by separately considering the allegations separately made against the Council and the second Respondent.
E. ALLEGED BREACHES BY THE COUNCIL OF SS 66(1)(b)

54. The terms of s 66 have earlier been recited. Section 66(1)(b) specifies what documents are required to be publicly exhibited in respect of the public exhibition of a draft local environmental plan. At the risk of stating the obvious, s 66 is principally directed to the public exhibition of a draft local environmental plan. It is that document which must be publicly exhibited “for a period not less than the prescribed period”: subsection (2) and the public exhibition of a draft local environmental plan is an official act for a public purpose which is expressly differentiated from a public exhibition of such a plan or other material which is not intended to operate as an official act: subsection (3).

55. The public purpose of the official public exhibition of a draft local environmental plan is to enable any person to make written submissions to the Council “pursuant to s 67 with respect to the draft local environmental plan” within the context of the overall statutory processes that may culminate in the making by the Minister of a local environmental plan that has been initiated and processed by a local council.

56. But in addition to the draft local environmental plan¸ s 66(1)(b) specifies in subpara (ii) other documents that must be publicly exhibited namely “a copy of any State environmental planning policy, regional environmental plan, or relevant direction under section 117 applying to the land to which the draft local environmental plan is intended to apply”. If “such a policy, plan or direction does so apply” s 66(1)(b)(iii) requires the public exhibition of “a statement” to the effect that the policy, plan or direction so referred to “substantially governs the content and operation of the draft local environmental plan and that any submission made pursuant to s 67 should be made having regard thereto”.

57. As has been noted, it is an admitted fact that when the draft Amending LEP was publicly exhibited, there was not exhibited at the same time a copy of SEPP No 1 or SEPP No 6 or Direction G9 or a statement that those instruments substantially governed the draft Amending LEP. The Applicant submits that this admitted fact ipso facto establishes relevant breaches of s 66(1)(b)(ii) and (iii).

58. The Council’s denial of the allegation of breaches of s 66(1)(b) is based upon its contention that neither SEPP No 1 nor SEPP No 6 nor Direction G9 applied to the land to which the draft Amending LEP was intended to apply. This contention is founded upon the proper construction of s 66(1)(b).

59. Properly construed, the Council contends that s 66(1)(b)(ii) and (iii) simply did not impose any obligation to publicly exhibit with the draft Amending LEP copies of the three documents pleaded by the Applicant.

60. The Council’s denial of the Applicant’s allegation of any breach of s 66(1)(b) is founded upon the following arguments—

(i) As a matter of construction, s 66(1)(b)(ii) only applied to relevant planning documents “applying to the (same) land to which the draft local environmental plan is intended to apply” particularly, and to no other lands. Since all of the documents pleaded by the Applicant applied to lands in addition to the land to which the draft Amending LEP was intended to apply, it followed that they did not apply to that land in particular and hence they did not fall within the ambit of s 66(1)(b)(ii) with the consequence that there was no requirement that they be publicly exhibited with the draft Amending LEP.
(ii) A variant argument is that the meaning of the expression “a policy, plan or direction applying to land to which the draft local environmental plan is intended to apply” in subsection (1)(b)(ii) is contextually governed by the content and operation of subsection (1)(b)(iii) so that it only applies to a policy, plan or direction that applies to the land (to which the draft local environmental plan is intended to apply) in the manner that “substantially governs the content and operation of the draft local environmental plan”.

In particular, it is submitted that SEPP No 1 does not “ substantially govern the content and operation of the draft local environmental plan ”. On the contrary, in three new clauses introduced by the Amending LEP (namely cll 42B, 42C and 42CA ), it is expressly provided that SEPP No 1 does not apply to the height requirements imposed by cll 42B and 42C or to the requirements imposed by cl 42CA . It is this express provision that creates the sole inconsistency with SEPP No 1, namely with cl 5 thereof.

Similarly, it is submitted that SEPP No 6 does not “substantially govern the content and operation of the draft local environmental plan”. On the contrary, it is submitted that SEPP No 6 simply does not, in terms, apply to any of the provisions contained in the Amending LEP which impose height restrictions because those height restrictions are imposed by reference to an absolute distance (eg 10 metres) expressed as a “building height” (defined by cll 42B and 42C as “the vertical distance from natural ground level at any point within a building to the top-most ceiling of the building directly above that point”) and not by reference to “the number of storeys, floors or levels contained within the building” as is provided for by SEPP No 6.

Similarly, it is submitted that the s 117 Direction G9 which forms part of the “General Directions” (comprising directions numbered G1 to G28 inclusive issued to all councils) does “not substantially govern” the content and operation of the draft local environmental plan, because the draft Amending LEP did not zone any land for residential purposes since all of the relevant lands were already zoned for residential purposes under the LEP and hence par (iv) of Direction G9 did not apply, and because the draft Amending LEP did not “increase existing standards relating to residential flat development” because no such standards were contained in the LEP, and hence par (v) of Direction G9 did not apply.

(iii) If the Applicant’s case based upon s 66(1)(b)(ii) and (iii) were upheld the totally absurd and unreasonable result would be that despite the content of the draft Amending LEP being relevantly inconsistent with the operation and effect of SEPP No 1, SEPP No 6 and the s 117 G9 Direction (as asserted in the Applicant’s case) the Council would nonetheless be required by s 66(1)(b)(iii) to publicly exhibit a statement to the effect that that policy, plan and direction “substantially governs the content and operation of the draft local environmental plan”, when such a statement would be factually incorrect and misleading to the public. Such an absurd and unreasonable result would be avoided by adoption of the construction of s 66(1)(b) advanced by the Council which not only harmonises sub-paras (ii) and (iii), but promotes the clear object of s 66 which is to enable members of the public to consider and to make submissions in respect of the publicly exhibited draft local environmental plan (untrammelled by the potentially confusing effect or interplay of any other planning documents).

The Council advanced the following alternative arguments in support of its defence concerning the allegation of breaches of s 66(1)(b) namely:

Jessop v W R Willcocks Pty Ltd

Premier State Developments Pty Ltd v North Sydney Council

Monaro Acclimatisation Society v Minister for Planning

Asquith v Minister for Planning

(v) In the present case, there had been substantial compliance with s 66(1)(b) by virtue of the public exhibition of the draft Amending LEP especially in light of the fact that the Council, pursuant to s 66(1)(d), had publicly exhibited with the draft Amending LEP a considerable body of written planning materials, including the following:

· The Entrance Strategy (which includes an introduction; an explanation of the proposed changes; draft LEP 118; draft DCP No. 60; and draft Contributions Plan No. 3);

· Copy of the relevant Clauses from LEP 1991 in a separate labelled folder;

· Coloured Mapping (including a map showing existing zones, the Draft LEP Map and the draft Building Heights Map which includes the Profiles);

· A3 Index to Zones Colours;

· Oblique Aerial Photo of The Entrance;

· The Entrance Precinct Study

61. In my judgment, the Council’s variant argument as to the proper construction of s 66(1)(b)(ii) and (iii) is correct in that those provisions only attract a State Policy, Regional Plan or s 117 Direction which applies to the land to which the draft local environmental plan is intended to apply in the sense that it applies in such a manner “as to substantially govern the content and operation of the draft local environmental plan”. In other words, unless the policy, plan or direction “substantially governs the content and operation of the draft local environmental plan” it does not relevantly apply to the land to which the draft local environmental plan is intended to apply.

62. This construction harmonises the cumulative obligations respectively imposed by s 66(1)(b)(ii) and (iii) and avoids the obvious mischief of a statement made and published conformably to s 66(1)(b)(iii) being incorrect and misleading in a case such as the present where the content of the draft Amending LEP—(i) expressly negates the operation of SEPP No 1 in respect of the height controls and other requirements imposed by proposed cll 42A, 41B and 42C; (ii) in terms, totally avoids the application of SEPP No 6; and (iii) is contrary to some of the requirements of Direction G9.

63. In short, it is the content of the draft local environmental plan that must be considered especially in its relationship to the content of any potentially applicable State Policy, Regional Plan or s 117 Direction, before it can be finally concluded whether it is necessary that a copy of the State Policy, Regional Plan and s 117 Direction be publicly exhibited together with the draft local environmental plan. If (which is not the present case) the content of the draft local environmental plan is substantially governed by any State Policy, Regional Plan or s 117 Direction, then the obligation to publicly exhibit that relevant material together with the public exhibition of the draft local environmental plan, will arise. However, where as in the present case, the content of the draft Amending LEP is contrary to, or in conflict with, or otherwise divergent from, the content of any State Policy, Regional Plan or s 117 Direction, then the obligation to publicly exhibit that material does not arise, because it can be concluded that that material does not apply in the relevant sense to the land to which the draft Amending LEP is intended to apply.

64. Lest it be thought that this construction at first blush allows the “tail to wag the dog”, I would emphasise the fact that the EP&A Act, s 74(1) expressly authorises a subsequent environmental planning instrument to amend “in whole or in part” an existing environmental planning instrument “whether of the same or a different type”. Thus, because of the existence of s 74(1), it is legally possible for a subsequent local environmental plan to amend a State Environmental Planning Policy or a Regional Environmental Plan. The possibility of this result is expressly acknowledged by the EP&A Act, s 36 which provides relevant rules of construction to resolve inconsistency between various environmental planning instruments. Accordingly once it is appreciated that the EP&A Act does not create an inflexible hierarchy of environmental planning instruments, it is apparent that the statutory phrase “substantially governs the content and operation of the draft local environmental plan” appearing in s 66(1)(b)(iii) is referring to comparability of content of the draft plan and the other relevant existing instruments, but significantly reflecting a volitional result and not a compulsory one (such as may operate in an hierarchical system of planning instruments).

65. Moreover, the construction I have adopted of s 66(1)(b)(ii) and (iii) promotes the obvious purpose of s 66(1)(b) which is to enable members of the public to participate in the environmental planning processes prescribed by the EP&A Act—see s 5(c): see also s 33 of the Interpretation Act 1987.

66. Meaningful participation is enhanced by the fact that the public exhibition of the draft local environmental plan is not to be confused or confounded or obfuscated by the concurrent public exhibition of other planning materials (such as in the present case, SEPP No 1, SEPP No 6 and Direction G9) when the very content of the draft local environmental plan is, according to the Applicant’s own case inconsistent with and hence is not substantially governed by, the respective contents of those other instruments. For is must be steadily borne in mind that it is the content of the draft local environmental plan and only that content, that is the focus or subject, of (i) public submissions that may be made pursuant to s 67; (ii) alterations to the draft plan that may be made by the Council pursuant to s 68(3); and (iii) alterations that may be made by the Minister pursuant to s 70(1). Conversely, the content and operation of planning materials other than the publicly exhibited draft local environmental plan is simply beyond the reach of such public submissions or the powers are respectively vested in the Council and the Minister to make alterations to the draft plan.

67. It is this fact that no doubt informs the content of s 66(1)(b)(iii) requiring that in a case where the content of the draft plan is substantially governed by a state policy, regional plan or s 117 direction, the public exhibition of a statement to this effect to include the further statement “that any submission made pursuant to section 67 should be made having regard thereto”. In other words, where the content of the draft local environmental plan is substantially governed by other existing sources of planning authority that content is in a real sense pre-ordained and hence is substantially immunised from the processes of public submissions and alterations.

68. Thus, the true effect of s 66(1)(b)(ii) and (iii) which emerges from the foregoing analysis with tolerable clarity can be stated thus—

substantially governed

69. Having established the true nature of the cumulative obligation imposed by s 66(1)(b)(ii) and (iii), it follows from my factual findings, that in the present case there was no obligation on the part of the Council to publicly exhibit, together with the draft Amending LEP, a copy of SEPP No 1, SEPP No 6 or s 117 Direction G9.

70. For the foregoing reasons, I find that no relevant breach by the Council of its obligations imposed by s 66(1)(b) has been established.

71. For completeness, I should also consider the Council’s alternative arguments that even if the Court were to have found that there had been relevant breaches of s 66(1)(b)(ii) and (iii) by the Council in the present case in not publicly exhibiting a copy of SEPP No 1, SEPP No 6 and s 117 Direction G9, and in not publicly exhibiting the relevant statement required by s 66(1)(b)(iii), the Court would nonetheless conclude that there had been substantial compliance with the duty imposed by s 66(1)(b) and that the breaches of s 66(1)(b)(ii) and (iii) did not, in any event, invalidate the Amending LEP.

72. In advancing this alternative defence, it is at once to be noted that the Council’s arguments have the clear support of a number of decisions of this Court. Faced with this apparently formidable obstacle the Applicant simply argued that the earlier decisions did not govern the present question and should not be followed because they were either (i) merely obiter dicta, or (ii) wrongly decided. I propose to consider these earlier authorities according to their chronology in the history of this Court.

73. In Jessop v WRA Willcocks Pty Ltd and Ors (NSWLEC 106), having found that there had been no relevant breach of duty in relation to the EP&A Act, s 66(1)(b), I went on to make the following obiter observations—

Even if I had otherwise found, on the facts, that there was a failure on the part of the 2nd Respondent to exhibit at the Laurieton office all the required

supporting

material, I would not have held the failure to be fatal so as to invalidate the Amendment No. 4 Plan. There are a number of reasons for so concluding. Firstly I would not regard a failure to comply with s. 66(1)(b)(ii) as involving a breach of the

overall

duty imposed by

s. 66(1)(b)

. As the heading to the section states the section is concerned with the

. This is obviously the

principal

object of the section and the material referred to in

s 66(1)(b)(ii)

is clearly ancillary and subsidiary material. In these circumstances as a matter of construction I would not interpret the section in a manner that visited non-compliance with s. 66(1)(ii) with invalidity. Alternatively I would regard the exhibition of the material referred to in

s 66(1)(b)(i)

even if unaccompanied by relevant material referred to in

s 66(1)(b)(ii)

as a substantial compliance with the duty imposed by the section, particularly in a case such as the present, where there is unchallenged evidence (which I accept) that there was total compliance in respect of

s. 66

in the exhibition of materials at the 2nd Respondent’s principal offices in Port Macquarie.

74. In Monaro Acclimatisation Society v Minister for Planning (1989) NSWLEC 13, Stein J, having held that the requirements of s 66 to publicly exhibit the environmental study and draft local environmental plan were mandatory and the fact that they had not been complied with had invalidated the local environmental plan, went on to express the following obiter views:-

Because of the breaches of the Act which I have found, it is unnecessary to determine the other claims of the applicants. I will, however, say that I am not convinced that, assuming an exhibition, insufficient documentation was exhibited (submission 4), or that the failure to exhibit the s. 117 directions would necessarily lead to invalidity. I make the same comment in relation to the failure to comply with s. 66(1)(b)(iii). These are clearly ancillary and subsidiary materials and I agree with the conclusion of Bignold J in

supra.

75. His Honour had earlier referred to Jessop in the following passage:

The respondents place some reliance on

(Land and Environment Court, Unreported 23 December 1988) where Bignold J held that material referred to in s 66(1)(b)(ii) was clearly ancillary and subsidiary material and that non-compliance with the requirements were not visited with invalidity. However, this in no way detracts from the requirement in s 66(1)(a) to give public notice of the environmental study and draft local environmental plan.

76. In J R Asquith v The Minister for Planning and Local Government (NSWLEC 104), Cripps CJ considered a challenge to the validity of a local environmental plan based upon the Applicant’s allegations of some 15 breaches of the EP&A Act by the local council and some 6 breaches committed by the Director of the Department of Planning—all such breaches being of various statutory processes or procedures prescribed by Part 3 in respect of the making of a local environmental plan. Of the allegations of breaches of the Act made by the local council, Cripps J found that there had been breaches of s 66(1)(b)(ii) and (iii) in that the council had failed to publicly exhibit with the draft local environmental plan a copy of SEPP No 19—Bushland in Urban Areas and a s 117 Direction (G12) and the relevant statement required by s 66(1)(b)(iii) and there had been a breach of s 68(4)(d) by council in failing to mention in its submission of the draft plan to the Director of Planning that SEPP No 19 and s 17 Direction G12 had not been publicly exhibited.

77. In addition to these found breaches of the EP&A Act, Cripps CJ was “prepared to assume” breaches of s 62 (duty to consult public authorities) and of s 65 (issue of certificate).

78. It was in the light of these findings of breaches (actual and assumed) that Cripps CJ propounded the following approach to the question whether such breaches had the effect of invalidating the local environmental plan made by the Minister:—

It must be assumed by the courts that the legislature intends that its legislative directions are to be obeyed. But it does not follow that because the legislature intends its direction to be obeyed, it also intends that an ultimate decision is a nullity because one or more of the procedural steps have been ignored or disobeyed. It would seem to me that a proper understanding of the nature, scope and purpose of the relevant parts of the

Environmental Planning and Assessment Act

make it plain that it cannot be assumed that the legislature intended that the failure to follow each and every procedural requirement would necessarily result in the decision of the Minister to make a plan being, in law, a nullity. The serious inconvenience or injustice, inherent in such an assumption, to persons eg landowners applying for rezoning and persons whose land has been rezoned and who have conducted their affairs upon the basis of the rezoning and who have no control over the activities of the council or the Director is obvious. It may be accepted that injustice or inconvenience must be assumed to stand behind the failure of a council, for example, to advertise and exhibit a draft local plan or to its failure to consider submissions from members of the public. That would be because those requirements are so central to the general nature, scope and purpose of the legislation that to ignore them would be to frustrate the overall legislative intention. But the same thing can scarcely be said about the failure of a council, for example, to inform the Secretary after it has resolved to prepare a draft local plan of the "details of the environment".

Furthermore, it would not follow that because breaches of certain legislative requirements do not deprive the Minister of the power to make a valid plan councils can ignore the requirements with impunity. Section 123 of the Environmental Planning and Assessment Act provides that any person can bring proceedings for an order to remedy a breach and the Court has a wide discretion, if satisfied that a breach has been committed, as to the orders it may make (see F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) 1985 55 LGRA 306).

It is a breach of the Act to fail to comply with a provision of the Act (see s 122 and Sydney City Council v Building Owners and Managers Association of Australia 55 LGRA 444).

If it is demonstrated that there has been a failure to substantially comply with the requirements of Part III, it can be assumed that the legislature intended that the Minister should not have the power to make the plan. The question would still remain, of course, whether the Court would declare invalidity. It may be that notwithstanding failure to substantially to comply with the procedural requirements, the Court would not make a declaration because of the very great public inconvenience and mischief that would flow therefrom. For example, assuming a plan was made without proper advertisement and without any consideration of public representations, the Court may, nonetheless, decline to declare invalidity upon the basis that, for example, hundreds of innocent people would suffer great financial hardship were the plan to be declared invalid.

79. Immediately following these passages, Cripps CJ refers to the Court’s earlier decisions in Jessop and Monaro Acclimatisation Society reciting the passages from those judgments that I have earlier recited, before concluding his judgment in the following terms:

It would seem to me by analogy with the reasoning of Bignold J in

case that the requirement, for example, to consult imposed by s 62 is ancillary to the overall duty imposed by Division 4. The obligation under s 62(a) is for the council to apply its mind to such public bodies as might be affected and then to form an opinion as to whether those bodies should be notified and, if they should, to notify them. The consequence of the Council making a mistake by omitting from its consideration a statutory authority would, if the applicant's submissions are accepted, result in the plan made by the Minister being a nullity irrespective of what took place thereafter (although what took place thereafter would be relevant, of course, on the question of the exercise of the Court's discretion as to whether it should declare invalidity). Similarly, if the applicant's submission with respect to s 62(b) is correct, as I think it is, that "adjoining the boundary" means relevantly "near to" the boundary, it follows that the Council is required to make a value judgment with respect to any particular application. That being so, it cannot be assumed, in my opinion, that the legislature intended that a failure by a council to notify another council in circumstances requiring a value judgment would irretrievably taint the whole process.

Furthermore, I am not persuaded that the failure to issue a s 65 Certificate or to prepare a report pursuant to the provisions of s 68(4)(d) visit the plan with invalidity. It may be accepted that if the Director fails to prepare a report at all pursuant to s 69, such a failure would result in invalidity. However, it is not submitted that Mrs Kibble failed to furnish a report. The allegation is that she failed to consider whether SEPP No 19 or direction G12 was inconsistent with the draft local plan.

As I have said, I am of the opinion that such breaches as have been proved did not deny the Minister the power to make a valid plan. I have also expressed the opinion that even if, contrary to my opinion, there were other breaches of the type nominated by the applicant, they are not such as to affect the validity of the plan.

80. In Premier State Developments Pty Ltd v North Sydney Council (1999) 104 LGERA 215 I considered an allegation of non-compliance with the requirements of s 66(1)(b)(ii) and (iii) by virtue of there not being publicly exhibited with the draft local environmental plan other documents, namely (i) an environmental study; (ii) any state environmental planning policy, regional plan or s 117 direction applying to the land to which the draft plan was intended to apply; and (iii) a statement as to the effect on the draft plan of such other documents—see at p 227.

81. Having concluded that the alleged s 117 Direction did not, in terms, apply to the land to which the draft local environmental plan was intended to apply, and that by virtue of s 74(2)(b) there was no requirement for an environmental study—see at 228—, I determined the remaining allegation of non-compliance, namely the non-exhibition in conjunction with the draft local environmental plan of relevant state environmental planning policies and regional environmental plans in the following passage at 228/229:

So far as concerns the allegation that state environmental planning policies and regional plans should have been exhibited with the draft LEP, no such other documents were exhibited, although the Court may take judicial notice of the existence of many state environmental planning policies that apply generally to land within the State.

The Council, in its written submissions argued that the requirement of s 66(1)(b)(ii) in respect of the public exhibition of state environmental planning policies and regional environmental plans is to be interpreted as referring only to such instruments that apply particularly or specifically to the land in which the draft LEP is intended to apply and that accordingly, such instruments that apply generally to lands within Metropolitan Sydney or the State of NSW are not within the ambit of the requirement.

Alternatively, the Council submitted that the requirements of s66(1)(b) (ii) and (iii) were not intended to be mandatory and that non-compliance with their respective requirements did not invalidate the public exhibition of the draft LEP.

Reference was made to my unreported decision Jessop v WRA Willcocks Pty Ltd (23 December 1998) where I held, obiter, that non-compliance with s 66(1)(b)(ii) did not result in invalidity of the public exhibition of the draft local environmental plan

As I have noted, the Applicant did not seriously press this aspect of its pleading and in my opinion, was right so to do.

For similar reasons to those expressed in Jessop, I would hold that any non-compliance with the EP&A Act s66(1)(b)(ii) in the present case, by dint of failure to publicly exhibit any relevant state environmental planning policy did not have the effect of invalidating the public exhibition of the draft LEP.

I would prefer to rely upon this basis for decision, rather than the Council's alternative argument.

82. It will thus be seen that the state of existing authority in this Court is that the Court has twice held that the failure to publicly exhibit, in conjunction with the public exhibition of a draft local environmental plan pursuant to s 66(1)(b), an applicable state environmental planning policy or regional environmental plan or a s 117 Direction does not invalidate either the public exhibition of the draft local environmental plan or the subsequent making by the Minister of the local environmental plan (Asquith and Premier State Developments) and has twice expressed the obiter opinion that the failure to publicly exhibit the materials referred to in s 66(1)(b)(ii) and (iii) does not invalidate either the public exhibition of the draft local environmental plan or the subsequent making by the Minister of the local environmental plan (Jessop and Monaro Acclimatisation Society).

83. So far as my own researches reveal, there is only one decision of this Court which has questioned this settled state of authority. This is the decision of Cowdroy J in John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning (1999) 106 LGERA 150 where his Honour held that a failure by the Council in preparing a draft local environmental plan to consult as required s 62 of the EP&A Act, invalidated the draft local environmental plan. It was in that context that Cowdroy J made the following observation at 157/158 rejecting the authority of Asquith:

For completeness it should be noted that whilst Cripps J in

(unreported no 40011 of 1989, 24 October 1989) held s 62 was ancillary to the process of making an LEP and did not impose a mandatory obligation, His Honour's decision cannot be regarded as current law in view of

and

84. It would appear that in making this observation, Cowdroy J was confining himself to that aspect of Asquith which had held that the non-consultation with an adjoining council pursuant to s 62 did not invalidate the local environmental plan subsequently made by the Minister, and therefore did not intend to cast doubt upon the other aspects of the decision in Asquith and in particular Cripps CJ’s decision holding that the non-exhibition of a State environmental planning policy and s 117 Direction in conjunction with the public exhibition of the draft local environmental plan did not invalidate the local environmental plan subsequently made by the Minister. I would so understand the effect of the observation made in J B Lenton and Co, leaving undisturbed the authority of Asquith on the point raised by the Applicant in the present proceedings.

85. But lest Cowdroy J’s observation on the authority of Asquith have the broader effect of questioning or diminishing the authority of Asquith and in particular the reasoning of Cripps CJ in holding that the several procedural breaches found or assumed in Asquith did not invalidate the local environmental plan subsequently made by the Minister I would for myself, respectfully not follow J B Lenton on this point. This is because I would respectfully agree with the decision of Cripps CJ in Asquith and with his reasoning in so concluding that the procedural breaches of the EP&A Act in that case did not have the legal effect of invalidating the local environmental plan subsequently made by the Minister, and I would respectfully not agree with Cowdroy J’s observation that Asquith cannot be regarded as “current law” because of the later decisions of the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 and the later decision of the Court of Appeal in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78.

86. In my respectful opinion, and for the reasons that follow, nothing in the decisions in Project Blue and Vanmeld undermine the decision or reasoning of Cripps CJ in Asquith.

87. Firstly, it is to be noted that the decision of the High Court in Project Blue Sky was to approve the approach adopted by the Court of Appeal some 20 years earlier in Tasker v Fullwood (1978) 1 NSWLR 20 of rejecting the traditional distinction between “directory” and “mandatory” requirements by substituting the following test:

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 provisions 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.

88. Just as Spigelman CJ noted in Vanmeld that the approach adopted in Tasker v Fullwood had long been adopted by the Supreme Court, this Court too has long adopted that same approach.

89. Moreover although Cripps CJ in Asquith did not cite the decision in Tasker v Fullwood it is clear that his reasoning adopted that approach. This is manifest in the extended passage that I have earlier recited (at par 78) and it is reinforced by the following passages occurring earlier in his judgment:

Before turning to the submissions of the applicant, it is not inappropriate, in my opinion, to observe that the scheme of the Act is that local plans are to be prepared by local councils ie by the elected representatives of the local government area. The objects of the

are, inter alia, to provide increased opportunity for public involvement and participation in environmental planning and assessment. The local environmental planning process begins with a resolution by the Council to prepare a local plan (assuming no ministerial direction) and finishes with the Minister making the plan submitted in accordance generally with the council's draft or refusing to make the plan. The intervening steps and procedures are designed to ensure that members of the public are notified of the nature and effect of the proposals and to ensure that the opinions of members of the public are considered by the council and the Department before the Minister makes, or refuses to make, the plan. It is important to remember, contrary to an assumption implicit in the applicant's submission, that local plans may be inconsistent with state or regional plans provided the inconsistency is justified. As Bignold J observed in

23 December 1988, a local environmental plan can contain provisions inconsistent with other planning instruments including state policies (see ss 36, 68(4)(d)(iii), 69, 70 and 74). The present position is to be contrasted with s 61(e) of the

as originally enacted. Section 61(e) obliged the council to ensure that the draft local plan was not substantially inconsistent with any state environmental planning policy etc. Section 61(e) was repealed in 1985.

……….

It is to be noted that it is not suggested that the resolution of the Council to prepare the local plan was not valid. It is no longer suggested that an environmental study should have been undertaken. It is common ground that the draft plan was advertised and exhibited. It is not disputed that submissions were considered. It is not suggested that the Director did not report at all and it is not said that the plan made by the Minister was otherwise than in accordance with the draft submitted to him by the Council.

In these circumstances, in my respectful submission, the applicant essays a difficult task to persuade the Court that the breach of any one of the procedural steps of the type nominated would have the effect of denying to the Minister the power to make a valid plan. To do so would be to impute to the legislature an unstated intention that the breaches by the Council and the Director, if they occurred, or any one of them precluded the Minister, as a matter of law from making a valid plan. It was suggested, for example, that to fail adequately to furnish "details of the known environment" to the Secretary when notifying him of the decision of the resolution to make a draft plan had the consequence that even if every other step in the plan making process were unchallengeable, the Minister had no power to make the plan.

90. It follows that far from Project Blue Sky casting doubt on the correctness of Cripps CJ’s decision or reasoning in Asquith, it confirms the correctness of his Honour’s approach.

91. Next, it is to be noted that the decision in Vanmeld was not concerned with the requirement for consultation imposed by s 62 of the EP&A Act. Rather, it was concerned with the power conferred by s 68(3) on a council “to make alterations to a draft local environmental plan arising from its consideration of public submissions received pursuant to s 67”, where the basis for legal challenge to a provision of the local environmental plan was that it did not arise from the content of any public submission and therefore had not been processed in accordance with the statutory procedures for public notice, public exhibition and receipt of submissions (see at 90).

92. The Court of Appeal unanimously rejected this basis for legal challenge of the validity of the provision contained in the local environmental plan—see at 91 per Spigelman CJ at 113 per Meagher JA and at 114 per Powell JA.

93. It is important, in my respectful opinion when considering the following general statement of principle made by Spigelman CJ at 90 to bear in mind that the ground of invalidity advanced by the plaintiff in Vanmeld did not involve the requirement for public consultation contained in s 62:

The importance of the process of public consultation in the formulation of local government plans has long been recognised: see, eg,

(1973) 133 CLR 242 at 251-252, a judgment which was concerned with the

1964 (Qld), but which has been cited on numerous occasions in other jurisdictions since that time. The appellant referred to a number of cases in which the failure to perform a statutory requirement led to invalidity. Each case must turn on the particular statutory regime.

The detailed scheme of consultation and public exhibition in the Environmental Planning and Assessment Act, makes it clear that parliament regarded the procedural steps as of considerable significance for the integrity of the process of formulating local environment plans. The critical provision for present purposes is s 68(3), which authorises the Council to make alterations to the draft local environment plan after public submissions have been received and a public hearing, if any, has occurred. However, such alterations are limited to those which the Council:

94. In my opinion, it follows that neither the decision in Vanmeld, nor its reasoning, casts any doubt upon the correctness of the decision in Asquith.

95. True it is, that in this Court there is now directly conflicting authority in the decisions in Asquith and J B Lenton on the question whether failure to consult an adjoining council as required by the EP&A Act, s 62 has the effect of invalidating the local environmental plan or the draft local environmental plan. But this problem (which reflects what was said by the High Court in Project Blue Sky that “(U)nfortunately a finding of purpose or no purpose (ie to invalidate the subsequent act) in this context often reflects a contestable judgment”) is foreign to the issues raised by the present case, and I need consider it no further.

96. For the reasons that I have given, I would respectfully agree with the decision of Cripps CJ in Asquith in holding that the non-exhibition of an applicable state environmental planning policy and s 117 Direction in conjunction with the public exhibition of a draft local environmental plan does not invalidate the local environmental plan subsequently made by the Minister.

97. In my judgment, the decision in Asquith and my decision in Premier State Developments are directly applicable to the present case, and so applied, produce the result that the failure to exhibit in conjunction with the draft Amending LEP a copy of SEPP No 1 and SEPP No 6 and s 117 Direction G9 (assuming, against my principal holding, that those documents relevantly “apply to the land to which the draft Amending LEP is intended to apply”) does not invalidate the Amending LEP.

98. In so concluding, I have rejected the Applicant’s argument, based upon analogy, that the principles enunciated in Scurr v Brisbane City Council (1973) 133 CLR 242 and Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91, should be applied to the breaches of s 66(1)(b)(ii) and (iii) in the present case so as to invalidate the Amending LEP on that account.

99. These and like cases were concerned with the adequacy and accuracy of public notices given in respect of a development application (Scurr) and a publicly exhibited draft local environmental plan (Litevale). In both cases, the Courts found that the public notices were either inadequate (Scurr) or inaccurate and misleading (Litevale) with the consequences that important aspects of the relevant town planning legislation were actually or potentially frustrated or undermined by virtue of the inadequate or inaccurate and misleading public notices. In both cases these consequences led to ultimate holdings of the invalidity of resultant actions.

100. Despite the Applicant’s earnest attempt to align the present case with Scurr and Litevale, I am entirely unable to appreciate how those decisions, or the principles they expound, have any application to the assumed breaches of ss 66(1)(b)(ii) and (iii) in the present case. In the present context, it simply cannot be said that the public was in any way misled or otherwise prejudiced by the non-exhibition in conjunction with the public exhibition of the draft Amending LEP of a copy of SEPP No 1 or SEPP No 6 or the s 117 Direction G9. Indeed, as I have earlier noted, paradoxically the opposite would have been the case had these other materials been publicly exhibited with the draft Amending LEP because the contents of the draft were not substantially governed by the operation and effect of these other documents (on the contrary, on the Applicant’s own case they were inconsistent with the contents of these other documents), yet the statement required to be publicly exhibited by s 66(1)(b)(iii) would have necessitated the giving of this misleading information.

101. For all the foregoing reasons, I conclude that even if it be assumed that s 66(1)(b)(ii) and (iii) had required the public exhibition of these other planning documents and the statement of their effect on the content of the draft Amending LEP, the assumed breaches of s 66(1)(b)(ii) and (iii) would not have invalidated the Amending LEP.
F. ALLEGED BREACH BY THE COUNCIL OF S 68(4)

102. The terms of s 68(4) have earlier been recited.

103. The only breach of s 68(4) alleged against the Council is that in its submission to the Director-General, the Council had stated, as required by s 68(4)(d)(i) that the draft Amending LEP had been publicly exhibited in accordance with ss 66 and 67 when this was not in fact the case by virtue of the breaches of s 66(1)(b)(ii) and (iii) by virtue of the non-exhibition of the copy of SEPP No1, SEPP No 6 and the s 117 Direction G9 (vide par 32A of the Further Amended Points of Claim).

104. This alleged breach is therefore entirely dependent upon the Applicant establishing his allegation of breaches of s 66(1)(b)(ii) and (iii).

105. Since I have held that there was no relevant breach of s 66(1)(b)(ii) and (iii), it follows that the Applicant’s allegation of breach of s 68(4)(d)(i) likewise has not been established.

106. Accordingly, I find that the Council has not committed the breach of s 68(4)(d)(i) alleged against it.

107. However, if I be wrong in concluding that there was no relevant breach of s 66(1)(b)(ii) and (iii), and assuming that in such circumstances there were established, as a direct consequence, the alleged breach of s 68(4)(d)(i), then I would hold, applying Asquith on this point, that such assumed breach did not invalidate the Amending LEP.
G. ALLEGED BREACHES OF S 69

108. The terms of s 69 have been earlier recited.

109. According to par 33A of the Further Amended Points of Claim, the Applicant alleges that in the s 69 Report submitted to the Minister by the Director-General, the Minister was—

(a) Incorrectly advised that there were no relevant REP’s or s117 directions that effected the draft LEP;

(b) Not advised that the draft Lep was inconsistent with SEPP1 or s117 direction G9 applying to the land to which the draft plan applied;

(c) Not advised whether the inconsistency was justifiable in the circumstances;

(d) Not advised that the provisions of s66, 67 and 68 relating to public involvement in the preparation of the draft plan had not been complied with; and

(e) Not advised of the relationship between the draft plan, SEPP 1 and s117 direction G9 applying to the land to which the draft plan applies.

110. As I have earlier noted, the Council did not formally plead to these fresh allegations which only arose after the Applicant was given leave to re-open his case.

111. Accordingly, in order to determine whether these allegations have been established, it is necessary to consider the content of the s 69 Report (Exhibit 5). In considering that content, it is important to appreciate that the s 69 Report incorporates by express reference other reports, for example, the Report submitted to the Council by its Strategic Planning Department (being the Report that was also included in the Council’s submission to the Director-General pursuant to s 68(4)).

112. The s 69 Report (excluding its Appendices) is a four page document with its pages numbered 429 to 432 inclusive. It contains references to other documents at other identified pages, for example the aforesaid Council Report is noted as being at “folio 244”. From these references and from the serialised pagination, I infer that the s 69 Report that was submitted to the Minister was physically part of the Department’s official file on the subject, which file contained the documentary history of the Department’s involvement with the draft Amending LEP from the time in November 1998 that it was notified by the Council of its decision to prepare the draft plan.

113. The Applicant’s pleading in par 33A appears to have been formulated by reference to each of the matters enumerated in s 69.

114. However, the format of the s 69 Report does not precisely replicate those statutory matters. Rather, its content is presented under various headings. One such heading is “Community and Agency Views” under which reference is made to the public exhibition of the draft Amending LEP, which reference includes reference to the Report submitted to the Council by its Strategic Planning Department. By virtue of these references, I infer that the s 69 Report satisfies the requirements of s 69(c). Since I have held that there were no relevant breaches of s 66(1)(b)(ii) and (iii) and s 68(4) or alternatively that if it be assumed that there were such breaches, as alleged, those breaches do not invalidate the Amending LEP, I would likewise find that there has been no breach of s 69(c) or alternatively, if it be assumed that there was such a breach, that breach does not, conformably to the decision and reasoning in Asquith, invalidate the Amending LEP.

115. Under the heading “Consistency with State Policies, Regional Environmental Plans and s 117 Directions”, the s 69 Report states:

There are no relevant REP’s or s 117 Directions which affect the draft LEP.

116. The Applicant’s allegation that the s 69 Report “incorrectly advised that there were no relevant REP’s or s 117 Directions that affected the draft LEP” in my opinion has not been substantiated. The Applicant’s case has focussed exclusively on SEPP No 1, SEPP No 6 and s 117 Direction G9. Accordingly, there is no suggestion that the statement is incorrect insofar as it refers to REP’s. The only suggestions of factual error infecting the statement is that it makes no reference to the inconsistency of the draft Amending LEP with SEPP No 1 and s 117 Direction G9.

117. Dealing firstly with the suggested error in relation to SEPP No 1, the Applicant’s allegation is clearly not sustainable on the basis of documentary evidence because Appendix 3 to the s 69 Report expressly states that the height controls specified in the draft Amending LEP “will not be subject to SEPP 1 which means they will not be able to vary these controls in an ad hoc manner, as is possible under the current regime”.

118. This brief statement is amplified in the Council’s submission to the Director-General pursuant to s 68(4), the content of which traces back to the Council’s original submission of the draft Amending LEP to the Department pursuant to s 64 and to the Departmental Minute embodying the decision of the Director-General’s Delegate to issue the s 65 certificate in respect of the draft Amending LEP.

119. Accordingly, in respect of SEPP No 1, the statement contained in the s 69 Report, when read in context, is not incorrect.

120. This conclusion holds good in relation to the Applicant’s allegations of the failure of the s 69 Report to address the requirements of pars (a) and (b) of s 69 in respect of SEPP No 1. It is clear beyond doubt from the s 69 Report and its incorporated materials that the inconsistency of the draft Amending LEP with cl 5 of SEPP No 1 was revealed and that inconsistency was considered to be justifiable.

121. This brings me next to consider the Applicant’s allegations in respect of s 117 Direction G9, the terms of which have been earlier recited (vide par 45).

122. Here the Applicant’s case is that the content of the draft Amending LEP is contrary to, or inconsistent with, two relevant proscriptions of Direction G9 contained in pars (iv)(a) and (v) respectively.

123. Although, according to the documentary evidence, both the Council and the Director-General’s Delegate were of the opinion that the draft Amending LEP was not inconsistent with any s 117 Direction, the evidence also demonstrates that the Council, in its submission to the Director-General pursuant to s 68(4), expressly acknowledged the submission made pursuant to s 67 on behalf of the Applicant in reliance upon Direction G9, and proffered a justification of any inconsistency “if the Department interpreted” the relevant content of the draft Amending LEP as being inconsistent with Direction G9.

124. Additional reference to the Direction G9 is contained in the Report submitted to the Council by its Strategic Planning Department, which reference included the opinion that since the Applicant’s land was already zoned “residential” under the LEP Direction G9 did not apply. Notwithstanding the expression of that opinion, the Report also proffered a planning justification for the rezoning of the Applicant’s land.

125. Additionally, it is to be noted that soon after the Council had made its submission to the Director-General pursuant to s 68(4), the Applicant had written to the Director-General’s Delegate making representations against the Council’s proposed “down-zoning” of his land which representations expressly invoked the G9 Direction proscribing the reduction in residential densities. The s 69 Report expressly considered these representations in the passage that I have earlier recited (at par 39).

126. Having regard to the entirety of the documentary evidence on this issue (which includes in addition to the s 69 Report all the documents incorporated therein by express reference) I find that the Applicant has not substantiated its allegation that the s 69 was relevantly infected by factual error in respect of Direction G9.

127. This conclusion flows on to the Applicant’s allegations that the requirements of pars (a) and (b) of s 69 in respect of Direction G9 were not satisfied in the s 69 Report.

128. In so concluding, I am satisfied that there was no relevant inconsistency between the content of the draft Amending LEP and the s 117 Direction G9, or alternatively that if there were any such inconsistency, it had been revealed and justified in the s 69 Report (understood as incorporating by express reference the other documents that I have earlier referred to).

129. In summary, the documentary evidence reveals that when in November 1999 the Council originally submitted the draft Amending LEP to the Department pursuant to s 64 it was of the opinion that the only relevant inconsistency was with SEPP No 1 and that inconsistency was fully justified and that when in April 2000, the Director-General’s Delegate issued the s 69 Certificate, he was of the same opinion.

130. It was the Applicant, via his planning consultant’s objection pursuant to s 67 to the draft Amending LEP, who raised the question of whether the contents of the draft Amending LEP insofar as they concerned the planning proposals for his land, were inconsistent with Direction G9. The Council’s response to that objection has been noted. The response was an alternative response—primarily it was to the effect that properly construed, Direction G9 did not apply but alternatively, the Council in its s 68(4) submissions proffered justification for any inconsistency if the Department interpreted the Direction as being applicable. In the result, the Director-General’s Delegate in his s 69 Report adopted the same alternative approach to the Applicant’s objection (which by then had been supplemented by representations made directly to the Delegate)—primarily it was his opinion that no relevant inconsistency existed, but alternatively the down-zoning of the Applicant’s land was considered to be justified in planning terms.

131. In my judgment, these alternative opinions, which were commonly held by the Council and the Director-General’s Delegate, were reasonably open to them. This adjudicative approach to the questions in dispute, is supported by the decision in Asquith where Cripps CJ dealt with the alleged breach of s 62(b) (requiring, in the preparation of a draft environmental plan, consultation with an adjoining council where “the draft local environmental plan applies to land adjoining a boundary between t he council’s area and another’s area’) where the subject land was approximately 100 metres distant from the relevant boundary between the two local government areas, in the following passage:

I accept the applicant's submission that the words

where appearing in s 62(b) refers to land that is

to the boundary of the local government area and not, as is submitted by the Council and the Department, to land that physically abuts the boundary (see

58 LGRA 276. If I were to determine the matter, I would determine that the subject land relevantly adjoined the boundary. However, as the file demonstrates, in October 1986 the Council's attention was directed to the question whether the Wyong Shire Council should be advised. Although not proved, I am prepared to assume it was not. If, as I think, the words

mean

, a council must have a discretion to determine whether land which does not physically abut a boundary is relevantly

the boundary. The exercise of such a discretion, in proceedings to challenge the validity of a plan in the Class 4 jurisdiction of the Court, will not be displaced by the Court unless the Court is satisfied that it was not open to the Council acting reasonably to form such an opinion. (

7 October 1988 unreported). In the present case, the subject land was 100 metres from the boundary of the Wyong Shire Council's local government area. I am not persuaded that the Council's failure to inform the Wyong Shire Council, if that is what happened, was unreasonable in the

Wednesbury

sense (see

[1948] 1KB 223).

132. The Applicant sought to avoid this result by submitting that the questions (i) whether the s 117 Direction G9 applied to the land to which the draft Amending LEP applies; and (ii) whether if it so applied, there was inconsistency between it and the content of the draft Amending LEP; and (iii) whether that inconsistency was justifiable in the circumstances—were all jurisdictional facts requiring a relevant adjudication by the Court on these disputed questions, based upon the relevant evidence.

133. Whether the factual matters enumerated in s 69 are jurisdictional facts depends upon the proper construction of s 69 to which task all of the normal rules of statutory interpretation apply: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 63/64 per Spigelman CJ.

134. Properly construed, s 69 does not, in my judgment, create jurisdictional facts. This is because of the obvious flexibility in the operation of s 69 created by the statutory language employed, which requires a report “as to” the enumerated matters, and because of the essential problematic nature of some of those enumerated matters. For example, whether the contents of document A (the draft local environmental plan) are inconsistent with the contents and operation of other documents B, C, D etc (any State environmental planning policy, regional environmental plan or s 117 Direction) will invariably depend upon matters of judgment and degree, rather than fact especially given the format and style of the s 117 Directions which are not delegated legislation. Whether any relevant inconsistency is “justifiable” is a fortiori not a jurisdictional fact.

135. Accordingly, I would not construe the enumerated matters of s 69 as posing jurisdictional facts—rather, they are matters for the planning judgment of the Director-General in furnishing the Minister with the requisite s 69 Report.

136. However, lest I be wrong on this issue, I should proceed to determine the questions for myself on the assumption that the enumerated matters of s 69 are relevantly jurisdictional facts.

137. Concerning the Applicant’s allegation that the draft Amending LEP was inconsistent with Direction G9 par (iv)(a), I find that the draft Amending LEP does not infringe the proscription of par (iv)(a) because that proscription, properly construed, is directed to the overall effect on permissible residential densities of residentially zoned lands, considered globally, and is not directed to individual parcels of land or lots so zoned. This construction of the proscription is best illustrated by a simple example—assume 100 lots of land currently zoned residential where 99 lots have their existing permissible residential densities increased, and one lot has its existing permissible residential density reduced, with the net result being an overall increase in residential densities within the zone. Clearly, such a result would not infringe the proscription of par (iv)(a). To conclude otherwise, by directing attention at the outcome in respect of the one lot which, alone is down-zoned, would be an absurd and unreasonable result and the Applicant’s proffered construction of the proscription producing that result, should be clearly rejected. The illustration I have given accords with the effect of the draft Amending LEP as revealed in the documentary evidence. The opening sentence of the s 69 Report (which is but one of a multitude of similar references to be found in the documentary evidence) truly attests to this effect when it states:

The draft plan aims to rezone areas to provide increased residential and tourist development opportunities in The Entrance consistent with State and regional planning objectives, and to introduce stringent height controls which cannot be exceeded as was previously the case

138. Concerning the Applicant’s allegation that the draft Amending LEP was inconsistent with Direction G9 (par (v), I find that the draft Amending LEP does not infringe the proscription of par (v) because there were no relevant existing standards in the LEP.

139. My consideration of the LEP, as in force at the times that the draft Amending LEP was being processed, leads me to conclude that the LEP did not prescribe any relevant “standards relating to residential that development”.

140. The Applicant relied upon the following clauses of the LEP as relevantly prescribing “standards relating to residential flat development”—cll 10(3), 13, 23, 31 and 42. There is no need for me to recite each of these provisions. In my opinion, they clearly do not prescribe “standards relating to residential flat development” as that expression is to be understood in the context of Direction G9.

141. If, as I would hold, there were no relevant existing standards in the LEP, at the times that the draft Amending LEP was being processed, the contents of that draft imposing height controls etc on residential flat development did not infringe the relevant proscription of par (v) which in terms is expressed to proscribe “an increase in existing standards”. The natural and ordinary meaning of the verb “increase” is “to make greater in any respect, augment, add to, to make more numerous” etc (vide The Macquarie Dictionary) and should be adopted in its present context. Accordingly, when the draft Amending LEP imposed for the first time height controls etc in respect of development (including residential development) it was relevantly introducing standards but it was not “increasing existing standards”.

142. Accordingly, for the reasons given, if the factual matters enumerated in s 69 are assumed to be jurisdictional facts, and I were required to determine whether they relevantly existed, I would conclude that there was no relevant inconsistency between the contents of the draft Amending LEP and the s 117 Direction G9.

143. It follows that I find the s 69 Report furnished to the Minister satisfies the requirements of s 69 and that accordingly, the Applicant’s allegations of factual errors in the s 69 Report have not been substantiated.

144. For completeness, I should say that had I concluded that there was some relevant inconsistency between the contents of the draft Amending LEP and SEPP No 1 and s 117 Direction G9, as alleged by the Applicant, I would have concluded, consistently with what I have earlier held, and for the same reasons, that the s 69 Report satisfied the requirements of s 69 upon the basis that the Report had alternatively revealed the relevant inconsistencies but, had proffered justification for those inconsistencies.

145. In view of my findings and holdings as to the adequacy of the s 69 Report in terms of it satisfying the matters enumerated in s 69, it is not necessary for me to consider the Applicant’s submission that the present case is “on all fours” with Belongil Progress Association Inc v Byron Shire Council 106 LGERA 202 and that “the Applicant should succeed on this point alone”.

146. In Belongil Progress Association, Cowdroy J held that the failure of a report furnished to the Minister pursuant to s 69 to refer to a relevant s 117 Direction and to the fact that the draft local environmental plan was inconsistent with that Direction (in the sense that it did not comply with the Direction which had required the preparation of an environmental study as a prelude to the alteration of existing zonings) produced invalidity in the local environmental plan that had subsequently been made by the Minister. The reasons for his Honour’s conclusions are expressed in the following passages at 208/209:

No reference to such inconsistency was disclosed to the Minister as required by s 69. Had the Minister's attention been directed specifically to the existence of the direction and of its requirements concerning an environmental study it might have been inferred that the Minister was prepared to ignore the direction. In the absence of such detail no such inference can be drawn.

The Minister, by s 70(1) may 'after considering the Director's report made under s 69' make a plan or decline to do so. The Minister's discretion is thus predicated upon compliance with the requirements of s 69. Upon the evidence the Minister did not have before him the important information necessary for him to exercise his discretion properly.

Applying the test of statutory interpretation established in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841, it can be readily inferred that a failure to abide by a direction made pursuant to s 117 may not lead to invalidity if the Minister is informed of such details by the statement required by s 69. The obligation imposed upon the Director by s 69 is expressed in mandatory terms. If the Minister is not informed of the matters referred to in s 69, the factual basis for the exercise of the Minister's discretion to make the LEP pursuant to s 70 is misleading.

147. Because of my findings in respect of the s 69 Report in the present case (namely that it fulfilled the requirements of s 69 either because it revealed that there was no relevant inconsistency between the draft Amending LEP and SEPP No 1 or s 117 Direction G9 or alternatively that any inconsistency was considered to be justifiable) the present case is entirely distinguishable on the facts from Belongil Progress Association.

148. Accordingly, I must reject the Applicant’s submissions in reliance upon that decision and it is unnecessary for me to consider it further other than to note that it takes a different view of the requirements for the validity of a report pursuant to s 69 from that adopted in Asquith.
H. ALLEGED FAILURE OF THE SECOND RESPONDENT TO COMPLY WITH S 70

149. The Applicant’s allegation that in making the Amending LEP in the exercise of his statutory power under s 70, the Minister “failed to take into account relevant considerations” (vide par 35 of Further Amended Points of Claim) is entirely dependent upon the Court upholding one or other or both of the Applicant’s attacks on the validity of the preceding acts of the Council in respect of the statutory duty imposed by s 66(1)(b) and of the Director-General in respect of the Report required to be furnished to the Minister pursuant to s 69.

150. Since the Applicant’s attacks on the validity of these preceding acts have totally failed, there is no foundation to support the present allegation in respect of the Minister’s decision pursuant to s 70 to make the Amending LEP.

151. Accordingly, I must reject the allegation that the Minister’s decision to make the Amending LEP is invalidated.
I. CONCLUSIONS AND ORDERS

152. The Applicant, having failed to establish any of its claims of invalidity of the Amending LEP, it is not necessary that I consider how the Court would have exercised its clear discretionary powers in the event of the Applicant having established any of his allegations.

153. Accordingly, for all of the foregoing reasons, I order that the application be dismissed with costs. The exhibits may be returned.

CITATION:	Smith v Wyong Shire Council and Anor. [2002] NSWLEC 173
PARTIES:	APPLICANT: Darcy Smith RESPONDENTS: Wyong Shire Council and Anor.
FILE NUMBER(S):	40034 of 2001
CORAM:	Bignold J
KEY ISSUES:	Judicial Review :- Alleged invalidity of LEP Amendment for breaches by Council in procedures for public exhibition of draft plan-allegations of factual error in Report submitted to Minister.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 66, 68, 69 and 70
CASES CITED:	Asquith v Minister for Planning (1989) NSWLEC 104); Belongil Progress Association Inc v Byron Shire Council (1999) 106 LGERA; Byron Bay Everglades Resort Pty Ltd v Byron Shire Council (2000) NSWLEC 81; Jessop v W R Willcocks Pty Ltd (1988) NSWLEC 106; Legal and General Life of Australia Ltd v North Sydney Council (1990) 69 LGRA 201; Litevale Pty Ltd v Lismore City Council (1997) 96LGERA 91; Monaro Acclimatisation County v Minister for Planning (1989) NSWLEC 13; Premier State Developments Pty Ltd v North Sydney Council (1999) 104 LGERA 215); Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Scurr v Brisbane City Council (1973) 133 CLR 242; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; Tasker v Fullwood (1978) 1 NSWLR 20; Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
DATES OF HEARING:	17/06/02, 21/06/02, 05/07/02, 05/08/02
DATE OF JUDGMENT:	10/25/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Tomasetti, Barrister SOLICITORS Wilshire Webb RESPONDENTS: 1st Respondent Mr B Preston SC 2nd Respondent Submitting Appearance SOLICITORS 1st Respondent Abbott Tout 2nd Respondent Submitting appearance