Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) - [2010] NSWLEC 17

No judgment structure available for this case.

Reported Decision: 176 LGERA 119

Land and Environment Court

of New South Wales

CITATION: The Village McEvoy Pty Limited v Council of the City of Sydney (No 2) [2010] NSWLEC 17

PARTIES:
APPLICANT
The Village McEvoy Pty Limited
RESPONDENT
Council of the City of Sydney

FILE NUMBER(S): 11264 of 2008

CORAM: Pepper J

KEY ISSUES: JUDICIAL REVIEW :- s 56A appeal from decision of commissioner refusing development consent for proposed retail shopping precinct - principles applicable to a s 56A appeal - whether s 79C(1)(a)(ii) overrules s 79C(1)(e) on the basis that the former is a specific provision whereas the latter is a general provision - whether commissioner took into account irrelevant considerations, including the alleged adverse economic impact of proposed development - whether commissioner failed to take into account relevant considerations, including any negative impact of the proposed development on competition - "public interest" - whether consideration of policy documents and background papers and studies was in error - whether taking into account the objects of the Environment Planning and Assesment Act was in error - whether the commissioner gave "proper, genuine and realistic consideration" to the terms of the LEP - whether the commissioner assessed the proposal against the wrong planning objectives - whether the commissioner substituted his own planning standards for those of the LEP - whether the commissioner misdirected himself as to the evidence - whether there was a failure to give adequate reasons - appeal dismissed.

LEGISLATION CITED: Environmental Planning & Assessment Act 1979 ss 5, 74C(5), 79C(1)
Land and Environment Court Act 1979 s 56A
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan 1997

CASES CITED: Anderson v Director General of the Department of Environment and Climate Change (2008) 163 LGERA 400
Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bayside City Council v Telstra Corp Ltd (2004) 216 CLR 595
Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450
BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399
Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367
Carstens v Pittwater Council (1999) 111 LGERA 1
Cartier Holdings Pty Ltd v Newcastle City Council (2001) 115 LGERA 407
Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373
Irving v Goulburn Mulwaree Council [2008] NSWLEC 142
JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 156
Kentucky Fried Chicken Proprietary Limited v Gantidis (1979) 140 CLR 675
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277
Milne v Minister for Planning [No 2] [2007] NSWLEC 66
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Pretty v Solly (1859) 26 Beav 606
Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119
Segal v Waverly Council (2005) 64 NSWLR 177
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195
The Village McEvoy Pty Ltd v City of Sydney Council [2009] NSWLEC 1232
Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321
Weal v Bathurst City Council (2000) 111 LGERA 181
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 19 & 20 November 2009
23 November 2009 (written submissions)

DATE OF JUDGMENT:
11 February 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr C Leggat SC
SOLICITORS
Shaw Reynolds Bowen & Gerathy
RESPONDENT
Mr P Tomasetti SC
SOLICITORS
Maddocks Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

11 February 2010

11264 of 2008 The Village McEvoy Pty Limited -v- Council of the City of Sydney (No 2)
JUDGMENT

Introduction

1 HER HONOUR: By way of summons filed 11 August 2009, the applicant, The Village McEvoy Pty Limited, appeals pursuant to s 56A of the Land and Environment Court Act 1979 from the whole of the decision and orders of Commissioner Bly handed down on 15 July 2009 (The Village McEvoy Pty Ltd v City of Sydney Council [2009] NSWLEC 1232).

2 The notice of appeal listed no less than 17 grounds of appeal, of which four were abandoned on the first day of the hearing.

Grounds of Appeal

3 The 13 grounds of appeal are as follows:

1. The Commissioner erred in law by misconstruing the provisions of section 79C(1) of the Environmental Planning & Assessment Act 1979 (“the Act”) in that he concluded that matters that failed to satisfy the provisions of s79C(1)(a) of the Act then fell within the provisions of s79C(1)(e) of the Act.

2. The Commissioner erred in law in failing to apply the correct test which s79C(1)(b) of the Act requires, in finding that the proposed development would have adverse impacts on possible future development in Green Square.

3. The Commissioner erred in law in that he took into account an irrelevant consideration, namely the alleged adverse economic impacts on possible future development in Green Square.

…

5. The Commissioner erred in law in dealing with an object of the Act in section 5(a)(ii) as a matter for consideration under s79C(1) of the Act.

6. The Commissioner erred in law in failing to give proper, genuine and realistic consideration to clause 21E of the South Sydney Local Environmental Plan 1998 (“the LEP”).

7. The Commissioner erred in law in that he misdirected himself as to the application of the objectives of the 10E zone pursuant to the LEP.

8. The Commissioner erred in law in that he misdirected himself as to the application of the evidence in concluding that the zoning of the subject site would change to industrial.

9. The Commissioner erred in law in concluding, without evidence, that the Council has an intention to effect a rezoning of the site to industrial.

…

13. The Commissioner erred in law by taking into account an irrelevant consideration, namely the Council background papers/studies, in the absence of a certificate under section 65 of the Act having been obtained.

14. The Commissioner erred in law in that he misconstrued ‘the present planning intent’ for the area, contrary to the provisions of sections 65 and 74C(5) of the Act.

15. The Commissioner erred in law in that he failed to give reasons for rejecting the Applicant’s submissions in relation to the public interest pursuant to section 79C(1)(e) of the Act regarding competition.

16. The Commissioner erred in law in that he failed to take into consideration a matter of public interest pursuant to section 79C(1)(e) of the Act, being agreements, arrangements and understandings which have the purpose or effect or likely effect of substantially lessening competition.
17. The Commissioner erred in law in that when considering the public interest pursuant to section 79C(1)(e) of the Act he failed to take into consideration Exhibit Q (Report of the ACCC inquiry into the competitiveness of retail prices for standard groceries), Exhibit 26 (Deed of Co-operation between landholders), the evidence of M Harrison on the protection of supermarket competition and the evidence of P Anderson of Landcom.

4 At the hearing Grounds 1 and 13 were argued together, as were grounds 2 and 3, grounds 8 and 9 and grounds 15, 16 and 17. Accordingly, they will be considered in the same manner and order in the judgment.

Summary of this Decision

5 Having considered all 13 grounds of appeal, in my view no error of law by the Commissioner has been demonstrated by the applicant and the appeal must be dismissed.

The Development

6 The development application before the Court was a:

Stage 1 DA for a 4 level building envelope with a mix of commercial and retail uses, 470 car parking spaces, a sitescape pedestrian through site link and public square.

7 The gross floor area of the proposed building was 22,820 sqm comprising 14,030 sqm of retail floor space, including a 4,000 sqm supermarket and 8,820 sqm of commercial floorspace.

8 The development site comprises 9-15 Bowden Street and 132-138 McEvoy Street. It is situated within and at the western edge of Green Square about 850 m from the town centre and roughly equidistant between the Erskineville and Green Square railway stations.

9 The locality in which the proposed site is situated is predominantly developed with industrial and mixed-use developments. Residential development exists to the north beyond McEvoy Street.

Green Square Urban Renewal Area

10 The following facts are not controversial, namely, that Green Park, a small local park, was created in 1938 where Botany Road, Bourke Road and O’Riordan Street, Alexandria, meet. Centred on this park is the Green Square Urban Renewal Area which is part of the State Metropolitan Strategy. Contained within the Urban Renewal Area is the Green Square Town Centre (“the Town Centre”) that is to be developed as a Major Centre in accordance with the Strategy.

11 Green Square occupies approximately 287 ha of land within the City of Sydney Council area. It is currently being redeveloped from an industrial/warehousing mixed-use precinct to a modern employment based residential sustainable living centre. It is projected to have a residential population of more than 33,000 and to provide employment for more than 28,000 people by 2021.

Commissioner’s Decision

12 The Commissioner handed down his original decision on 15 July 2009 (“the original judgment”). In it the Commissioner considered the relevant provisions of the Environmental Planning and Assessment Act 1979 (“the EPAA”) and the applicable planning controls.

13 On 8 October 2009, the decision was revised pursuant to Pt 36 r 36.17 of the Uniform Civil Procedure Rules 2005, more commonly known as ‘the slip rule’. Paragraphs [14] and [63] of the decision were amended. Relevantly, at [14] of the original judgment the Commissioner made reference to “clause 21(a)” of the objectives of zone 10E of the 1998 LEP. In the amended judgment this was changed to “clause 21(e)”.

14 In addition to the evidence of the witnesses, the Commissioner had regard to the background papers and studies of the City of Sydney Council (“the council”) which specifically included:

(a) The Green Square Urban Renewal Area Background Paper (“the Background Paper”);

(b) The Green Square and Southern Areas Retail Study (“the Retail Study”); and

15 The Commissioner essentially refused the proposed development on two bases:

(a) first, because it was inconsistent with the Retail Hierarchy recommended in the adopted Retail Study. This was because the Retail Hierarchy requires that any retail development outside the Town Centre is to be of a minor ancillary nature. The proposed development did not fit this description. The Commissioner concluded that this reason alone “is a sufficient reason to refuse the application” (at [62]); and

Evidence

16 The applicant’s evidence consisted of first, the exhibits to the affidavit of Ms Tanya Hunt a solicitor employed by the solicitors instructed by the applicant, sworn 21 October 2009, which included:

(a) both decisions of the Commissioner (original and amended);

(b) a bundle of various planning instruments, specifically including the South Sydney Local Environmental Plan 1998 (“the 1998 LEP”), the South Sydney Development Control Plan 1997 (“the 1997 DCP”) including the Urban Design: Part G – Special Precinct No 9 – Green Square and Part H: Green Square Town Centre;

(c) the Deed of Cooperation between South Sydney Development Corporation, South Sydney City Council and various other parties dated 26 March 1999;

(d) an extract of a report of the ACCC inquiry into the competitiveness of the retail prices for standard groceries; and

17 The respondent’s evidence consisted of first, the exhibits to the affidavit of Mr Michael Winram, a solicitor employed by the council’s solicitors, affirmed 10 November 2009, which comprised:

(a) the affidavit of Mr Paul Andersen dated 4 May 2009, the Development Director of Landcom in respect of the Town Centre Project. In 2001 Landcom became the State Government’s implementation agency in planning the Town Centre;

(b) a resolution of the council dated 27 June 2005;

(A) pursuant to Section 54 of the Environmental Planning and Assessment Act 1979, the Central Sydney Planning Committee resolve to prepare a single, draft local environmental plan to be known as the “City Plan Local Environmental Plan”, and will apply to the City of Sydney Local Government Area; and

(B) a report be prepared under Section 54 of the Environmental Planning and Assessment Act 1979 to advise the Department of Planning of this resolution and of the similar Council resolution dated 27 June 2005.

(d) various other resolutions of the council and the Central Sydney Planning Committee;

(e) its written submissions before the Commissioner; and

18 Second, diagram sheets and photographs of models of the proposed hub for Green Square.

19 Third, a statement of evidence of Ms Silvija Smits dated May 2009, a senior partner in planning at Conics (Sydney) Pty Ltd.

20 Fourth, a joint report by Ms Smits and Mr Harrison on strategic planning matters dated 12 May 2009.

Legislative Framework

21 Section 5(a) of the EPAA relevantly sets out the objects of the Act (emphasis added):

5 Objects

The objects of this Act are:

(a) to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, town and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and co-ordination of the orderly and economic use and development of land;
(iii) the protection, provision and co-ordination of communication and utility services;
(iv) the provision of land for public purposes;
(v) the provision and co-ordination of community services and facilities; and
(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats; and
(vii) ecologically sustainable development; and
(viii) the provision and maintenance of affordable housing…

22 Section 74C(5) states:

(5) A provision of a development control plan (whenever made) has no effect to the extent that:

(a) it is the same or substantially the same as the provision of an environmental planning instrument applying to the same land, or
(b) it is inconsistent with a provision of any such instrument or its application prevents compliance with a provision of any such instrument.

23 Section 79C(1) of the EPAA states (emphasis added):

79C Evaluation
(1) Matters for consideration—general

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

The Nature of a s 56A Appeal

24 Given the extensive number of grounds of appeal, it is worth restating three basic principles concerning the determination of s 56A appeals.

25 First, the appeal is only concerned with errors of law. Erroneous findings of fact, inappropriate or illogical references (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-157 cited in JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 156 at [31]) and insufficient weight absent irrelevant considerations attributed to a particular piece of evidence are unlikely to constitute an error of law (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at [57] and see the authorities collected in Irving v Goulburn Mulwaree Council [2008] NSWLEC 142 at [32]).

26 Second, a commissioner must give adequate reasons. This means that a commissioner must refer to evidence that is important or critical to the determination of the issues in the case. This is because (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [57]-[59], cited in JPR Legal at [38]):

[57] The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA.

[58] The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding ( Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ.
[59] The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [2000] 1 All ER 373 (at 377–378) per Henry, Laws LJJ and Hidden J.

27 However, as was cautioned in Segal v Waverly Council (2005) 64 NSWLR 177 (at [93]):

93 In my opinion, it follows that the statements in the authorities to which I have referred above to the effect that the judge must enter into the issues canvassed before him or her and explain why he or she prefers one case over the other ( Flannery ), or that for a judge to ignore evidence critical to an issue in a case contrary to an assertion of fact made by one party may promote a sense of grievance in the adversary ( Mifsud ), or that it is the duty of a judge to expose his or her reasons for his or her decision where a point is vital and where its resolution is crucial to the contest between the parties ( North Sydney Council v Ligon ), need to be read in context and are not, in my opinion, authority for the proposition that every argument or issue advanced by a party in support of the principal issues must be considered by the judge and reasons given for accepting or rejecting it. A judge's duty to give reasons is, in my opinion, confined to the essential ground or grounds upon which the decision rests ( Soulemezis ) and does not include a requirement to deal with a submission or argument that is otherwise unnecessary to the decision arrived at provided that, in respect of that decision, the judge's reasoning process is articulated and relevant findings made ( Housing Commission (NSW) v Tatmar ).

28 Third, bearing in mind that a s 56A appeal deals not with an appeal from a judge but from a commissioner, it is appropriate to recall the words of Kirby P in Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 (at 368):

…I believe that it is undesirable in an appeal from a lay tribunal, where the appeal court is confined to a question of law, that it should examine too narrowly the words used in the decision, at least unless these words are central to the decision involved…
Here, the parliament has specifically envisaged a tribunal which included lay assessors. It would be quite wrong, in my opinion, for this Court to examine their decisions as if they were written by a lawyer.

29 As the High Court has stated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 291):

The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.

30 This approach was subsequently adopted by Lloyd J in Carstens v Pittwater Council (1999) 111 LGERA 1 (at [76]) where his Honour warned against “an overly critical and pernickety examination of a Commissioner’s reasons on appeal on a question of law to a judge” (Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286 at [7]). This sentiment was recently reiterated by Pain J in JPR Legal (at [40]) where her Honour stated:

While accepting that commissioners have a duty to give adequate reasons it is also important to be aware that commissioners are generally not legally trained and they cannot be expected to articulate reasons in the same manner or with the same content as judges.

31 However, while “it is not appropriate to approach the reasons of a Commissioner with a ‘fine-tooth comb’, … the Court must nonetheless attempt to ascertain as best it can what were the essential reasons for a decision” (Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [32]).

32 With these fundamental principles in mind I now turn to consider the applicant’s grounds of appeal.

Consideration

Grounds 1 and 13 – Consideration of the City Plan, Retail Study and Background Papers

33 In his summary of the applicable planning controls, the Commissioner summarised the operation s 79C of the EPAA as follows (at [13]):

13 Also of particular relevance is s 79C of the EPA Act that contains various matters for consideration. These include: the provisions of environmental planning instruments; exhibited draft environmental planning instruments; development control plans; social and economic impacts; the suitability of the site; and the public interest. In this regard the respondent submits that the "public interest" can encompass a wide range of considerations including non-statutory planning policies adopted by the council. Such matters are of course subject to appropriate weight that is to be determined according to their circumstances.

34 The Commissioner concluded (at [56] and [65]-[66]) that:

56 The strategic planning context is critical to the consideration and determination of this application. Taking into account the history of Green Square and the applicable planning controls together with the associated background papers, studies and council and planning committee resolutions, it is abundantly clear that the Town Centre is to be the major commercial, retailing, cultural and entertainment centre within that area. It is also apparent that the relevant planning authorities have no intention of making any fundamental changes to the strategic approach so indicated for Green Square. Taking these matters into account and the many millions of dollars that have been already invested in it, the importance of the Town Centre is not to be underestimated; despite the fact that at this time there is little physical evidence of its development. The Town Centre is part of the Retail Hierarchy recommended in the Retail Study that was adopted in the background paper. Whilst the study and the background paper do not comprise environmental planning instruments or development control plans and the City Plan has not obtained a s 65 certificate, I accept that they are, in the public interest, important policy documents against which the proposed development must be assessed.

…

65 Finally here, whilst Ms Smits may be correct in her contentions that the proposal is permissible in the mixed-use zone, would be consistent with the zone objectives (although I am not sure that it would contribute to a "highly sustainable vibrant community") and may, being an employment generating development, even be consistent with the objectives of the proposed industrial zone, the proposal would nevertheless still be prohibited in that zone. Moreover, I do not accept that present planning intent for this area should be set aside even if a draft LEP is not imminent. These matters attract further weight against the proposal.

66 For all of the above reasons I have been persuaded that approval of the proposal would not represent the orderly and economic use and development of land and in relation to strategic town planning considerations, would not be in the public interest. I would also add to this my agreement with the concern that approval of a development that is inconsistent with the fundamentals of the existing strategic planning framework would make it difficult to oppose further developments that are also inconsistent with that framework. The application should therefore be refused and the appeal dismissed.

35 The applicant submits that the Commissioner erroneously included as “matters for consideration” “the City Plan” and “the study and background paper”. Both, the applicant submitted, citing Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 (at [33]), were of such significance to the Commissioner that their erroneous consideration vitiated his decision.

City Plan

36 Turning first to the City Plan, the Commissioner considered it (at [18]-[20]) in his judgment and concluded by stating (at [21]) that:

21 I understand that, despite the resolutions having been made in 2005 and 2006, the draft local environmental plan is still under preparation. It nevertheless continues to propose, consistent with the below-mentioned Background Paper and Zoning Review that the extent of the proposed General Industrial zone remains unchanged. A certificate under s 65 of the EPA Act has not yet been issued.

37 The applicant submits that the City Plan, as “a possible draft LEP” was, first, excluded from consideration by s 79C(1)(a)(ii) of the EPAA because it had not been notified as required and had not been the subject of public consultation, and second, could not be considered pursuant to s 79C(e) of the Act because that provision was a general provision whereas s 79C(a)(ii) is a specific provision within the same enactment, which “must be taken to be operative” over the general provision by overruling it (citing Pretty v Solly (1859) 26 Beav 606 at 610).

38 While the rule of statutory construction embodied in Pretty v Solly continues to have currency (the applicant referred the Court to a number of authorities, the most recent of which was Bayside City Council v Telstra Corp Ltd (2004) 216 CLR 595 at [24]), the applicant’s submissions ignore the clear introductory words of s 79C(1) of the EPAA that state that “a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application”. Therefore while s 79C sets out the matters that the consent authority must take into consideration if they are applicable (Carstens v Pittwater Council (1999) 111 LGERA 1 at [22] and [23], see also BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 at [100]-[101]), for example, any proposed instrument as described in s 79C(1)(a)(ii), it does not exclude from consideration other matters of relevance, including matters in the public interest, to the determination of the appeal. To construe s 79C(1)(a)(ii) as rendering a proposed instrument that does not fit the description contained within that provision as wholly irrelevant is to misconstrue the operation of the provision.

39 The correct approach to the proper construction of s 79C(1) was articulated in Carstens. In that case a commissioner took into account various draft development control plans and other policy documents. Far from finding that the commissioner in question had fallen into error, the Court held (at [25]):

[25] I thus conclude that the matters for consideration listed in s 79C(1) are not the only matters to which a consent authority may have regard. The listed matters are those which a consent authority must consider. The consent authority may also take into consideration other matters not included in those which are listed. Those other matters include, in the public interest, any matter which relates to the objects of the Act set out in s 5. This does not mean that the decision-maker may take anything into consideration. The relevant considerations are confined so far as the subject matter, scope and purpose of the Act and any environmental planning instruments allow. The draft DCPs and the Values Statement in the present case are relevant as documents which relate to the matters described in subpars (i), (ii), (vi) and possibly (vii) of par (a) of those objects. In taking those matters into consideration the Commissioner made no error of law.

40 In relation to the breadth of matters that may be taken into account as a matter of “public interest”, it has been held that (Terrace Tower at [81]):

[81] In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land & Water Conservation (2001) 119 LGERA 231 at 235).

41 In my opinion, therefore, the Commissioner’s consideration of the City Plan was relevant. It was both open and lawful of the Commissioner to determine the weight he gave to it and no question of law arises.

42 It follows that the decision in Tuite is of no assistance to the applicant. Tuite concerned an appeal from a decision of a Commissioner where the Commissioner applied the zoning objectives of land in the neighbouring zone to the land the subject of the development application. This was held to be an error of law which was clearly material to the Court’s decision. It is not analogous to the facts of the present case.

Background Paper and Studies

43 Under the heading “Background paper, studies etc” the Commissioner considered the Background Paper, the Retail Study and the Accessibility Plan (at [28]-[37] of his judgment).

44 At [62]-[64] of his judgment the Commissioner reasoned (and see also [65] and [66], quoted above at [34])(emphasis added):

62 Finally, here I accept that any proposal to amend the strategic planning regime within Green Square (taking into account the present economic analyses) is unlikely to affect the fundamentals of the Retail Hierarchy including the primacy of the Town Centre. Hence because the adopted and well-supported Retail Hierarchy requires that any retail development outside the centre should be of a minor or ancillary nature I conclude that the proposal would be inconsistent with it. This is a sufficient reason to refuse the application.

63 I now turn to the particular location of the proposal. Even if the locality in which the site is situated might, as a result of the application of proper planning processes, warrant the provision of a shopping centre, the present planning approach and policy position for this locality needs to be taken into consideration. As described above it is proposed that the mixed-use area in which the site is situated is to be rezoned for industrial purposes, with a consequence of prohibiting the proposal. Should this rezoning be effected as intended, industrial land uses can be expected to predominate and as argued by Mr Harrison this will render the area highly unsuitable for both retail and community uses which relate to and rely on proximity to residential areas. In my opinion this approach overwhelms any suggestion that there might be a synergy between a shopping centre such as is proposed in an industrial area. As a consequence any co-location opportunities in the manner of a larger mixed use centre or village centre where greater social and community synergies can be achieved will be lost.
64 Whilst there is no certified draft local environmental plan to rezone the site and surrounding lands to industrial, it is plainly the council's intention to effect such a rezoning as part of the City Plan that, in turn, is supported by the above-mentioned Review of Zoning. As accepted by the council, the existing mixed-use zone is no longer supported, because of the heavy vehicle routes that surround it and because the existing industrial uses are unlikely to change. Also there is a need to ensure employment generating lands and industrial land in particular is not lost. Council's planning intent or policy here is a relevant matter for consideration.

45 The applicant submitted that where a fundamental matter such as zoning is dealt with in “the study and background paper” (see judgment at [56]) such material cannot be considered under s 79C(1) until the proposed change of zoning has reached the status required under s 79C(1)(a)(i) or (ii). Therefore the background material was irrelevant to the Commissioner’s deliberations and ought not to have been considered.

46 I do not agree. An examination of the evidence that was before the Commissioner reveals that as early as April 2005 the City of Sydney Planning Committee resolved to review the zoning of the land in Green Square. Then in October 2006, the council and the Planning Committee resolved to proceed with the review of the zoning and identified a portion of land, including the proposed development site, which was recommended to be rezoned General Industrial. In May 2008, the Background Paper was prepared by the council and the development site was identified on the Draft Land Zoning Map LEP 2006 – Green Square as “IN1 –General Industrial” where retail use would be permissible only if it was ancillary to an industrial use. The proposed controls were exhibited in September and October 2008, and the responses were referred to the working group that had the responsibility of the preparation of the City Plan.

47 Similarly in respect of the Retail Study, in December 2005 the New South Wales Government’s Metropolitan Strategy identified within Green Square a “planned major centre”. Consistent with the Strategy and the council’s decision to establish a major new town centre next to the Green Square Railway Station, in September 2008 consultants engaged by the council prepared the Retail Study. The Study recommended a proposed Retail Hierarchy. In 2009 the Retail Study was formally submitted to the Department of Planning.

48 In my view, both the Background Paper and Retail Study were substantial and relevant policy documents to which the Commissioner was entitled to have regard in considering the public interest of the proposed development. Furthermore, absent any consideration of irrelevant material, I do not consider that the weight that the Commissioner gave to these documents in determining the development application can be impugned (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 and Terrace Tower at [57] and [81]).

49 In reaching this conclusion, I have had regard to the fact that the Commissioner was aware that the Background Paper, Retail Study and various Planning Committee resolutions were not environmental planning instruments and that the City Plan had “not obtained a s 65 certificate” (at [56], see also at [21]). Rather, the Commissioner took the view that these documents were “in the public interest, important policy documents against which the proposed development must be assessed” (at [56]). In my view the Commissioner did not err in doing so.

50 In any event, s 39(4) of the Land and Environment Court Act 1979 requires the Court to consider “the circumstances of the case and the public interest”. It was therefore open to the Commissioner to take into account the fact that while there was no certified instrument to rezone the site, it was the council’s intention to do so. Thus the Commissioner acknowledged that the present planning intent to rezone the site was not imminent, but that it was “plainly the council’s intention to effect such a rezoning as part of the City Plan” (at [64]). It therefore follows that it was a relevant matter for consideration by the Commissioner, namely, that upon rezoning the proposed development would be prohibited. Again the issue is one of weight which the Commissioner was clearly mindful of when he concluded that he did “not accept that present planning intent for this area should be set aside even if a draft LEP is not imminent”, but that it was a matter that attracted “further weight against the proposal” (at [65]). No error is demonstrated in the Commissioner’s reasoning in this regard (Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 at [33] endorsed and quoted in Terrace Tower at [47] see also at [46]).

51 It therefore follows that grounds 1 and 13 must be dismissed.

Grounds 2 and 3 – Adverse Economic Impact of Development

52 The Commissioner dealt with the economic impact of the proposed development as follows (at [57]-[59]):

57 The economic evidence makes it plain that the amount of retail floor space to support the now anticipated population growth in the retail catchment of the Town Centre will need to be increased so as to provide for at least five (possibly seven) full line supermarkets by 2011. In this context, Mr Haratsis believes, that the Retail Hierarchy would be unaffected by the proposal because there is or will generate a sufficient retail spend in the catchment to support it without affecting the Town Centre. In his opinion this is, despite the -11% impact on the Town Centre that will in time dissipate. For similar reasons the Ashmore Estate will be unaffected. Mr Haratsis' evidence in this regard is compelling.

58 In principle I accept that the Town Centre can and will need to be modified to facilitate the provision of the additional retail floor space required for the now anticipated population in the catchment, without affecting the fundamentals of the Retail Hierarchy. Depending upon how many additional full line supermarkets are to be provided in the Town Centre or if, on proper analysis, deemed to be appropriate elsewhere in Green Square, it seems to me that purely in terms of the amount of retail spend likely to be generated within the retail catchment that the proposal could in theory be supportable. However this limited and incomplete approach does not provide a complete answer and significant concerns remain regarding impacts of the proposal on the Town Centre itself in the context of the adopted strategic planning approach for Green Square.
59 Although the economic impact of the proposal on the Town Centre itself appears to be significant I acknowledge the evidence of Mr Haratsis and accept that in this context it would be unlikely as suggested by the respondent "to kneecap the Town Centre". However, in my opinion impacts on the Town Centre need to be assessed more broadly. As Mr Gibbins explained the proposal is a threat to the Town Centre's commercial success in part because the land market will react unfavorably if private investment is undermined by ad hoc competing developments. There will be significant community costs if it's role is undermined. Similarly, Mr Anderson taking into account the substantial investments that have occurred to this time, was concerned regarding threats to the viability of the Town Centre and the significant risks to its overall integrity. Also, in this regard, Mr Harrison was concerned that should the proposed development be operational before the Town Centre supermarkets this would in turn adversely affect the primacy and vibrancy of the town centre. Whilst I doubt that the proposal would completely undermine the ultimate role of the Town Centre these concerns point to the need to ensure that the present investments in it are not put at risk especially during the start-up phases and further weight against the proposal.

53 The applicant contends that in finding that the proposed development would have adverse impacts on possible future development in Green Square, the Commissioner failed to apply the correct test required by s 79C(1)(b) as articulated in Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373, Cartier Holdings Pty Ltd v Newcastle City Council (2001) 115 LGERA 407 and Kentucky Fried Chicken Proprietary Limited v Gantidis (1979) 140 CLR 675, because he did not consider whether there was going to be a resultant community detriment which would not be made good by the proposed development. Furthermore, the Commissioner took into account an irrelevant consideration, namely, the adverse economic impact of the development on possible future development in Green Square.

54 In Gantidis it was held that economic competition expected from a proposed use was not a valid planning consideration within the terms of the instrument governing the matter. Stephen J said (at 687 and per Barwick CJ at 681):

If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.

55 In Fabcot Lloyd J, considering the application of former s 90(1)(d) of the EPAA (which was later accepted to be the same approach applicable to s 79C(1)(b): see Cartier Holdings at [26]) stated (at 378):

Similarly, economic competition between individual trade competitors is not an environmental or planning consideration to which the economic effect described in s 90(1)(d) is directed. The Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (NSW) are the appropriate vehicles for regulating economic competition. Neither the Council nor this Court is concerned with the mere threat of economic competition between competing businesses. In an economy such as ours that is a matter to be resolved by market forces, subject to the Trade Practices Act and the Fair Trading Act . It is not part of the assessment of a proposal under the Environmental Planning and Assessment Act for a consent authority to examine and determine the economic viability of a particular proposal or the effect of any such proposal on the economic viability of a trade competitor. Moreover, it is at least arguable from the fact that the Trade Practices Act now applies to local government councils, that if a local council were to refuse or to limit a proposal for development on the ground of competition with a trade competitor, it could be guilty of anti-competitive conduct contrary to Pt 4 of that Act.

56 As to when economic competition is a relevant consideration under the EPAA, his Honour stated (at 383):

To "marginalise" the non-supermarket businesses in the manner described by Mr Leyshon would clearly put at risk the viability of those businesses. The effect would be as described in Kentucky Fried Chicken Pty Ltd v Gantidis : the facilities presently enjoyed by the community in Windsor would be put in jeopardy by the proposed development and the resultant community detriment would not be made good by the proposed development itself. That is a proper consideration to be taken into account as a matter of town planning.

57 The principles espoused by Lloyd J in Fabcot were later endorsed by Pearlman J in Cartier Holdings (at [34]) where her Honour expressed the view that:

[34] In my opinion it is the very scope and content of the EP&A Act which provides the most useful guidance in the interpretation and application of s 79C(1)(b). The Court should in the first instance have regard to the context in construing provisions in a statute, not merely after an ambiguity has been identified: per Spigelman CJ in Repatriation Commission v Vietnam Veterans' Association of Australia Inc (NSW Branch) (2000) 48 NSWLR 548 at 575-576, (and see the authorities there cited). The objects set out in s 5 of the EP&A Act are very wide in their ambit. They include the proper management of land for the purpose of "promoting the social and economic welfare of the community", the orderly and economic use and development of land, and the protection of the environment. That indicates, in my opinion, that the phrase "economic impacts in the locality" is to be understood in an environmental and planning sense. Hence I would agree with Lloyd J in Fabcot Pty Ltd v Hawkesbury City Council that the economic impact of a proposed development upon private individual traders is not per se a proper environmental or planning consideration, and I do not think that the decision of Bignold J in City West Housing Pty Ltd v Sydney City Council is, properly understood, authority to the contrary. It is simply not competition as such which is encompassed by s 79C(1)(b). It would be unwise to attempt to categorise the type of economic impact which would properly fall to be considered under s 79C(1)(b), for, of course, each case depends upon its own facts, but it is clear, in my opinion, that the section does not require the consideration of economic impact on individual competitors, except to the extent that any impact upon individual competitors, or competition generally, demonstrates economic impact in the locality as an environmental or planning matter.

58 However, in Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119 Basten JA made three observations about the line of authority referred to above (at [33]-[35]):

[33] Three points need to be made in relation to this passage and the general line of authority. First, in considering the historical development of planning law, it is useful to refer to the consideration by Bignold J in City West which extended not only to Kentucky Fried Chicken , but to authorities in this State dealing with the relevance of economic matters. After reference to several decisions of Else-Mitchell J in relation to the earlier planning legislation found in the Local Government Act 1919 (NSW), Bignold J concluded at [137]:

However, whatever be the position under the previous law, the enactment in 1979 of the EP&A Act materially and radically changed the scope of planning law in this State. No longer could it be said, in the face of s 90(1)(d), that economic or social considerations were irrelevant to the determination of a development application.

That conclusion is reflected in the qualification accepted by Pearlman J in the last sentence of the passage in Cartier set out at [32] of these reasons.

[34] Secondly, reliance upon the objects of the legislation, set out in s 5, which "are very wide in their ambit" (to adopt the words of Pearlman J), provides little assistance in construing specific statutory provisions. The objects are of greater use in seeking to ascertain the limits of a consideration such as "the public interest", set out in s 79C(1)(e) .
[35] Thirdly, the suggested limitation of s 79C(1)(b) to only those economic impacts which can be described as "an environmental or planning matter" is unclear both as to the extent and the justification for the limitation. Leaving aside the question of "environmental", which is not relied upon by the claimant in the present circumstances, the concept of a "planning matter" is largely meaningless as an implied constraint. The EP&A Act may reasonably be described as "planning legislation": those factors which it prescribes as mandatory or discretionary considerations may therefore be described as "planning matters". There is no independent point of reference to avoid circularity. In my view, it is neither necessary nor appropriate to impose such a gloss on the language of para (b) of s 79C(1). That is not to say that all economic impacts are mandatory considerations, but rather that any limitation must be specific and justified.

59 Thus his Honour concluded by remarking that (at [45]):

…Further, without seeking to identify precisely the limit sought to be imposed in Fabcot and Cartier Holdings , it is at least arguable from the analysis set out above that a broader construction of s 79C(1)(b) should be adopted than those cases in the Land and Environment Court would indicate.

60 A careful analysis of the Commissioner’s decision reveals that his reasoning was both in fact and in law consistent with this “broader construction”. The critical consideration in the determination of the application before the Commissioner was the strategic planning context and the fact that the Town Centre is to be “the major commercial, retailing, cultural and entertainment centre within that area” (at [56]). Its importance was not to be “underestimated” (at [56]). The applicant’s economic evidence was that the proposed development would not affect the Retail Hierarchy because there would be a sufficient retail spend to support it without affecting the Town Centre (at [57]). While the Commissioner described this evidence as “compelling” (at [57]), he nevertheless found it to be incomplete and that “significant concerns remain regarding impacts of the proposal on the Town Centre itself in the context of the adopted strategic planning approach for Green Square” (at 58]). The impact on the Town Centre therefore needed to be assessed “more broadly” (at [59]).

61 Notwithstanding that the Commissioner did not refer expressly to Gantidis, a fair reading of his decision demonstrates that it is in conformity with it. The Commissioner found that the planned Town Centre, which is to be the major commercial, retail, cultural and entertainment centre for the Green Square Urban Renewal Area, would be put in jeopardy by the proposed development (at [59]). While the Commissioner ‘doubted’ that that the proposal would completely undermine the role of the Town Centre and while he had regard to the evidence of Mr Haratis (for the applicant) that despite the –11% (or $17 million) impact on the Town Centre which would dissipate in approximately two years, the Commissioner was nevertheless clearly not confident that the proposal would be able to make good the resultant community detriment (at [58]-[59]). This is unsurprising given the evidence of Mr Andersen that over $5 million had been invested in funding, design and planning studies, that the delivery of essential infrastructure within the Town Centre was worth approximately $65 million and that a consortium had been appointed to commence construction within the Town Centre in 2010. Mr Andersen expressed deep concern that any threat to the viability of retailing within the Town Centre represents a significant risk to its overall integrity. In addition to the opinion expressed by Mr Andersen, the Commissioner’s lack of confidence was also consistent with the opinion expressed by Mr Harrison (at [45] and [46]) and Mr Gibbins (at [54]).

62 Further, I do not read the Commissioner’s observations as a rejection of the proposal on the basis of competitive risk to the private individual traders in the Town Centre. The Commissioner was concerned with the much broader economic impact of the proposal. The Commissioner stated that the proposal was a threat to the Town Centre’s commercial success “in part because the land market will react unfavorably if private investment is undermined by ad hoc competing developments” resulting in “significant community costs” and adversely affecting the “primacy and vibrancy of the Town Centre”. Thus “these concerns point to the need to ensure that the present investments in it are not put at risk especially during the start-up phases” (at [59]).

63 To characterise, as the applicant does, the Commissioner’s findings in the manner suggested is to misconceive the Commissioner’s reasoning process. The Commissioner stated that if the shopping or other specified facilities planned for the community in the future are put into jeopardy by the proposed development and if the resultant detriment cannot be remedied by the proposed development itself, then this is a consideration to be taken into account that weighs against approval. Thus the Commissioner correctly stated, “it is not for the Court to decide where these supermarkets should be located” (at [60]). Rather, it was his concern that “approval of this proposal would be likely to pre-empt or constrain the proper planning approach that falls within the responsibilities of the relevant planning authorities…[which] is not about competition between supermarkets but instead about the considered determination of appropriate locations for them within the well-understood and accepted concept of a retail hierarchy” (at [61], emphasis added).

64 Accordingly, I accept the submission of the respondent that the Commissioner dismissed the planning appeal not because the proposed development may have an economic impact upon private individual traders, but because of planning issues that had a significantly wider economic import. I discern no error in the Commissioner’s reasoning in this regard.

65 It follows that I find that the taking into account of the effect of the proposed development on the land market, on the orderly development of the Town Centre, on the Retail Hierarchy, on the cost to the community and on the risk to present investments, especially during the start-up phases, were all appropriate and relevant matters, or at the very least, in my view, were not irrelevant matters, to take into account in the determination of the application. Again I find no error in the Commissioner’s approach.

66 For these reasons I dismiss grounds 2 and 3.

Ground 5 – Taking Into Account the Objects of the EPAA

67 The Commissioner stated (at [12]):

12 Section 5(a)(i), (ii) and (iii) of the EPA Act contains objectives to be taken into account when assessing development applications relevantly including: the social and economic welfare of the community; the promotion and coordination of the orderly and economic use and development of land; and the provision and coordination of community services and facilities. In this context the respondent submits that any matters that further these objects can be taken into consideration.

68 The applicant submits that the Commissioner erred by referring to s 5(a)(ii) of the objects of the EPAA as a matter for consideration under s 79C(1). More specifically, the applicant submits that by finding that the approval of the proposal would not represent the orderly and economic use and development of land (at [60] and [66]), the Commissioner converted the objects of the EPAA into a de facto test or consideration required to be satisfied in order for the development to be approved. I do not agree.

69 In Carstens, Lloyd J plainly stated that a consent authority could take into consideration any matter which relates to the objects of the EPAA set out in s 5 (at [25]):

[25] I thus conclude that the matters for consideration listed in s 79C(1) are not the only matters to which a consent authority may have regard. The listed matters are those which a consent authority must consider. The consent authority may also take into consideration other matters not included in those which are listed. Those other matters include, in the public interest, any matter which relates to the objects of the Act set out in s 5. This does not mean that the decision-maker may take anything into consideration. The relevant considerations are confined so far as the subject matter, scope and purpose of the Act and any environmental planning instruments allow. The draft DCPs and the Values Statement in the present case are relevant as documents which relate to the matters described in subpars (i), (ii), (vi) and possibly (vii) of par (a) of those objects. In taking those matters into consideration the Commissioner made no error of law.

70 This approach has been followed in subsequent decisions of this Court. As Jagot J summarised in Milne v Minister for Planning [No 2] [2007] NSWLEC 66 (at [28]), “the appropriate touchstone for resolution of any conflict again generally should be the objects of the EPA Act, the goals identified by the promulgated environmental planning instruments, and the studies that informed the content of those instruments”.

71 Read properly the Commissioner did not, as the applicant submits, “measure the development against the objects of the EPAA as a matter relevant to be considered under s 79C(1)(e)”. Instead the Commissioner considered, as he was entitled to do, whether the proposed development met the objects of the Act given that it did not represent the orderly and economic use of the development of the land “and in relation to strategic town planning considerations, would not be in the public interest” (at [66], emphasis added). In so concluding, the Commissioner was not requiring that the proposed development positively satisfy this object, rather he was stating that it did not further it. To attempt to elevate the language of the Commissioner in the manner sought by the applicant is to ignore the proscriptions against the over zealous scrutiny of the Commissioner’s decision. I therefore reject this ground of appeal.

Ground 6 – Was Proper, Genuine and Realistic Consideration Given to Clause 21E of the 1998 LEP

72 The applicant submits that the Commissioner failed to give proper, genuine and realistic consideration to cl 21E(1) and (3) of the 1998 LEP. Clause 21E states as follows:

21E Zoning controls for Zone No 10(e) – the Mixed Uses “E” Zone
(1) What are the objectives of the zone?

The objectives of Zone No.10(e) are:
(a) to establish a predominantly employment-based zone while allowing residential use on appropriate development sites, and

(b) to allow for appropriate business activities which contribute to economic growth and employment opportunities within the Green Square area, provided they are environmentally compatible in terms of design and operational requirements with residential development, and

(c) to allow residential development within the zone, provided it is designed so as to be compatible with other non-residential uses and will not adversely affect the operations of existing lawfully operating industrial uses, and

(d) to minimise any adverse impact, including social impact, on residential amenity by devising appropriate design assessment criteria and applying specific impact mitigation requirements by the use of development control plans, and
(e) to ensure that development within the zone contributes to a highly sustainable, vibrant community, and reflects equal and integrated consideration of social, economic and environmental design issues.

…

(3) What requires development consent?

Development for the purpose of:
Advertising structures; amusement centres; backpackers’ hostels; bed and breakfasts; child care centres; clubs; commercial premises; commercial signs; community centres; dwelling houses; educational establishments; high technology industries; home industries; hospitals; hotels; light industries; local businesses; medical centres; multiple dwellings; non-structural advertisements; places of assembly; places of public worship; private hotels; public buildings; recreation areas; recreation facilities; restaurants; roads; serviced apartments; shops; under awning signs.

73 It is not in dispute that cl 21E was a mandatory consideration. The objectives of the zone were matters that the Commissioner was bound to take into account pursuant to s 79C(1) of the EPAA.

“proper, genuine and realistic consideration”

74 The phrase “proper, genuine and realistic consideration” originates from the judgment of Gummow J in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291. It was adopted by Mason P in Weal v Bathurst City Council (2000) 111 LGERA 181 (at [9]) where Giles JA described the practical effect of the formulation as follows (at [80]):

[80] The terms of s 90(1) were mandatory: the council was obliged to take into consideration relevant matters from the catalogue of matters in s 90(1), and to weigh them up in determining the development application. It had to inform itself sufficiently to be able to take into consideration the matters of relevance to the determination of the development application. With particular reference to par (b) of s 90(1), it had to be aware not only of the impact and the likely harm but also of available protective or mitigating means: so the conditions to be included in the consent were an integral part of the consideration ( Parramatta City Council v Hale (1982) 47 LGRA 319 at 338-339, 340, 342; King v Great Lakes Shire Council (1986) 58 LGRA 366 at 384). Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration ( Parramatta City Council v Hale (at 335-336, 339); King v Great Lakes Shire Council (at 384); Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-375).

75 The phrase was then considered by Basten JA in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 who was careful to caution against an application of the expression that turned it into an assessment of the merits of the decision under review. His Honour said (at [76]-[79]):

[76] In Weal v Bathurst City Council (2000) 111 LGERA 181 , Mason P, although "attracted to" the language adopted by Gummow J in Kahn , adopted a constrained approach to review of a council's decision-making process. On the other hand, Giles JA (with whom Priestley JA agreed) stated at [80]:

Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration...

[77] This latter formulation appears to treat identification of the correct test as a matter of construction of the clause "take into consideration" in the chapeau of s 79C(1). With respect, that approach runs the risk of falling foul of the admonition contained in the judgment of Spigelman CJ in Bruce v Cole , with whose reasons Mason P and Sheller and Powell JJA agreed.
[78] The force of the statement in Bruce v Cole may, however, have been mitigated to some extent by the adoption by his Honour in Zhang v Canterbury City Council (2001) 51 NSWLR 589; 115 LGERA 373 of the language of Gummow J in Kahn . Although there is reference to the passage in Bruce v Cole (at [62]and [64]) the Chief Justice noted, by reference to Hale at 339, that "mere advertence to a matter required to be taken into consideration is not sufficient". The reference in Hale at 339, in the judgment of Moffitt P read as follows:

It was put to us that the authority could consider relevant matters and reject them. An assertion in these terms has an ambiguity likely to produce error. If the submission means that it is sufficient that the authority advert to a relevant matter and that it can then discard it, the submission must be rejected, because the requirement is that the matter shall be taken into consideration.

[79] So much must be accepted: the danger is that adoption of the epithets such as "proper, genuine and realistic" consideration, may be understood to qualify the statutory terminology in a manner inconsistent with accepted principles in relation to judicial review. As noted in Bruce v Cole , they risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review. Adoption of the principles set out by McClellan CJ in the Land and Environment Court in Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 at [37], to which this Court was referred by the appellant, should be applied subject to a similar caution.

76 These observations were repeated in Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450 where his Honour stated (at [77]-[78]):

[77] By way of explication, it may be noted that use of the word "proper" may be understood to invoke the requirement that a power can only be used for the purpose or purposes for which it is conferred and not for some extraneous purpose: see, eg, Sydney Municipal Council v Campbell (1924) 7 LGR (NSW) 69 and R v Toohey ; Ex parte Northern Land Council (1981) 151 CLR 170 at 232-233 (Aickin J). Similarly, the word "genuine" may be understood to reflect the well-established principle that the decision-maker must undertake his or her function in good faith, a requirement bound up in the concept of "improper purpose", as explained by Aickin J in Ex parte Northern Land Council . Nevertheless, both those obligations are properly related to the exercise of power, rather than some discrete aspect of the exercise, namely taking into account a particular mandatory consideration. The third limb of the trinity, "realistic" finds no ready referent in the language of judicial review.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd

77 In Anderson v Director General of the Department of Environment and Climate Change (2008) 163 LGERA 400 Tobias JA endorsed the views expressed by Basten JA (at [57]) and stated (at [58]-[59]):

[58] Of course, the relevant matter must be more than adverted to or given mere lip service. Nor would it be sufficient to advert to the matter and then discard it as irrelevant: Elias v Federal Commissioner of Taxation (2002) 123 FCR 499 at [62] per Hely J. But whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written. That process is not, I believe, assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word, namely, "consider" and which, as the Full Federal Court observed in Anthonypillai , invoke "language of indefinite and subjective application".
[59] Furthermore, the formulation that the decision-maker must evince an understanding of the relevant matter may require no more than that he or she must not misdirect himself or herself as to the meaning of the particular matter required to be taken into consideration in the context of the relevant statute.

78 The applicant submitted that the Commissioner failed to carry out the required process of evaluation resulting in the formation of an opinion as to whether or not the proposed development was consistent or inconsistent with the objectives of the zone. Instead, it is alleged, he erroneously discarded clause 21E as irrelevant and moved onto the objectives of the possible future industrial zone. The applicant relied on the amended judgment as evidence of the mere advertence to which the Commissioner gave clause 21E.

79 The applicant also asserted that the Commissioner erred by failing to take into consideration the provisions of clause 21E because he “substituted for the statutory requirement a different approach” (North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23, Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [76] and [77] and Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 at [32] -[35]). That is to say, the Commissioner did not take into consideration clause 21E because he put aside the planning intent set out in that clause in the 1998 LEP and applied his own standard, namely, the “present planning intent for” Green Square. Such an approach, the applicant asserts, does not meet the objective of consistency of decision-making.

80 Again a reasonable reading of the Commissioner’s decision reveals that the Commissioner was mindful of the objectives of Zone 10E as set out in cl 21E and that his consideration of these objectives amounted to more than “mere lip service” (see the judgment at [14]-[16], [49], [56] and [63]-[65]). However, balanced against his consideration of cl 21E was the Commissioner’s consideration of the zoning provisions in Zone 11A, cl 27A, cl 27B and Sch 4 of the 1998 LEP. The Commissioner also took into account the City Plan, the 1997 DCP, the Retail Study and the Accessibility Plan. All were relevant considerations in the Commissioner’s assessment of the development application. Thereafter, the Commissioner was required to give these matters such weight as he deemed appropriate. It is this process of balancing conflicting considerations with which the applicant in reality impermissibly takes issue (Irving v Goulburn Mulwaree Council at [32], Azzopardi at 155 and Botany Bay at [23]).

81 I also do not accept that the Commissioner substituted his assessment of what the zoning ought to be for that of the statutory requirement. Rather, as stated above, the Commissioner balanced the existing planning controls against the future planning strategy for the Town Centre and gave them the weight he considered appropriate given the intent of the council, of which there was ample evidence, to rezone the area for industrial purposes thereby prohibiting the development proposal (see [56] and [63]-[65]). It follows that I reject this ground of appeal.

Ground 7 – Assessment Against Wrong Objectives

82 Tangential to the complaint raised above, the applicant submits that the Commissioner erred by assessing the proposed development against the wrong objectives, namely, the strategic planning intent for the area rather than the objectives of Zone 10(e) – the Mixed Uses “E” Zone pursuant to cl 21E(1) of the 1998 LEP. In so doing he failed to match the component of the development with the objectives of the zone in which the development was proposed to be carried out. The applicant relied, by analogy, on Tuite (at [30]) to demonstrate the error.

83 The facts of this case are not, in my opinion, analogous to Tuite. In Tuite a commissioner erroneously held that the development before him had to be consistent with the objectives of a zone in which the land was not located. In the present case, the Commissioner found that development did not comply with the applicable Retail Hierarchy and that “this is a sufficient reason to refuse the application” (at [62]). As a consequence, whether or not the proposal was consistent with the objectives of the zone within which the site was located became a secondary consideration.

84 In any event, the Commissioner did have regard to the objectives of the mixed-use zone in which the development was proposed to be carried out and assessed the proposed development against the current planning controls (see at [65]). He then went on to further consider and match the objectives of the future planning intent of the proposed industrial zone. He accepted that the council’s intent was sufficiently certain and that the proposal would be prohibited in the new industrial zone. There was nothing erroneous in this approach. That the Commissioner accorded greater weight to the latter does not vitiate his decision. No error has been demonstrated.

Ground 8 and 9 – Fairly to Apply the Evidence of Intended Rezoning

85 The applicant submits that in assuming that the planning intent to rezone the site industrial was “inevitable” in the absence of any council resolution to this effect, the Commissioner fell into error by either misapplying the evidence, or in the alternative, by making a finding of fact for which there was no evidence.

86 The grounds of appeal may be dismissed on two bases. First, while it is correct to state, as the applicant does, that there is no actual resolution of the council to rezone the site and surrounding area, there was, however, ample evidence of the council’s intention to effect such a rezoning as part of the City Plan (see at [28]-[30] of the judgment). This, in my view, was sufficient.

87 Second, whether the rezoning was likely to occur or not is a question of fact and not law. Given my earlier finding that the council’s planning intent was a legitimate matter for consideration by the Commissioner, to cavil with the Commissioner’s treatment of this consideration is to illegitimately descend into the merits of his decision.

88 The applicant has therefore failed to establish these grounds of appeal.

Ground 14 – Miscontrual of the Planning Intent

89 In this ground the applicant submits that the Commissioner erred because he misconstrued “the present planning intent” for the area by not having recourse to the statutory planning controls currently applicable to the subject site, namely, the 1998 LEP and the 1997 DCP. In so doing, the applicant contends that the Commissioner misunderstood the proper approach to be followed pursuant to s 74C(5) of the EPAA.

90 This ground, not developed orally by the applicant, does no more than restate ground 6 and for the reasons already given above, it ought to be dismissed.

91 In addition, to the extent that the applicant relied on Botany Bay (at [33]) in support of its argument that case may be distinguished. In Botany Bay, the Court held that the Commissioner did not take into consideration the terms of a development control plan (“the DCP”) which applied to the land when determining the adequacy of the setbacks from the side boundaries provided for in the development application. This was so notwithstanding that while he referred to the relevant provisions of the DCP and was entitled to depart from them in his determination of the application, he took a different view than that embodied in the DCP as to the applicable general policy. In so doing he substituted his own approach for the statutory standard thereby failing to treat it as a fundamental element.

92 In the present case, the Commissioner has not, in my view, put aside the statutory planning controls currently applicable to the site in either the 1998 LEP or the 1997 DCP in construing the present planning intent for the area. The Commissioner had regard to the present mixed-use zoning for the area and the evidence of Ms Smits that the proposal would be consistent with the zone objectives (at [65]). However, the Commissioner also took into account the intended rezoning of the area by the council (a matter that Ms Smits also considered in her evidence: see at [49]) and ultimately concluded that this was a matter that attracted “further weight against the proposal” given his earlier conclusion about its inconsistency with the Retail Hierarchy (at [65]). Accordingly, the Commissioner did not, unlike Botany or Zhang, simply substitute his own view of the planning intent for the area, but had regard to the considerable volume of evidence that the area was to be rezoned and the effect that this would have on the proposed development and weighted it accordingly. There was nothing erroneous in this approach. I therefore dismiss this ground of appeal.

Grounds 15,16 and 17 – Failure to Give Adequate Reasons

93 Combined, these grounds assert that the Commissioner failed to take into account, or alternatively failed to give reasons, for rejecting the applicant’s submissions on the effect the proposed development would have on competition when considering the public interest pursuant to s 79C(1)(e) of the EPAA. The applicant submits that as part of the public interest competition was a fundamental matter to which the Commissioner needed to respond and his failure to do so results in error.

94 The applicant’s submissions before the Commissioner were found in an exhibit to the affidavit of Ms Hunt. They were:

3. The applicant’s submissions in relation to public interest is essentially as follows:

The public interest in competition retail is superior to the public interest in restraining competition in retail.

95 The submissions were to the effect that agreements, arrangements and understandings which have the purpose or effect, or likely effect, of substantially lessening competition are matters that are contrary to “the public interest” as that phrase is understood where it appears in s 79C(1)(e).

96 Before the Commissioner, the applicant advanced the argument that he ought to have regard to the protection of supermarket competition in considering the proposed development. The applicant referred the Commissioner to an ACCC report which recommended that “particular regard should be had to whether the proposal will facilitate the entry of a supermarket operator not currently trading in the area”. The applicant submitted that approval of the present development application would be consistent with the purpose and intent of the ACCC recommendation and would therefore be in the public interest.

97 The Commissioner did not expressly refer to the ACCC report in the course of his decision. However, the Commissioner did expressly deal with the issue of competition. While the Commissioner accepted the evidence of Mr Haratis that the economic impact of the proposal on the Town Centre, albeit significant, would not “kneecap” it (at [59], see also at [51] and [52] where the Commissioner summarised Mr Haratis’ evidence), he also accepted the evidence of Mr Gibbins and Mr Andersen that it nevertheless posed a threat to the Town Centre’s commercial success. Further he accepted, as he was entitled to do on the material before him, the evidence of Mr Harrison that should the proposed development be operational before the Town Centre supermarkets were, this would have a deleterious impact on the primacy and vibrancy of the Town Centre and it could not be considered to be orderly development to locate a large retail centre, such as the one proposed, so geographically proximate to two planned centres, namely, the Town Centre and the Ashmore Estate (at [59] and [60]). This conclusion was reinforced by the evidence of Ms Smits who admitted that the proposed development would be inconsistent with the Retail Hierarchy (at [60]).

98 Accordingly, the Commissioner, far from failing to take the applicant’s submissions concerning competition into consideration, had regard to them and rejected them because in his view the issue was “not about competition between supermarkets but instead about the considered determination of appropriate locations for them within the well-understood and accepted concept of a retail hierarchy” (at [61]. See also at [46], [54]-[58] of the judgment). The Town Centre is part of the Retail Hierarchy that was recommended in the Retail Study. The Retail Study had been prepared and endorsed by the council in 2008 and submitted to the Department of Planning in 2009 (at [10]). The Commissioner’s deferment and reasoning in relation to it was appropriate in all the circumstances.

99 Moreover, having rejected competition as an issue for the reasons given, the Commissioner was not obliged to then reconsider it under the rubric of “public interest”. In any event, the Commissioner can be taken to have done so when he concluded that “for all of the above reasons” approval of the proposal would not be in the public interest (at [66]).

100 Finally, having expressly considered and rejected the issue of “competition between supermarkets”, the subject-matter at the core of the ACCC report, the Commissioner’s failure to expressly refer to the ACCC report does not give rise to error.

101 The applicant has therefore failed to establish grounds 15 to 17.

Orders

102 Having failed on all of its grounds of appeal for the reasons given above, the orders of the Court are:

Land and Environment Court Act

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Citations

Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17

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CITATION:	The Village McEvoy Pty Limited v Council of the City of Sydney (No 2) [2010] NSWLEC 17
PARTIES:	APPLICANT The Village McEvoy Pty Limited RESPONDENT Council of the City of Sydney
FILE NUMBER(S):	11264 of 2008
CORAM:	Pepper J
KEY ISSUES:	JUDICIAL REVIEW :- s 56A appeal from decision of commissioner refusing development consent for proposed retail shopping precinct - principles applicable to a s 56A appeal - whether s 79C(1)(a)(ii) overrules s 79C(1)(e) on the basis that the former is a specific provision whereas the latter is a general provision - whether commissioner took into account irrelevant considerations, including the alleged adverse economic impact of proposed development - whether commissioner failed to take into account relevant considerations, including any negative impact of the proposed development on competition - "public interest" - whether consideration of policy documents and background papers and studies was in error - whether taking into account the objects of the Environment Planning and Assesment Act was in error - whether the commissioner gave "proper, genuine and realistic consideration" to the terms of the LEP - whether the commissioner assessed the proposal against the wrong planning objectives - whether the commissioner substituted his own planning standards for those of the LEP - whether the commissioner misdirected himself as to the evidence - whether there was a failure to give adequate reasons - appeal dismissed.
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 ss 5, 74C(5), 79C(1) Land and Environment Court Act 1979 s 56A South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan 1997
CASES CITED:	Anderson v Director General of the Department of Environment and Climate Change (2008) 163 LGERA 400 Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bayside City Council v Telstra Corp Ltd (2004) 216 CLR 595 Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450 BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Carstens v Pittwater Council (1999) 111 LGERA 1 Cartier Holdings Pty Ltd v Newcastle City Council (2001) 115 LGERA 407 Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 Irving v Goulburn Mulwaree Council [2008] NSWLEC 142 JPR Legal Pty Ltd v Marrickville Council [2009] NSWLEC 156 Kentucky Fried Chicken Proprietary Limited v Gantidis (1979) 140 CLR 675 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 Milne v Minister for Planning [No 2] [2007] NSWLEC 66 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 North Sydney Council v Ligon 302 Pty Ltd [No 2] (1996) 93 LGERA 23 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Pretty v Solly (1859) 26 Beav 606 Randall Pty Ltd v Willoughby City Council (2005) 144 LGERA 119 Segal v Waverly Council (2005) 64 NSWLR 177 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 The Village McEvoy Pty Ltd v City of Sydney Council [2009] NSWLEC 1232 Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 Weal v Bathurst City Council (2000) 111 LGERA 181 Zhang v Canterbury City Council (2001) 51 NSWLR 589
DATES OF HEARING:	19 & 20 November 2009 23 November 2009 (written submissions)
DATE OF JUDGMENT:	11 February 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr C Leggat SC SOLICITORS Shaw Reynolds Bowen & Gerathy RESPONDENT Mr P Tomasetti SC SOLICITORS Maddocks Lawyers