Woolworths Limited v Wyong Shire Council & Ors - [2005] NSWLEC 400

Land and Environment Court

of New South Wales

CITATION:
Woolworths Limited v Wyong Shire Council & Ors [2005] NSWLEC 400

PARTIES:
APPLICANT:
Woolworths Limited
FIRST RESPONDENT:
Wyong Shire Council
SECOND RESPONDENT:
Errol Investments Pty Limited
THIRD RESPONDENT:
Minister Administering the Environmental Planning and Assessment Act 1979

FILE NUMBER(S):
41492 of 2004

CORAM:
Pain J

KEY ISSUES:
Judicial Review :- challenge to local environmental plan - validity of clause in LEP - whether s 35 precludes challenge to LEP - whether Council has jurisdiction under LEP to grant development consent
Judicial Review :- challenge to development consent - whether delegated authority properly exercised - whether failure to consider development control plan - whether Council took into account an irrelevant consideration - whether failure to consider noise and traffic impacts

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 4, s 5, s 24, s 26, s 35, s 70, 79C, s 101
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Interpretation Act 1987 s 33
Land and Environment Court Act 1979 s 25A, s 25B
Migration Act 1958 (Cth)
Motor Vehicles Act 1988
Retail Centres Development Control Plan No. 81
State Environmental Planning Policy 1 – Development Standards
State Environmental Planning Policy 5 – Housing for Older People or People with a Disability
Warnervale East & Wadalba North-West Urban Release Area (Wadalba, Hamlyn Terrace and Woongorrah) Development Control Plan No. 49
Wyong Local Environment Plan 1991 cl 2, cl 7, cl 10(3), cl 59

CASES CITED:
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385;
Anambah Homes v Maitland City Council (2004) 135 LGERA 421;
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223;
Breitkopf v Wyong Shire Council (1996) 90 LGERA 269;
Caldera Environment Centre Incorporated v Tweed Shire Council (Talbot J, NSWLEC, 13, July 1993, unreported);
Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257;
Centro Properties Ltd v Warringah Council (No 2) (2003) 132 LGERA 45;
Cobden-Jones v Woollahra Municipal Council (2002) 118 LGERA 41;
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980) 147 CLR 297;
Currey v Sutherland Shire Council (1998) 100 LGERA 365;
Dubler Group v Minister (2004) 137 LGERA 178;
Esmonds Motors Pty Limited v Commonwealth (1970) 120 CLR 463;
Fabcot Pty Limited v Hawkesbury City Council (1997) 93 LGERA 373;
Franklins Limited v Penrith City Council & Anor [1999] NSWCA 134;
Georgakis v North Sydney [2004] NSWLEC 123;
Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84;
Hayden Theatres Pty Limited v Penrith City Council and Ors (Bignold J, NSWLEC, 1 April 1998, unreported);
Kentucky Fried Chicken Pty Limited v Gantidis (1979) 140 CLR 675;
King v Great Lakes Council (1985) 58 LGRA 366;
Kingston & Anor v Keprose Pty Limited (1987) 11 NSWLR 404;
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207;
Lowy v The Land and Environment Court of NSW & Ors (2003) 123 LGERA 179;
Manly Council v Hortis (2001) 113 LGERA 221;
McEldowney v Ford [1971] AC 632;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273;
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597;
Minister for Resources & Anor v Dover Fisheries Pty Limited (1993) 116 ALR 54;
Mitchforce Pty Ltd v The Industrial Relations Commission (NSW) (2003) 57 NSWLR 212;
Nalor Pty Ltd v Bankstown City Council (1980) 42 LGERA 111;
Nedoni Pty Ltd v NSW Minister for Roads [2004] NSWLEC 56;
North Sydney Council v Ligon 302 Pty Limited (1996) 93 LGERA 23;
North Sydney Municipal Council v P D Mayoh (No 2) (1990) 71 LGRA 222;
Parramatta City Council v Hale (1983) 47 LGRA 319;
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132;
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476;
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155;
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355;
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598;
R v Metal Trades Employers’ Association; ex parte Amalgamated Engineering Union (1951) 82 CLR 208;
Sericott Pty Limited v Snowy River Shire Council (1999) 108 LGERA 66;
Shell Company v Manly Muncipal Council (1961) 7 LGRA 87;
Shell Company v Randwick Municipal Council (1959) 4 LGRA 348;
Smith v Wyong Shire Council (2003) 132 LGERA 148;
Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614;
South Australia v Tanner (1989) 166 CLR 161;
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319;
Stockland Development v Manly Council (2004) 136 LGERA 254;
ULV Pty Ltd v Scott & Ors (1990) 19 NSWLR 190;
Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78;
Weal v Bathurst City Council (2000) 111 LGERA 181;
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707;
WRF Property Pty Ltd v Armidale Dumaresq Council [2003] NSWLEC 223;
Yadle Investments Pty Ltd v Roads & Traffic Authority of NSW (1989) 72 LGRA 409;
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 20/06/2005
21/06/2005
22/06/2005
23/06/2005
24/06/2005

DATE OF JUDGMENT:

09/23/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr B Preston SC and Ms J Jagot (barrister)
SOLICITORS:
Corrs Chambers Westgarth
FIRST RESPONDENT:
Mr T Robertson SC and Mr J Lazarus (barrister)
SOLICITORS:
Abott Tout
SECOND RESPONDENT:
Mr T Hale SC and Mr J White (barrister)
SOLICITORS:
Shane Boesen
THIRD RESPONDENT:
submitting appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

23 September 2005

41492 of 2004 Woolworths Limited v Wyong Shire Council and Errol Investments Pty Limited and Minister Administering the Environmental Planning and Assessment Act 1979
JUDGMENT

1 Her Honour: These are class 4 proceedings brought by the Applicant against Wyong Shire Council (“the Council”), Errol Investments Pty Limited (“Errol Investments”) and the Minister Administering the Environmental Planning and Assessment Act 1979 (“the Minister”). There are two overarching challenges made on numerous grounds, firstly, to the validity of cl 59 of the Wyong Local Environmental Plan 1991 (“the LEP”) and, secondly, to the validity of the development consent granted by the Council to Errol Investments on 28 October 2004. The Minister has filed a submitting appearance.

2 Wadalba is a “new” township (greenfield urban release area) planned by the Council located in the Warnervale East & Wadalba North-West Urban Release Area. The Applicant and Errol Investments own adjoining properties in the town. Fabcot Pty Limited is the registered proprietor of Lot 195 DP 1006789 at Pacific Highway, Wadalba (“the Woolworths site”), and is a wholly owned subsidiary of the Applicant. The Applicant lodged a number of development applications with the Council for the construction of a supermarket and other uses of the Woolworths site from 7 October 2003 (“the Woolworths DA”). None of these have been approved by the Council.

3 On 16 April 2004, Errol Investments lodged development application no. 797/04 (“the Errol DA”) with the Council for “construction of local shopping centre and associated carparking and loading dock facilities” on Lot 2601 DP 1043825 at Figtree Boulevard, Wadalba (“the Errol site”). On 28 October 2004, Mr Robert Butt, Council’s Director of Health and Development, determined the Errol DA by the grant of consent. The Applicant is challenging this grant of development consent.

Wyong Local Environmental Plan 1991

4 Under the LEP, the Woolworths DA and the Errol DA relate to land that is zoned 2(e) (Urban Release Area Zone) in the LEP. The LEP prohibits “shops” in the 2(e) zone, but permits the development of “general stores”. “General store” is defined as “a shop which sells a variety of small consumer goods”. “Local shopping centre” is not defined in the LEP but is referred to in cl 59 of the LEP as permissible subject to certain limitations, including that only one centre is permissible in Wadalba. The Retail Centres Development Control Plan No. 81 (“DCP 81”) outlines the hierarchy of retail centres in Wyong (see par 53 – 55 below) and defines a “local centre” as:

A centre with a total floor space less than 2,500m2 of gross leasable floor area, ideally containing a quality mini-mart and/or a range of convenience shops including a butcher, fruit and vegetables, takeaway, pharmacy, hairdresser, medical services, video/entertainment hire outlet and the like.

5 Clause 59 of the LEP was amended on 28 November 2003 and became:

…

Warnervale East & Wadalba North-West Urban Release Area (Wadalba, Hamlyn Terrace and Woongorrah) Development Control Plan No. 49

6 The Warnervale East & Wadalba North-West Urban Release Area (Wadalba, Hamlyn Terrace and Woongorrah) Development Control Plan No. 49 (“DCP 49”) outlines controls for development within community and local centres in cl 10.0.

7 Controls in relation to development in the Wadalba Local Centre are contained in cl 10.4. The Errol site is located on Block D of the Wadalba Local Centre and is identified for retail/commercial and residential use. The Woolworths site is located on Block B of the Wadalba Local Centre at the entrance fronting the Pacific Highway and is identified for motel use.

Validity of cl 59 of the LEP

8 The Amended Points of Claim (“APOC”) outlined a number of grounds relied upon by the Applicant. The first four grounds relate to the validity of cl 59 of the LEP and the following eight grounds relate to the validity of the consent granted by the Council to the Errol DA.

9 The validity of cl 59 of the LEP as amended on 28 November 2003 is challenged on the following bases:

(1) Clause 59(1) of the LEP is invalid;
(2) The Council did not have jurisdiction to grant development consent due to the operation of cl 59(1);
(3) Clause 59(3) of the LEP is not subject to cl 59(1) of the LEP;
(4) Clause 59(1) is a development standard and can be varied.

Relief

10 The Applicant seeks relief in the form of a declaration that cl 59(1) of the LEP is void and of no effect. In the alternative, the Applicant seeks a declaration that cl 59(3) of the LEP is to be read as not subject to cl 59(1) of the LEP with the consequence that the Woolworths DA may be granted consent. In the further alternative, the Applicant seeks a declaration that cl 59(1) is a development standard. The Applicant also seeks a declaration that the consent granted to the Errol DA is otherwise void and of no effect.

(Issue 1) Clause 59(1) of the LEP is invalid (APOC par 14-17)

11 The challenge to the validity of cl 59(1) of the LEP is made on the basis that its making was ultra vires because:

(i) it does not relate to the subject, scope and purpose of the Environmental Planning and Assessment Act 1979 (the “EP&A Act”);

(ii) it is not reasonably capable of reference to the powers under the EP&A Act given to a council to prepare a draft LEP; and

(iii) in its terms and operation it is manifestly unreasonable.

Operation of s 35 of the EP&A Act

12 Whether or not the Applicant can pursue its case that cl 59(1) is invalid depends on the nature of the judicial review grounds it seeks to raise and whether or not those grounds are protected by s 35. Clause 59 as amended was gazetted on 28 November 2003 and these proceedings were commenced on 6 December 2004, by which time the three-month limit on challenges to the making of an LEP stated in s 35 of the EP&A Act had already lapsed.

Applicant’s submissions on s 35

13 In Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, Spigelman CJ held that s 101 of the EP&A Act will not protect a decision to grant consent from jurisdictional error after falling within one or more of the exceptions in the Hickman principles (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) or by reason of a breach of a statutory provision that is “essential”, “indispensable”, “imperative” or “inviolable”.

14 The reasoning in Pallas Newco is equally applicable to s 35. Section 35, construed in accordance with these principles, does not operate to protect an instrument which:

(i) does not relate to the subject matter of the legislation and that is not reasonably capable of reference to the power given to the decision-maker (Hickman);

(ii) offends a limitation in the EP&A Act which, in the context of the legislative scheme of the EP&A Act, should be seen to be of such significance that the limitation is able to be described as “essential”, “indispensable”, “imperative” or “inviolable” (Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 534 [160]).

15 The Court of Appeal’s approach to privative clauses in the EP&A Act, s 101 and s 35, has evolved. In Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 at 103 – 104 [121], Spigelman CJ held that s 35 of the EP&A Act does not protect a document which purports to be an environmental planning instrument but which is not such an instrument at all. A purported instrument can fail to answer the statutory description by reason of the inclusion within it of a particular provision which is outside power. That is, s 35 will not protect a provision of an environmental planning instrument that is ultra vires in the narrow sense or, put less correctly, involves a jurisdictional error. Such an error deprives the provision of the quality of being an environmental planning instrument for the purposes of s 35: Vanmeld at 106 [132].

16 That view was qualified (not recanted as the Council submitted) in relation to s 101 in Pallas Newco at 722 [77] – 723 [80]. Spigelman CJ (with whom Mason P, Sheller JA and Cripps AJA agreed) held that the privative clause of s 101 will extend to protect “purported consents”, that is, consents involving some types of jurisdictional error, but not all. The categories of jurisdictional error which will not be protected by a privative clause such as s 101 and s 35, include:

(a) the three Hickman categories of error: Vanmeld at 106 [135] – 108 [141], 111 [161] – [164]; Plaintiff S157 at 485 [13], 487 [18], 499 [56] and 500 [57]; Mitchforce Pty Ltd v The Industrial Relations Commission (NSW) (2003) 57 NSWLR 212 at 229 [68], 230 [74] – [76]: Pallas Newco at 723 [81] and [84] and Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at 224 [76] – [77];

(b) a breach of a provision containing a restriction or requirement that is essential, indispensable, imperative or inviolable: Vanmeld at 111 [161]; Plaintiff S157 at 488 [20], 489 [21], 490 [26], 502 [65], 503 [66], 504 [70], 506 [76], 533 [157], 533 [159] and 534 [160]; Mitchforce at 229 [68], 232 [84] – 233 [92]; Pallas Newco at 723 [81] and [84] and Lesnewski at 224 [76] – [77]; and

(c) other defects which deny the power: Vanmeld at 111 [162]. While there are references in Mitchforce at 230 [75] to the possibility of other categories, it is not mentioned in Pallas Newco or Lesnewski.

17 A privative clause will, however, protect decisions involving non-jurisdictional error of law: Vanmeld at 112 [166]. Once an error is not protected by a privative clause, there is no further requirement that it be manifest on the face of the decision. First, the concept of error being on the face of the record is one that stems from review of non-jurisdictional errors of law committed by an inferior court or tribunal. There has never been a requirement that jurisdictional error be on the face of the record. Moreover, the concept of error on the face of the record is not known in the context of judicial review of ultra vires administrative decisions or conduct. Secondly, a qualification that the error be on the face of the decision has not been held to apply to the categories of error which are not precluded by a privative clause: see Mitchforce at 230 [77] – 232 [83], 254 [210] – [214]. Thirdly, the Hickman category of exercise of a power not being “reasonably capable” of being referable to the power imports an objective test. The resolution of that test involves considering matters external to the subjective decision. It is not the decision maker’s opinion as to whether the exercise of power is capable of being referred to the power, but the objective test of whether it is reasonably capable of being referred to the power. Indeed Hickman itself was a case where the error was not on the face of the record. The tribunal whose decision was under review had, by a wrong decision of jurisdictional fact and law, purported to give itself power that it did not have. The Court determined for itself that jurisdictional precondition.

18 Finally, the cases on review of administrative decisions and conduct on the ground of natural justice are cases where the error (for example, the failure to afford procedural fairness) was not on the face of the decision. Nevertheless, the courts have held that the error is jurisdictional and not precluded by the privative provisions: see Vanmeld, Plaintiff S157 and Lesnewski.

(i) Whether s 35 is a time limitation provision or a privative clause

19 Section 35 should not be read down as a privative clause attracting the operation of the Hickman principles, but as a time limitation provision. There is no authority binding on this Court which supports the proposition that s 35 of the EP&A Act is not a time bar clause. Applying the reasoning in Plaintiff S157 to the process of statutory construction necessary to reconcile the privative clause and the objects of the legislation suggests that s 35 should not be narrowly or artificially confined. Part 3 of the EP&A Act in relation to the making of LEPs suggests that their content is not a proper matter for judicial review, given their width and manner of making. The approach in Smith v Wyong Shire Council (2003) 132 LGERA 148 also supports a finding that s 35 should be broadly construed.

20 Section 35 serves a different statutory purpose to s 101. It is less likely that Parliament intended that s 35 should be construed as restrictively as s 101, which protects development decisions from review.

(ii) The scope of s 35 as a privative clause

21 Alternatively, if s 35 is not a time limitation provision but a privative clause, Spigelman CJ’s discussion of s 101 in Pallas Newco in the light of the High Court’s decision in Plaintiff S157 was obiter. It is nevertheless influential but not directly relevant to the construction of s 35 of the EP&A Act. The Court of Appeal’s decision in Lesnewski applies Pallas Newco as part of the ratio of that decision.

22 The effect of Lesnewski embracing Spigelman CJ’s opinion in Pallas Newco is that:

(i) section 101 would not operate to protect an instrument that is not a bona fide attempt to exercise the power; does not relate to the subject matter of the legislation; or is not reasonably capable of reference to the power given to the decision-maker: Hickman, Vanmeld, Pallas Newco, Lesnewski.

(ii) broad ultra vires grounds of judicial review are almost certainly excluded by s 101 (that is, relevant and irrelevant considerations, manifest unreasonableness, proportionality and improper purpose);

(iii) if procedural fairness is a central object of the legislation (as it was in the Migration Act 1958 (Cth) and as Smith v Wyong found an aspect of it [public participation] to be in relation to the EP&A Act), then it should be characterised as an inviolable restriction, and hence s 101 does not protect against breach of such a fundamental requirement; Lesnewski at 224 [77];

(iv) Gleeson CJ characterised the Hickman principles as relating chiefly to bad faith: Plaintiff S157 at 493 [34], 494 [37] requiring a “manifest” defect; Pallas Newco at 723 [81] (third asterix) which must display the narrow jurisdictional error on the face of the decision or the record; Plaintiff S157 at 485 [13], 487 [18], 500 [57], 501 [59]; Mitchforce at 230 [77] – 232 [83] per Spigelman CJ.

23 These findings apply equally to s 35.

24 For the reasons given below, it is submitted that cl 59(1) of the LEP:

(a) is a bona fide attempt to exercise the power;

(b) relates to the subject matter of the legislation;

(d) does not offend a limitation within the EP&A Act which is essential, indispensable, imperative or inviolable.

Section 35 therefore operates to protect cl 59(1) from challenge in these proceedings.

25 Section 35 of the EP&A Act provides that:

The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date of its publication in the Gazette.

26 It is appropriate that I deal first with the issue of whether s 35 is a time limitation clause or a privative clause. Secondly, if s 35 is a privative clause, whether any error is required to be on the face of the record in order that s 35 not apply.

(i) Whether s 35 is a time limitation provision or a privative clause

27 Section 35 is in similar terms to s 101 of the EP&A Act. There is no binding authority on this Court that s 35 is either a privative clause or a time bar clause. In Breitkopf v Wyong Shire Council (1996) 90 LGERA 269, Bignold J at 280 – 281 preferred a construction of s 35 of the EP&A Act as a time limitation provision, which did not attract the operation of the Hickman principles. Similarly, in Vanmeld Powell JA, disagreeing with Spigelman CJ, expressed the view in obiter that s 35 is to be regarded as extinguishing the right to judicial review unless proceedings are commenced within three months of the commencement of the instrument: at 114 [189]. Meagher JA in Vanmeld at 113 [180] did not consider it necessary to decide the point.

28 Section 101 of the EP&A Act provides that:

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

29 In Pallas Newco at 723 [79] – 724 [83] Spigelman CJ concluded:

…[T]he word "validity" in s101, which permits challenge for a discrete period, is, in my opinion, intended to protect decisions from jurisdictional error.

The Parliament was well aware of the adverse consequences of uncertainty in this sphere of discourse. It balanced the conflicting elements by providing certainty, after a short period. The reference to "validity of a consent", identifying the kind of challenge protected by s101, does, in my opinion, extend to protection from jurisdictional error. In this regard it is analogous to an extension of a privative provision to a "purported consent". I would, accordingly, wish to qualify some of the views I expressed in Vanmeld supra at [121]-[127].

As I set out in

at [68],

affirms a number of propositions established by prior High Court authority as applicable where an issue arises concerning the interaction between a jurisdictional limit and a privative provision in an Act:

* "The co-existence of two such provisions gives rise to an issue of inconsistency requiring reconciliation between the provisions (at [10], [17], [19], [58], [59], [60]).

* The issue is one of statutory construction and all the relevant rules of construction apply, notably the rule that particular provisions must be construed in the context of the whole of the Act (at [17], [19], [26], [27], [33], [58], [72], [159]) and that one provision, including the privative provision, cannot be construed as controlling the meaning of the remainder of the Act ([35]).

* A privative provision on its proper construction will not protect a `manifest' defect, in the sense that a decision is not a bona fide attempt to exercise the power; that it does not relate to the subject matter of the legislation and that it is not reasonably capable of reference to the power given to the decision-maker ([13], [18], [56], [57]).

* A provision containing a restriction or requirement may, on the proper construction of the Act as a whole including the privative provision, be construed as being of such significance in the legislative scheme that it constitutes a limitation or requirement that is, as variously expressed in the authorities, `essential', `indispensable', `imperative' or `inviolable' ([20], [21], [26], [65], [66], [70], [76], [157], [159], [160])."

A view has been expressed that s35 and s101 or its predecessor should be construed to be a time bar clause and, accordingly, that no challenge of any character could occur after the expiration of the period. This was said to extend to exclude even the core basis for challenge identified in Australian jurisprudence as the

principle (

(1945) 70 CLR 598) reflected in the third and, perhaps, the fourth bullet point of the previous paragraph. (See

(1996) 90 LGERA 269; a view accepted by Powell JA in

at [189] and

(1999) 108 LGERA 66 at 67-78.)

I maintain the opinion I expressed in

at [143]-[150] that the Hickman principle does apply, even after the expiration of the three month period. This appears to have become the preponderant view. (See

(1996) 90 LGERA 341

(1998) 100 LGERA 27; and the majority in this Court in

at [37]-[41] per Beazley JA, with whom Handley JA agreed at [1]; see also

at [52]-[58].)

30 Mason P agreed at 734 [136], as did Sheller JA at 746 [182], and Cripps AJA at 752 [219]. Handley JA, although preferring to reserve the question of whether a consent for prohibited development will be protected by s 101 of the EP&A Act, expressed a preliminary view at 735 [144] that such a consent would not be protected. These observations considering s 101 were obiter. The findings in Lesnewski largely adopted in ratio the obiter findings in Pallas Newco.

31 The wording of s 35 is in very similar terms to s 101 as analysed by Spigelman CJ in relation to the EP&A Act as a whole in Pallas Newco. I agree with the Applicant’s submissions that the necessary process of statutory construction of s 35 in the context of the EP&A Act to determine whether it is a privative clause (as required by Plaintiff S157 amongst other cases) suggests that an LEP must be properly made under s 70 and must be within the scope and purpose of the Act. An LEP must comply with s 24, s 26 and s 5 of the Act. I agree with the Applicant that it is essential that the exercise of the power to make an LEP must be within the terms of the statute. The Council argued that the processes for the making of LEPs, the role of the Minister responsible for making them, and their broad scope suggested that Parliament intended that s 35 be construed as a time bar provision. I do not consider that these differences in the context of the legislation in which s 101 is also located are so great as to warrant a conclusion different to that reached in Pallas Newco and Lesnewski that s 101, and consequently s 35, are privative clauses.

32 Smith v Wyong does not support the construction of s 35 that is argued for by the Council. The parts of Smith v Wyong relied on by the Council relate to the validity of an LEP made contrary to a direction given by the Minister under s 117 of the EP&A Act. As the Applicant argued, that analysis did not consider (because it did not arise) the application of Hickman. Section 35 of the EP&A Act is not a time bar clause in my view.

(ii) The scope of s 35 as a privative clause

33 The question then arises of what decisions s 35 as a privative clause does protect. The parties agreed that if s 35 is a privative clause then the Hickman principles operate. The parties also agreed that s 35 would not prevent a challenge which concerns a limitation in the legislation which is essential, indispensable, imperative or inviolable but disagreed as to what this applies to.

34 If s 35 of the EP&A Act is a privative clause as I have held then the following findings in relation to s 101 apply:

(a) s 101 protects decisions from jurisdictional error except as provided in (b) and (c) below: Pallas Newco 723 [79]; Lesnewski 224 [76];

(b) the Hickman principles apply on a restricted basis to s 101: Pallas Newco 724 [84];

(c) an important exception to the protection given by s 101 to a purported decision is where the decision is made in breach of an inviolable limitation or imperative duty, such as the duty to afford procedural fairness: Pallas Newco 723 [81]; Lesnewski 224 [77];

(d) most defects and consents will be protected from challenge and therefore s 101 imposes a “strict” time limit: Pallas Newco 724 [85] and Parliament intended to provide certainty after the period for review had expired: Pallas Newco 723 [80].

35 The Applicant raised three grounds of review (par 11). I agree with the Council’s argument (see par 22(ii) above) that based on Lesnewski and Pallas Newco, broad ultra vires grounds of judicial review, such as manifest unreasonableness, are excluded by s 35. Accordingly, the Applicant’s third ground of judicial review, that cl 59(1) is manifestly unreasonable (APOC par 14(c)), must fail as this ground of review is precluded by s 35. The first ground, that it is beyond the power conferred by the EP&A Act because it does not relate to the purpose and object, and the second ground, that cl 59 is beyond the power to make an LEP in the EP&A Act (especially s 26) potentially are matters which s 35 may not bar, subject to the operation of the Hickman principles.

What does “manifest” defect require?

36 The Council argued that “manifest” means that the error must be clear on the “face of the record” so that s 35 does not protect “manifest” errors which are clear on the face of the instrument. The Council relied on Yadle Investments Pty Ltd v Roads & Traffic Authority of NSW (1989) 72 LGRA 409, Nedoni Pty Ltd v NSW Minister for Roads [2004] NSWLEC 56, R v Metal Trades Employers’ Association; ex parte Amalgamated Engineering Union (1951) 82 CLR 208, Mitchforce and Plaintiff S157 to argue that s 35 as a privative clause only protected errors that were obvious on the face of the document (see par 22(iv) above). In Yadle, Stein J stated at 413 that “such error must be evident and obvious. It must appear plainly on the face of the instrument”. This statement was expressly approved by Bignold J in Nedoni at [134] – [137]. In Metal Trades Employers’ Association, Dixon J stated at 247 – 248 that a privative clause only operated to protect an instrument if it did not exceed the expressed authority “upon its face”.

37 The Applicant argued that Yadle was no longer relevant law given Plaintiff S157, Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, Pallas Newco and Lesnewski so that it was not necessary that the jurisdictional error be obvious on the face of the document in order to stop the operation of s 35. The Applicant has presumably relied on these cases as examples where a privative clause operated to protect errors that were not manifest on the face of the document. Alternatively, the Applicant argued that if it was necessary the error be manifest on the face of the document cl 59 was manifestly beyond power.

38 The discussion of s 101 in Pallas Newco and Lesnewski was directed to determining whether various provisions of the EP&A Act suggested that a particular decision involved the determination of a jurisdictional fact. What is clear from Spigelman CJ’s judgment in Pallas Newco at 724 [84] is that he considers that a privative clause is not to be narrowly construed:

Although there remains some scope for uncertainty, and therefore for inconvenience, because of the possibility that the privative clause may not apply, any uncertainty would be in a very narrow compass because of the restricted basis on which the

principle applies.

39 He refers to McClellan J in Hornsby Shire Council v Vitone (2003) 132 LGERA 122 at 136 [58] where McClellan J expressed the need for achieving certainty in the planning process and to provide assurance for those who seek to act on a development consent. SericottPty Limited v Snowy River Shire Council (1999) 108 LGERA 66 is mentioned briefly in Pallas Newco at 723 [82] – 724 [83] to support the finding by Spigelman CJ that the Hickman principles do apply even after the three month period. While Pallas Newco and Lesnewski confirm that once the three month challenge period has expired the operation of s 35 is limited, the circumstances of both cases did not require a close consideration of when Hickman applies and therefore what is meant by “manifest” error.

40 While Dixon J in Metal Trades Employers’ Association referred at 247 – 248 to error on the face of the document more recent cases on the operation of the Hickman principles have focused on whether the error is manifest. In Mitchforce Spigelman CJ noted at 229 [68] and [69] that a manifest defect will not be protected:

A privative provision on its proper construction will not protect a “manifest” defect, in the sense that a decision is not a bona fide attempt to exercise the power; that it does not relate to the subject matter of the legislation and that it is not reasonably capable of reference to the power given to the decision-maker.

Mitchforce

Pallas Newco

41 Plaintiff S157 is also relied on by the Council as supporting a finding that the error must be on the face of the decision but I do not consider it attempts to deal definitively with that question. The particular passages relied on by the Council (see par 22(iv) above) do not specifically so hold and are obiter in any event.

42 In Anambah Homes v Maitland City Council (2004) 135 LGERA 421 I considered Sericott, Plaintiff S157, Mitchforce and Pallas Newco in the context of a challenge to the validity of a condition of development consent that required the dedication of land pursuant to s 94 of the EP&A Act made outside the time limit in s 101. The issue was whether s 101 of the EP&A Act operated to bar the applicant from challenging the validity of the condition because the defect was not “manifest” simply by looking at the relevant condition. The argument I heard in that case was much less extensive than that presented here.

43 In Anambah, Sericott was relied on as a finding by the majority of the Court of Appeal that s 104A (now s 101) did not operate if the jurisdictional error alleged was manifest. I essentially applied this finding as it was consistent with Pallas Newco. In Anambah I held that the error was manifest because in order to ascertain that the particular development consent condition under challenge was beyond power all that needed to be referred to was s 94 of the EP&A Act and the relevant s 94 contributions plan. The answer was readily ascertainable by looking at the condition and the other instruments.

44 Manifest means “evident”, “obvious”, “apparent” or “plain” (Macquarie Dictionary, Revised Third Edition). Under the Hickman principles it is difficult to ascertain if a provision is a bona fide exercise of power or relates to the subject matter of the legislation without having regard to one or more other instruments to determine if the principles apply, that is, to identify any error. I therefore agree with the Applicant’s arguments at par 17 that the error is not required to be literally clear on the face of the instrument under challenge without reference to any other instruments before s 35 does not apply. Nevertheless the error must be manifest.

45 Yadle, Nedoni, Sericott and Mitchforce suggest that if cl 59(1) is read and appears generally to be within the scope of the powers of the Council under the EP&A Act, any ultra vires error is not manifest and therefore s 35 does operate. This case law suggests that the error has to be self-evident by a reading of the relevant statutory provisions which define the power and the provision itself. If it is not self evident then the challenge cannot proceed because of the operation of the privative clause.

46 Keeping in mind this need for the defect to be “manifest” I will now set out the parties’ respective arguments in relation to the statutory scheme for the making of LEPs and cl 59 in particular to determine if there has been a bona fide attempt to exercise power, if cl 59(1) relates to the subject matter of the legislation and if it is within the Council’s power to make. A further ground argued is that cl 59(1) offends an essential limitation within the EP&A Act.

Applicant’s submissions
(a) Challenges to cl 59(1) under the Hickman categories of error:

(i) Not a bona fide attempt to exercise the power

47 The Applicant argued that cl 59(1) of the LEP is invalid on the basis that it was not a bona fide attempt to exercise power. The constraint in cl 59(1) operates, on its face, by reference to the exercise of the power to grant consent – irrespective of whether the consent so granted has been commenced, surrendered, has lapsed, and irrespective of whether the development has been completed, is operating, continues operating or in fact is successful in meeting local retail shopping needs. Once consent is granted it operates to preclude any other retail development in Wadalba. The Applicant submitted that the indiscriminate nature of the prohibition in cl 59(1), which prohibits development that is not contrary to the objectives of the LEP, or the promotion of the retail hierarchy at Wadalba, denies the validity of the LEP (see the Council’s submissions at par 53 – 55 below).

48 In addition, the Applicant argued that cl 59(1) of the LEP was not a bona fide attempt to exercise power on the basis that the primary operation and effect of cl 59(1) is the protection of other retail development in the area from the threat of competition. The Applicant submitted that the protection of retailers from competition is not an end or object within the scope of the EP&A Act.

(ii) Clause 59(1) does not relate to the subject matter of the legislation

49 The Applicant argued that the Court’s task in determining whether cl 59(1) of the LEP is ultra vires involves three steps. The Court’s task requires the determination of:

McEldowney v Ford

Esmonds Motors Pty Limited v Commonwealth

South Australia v Tanner

50 In accordance with this approach, the Applicant submitted that cl 59(1) of the LEP is invalid because it does not relate to the subject matter of the legislation. It is the objective effect that is achieved by the instrument that is relevant in determining the subject matter of the LEP, not the actuating purpose or subjective intention formed by the maker of the instrument. Based on an objective analysis of the effect of cl 59(1) the Applicant argued that it bears no logical or rational connection to the aims and objectives of the EP&A Act. The clause does not take as its reference point any actual use or development of land nor does it take as its reference point any assessment of the needs of the locality nor the continued viability of retail facilities in the locality. The operation of cl 59(1) is to immunise the person holding the consent from the threat of competition. By taking the grant of consent as its reference point, cl 59(1) embraces a field of operation, namely protectionism, which is unconnected with the statutory objects of the EP&A Act.

(iii) Clause 59(1) is not reasonably capable of reference to the power given to the decision-maker

51 For much the same reasons the Applicant argued that cl 59(1) is ultra vires on the basis that it is not reasonably capable of reference to the power given to the decision-maker. Based again on an analysis of the power granted by the EP&A Act and the operation and effect of cl 59(1) of the LEP, the Applicant argued that cl 59(1) is ill adapted to achieving any of the objects of the EP&A Act and is directly inconsistent with these.

(b) Clause 59(1) offends a limitation within the EP&A Act which is essential, indispensable, imperative or inviolable

52 The Applicant submitted that a fundamental object of the EP&A Act is the promotion and co-ordination of the orderly and economic use and development of land. The operation of cl 59(1) fundamentally conflicts with this object of the EP&A Act.

Council’s submissions
(a) Challenges to cl 59(1) under the Hickman categories of error

(i) Not a bona fide attempt to exercise the power

53 The Council submitted that cl 59(1) was made for a proper purpose, namely the preservation of a hierarchy of retail centres between regional, district, neighbourhood and local areas. This purpose was generally reflected in the Wyong Shire Council Retail Centres Strategy Plan 1996 (“the Retail Centres Strategy Plan”). Three key objectives were established at the commencement of the Retail Centres Strategy Plan:

· Ensuring residents have the widest possible range of shopping opportunities and commercial services by balancing quantity, quality and accessibility of floor space;

· Protecting the integrity of existing major centres to the extent that they continue to perform a useful community function; and

· Ensuring an appropriate balance between retail/commercial and industrial use of available industrial lands.

54 DCP 81 was adopted by Council on 20 April 2002 as a means of implementing the Retail Centres Strategy Plan. The aims of DCP 81 include:

(a) identifying a clear hierarchy of retail centres within the Shire;

(b) identifying the future Centres within the Shire and their places within the hierarchy;

(c) identifying a procedure to maintain the hierarchy; and

(d) defining the objectives and functions of each of the different levels of centres within the retail hierarchy.

55 DCP 81 does not provide any specific controls relating to the Wadalba Village Centre. In relation to local shopping centres, DCP 81 states:

7.2 Objectives

The objectives are that:

a To provide centres which allow for daily and/or convenience shopping needs

b To encourage shop top housing in local centres

Local shopping centres shall be limited to a maximum retail floor space of 2500m2

…

7.5 Variation Criteria

Expansion of the retail floor area will be subject to the criteria outlined above. Expansion cannot be justified on the basis of incremental population growth alone.

The applicant must demonstrate that:

a The expansion will not adversely affect other retail centres and is not in conflict with either the Wyong Shire Retail Hierarchy or the Retail Centres Strategy Plan;

…

56 Against this historical background, the Council argued that the exercise of power was bona fide and that the primary purpose of cl 59(1) of the LEP was as a legitimate means of controlling development in the greenfield urban release areas of Warnervale East & Wadalba North-West so as to implement the Retail Centres Strategy Plan. In furtherance of the Council’s stated strategy, cl 59(1) simply limits the number of local shopping centres that may be constructed in defined areas.

57 While cl 59(1) purports to prohibit Council from exercising the power to determine a development application by reference to whether a consent for a shopping centre within the 2(e) zone has been granted that is a flawed construction of cl 59(1). Delegated legislation should be construed so as to avoid an interpretation which is unreasonable or absurd. Clause 59(1) should be read down so that consent for a second local shopping centre may be granted where the consent for the first has lapsed or has not been implemented.

58 The Council argued that cl 59(1) was not a protectionist provision. Rather it operated to enable a retail centre to be established in Wadalba to prevent the expansion of retail centres that might exceed the environmental capacity of the land. In any event, councils have the power to make delegated legislation that has an anti-competitive outcome. If they did not, then all business or shopping centre zones would be invalid. Secondly, the Council submitted that even if the effect of cl 59(1) is protectionist, the purpose of cl 59(1) is not. Relying on Kentucky Fried Chicken Pty Limited v Gantidis (1979) 140 CLR 675 at 687 the Council argued that it is not the operation of the clause that matters, but rather whether an irrelevant consideration was taken into account when making the planned amendment to the LEP. Thirdly, the Council submitted that if the question is whether the purpose for making the LEP was anti-competitive, that question is directed to the Minister’s conduct, not the Council’s, as it is the Minister who has made the plan pursuant to s 70 of the EP&A Act. In the absence of any evidence in relation to the Minister’s decision, the Applicant must fail. Finally, the Council argued that the establishment of a local shopping centre and the protection of the local shopping centre from competition was a legitimate purpose. The Council submitted that it was in the public interest that such prohibitions are available to ensure that the local shopping centre consent is implemented for the benefit of the locality.

(ii) Clause 59(1) does not relate to the subject matter of the legislation

59 The Council argued that cl 59(1) is entirely within the subject matter, scope and purpose of the EP&A Act particularly having regard to the objects stated in s 5(a)(i), s 5(a)(ii) and s 5(a)(vii). On its face, cl 59(1) controls development by prohibiting the Council from granting consent to more than one local shopping centre in Wadalba. The operation and effect of cl 59(1), therefore, related to the control of the expansion of retail uses within the Wadalba area.

(iii) Clause 59(1) is not reasonably capable of reference to the power given to the decision-maker

60 For similar reasons, the Council submitted that cl 59(1) of the LEP is reasonably capable of reference to the power given to the decision-maker. This power is contained in s 70 of the EP&A Act which authorises the Minister to make a local environmental plan. The Council argued that it might be offended if the Minister made the wrong plan, or the wrong Minister made the plan, but there is nothing on its face which suggests that the amending LEP was not made in accordance with or pursuant to s 70 of the EP&A Act. Equally, cl 59(1) is clearly capable of reference to the power of the Council to prepare a draft LEP pursuant to s 54.

61 Contrary to the Applicant’s submission, the Council submitted that cl 59(1) did not offend against essential, indispensable, imperative or inviolable legislative constraints. The Council argued that the only grounds protected by this principle are those that breach the rules of natural justice, and those that breach an essential principle of the EP&A Act, such as public participation in the development consent process.

Finding

62 Section 5 of the EP&A Act sets out the objects of that Act which are relevantly:

(a) to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns 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, and

…

63 Section 24 of the EP&A Act provides that:

Without affecting the generality of any other provisions of this Act, an environmental planning instrument may be made in accordance with this Part for the purposes of achieving any of the objects of this Act.

64 Section 26 of the EP&A Act provides that:

(1)Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following:

(a) protecting, improving or utilising, to the best advantage, the environment,

(b) controlling (whether by the imposing of development standards or otherwise) development,

…

(a) Challenges to cl 59(1) under the Hickman categories of error

65 There is significant overlap in the arguments related to the three challenges to cl 59(1) arising from the Hickman principles. It is appropriate that I deal with these three arguments together.

66 Consistent with the Hickman principles, the error must be manifest for it to avoid the operation of s 35. Applying my findings at par 45, when cl 59(1) is read in the context of the LEP and the objectives of the EP&A Act it is clear that it has been made for a bona fide purpose, does relate to the subject matter of the legislation, and is reasonably capable of reference to the power given to the decision-maker. It clearly deals with limitations on a particular kind of development and the Council has broad powers to deal with the regulation of development in LEPs. While the Applicant made lengthy submissions to which the Council responded and which have been summarised above, it is arguably unnecessary to explore these in the depth that I am about to do as the Hickman principles have been satisfied and cl 59(1) cannot be challenged.

67 The essence of the Applicant’s case is that cl 59(1) breaches s 24 of the EP&A Act because it does not have the effect of achieving the objects of that Act and cannot therefore be within the Council’s power to make an LEP under it. Particular reliance was placed on a three step approach derived from McEldowney v Ford, Esmond Motors and Tanner per Brennan J. Firstly, to be valid the effect of the clause must be to achieve the objects of the Act as required by s 24. The Respondents do not dispute this proposition. Secondly, the meaning of the environmental planning instrument must be determined including the true scope of the measure, its operation and legal effect in the circumstances in which it is intended to apply. Thirdly, cl 59(1) must be considered to see if it is an environmental planning instrument, that is, gives effect to the objects of the Act. All these steps are closely related. The parties differ on the second and third aspects.

68 It is self evident that the objects of the EP&A Act and s 26 provide wide powers to a council and to the Minister to prepare and make an LEP which controls development. It is not appropriate to consider cl 59(1) in isolation from the rest of cl 59, the LEP in general and the planning exercise undertaken by the Council as it is necessary to understand the scheme within which the clause is intended to operate. Clause 59(1) is not inherently flawed because it refers only to the granting of consent, which the Applicant argued was an indiscriminate prohibition. Clause 59(1) is intended as a broad prohibition on a second local shopping centre in Wadalba, which is a legitimate purpose under the EP&A Act. The limits the Applicant argued were necessary, for example, that the local shopping centre must be adequate and operational (see par 47 above), are not required in order to render cl 59(1) meaningful and operative.

69 The Council has undertaken a lengthy and orderly planning process to arrive at its view on the appropriate retail hierarchy for Wyong Shire as part of the development of greenfield areas such as Wadalba as detailed at par 53 – 55. The Applicant’s argument that the clause is anti-competitive and protectionist could apply to any zoning which seeks to limit particular development in certain locations. While it may be unusual to provide as cl 59(1) does for only one kind of development at a time in a particular locality, I consider that is a legitimate implementation of the planning responsibilities of the Council undertaken in accordance with the EP&A Act. Support for this can be found in the cases identified by Errol Investments.

70 In Shell Company v Randwick Municipal Council (1959) 4 LGRA 348 Sugerman J stated at 362:

Notwithstanding… in earlier cases, it would now seem that the circumstances that an additional service station would result in an undue aggregation of service stations in a particular locality may be a relevant town-planning consideration within the competence of a council as a responsible authority under the Ordinance.

71 In Shell Company v Manly Municipal Council (1961) 7 LGRA 87 Sugerman J considered whether a development consent should be granted for an application to build a petrol station in an area where there were eleven petrol station within one mile of the subject site. Sugerman J stated at 94 to 95 that:

It is, then, understandable that an undue multiplication of their numbers in a given locality may become a matter of concern to responsible authorities. As has been pointed out in a number of recent decisions, town planning considerations may thus enter into the matter, so that it becomes not merely a question of rationalising trade or industry on general economic grounds but one of making the best use of available land.

72 Errol Investments relied on Gantidis per Stephen J (with whom Gibbs, Mason and Aickin JJ agreed) at 687 as follows:

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.

73 Stephen J also stated at 687:

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.

74 Fabcot Pty Limited v Hawkesbury City Council (1997) 93 LGERA 373, relied on by the Applicant, concerned circumstances where the Court was considering whether to grant development consent in a merit appeal before this Court. Lloyd J held at 378 that: “… economic competition between individual trade competitors is not an environmental or planning consideration to which the economic effect described in s 90(1)(d) [now s 79C(1)(b)] is directed.” I note that Lloyd J at 378 – 379 also adopted the above passage of Stephen J in Gantidis. Gantidis is an appeal from the merits review by the Victorian Planning Tribunal about a particular proposal. The two Shell decisions relied on above were also made in the context of whether a particular development ought be approved.

75 The arguments in all these cases need to be considered carefully in the circumstance here. The issue is what the Council has chosen to put in the planning instrument which will regulate future development, a quite different scenario to a planning appeal about an individual development. Arguably the rational use of land which here includes consideration of the appropriate supply of retail outlets across the Wyong Shire is a legitimate matter about which Council can make provisions in their LEPs under s 24 of the EP&A Act. The considerations in this context are not the same as those required to be considered under s 79C in relation to a development application. In my view, s 24 of the EP&A Act, which requires a council to have regard to the objects of the EP&A Act when making environmental planning instruments, means a council has very broad powers when making an LEP. The cases at par 70 – 73 provide authority for the point that in certain circumstances it will be appropriate to consider as a town planning matter the appropriate level of retail outlets in a particular area when assessing the merits of an application. This confirms that it is even more appropriate for a council to consider such matters as town planning issues when exercising its power under s 24 in making an LEP.

76 I accept the Council’s arguments that cl 59(1) considered in the context of the LEP and the Council’s attempts to define and implement a retail hierarchy strategy for Wyong Shire is within power and not directed at a protectionist objective. Applying the three step process identified in par 67 I consider cl 59(1) does seek to achieve the objects of the EP&A Act as required by s 24, its operation and legal effect are within the scope of the EP&A Act and it is an environmental planning instrument within the meaning of the Act. In terms of the Hickman principles, cl 59(1) is a valid exercise of power, does clearly relate to the EP&A Act and its objects and is clearly capable of reference to the power under s 24 of the EP&A Act to make an LEP. There is no manifest “defect” and the Hickman principles are not offended by cl 59(1).

(b) Clause 59(1) offends a limitation within the EP&A Act which is essential, indispensable, imperative or inviolable

77 Neither of the ultra vires grounds of review raised by the Applicant (APOC par 14(a) and (b)) fall into the category of a failure to observe an essential, indispensable, imperative or inviolable requirement of the legislation. While the Applicant framed its arguments to fit within this description I consider it was simply a restatement of the earlier grounds of review and is not a separately arguable ground on the facts of this case. I agree with the Council’s argument at par 61 above as to the scope of this limitation.

78 Section 35 of the EP&A Act applies so that the Applicant is prevented from challenging the validity of cl 59(1) on the basis of the two grounds (i) and (ii) in par 11. The Applicant is therefore unsuccessful on the first issue.

(Issue 2) The Council did not have jurisdiction to grant development consent due to the operation of cl 59(1) (APOC par 63A)

79 On 29 September 2000, Landco (NSW) Pty Limited lodged development application no. 2917/00 for a mixed residential, commercial and retail development on land in Wadalba. The Development Application Assessment Report stated that:

The proposal is to construct Wadalba Local Centre, including commercial, retail, residential and home business components… The commercial component is proposed to consist of a small supermarket, greengrocer and coffee shop with home office spaces also available…

80 On 11 May 2001, the Council determined development application no. 2917/00 by the grant of consent (“the May 2001 consent”). The consent was not proceeded with and lapsed in May 2003.

Applicant’s submissions

81 The Applicant submitted that the development consent granted in relation to the Errol DA was invalid because the Council did not have jurisdiction to grant the consent having already granted development consent once. Clause 59(1) of the LEP states that the Council shall not grant consent for more than one local shopping centre on areas of land zoned 2(e) in Wadalba. On a proper construction of the effect of cl 59(1) of the LEP the Council only had power to grant consent for one local shopping centre, and had no jurisdiction to grant consent to any further applications. Clause 59(1) operates in this way irrespective of whether the consent granted is taken up, completed, lapses or is surrendered and clearly has “absurd” results. The intentions of the Council in making cl 59(1) are not relevant, what must be considered is its effect.

Council’s and Errol Investments’ submissions

82 The Council and Errol Investments submitted that the Council was entitled to grant consent to the Errol DA in circumstances where there was no local shopping centre in the relevant zone. On the proper construction of cl 59(1) of the LEP, the Council’s power to grant consent lapsed only when a local shopping centre had been established, or when a consent had commenced. The Council and Errol Investments relied on s 33 of the Interpretation Act 1987 (“the Interpretation Act”) and the cases of Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980) 147 CLR 297, Kingston & Anor v Keprose Pty Limited (1987) 11 NSWLR 404, Minister for Resources & Anor v Dover Fisheries Pty Limited (1993) 116 ALR 54 at 63 per Gummow J and Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 to argue that the underlying purpose of the clause must govern its construction and that the Court should favour a construction of cl 59(1) that is consistent with the intent of the LEP and avoids absurdity and impractical results.

Finding

83 If the literal interpretation argued for by the Applicant is applied this would mean that even if a development consent is not proceeded with and no shopping centre built, then the Council is unable to approve another shopping centre in Wadalba. In making this point the Applicant relied on cases that considered the grant of consent as distinct in fact and law from the implementation of the consent (Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 at 144; Hayden Theatres Pty Limited v Penrith City Council and Ors (Bignold J, NSWLEC, 1 April 1998, unreported)). That distinction I do not consider to be material in the context of interpreting this LEP.

84 It is clearly the intention of the instrument that there be one operational local shopping centre in Wadalba. I agree with the Council and Errol Investments that cl 59(1) means that the Council must not grant consent so as to permit the development of more than one local shopping centre. While there are two possible interpretations of cl 59(1) the latter interpretation is clearly more consistent with the intent of the LEP. I consider that the “absurd results” argument put forward by the Applicant confirms the latter interpretation is appropriate. The Applicant argued that on one “bizarre” construction of cl 59(1) of the LEP, a developer could deliberately obtain consent for a local shopping centre and fail to utilise the consent, thereby exhausting the operation of cl 59(1). I agree that this would be a bizarre operation of cl 59(1) and consider that, for this reason also, the Applicant’s interpretation of cl 59(1) should not be applied. It is clearly not the intention of the LEP that a developer could exhaust the operation of cl 59(1) in this fashion.

85 Further support for this approach is found in the Interpretation Act which was amended by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 on 16 June 2005 to specifically provide that an environmental planning instrument is an instrument within the meaning of the Interpretation Act. Section 33 of the Interpretation Act states:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

86 In Cooper Brookes, Mason and Wilson JJ stated at 320 that:

Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute…

The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

87 In Kingston, McHugh JA stated at 423 that:

A purposive and not a literal approach is the method of statutory construction which now prevails… In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. The

s 15AA, and the

s 33, both require this approach to statutory construction.

88 In Dover Fisheries, Gummow J (with whom Hill and Cooper JJ agreed) stated at 63 that:

In dealing with an apparent conundrum such as that presented by paras (a) in O 79 and O 80, the court should strive to avoid a capricious or irrational result and seek to give each provision a field of operation. In

[1972] RPC 103 at 109, Lord Reid said that, it being improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result.

89 In Allianz, McHugh J at 395 [45] – 397 [49] and Gummow, Hayne and Heydon JJ at 403 [80] and 408 [101] gave substantive effect to the objects of the Motor Vehicles Act 1988 in determining the definition of “injury” under s 3 of the Act. All these cases suggest that a purposive approach to construction is preferable, particularly where a literal approach such as the Applicant argued results in absurdity. The Applicant is unsuccessful on this ground as I consider the Council did have jurisdiction to grant development consent to the Errol DA.

(Issue 3) Clause 59(3) of the LEP is not subject to cl 59(1) of the LEP (APOC par 18, 19)

90 Clause 59(3) of the LEP states that:

Notwithstanding any other provision of this plan, a person may, with the consent of the Council, carry out development for the purpose of a local shopping centre on land on which development is restricted by subclause (1) or (2) where:

(a) the gross floor area of any building or buildings used for the purposes of a shop does not exceed 1,000 square metres, and

(b) the gross floor area of any building or buildings used for the purposes of commercial premises does not exceed 200 square metres.

Applicant’s submissions

91 The Applicant argued that cl 59(3) is a source of power pursuant to which the Council can grant consent to a local shopping centre development, provided that it complies with the gross floor area (“GFA”) requirements and any State Environmental Planning Policy 1 – Development Standards (“SEPP 1”) objection can be upheld. The Applicant argued that cl 59(1) should be construed as an “other provision” of the LEP and is thus to be read subject to cl 59(3). Clause 59(3) then enables consent to be granted to development for the purpose of a local shopping centre irrespective of cl 59(1) provided that the development complies with the requirements contained in cl 59(3). The Applicant accepted that this interpretation would essentially read cl 59(1) out of the LEP.

Council’s submissions

92 The Council argued that cl 59(3) of the LEP is not a freestanding power. The Council agreed with the Applicant’s submission on the construction of cl 59, that cl 59(3) is the source of power to grant consent and that cl 59(1) is a constraint of that power. If it were otherwise, and cl 59(1) were construed as an “other provision”, then that would defeat the purpose of cl 59.

93 The Council argued that it is the underlying purpose of the clause which must govern its construction (Interpretation Act s 33; Allianz at 395 [44] – 398 [55] per McHugh J and 402 [77], 403 [80], 404 [81] and 408 [101] per Gummow, Hayne and Heydon JJ). The purpose of the clause is plainly to permit that which the plan otherwise prohibits, that is a (single) retail shopping centre but only on land within an urban release area that does not infringe certain land area restrictions, subject to the operation of SEPP 1.

94 Clause 59(1) must therefore be construed in harmony with cl 59(3), which means that the power to grant consent in cl 59(3) must be exercised subject to the constraints in cl 59(1). The Applicant’s “alternate construction” should be rejected.

Finding

95 I agree with the Council’s submissions in this matter and consider that cl 59(3) must be read subject to cl 59(1) for the reasons given by the Council. Clause 59(3) cannot therefore be a separate basis for the issuing of development consent to a further local shopping centre in Wadalba. The Applicant fails on this ground.

(Issue 4) Clause 59(1) is a development standard and can be varied (APOC par 20)

Applicant’s submissions

96 The Applicant argued that cl 59(1) is a development standard and can therefore be varied pursuant to SEPP 1. The Applicant submitted that as cl 59(1) required that only one local shopping centre could be provided in the Wadalba area, cl 59(1) specified a requirement or fixed a standard in respect of development and was therefore a development standard. Following the two step process outlined by Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at 343 [96] – [98] the first step was satisfied because cl 59 did not prohibit development for the purpose of a local shopping centre under all circumstances, and permitted one local shopping centre in the areas prescribed in cl 59(1). In relation to the second step, the Applicant argued that as cl 59 specified that the Council could only grant consent to one local shopping centre, cl 59(1) specified a standard in respect of an aspect of development.

Council’s submissions

97 The Council argued that cl 59(1) is plainly not a “development standard” within the meaning of s 4(1) of the EP&A Act. Clause 59(1) is not a provision of an environmental planning instrument “in relation to the carrying out of development”. It is a prohibition directed to the grant of consent for development. Nor does it relate to an aspect of development, but to development as a whole. It does not fix any standard in respect of any aspect of the development (see Poynting at 343 [98]; North Sydney Municipal Council v P D Mayoh(No 2) (1990) 71 LGRA 222 at 232).

Finding

98 Section 4(1) of the EP&A Act defines development standards as:

… provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development…

Section 4(1) of the EP&A Act also provides a list of various aspects of development in respect of which development standards may be made.

99 The meaning of development standard has been considered in the Court of Appeal in Mayoh, Poynting, Lowyv The Land and Environment Court of NSW & Ors (2003) 123 LGERA 179 and the more recent decision of this Court in Georgakis v North Sydney [2004] NSWLEC 123. In Mayoh, Mahoney JA stated at 234:

I do not think that cl 14A(a) is a provision ‘in relation to the carrying out of development ...’. There is, in my opinion, a distinction in the provisions between a provision which in form provides: ‘On land of characteristic X no development may be carried out’ and a provision which in form provides: ‘On such land development may be carried out in a particular way or to a particular extent.’ The provision in cl 14A(2) is, I think, of the latter kind. If cl 14A(1)(a) provided merely that ‘no building shall be erected on land in Zone No 2(c) if ...’ the position would, in my opinion, be clear. In fact cl 14A(1)(a) prohibits erection on the land described in par (a) not of all buildings but only of ‘a residential flat building’. But it remains correct, I think, to say that, in respect of the land referred to in par (a) what is done is to prohibit the erection of the relevant kind of building, not to make a provision in relation to ‘the carrying out of’ development of that or any other kind. If regard be had to purpose, the purpose of the provision was, I think, to proscribe development by buildings which would overshadow smaller buildings at the particular place. This is not a matter relating to ‘development standards’ but to the carrying out of development at all.

100 In the Court of Appeal decision in Poynting, Giles JA considered a number of decisions in his judgment and at 343 [96] – [98] set out two steps as follows:

A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step.

Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr , to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of `development standards', there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development.

If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard.

In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of "development standards" in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken.

must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in

) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances.

101 In Lowy Giles JA applied his reasoning in Poynting and also stated at 203 [116]:

It has been said many times that whether a provision is a development standard depends on the particular provision seen as part of the planning instrument as a whole. Rather than be caught up in a raft of decisions on their own facts and fine distinctions, I consider it better to address the LEP by regard to principle and its own structure and provisions.

Mason P agreed with Giles JA in Lowy .

102 In Georgakis McClellan J considered these decisions in deciding if the requirement in State Environmental Planning Policy 5 – Housing for Older People or People with a Disability that there be written evidence that residents would have access to a transport service 400m from the site was a development standard. He states at [38] and [39]:

Notwithstanding that the relevant clause in Poynting defined, albeit by reference to specified dimensions of the allotment, whether the particular development is permissible on the land, the court, taking “the wider view”, held that it was a development standard. In Mayoh , permissibility was defined by reference to the attributes of adjoining land. In Poynting , permissibility was defined by attributes of the land itself. It would seem that the difference is significant when determining whether the provision contains a development standard.

It was submitted by the council in the present case that the reasoning in

remains the guiding principle when resolving whether a particular provision contains a development standard. Of this proposition Giles JA said in his detailed reasons in

that “it may not be entirely correct.” If his Honour had in mind the “wider view” adopted in

, with respect, I doubt that the approach in

now completely reflects the law.

103 McClellan J went on to apply the two step process identified by Giles JA in Poynting to conclude that the provision before him was a development standard. It is not necessary for the purposes of this judgment that I further consider whether Mayoh does reflect the law as it is appropriate that I apply the approach identified in the recent Court of Appeal decisions in Poynting and Lowy.

104 It is necessary as emphasised in Lowy and several other cases to consider the relevant provision in the context of the LEP as a whole when considering the two step process identified by Giles JA in Poynting. In the 2(e) zone of the LEP a general store is permissible development but shops are prohibited. By virtue of cl 59(1) only one local shopping centre is allowed in Wadalba and other specified centres.

105 The Applicant has argued that cl 59(1) is not a prohibition within the first step identified in Poynting so that the second step applies. As cl 59(1) fixes a standard in respect of an aspect of the development it is a development standard. If the Applicant is correct and cl 59(1) is not a prohibition within the first step in Poynting I do not agree that cl 59(1) fixes a standard in relation to an aspect of the development under the second step. Limiting an entire development to only one in number does not relate to an aspect of the development in my view nor is it a standard for a development, rather it is a strict limitation of the number of developments to one. In the context of the LEP it is clearly not intended that cl 59(1) fix a standard nor is it a matter falling under the definition of “development standard” in s 4 of the EP&A Act.

200 An Economic Impact Assessment prepared by Castlecrest Consultants for Errol Investments was submitted to the Council on 20 August 2004. While it did not specifically consider the acceptability of the proposal with reference to DCP 49, it also concluded that the economic effect of the Errol DA was acceptable, and had a high propensity to produce significant positive benefits in the local economy.

201 In addition to a thorough analysis of the economic impacts of the Errol DA, the Council has also clearly undertaken an adequate analysis of the planning aspects of the Errol DA. While the supermarket does not conform to the built form envisaged in cl 10.4 of DCP 49 the Council has considered the planning impacts of the proposal.

202 The Applicant argued that the Council is obliged to apply the law in force at the time of the decision, a well settled principle. This does not mean that the Council must apply all the terms of a DCP in preference to other matters. Zhang requires that a DCP be given “genuine, and proper consideration” which I consider the Council did. DCP 49 is not binding in its entirety as a matter of law.

203 The limits of the power of a court of judicial review has been clearly stated by Mason J in Peko-Wallsend where His Honour said at 40 to 41:

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on that discretion and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.

It follows that in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power:

(1981) 38 ALR at p375;

(1965) 113 CLR 177 at p205;

[1976] 1 WLR 499 at p507; [1976] 2 All ER 781 at p788;

[1983] QB 962 at p990 .

204 The Council has arguably placed greater weight on its resolution to amend cl 59 to allow a different form and larger size of retail development than the form envisaged in cl 10.4 of DCP 49. It is a matter for the Council how it chooses to apply a DCP provided that Zhang is complied with. That includes, having given it the necessary consideration, not applying DCP 49 if acting reasonably, and lawfully, the Council considers it should not. I consider the Council has acted reasonably and lawfully in approving the Errol DA as it did.

205 I do not make this finding in the Council’s favour lightly and do so here because of the particular circumstances of this case. In different circumstances where such a resolution could not be considered as part of an ongoing and thorough planning exercise undertaken by the Council there may well be grounds for a successful appeal. Here however, the Council was aware of the extent of departure from cl 10.4 of DCP 49 and was able to give cl 10 of DCP 49 genuine and realistic consideration, as required by Zhang. In the planning and economic context before it the Council was able to determine the need to depart from a DCP where to apply it may produce unsatisfactory results in the Council’s view.

206 The Applicant also argued that the decision of the Council to grant consent to the Errol DA was manifestly unreasonable given the extent of its variance from DCP 49. The basis for the argument that the Council acted manifestly unreasonably is that DCP 49 must be binding. I have held that it is not in the circumstances here. The stringent test for determining whether a decision is manifestly unreasonable is set out at par 143 above. That test is clearly not met given my earlier finding that the Council was able to approve the Errol DA.

207 The Applicant fails on grounds 9 and 10.

(Issue 11) The Council failed to consider acoustic impacts of the Errol DA (APOC par 61, 62)

208 The Errol DA proposed that the hours of operation of the local supermarket be 24 hours. On 16 April 2004 the Applicant lodged its Development Report and Statement of Environmental Effects. The Report states:

19.4 Noise Effects
The proposed mini supermarket development does not immediately abut any residential homes. However, the Wadalba Village precinct does anticipate some residential development to be constructed in the immediate locality in the future. Therefore, any future residential development would anticipate some noise effects as a result of the mini supermarket operations and would be designed accordingly. This is especially so as the land is zoned for retail activities.

209 On 22 July 2004, Errol Investments lodged amended plans with the Council. The amended plans proposed to relocate the service driveway on Orchid Way closer to the school opposite. The amended plans also included a road boundary fence on Orchid Way to form an acoustic shield around the loading dock area of the supermarket.

210 On 26 August 2004, Errol Investments lodged an amended Development Report and Statement of Environmental Effects. The Report adopted the statements contained in the original Development Report and Statement of Environmental Effects dated 16 April 2004 in relation to noise effects referred to at par 208 above.

211 On 6 September 2004, the Health and Development Department of the Council considered the issue of noise in the Health and Development Department Report to the Council’s Development Management Panel in relation to the Errol DA. The Health and Development Department Report states at p 35:

Noise and Vibration
The supermarket is proposed to be open 24 hours a day, 7 days a week. Given this is a local shopping centre within a residential precinct, 24 hour operation is considered to be excessive as the supermarket would generate higher noise levels than would normally be generated within a residential area particularly late at night and early in the morning, when background noise levels are low. It is therefore recommended that, at this stage, the operating hours be restricted to between 7:00 am to 10.00 pm. All deliveries, loading and unloading should be restricted to within these hours.

212 On 13 October 2004, Mr Butt, the Director of the Health and Development Department of the Council submitted the Director’s Report to the Ordinary Meeting of Council in relation the Errol DA. The Director’s Report adopted the statements of the Health and Development Department Report in relation to noise and vibration, at p 35.

213 During the Ordinary Meeting of Council held on 13 October 2004 Councillor Welham stated that:

…[F]rom having been in a retail background I thought [a] 7.00 am start was quite restrictive to the community that is likely to service this supermarket. A lot of those people that live in Wadalba are commuters that would be on the expressway by 7.00 am heading towards Sydney and by us putting on a prohibition on it opening prior to 7.00 am just causes them heartache and dilemma so we looked [at] options for that. I don’t believe the Bi-Lo will actually trade 24 hrs in that location but I do think that they should have the flexibility to be able to service that community as appropriate…

214 The Council resolved that the Errol DA be referred to the General Manager for determination and favoured approval of the application subject to appropriate conditions including that the hours of operation of the local supermarket be 24 hours.

Applicant’s submissions

215 The Applicant submitted that (i) in determining to grant consent to the Errol DA, the Council failed to consider the acoustic impacts of the Errol DA which were a relevant consideration under s 79C(1)(b) of the EP&A Act. The Health and Development Department Report dated 6 September 2004 and the Director’s Report dated 13 October 2004 recommended that the hours of operation, deliveries, loading and unloading should be restricted to between 7.00am and 10.00pm. No conditions of consent were imposed by the Council to limit the level of noise, the hours of operation or the hours of deliveries. The Council failed to obtain an assessment of the likely acoustic impacts of the Errol DA. Alternatively, (ii) the determination to grant consent without any conditions regulating the hours of operation and deliveries to the supermarket was manifestly unreasonable.

216 The Applicant sought to rely on the affidavit of Mr Graham Atkins, acoustic engineer, sworn 13 April 2005. Mr Atkins gave evidence in relation to the assessment and consideration of acoustic issues by the Council in relation to the Errol DA. In his affidavit, Mr Atkins referred to the Environment Protection Agency’s Industrial Noise Policy, Environmental Criteria for Road Traffic Noise, Environmental Noise Control Manual and Noise Guide for Local Government as the relevant documents setting out the noise criteria designed to control noise impacts from development. Mr Atkins noted that while the amended Development Report and Statement of Environmental Effects dated 26 August 2004 stated that the Errol DA complied with the requirements of the Industrial Noise Policy in relation to plant, the report failed to address the noise impacts associated with 24 hour use of mechanical plant, car park, road traffic, deliveries, garbage pickups and on-site customers. Mr Atkins concluded that the Errol DA did not contain a detailed assessment of noise impacts and was inadequate for determining the extent of noise impacts likely to result from the proposed development. In his affidavit he stated that:

…[T]here is insufficient fact and data in the DA and supporting materials considered in the Council Report for any person to determine the extent of noise impact that would arise from the Development. The information I have reviewed fails to address and quantify background noise levels, sources of noise from the proposed Development, identify existing and future noise receptor locations or quantify the extent of likely noise impacts.

Council’s submissions

217 The Council submitted that it had not failed to consider acoustic impacts on the basis that the potential noise impacts of the Errol DA were the subject of detailed consideration in the Development Report and Statement of Environmental Effects dated 16 April 2004, and the amended Development Report and Statement of Environmental Effects dated 26 August 2004. Both reports came to the conclusion that while there would be some noise effects on any future residential development, any noise associated with the mechanical plant would comply with the requirements of the Environment Protection Agency’s Industrial Noise Policy.

Errol Investments’ submissions

218 Errol Investments argued that both the Director and the Council, apart from being familiar with the local area, were aware of the proximity of the Errol DA to existing and proposed residential development and the potential noise impacts of the Errol DA. The supermarket proposed was not unusual in nature, and would not produce noise effects outside the ordinary experience of the councillors. Further, the walls of the school building opposite are devoid of windows. The Director’s Report noted what acoustic impacts may result from the Errol DA, and the revised plans submitted by Errol Investments on 22 July 2004 specifically provided for acoustic shielding around the loading dock. The circumstances suggested that the Council had, in fact, considered the acoustic impacts of the Errol DA.

219 Errol Investments submitted that Mr Atkins’ evidence was inadmissible. His opinion was irrelevant to judicial review proceedings as it invited the Court to substitute Mr Atkins’ opinion for that of the decision maker. In addition, Errol Investments submitted that Mr Atkins’ evidence should not be admitted because his opinion was not based upon all of the relevant circumstances and matters that were before the Council at the time of the decision, and did not purport to give evidence of what standard procedures the Council should have applied in the circumstances.

Finding
(i) Admissibility of expert evidence

220 I set out earlier at par 166 – 168 above the relevant law in relation to the limited admissibility of evidence in judicial review proceedings. In this case I consider Mr Atkins’ affidavit can be admitted as it satisfies criteria (i) and (iv) in Caldera at par 168. The affidavit states that there are relevant noise control guidelines developed by the Department of Environment and Conservation which have not been applied, including the Industrial Noise Policy, Environmental Criteria for Road Traffic Noise, Environmental Noise Control Manual and the Noise Guide for Local Government which need to be considered where a 24 hour supermarket operation is contemplated. No noise measurements were taken in any of the reports relied on by the Council which would enable an assessment of noise impacts. Mr Atkins predicted the impacts likely to occur are sleep disturbance at adjacent residential properties and also noise impacts within classrooms at the school opposite.

(ii) Failure to take into account a relevant consideration in s 79C

221 Numerous cases in this Court have had to consider the extent of council consideration of development applications. The relevant principles in relation to this issue are contained in Parramatta City Council v Hale (1983) 47 LGRA 319 and Weal v Bathurst City Council (2000) 111 LGERA 181. The decision of the Court of Appeal in Hale established that a failure by a consent authority to give “real” consideration to the provisions in an environmental planning instrument which a consent authority is required to take into account in determining a development application, is an error of law which renders that development consent invalid (per Moffitt P at 344). However, Hale is also authority for the proposition that an inference that a consent authority failed to give real consideration to such a matter can only be drawn after “anxious consideration” (per Moffitt P at 345). In Hale Moffitt P stated at 338 to 339 that:

…section 90(1) requires that the relevant matters set out in pars (a) to (s) of that subsection shall be "taken into consideration" "in determining (the) development application". The "determination" to which s 90(1) refers is made clear by s 91(1). An exercise of the power to determine an application necessarily require [sic] the authority to consider the alternatives referred to in s 91(1). Therefore, if it is to make a determination to grant consent, it will be bound to consider whether the consent should be conditional or unconditional…

It follows that, where a s 90(1) matter is relevant… on the question whether conditions should be imposed on the consent, if given, and, if so, what should be the conditions. Hence where, as in the present case, the development is likely, indeed certain, to cause harm to the environment… an obligation, (and in that instance a very serious one), is imposed on an authority, minded to give its consent, "to take into consideration" "any means that may be employed to protect the environment or to mitigate (the) harm" "in making the determination", as to whether conditions should be imposed and if so the terms of them.

222 In Weal Giles JA said at 201 [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 (

at 335-6, 339

at 384;

(1998) 100 LGERA 365 at 374-5).

223 Recently these authorities were considered in Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 where McClellan J set out at 266 – 267 [37] a distillation of the principles in Hale and Weal including:

the onus falls upon the challenger to satisfy a court that the relevant discretion has miscarried;

when exercising its decision-making power, an administrative body must give “proper, genuine and realistic consideration” to the merit of the matter: see

(1987) 14 ALD 291 at 292;

(1998) 94 FCR 28 at 64. Mere advertence to a matter may not be sufficient.

at NSWLR 601;

legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment from the development;

generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it;

...

224 While I consider there was a failure to take into account some aspects of potential noise impacts from the proposed supermarket I do not consider it is an issue which goes fundamentally to whether development consent ought to have been granted on this site. I consider the Council could be presumed to have sufficient knowledge of the site and its surrounds, and the nature of the development to be able to determine its suitability for a supermarket with normal operating hours in light of the school opposite and future neighbouring residential property. I also take into account that the Council was aware that an acoustic wall around the loading area was proposed as part of the development and that the school buildings opposite have largely blank walls on the side opposite the supermarket.

225 I consider, taking into account Mr Atkins’ evidence, that there was insufficient information about the impacts of the 24 hour operation of the supermarket on neighbouring residential properties to enable an adequate consideration of the impact on those properties. Essentially this concerns the issue of whether the supermarket should operate 24 hours or have more limited hours. As is clear from the case law above, it is necessary that the Council have before it sufficient information to enable it to properly assess the matter. While the Director’s Report did refer to the potential noise impacts from a 24 hour operation on neighbouring property there was no noise assessment of that impact before the Council in order to understand the magnitude of that impact. Further, the Council imposed no conditions which would ameliorate the impact in relation to deliveries and hours of operation despite the Director’s Report recommending that such operations should be restricted to between 7.00am and 10.00pm, apart from requiring in condition 71 that deliveries should be made outside school peak usage periods. This condition appears more directed to amelioration of traffic impacts than noise impacts. The only other condition dealing with noise concerns hours for construction works (condition 47).

226 I consider the Applicant is successful on this ground in relation to the 24 hour operation of the supermarket proposed in the Errol DA. This is an issue which pertains to the adequacy of development consent conditions rather than whether development consent ought be granted at all.

(iii) The decision to grant consent was manifestly unreasonable

227 Given my finding above it is unnecessary that I determine this issue.

(Issue 12) The Council failed to consider certain traffic impacts of the Errol DA (APOC par 63)

228 On 16 April 2004 the Applicant lodged its Development Report and Statement of Environmental Effects. The original plans positioned the local supermarket at the intersection of Orchid Way and Edward Stinson Street on the south-eastern corner of the Errol site opposite the existing school. The proposed entry and exit driveway was located on Edward Stinson Street between Figtree Boulevard and Orchid Way, and a separate loading dock entry to service delivery vehicles was proposed on Orchid Way. The loading dock entry was designed to facilitate delivery vehicles reversing into the loading dock from Orchid Way.

229 Annexed to the report was a Traffic Assessment Report prepared by B.J. Bradley & Associates (Traffic Engineers) dated 6 April 2004 (“the traffic assessment report”). The traffic assessment report recommended approval of the Errol DA on the basis that it would not have a significant effect on traffic capacity, safety, or level of service on the affected roads.

230 On 26 May 2004, Mr Brad Parkes, the Council’s Assistant Transportation Engineer, sent a memorandum to Ms Jenny Chisholm, the Council’s Assessment Officer, in relation to traffic issues surrounding the Errol DA. In the memorandum Mr Parkes noted the following:

· The proposed loading area for the shopping centre requires vehicles to reverse from the street. This is unacceptable and the applicant should reconfigure the design so that vehicles are entering and exiting the site in a forward direction.

· The applicant should reconfigure the design to ensure that heavy vehicle movements to and from the site are safe. The applicant is to provide plans indicating the turning circles of the service vehicles.

· Preferably the movements of servicing vehicles should be minimised in Orchid Way via strategic access location and internal road layout.

…

· All access to the site must comply with the Standard requirements for sight distance to both pedestrians and vehicles. The applicant is to demonstrate this is achieved.

231 On 15 June 2004, Mr Tim Shelley, the Council’s Major Applications Team Co-ordinator, sent a letter to Errol Investments outlining several deficiencies in the Errol DA. In his letter, Mr Shelley stated:

In terms of the actual layout and design of the carpark, a preliminary review has identified concerns in relation to the loading area. In this regard, the proposed location requires service vehicles to reverse into the site from the street, which is unacceptable as all vehicles need to be able to enter and leave the site in a forward direction. Further to this, the location of staff parking within the loading area also encourages reversing from the site…

As an advice, any redesign of the carpark would also need to ensure that heavy vehicle movements are minimised in Orchid Way due to the location of the school and pedestrian crossing, that the carpark and sight distances comply with Australian Standards and that road and footway construction is provided in accordance with DCP 49.

232 On 22 July 2004, Errol Investments lodged amended plans with the Council. The amended plans located the local supermarket at the intersection of Orchid Way and Figtree Boulevard on the north-western corner of the site. The proposed entry and exit driveway remained on Edward Stinson Street, between Figtree Boulevard and Orchid Way. The loading dock entry proposed on Orchid Way for service and delivery vehicles access was also re-located closer to the school opposite.

233 On 26 August 2004, Errol Investments lodged an amended Development Report and Statement of Environmental Effects. Errol Investments did not undertake a new traffic assessment report that considered the amendments proposed in the amended plans lodged on 22 July 2004. Rather, Errol Investments relied on the traffic assessment report submitted with the original Development Report and Statement of Environmental Effects dated 16 April 2004. The amended Development Report and Statement of Environmental Effects stated that:

12.2 Traffic Movements
The proposed vehicle and delivery arrangements for the new village shopping centre are shown on the amended architectural plans… and detailed within the previously lodged Traffic Assessment Report prepared by B.J Bradley & Associates dated April 2004. As mentioned above, Council’s attention is drawn to the agreement between Errol Investments and Wyong Shire Council whereby truck sizes have been reduced to accommodate the amended loading dock arrangements.
Delivery vehicles and waste vehicles will service the complex from the rear loading dock area on the north eastern side of the proposed building.

234 On 6 September 2004, the Health and Development Department of the Council considered the issue of traffic in the Health and Development Department Report to the Council’s Development Management Panel in relation to the Errol DA. The Health and Development Department Report states at p 34:

Access, Transport and Traffic

The proposal was considered by the Local Development Committee and has since been assessed by Council’s Transport Engineers. After a number of amendments in order to achieve forward in/forward out movements from the loading area, the design is considered to be satisfactory subject to appropriate conditions. This includes limiting the delivery vehicles to 14 metres to ensure adequate turning areas, signposting the entry and exit points, limiting landscaping and screening to maintain sight distances, placing kerb stops to car spaces within the carpark and extending the traffic island between the entry and exit to the loading dock to reduce the width of the footpath crossing...

235 The Health and Development Department Report further states at p 38:

· The location of the service area is inappropriate and will impact on pedestrian crossing and other vehicles.

Comment:

Access to the service area is located approximately 20 metres from the pedestrian crossing and is unlikely to cause unacceptable interference with this facility. In terms of gaining access to the service area, the design ensures that trucks can safely enter and leave the site in a forward direction. The consent will be conditioned to restrict the size of trucks to ensure safe movements and to prohibit reversing movements over the footpath.

236 On 13 October 2004, Mr Butt, the Director of the Health and Development Department of the Council submitted the Director’s Report to the Ordinary Meeting of Council in relation the Errol DA. The Director’s Report adopted the statements of the Health and Development Department Report in relation to Access, Transport and Traffic at p 34.

237 On 28 October 2004, the Council determined the Errol DA by the grant of consent including conditions of consent in relation to:

· extending the traffic island between the entry and exit to the loading dock to reduce the width of the footpath crossing (condition 24).

· limiting entry and exit of trucks to the site in a forward direction and limiting deliveries to outside school peak usage periods (condition 71).

· Limiting the delivery vehicles to 14 metres to ensure adequate turning areas (condition 76).

238 The Applicant relied on the affidavit of Mr Darroch who stated that the traffic assessment report undertaken by the Council did not accurately describe the traffic impacts likely to arise from the Errol DA and that an amended traffic assessment report, based on the amended plans, ought to have been considered. Errol Investments objected to Mr Darroch’s evidence on the grounds of relevance. If Mr Darroch’s evidence were to be allowed, Errol Investments sought to rely on the evidence of Mr Stewart, who was of the opinion that the Council had sufficient information to properly assess the Errol DA without the need for an amended traffic assessment report. In his view the alternative layout in the amended plans improved casual surveillance of pedestrian movements along Orchid Way and Edward Stinson Street.

Applicant’s submissions

239 The Applicant submitted that in determining to grant development consent to the Errol DA, the Council failed to consider the traffic impacts of the Errol DA in relation to the shifting of the courtyard exit of the loading dock closer to the school opposite. Having obtained a traffic assessment report in April 2004, the plans submitted by Errol Investments were amended to relocate the entry to the loading dock. The Council was obliged to obtain a further traffic assessment report in order to assess the impacts of the amendments. In determining to grant development consent to the Errol DA, the Council did not take into consideration, the traffic impacts associated with the amendments, including shifting of the entry and exit of the loading dock closer to the school opposite, which were a relevant consideration under s 79C(1)(b) of the EP&A Act.

Council’s and Errol Investments’ submissions

240 The Council and Errol Investments argued that an amended traffic assessment report was not necessary to determine whether relocating the supermarket away from the school pedestrian crossing would improve potential traffic impacts of the Errol DA. The evidence established that traffic impacts were considered in the Director’s Report, the amended plans provided by Errol Investments and in condition 71 of the consent to the Errol DA which required that “deliveries are only to be made outside school peak usage periods”. There was sufficient material before the Council for a decision to be made about the potential traffic impacts of the development.

241 Errol Investments submitted that the evidence did not support a contention that traffic impacts, particularly in relation to the school, were not considered.

Finding

(i) Admissibility of expert evidence

242 I set out earlier at par 166 – 168 above the relevant law in relation to the limited admissibility of evidence in judicial review proceedings. As is clear from Caldera there is only a limited role for such expert evidence. The role of such evidence is not to have an expert put him or herself in the Council’s shoes and give his opinion about that decision. I consider the evidence of Mr Darroch and Mr Stewart does not satisfy the criteria in Caldera and cannot be relied upon as it is irrelevant. The evidence does not go to a failure to make inquiries or to achieve an understanding of the environmental consequences of the Council’s behaviour or explain principles relevant to the determination. The only basis it could possibly be included is to show what a council acting reasonably ought to have done but since this ground of appeal does not raise the issue of whether the Council acted unreasonably the evidence is not relevant.

(ii) Failure to consider relevant matters

243 As stated in Hale, Weal and Centro Properties (see par 221 – 223 above) proper, genuine and realistic consideration requires that the decision-maker have an understanding and appreciation of the scope of the matters being taken into consideration. I agree with the Council’s submissions that there was sufficient material before the Council as is clear from the history set out at par 228 – 238 above, to enable the councillors to be aware of the potential traffic impacts of the development so that they were in a position to give “proper and genuine” consideration to the issue of traffic. The Applicant fails on this ground.

244 My findings in relation to issue 11, whether the Council failed to consider acoustic impacts of the Errol DA (APOC par 61, 62) at par 221 – 226 above, mean that consideration ought be given to whether s 25B of the Land and Environment Court Act 1979 (“the Court Act”) should apply. If I do apply s 25B, the further question then arises of what the appropriate order ought to be. The parties made submissions on the application of s 25B at the hearing as follows.

Council’s and Errol Investment’s submissions

245 If the Court found that the consent granted by Council to the Errol DA was invalid on the basis that the Council failed to consider the acoustic impacts of the Errol DA the Council and Errol Investments submitted that the Court, in its discretion, should decline to make a declaration of invalidity and should instead make an order suspending the operation of the consent. Pursuant to s 25A of the Court Act, an order may be made under s 25B where the invalidity arises from any steps preliminary to the granting of consent. Accordingly, in these circumstances it is appropriate for the Court to make an order under s 25B of the Court Act. This is consistent with WRF Property Pty Ltd v Armidale Dumaresq Council [2003] NSWLEC 223 where Talbot J utilised s 25B to remedy defects in the imposition of conditions by a council.

Applicant’s submissions

246 The Applicant’s primary submission at the hearing was that s 25B of the Court Act was not available for the numerous breaches alleged by the Applicant as these did not fall within the scope of s 25A(2) of the Court Act, not being a step preliminary to the granting of development consent. Moreover, the nature of the breaches was such that they could not be isolated from the process of consideration and decision-making mandated by the EP&A Act. The Applicant argued that it was not for the Court to substitute the consent authority’s decision with its own (Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84; Centro Properties Ltd v Warringah Council (No 2) (2003) 132 LGERA 45; Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257).

247 It appears I have sufficient submissions on this issue but now that I have found that there is a deficiency in only one respect, consideration of noise impacts for 24 hour operation, the Applicant may wish to reconsider its submissions. If not, I will simply consider the submissions already made about s 25B in light of my decision in this judgment as there is no need for the parties to repeat these.

248 The parties should advise me within 14 days of whether they wish to make further submissions and the timetable for doing so and the appropriate form of orders under s 25B in the event that I decide to make these. The parties should also advise the Court what they seek in relation to costs orders.

CITATION:	Woolworths Limited v Wyong Shire Council & Ors [2005] NSWLEC 400
PARTIES:	APPLICANT: Woolworths Limited FIRST RESPONDENT: Wyong Shire Council SECOND RESPONDENT: Errol Investments Pty Limited THIRD RESPONDENT: Minister Administering the Environmental Planning and Assessment Act 1979
FILE NUMBER(S):	41492 of 2004
CORAM:	Pain J
KEY ISSUES:	Judicial Review :- challenge to local environmental plan - validity of clause in LEP - whether s 35 precludes challenge to LEP - whether Council has jurisdiction under LEP to grant development consent Judicial Review :- challenge to development consent - whether delegated authority properly exercised - whether failure to consider development control plan - whether Council took into account an irrelevant consideration - whether failure to consider noise and traffic impacts
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 4, s 5, s 24, s 26, s 35, s 70, 79C, s 101 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 Interpretation Act 1987 s 33 Land and Environment Court Act 1979 s 25A, s 25B Migration Act 1958 (Cth) Motor Vehicles Act 1988 Retail Centres Development Control Plan No. 81 State Environmental Planning Policy 1 – Development Standards State Environmental Planning Policy 5 – Housing for Older People or People with a Disability Warnervale East & Wadalba North-West Urban Release Area (Wadalba, Hamlyn Terrace and Woongorrah) Development Control Plan No. 49 Wyong Local Environment Plan 1991 cl 2, cl 7, cl 10(3), cl 59
CASES CITED:	Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385; Anambah Homes v Maitland City Council (2004) 135 LGERA 421; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Breitkopf v Wyong Shire Council (1996) 90 LGERA 269; Caldera Environment Centre Incorporated v Tweed Shire Council (Talbot J, NSWLEC, 13, July 1993, unreported); Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; Centro Properties Ltd v Warringah Council (No 2) (2003) 132 LGERA 45; Cobden-Jones v Woollahra Municipal Council (2002) 118 LGERA 41; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980) 147 CLR 297; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Dubler Group v Minister (2004) 137 LGERA 178; Esmonds Motors Pty Limited v Commonwealth (1970) 120 CLR 463; Fabcot Pty Limited v Hawkesbury City Council (1997) 93 LGERA 373; Franklins Limited v Penrith City Council & Anor [1999] NSWCA 134; Georgakis v North Sydney [2004] NSWLEC 123; Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84; Hayden Theatres Pty Limited v Penrith City Council and Ors (Bignold J, NSWLEC, 1 April 1998, unreported); Kentucky Fried Chicken Pty Limited v Gantidis (1979) 140 CLR 675; King v Great Lakes Council (1985) 58 LGRA 366; Kingston & Anor v Keprose Pty Limited (1987) 11 NSWLR 404; Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207; Lowy v The Land and Environment Court of NSW & Ors (2003) 123 LGERA 179; Manly Council v Hortis (2001) 113 LGERA 221; McEldowney v Ford [1971] AC 632; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Minister for Resources & Anor v Dover Fisheries Pty Limited (1993) 116 ALR 54; Mitchforce Pty Ltd v The Industrial Relations Commission (NSW) (2003) 57 NSWLR 212; Nalor Pty Ltd v Bankstown City Council (1980) 42 LGERA 111; Nedoni Pty Ltd v NSW Minister for Roads [2004] NSWLEC 56; North Sydney Council v Ligon 302 Pty Limited (1996) 93 LGERA 23; North Sydney Municipal Council v P D Mayoh (No 2) (1990) 71 LGRA 222; Parramatta City Council v Hale (1983) 47 LGRA 319; Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; R v Metal Trades Employers’ Association; ex parte Amalgamated Engineering Union (1951) 82 CLR 208; Sericott Pty Limited v Snowy River Shire Council (1999) 108 LGERA 66; Shell Company v Manly Muncipal Council (1961) 7 LGRA 87; Shell Company v Randwick Municipal Council (1959) 4 LGRA 348; Smith v Wyong Shire Council (2003) 132 LGERA 148; Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614; South Australia v Tanner (1989) 166 CLR 161; Strathfield Municipal Council v Poynting (2001) 116 LGERA 319; Stockland Development v Manly Council (2004) 136 LGERA 254; ULV Pty Ltd v Scott & Ors (1990) 19 NSWLR 190; Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78; Weal v Bathurst City Council (2000) 111 LGERA 181; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; WRF Property Pty Ltd v Armidale Dumaresq Council [2003] NSWLEC 223; Yadle Investments Pty Ltd v Roads & Traffic Authority of NSW (1989) 72 LGRA 409; Zhang v Canterbury City Council (2001) 51 NSWLR 589
DATES OF HEARING:	20/06/2005 21/06/2005 22/06/2005 23/06/2005 24/06/2005
DATE OF JUDGMENT:	09/23/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr B Preston SC and Ms J Jagot (barrister) SOLICITORS: Corrs Chambers Westgarth FIRST RESPONDENT: Mr T Robertson SC and Mr J Lazarus (barrister) SOLICITORS: Abott Tout SECOND RESPONDENT: Mr T Hale SC and Mr J White (barrister) SOLICITORS: Shane Boesen THIRD RESPONDENT: submitting appearance