Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289 (3 October 2003)

New South Wales Court of Appeal

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TERRACE TOWER HOLDINGS PTY LIMITED v SUTHERLAND SHIRE COUNCIL [2003] NSWCA 289 (3 October 2003)

Last Updated: 13 October 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: TERRACE TOWER HOLDINGS PTY LIMITED v SUTHERLAND SHIRE COUNCIL [2003] NSWCA 289

FILE NUMBER(S):

40883/02

HEARING DATE(S): 18 August 2003

JUDGMENT DATE: 03/10/2003

PARTIES:

TERRACE TOWER HOLDGINS PTY LIMITED v SUTHERLAND SHIRE COUNCIL

JUDGMENT OF: Spigelman CJ Mason P Ipp JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 10248/01

LOWER COURT JUDICIAL OFFICER: Cowdroy J

COUNSEL:

Appellant: B Walker SC/ A Galasso

Respondent: T F Robertson SC/ J Jagot

Intervenor: S Rares SC/ M Wright QC/ A Pearman

SOLICITORS:

Appellant: Landerer & Company

Respondent: Pike Pike and Fenwick

Intervenor: Mallesons Stephen Jaques

CATCHWORDS:

Environment - Development Application for bulky goods retail centre - Relevant matters for consideration under s79C(1) Environmental Planning and Assessment Act 1979 - "proper regard" to draft exhibited planning instruments - where draft in force at time of proceedings - "certain and imminent" - weight to be accorded - purpose of draft instrument - whether question of law - public interest (ND)

LEGISLATION CITED:

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40883/02

SPIGELMAN CJ

MASON P

IPP JA

Friday 3 October 2003

TERRACE TOWER HOLDINGS PTY LIMITED v SUTHERLAND SHIRE COUNCIL

FACTS

The appellant sought development consent from the respondent Council for a bulky goods retail centre in Taren Point. The development application was lodged during the currency of the Sutherland Shire Local Environmental Plan 1993 (LEP 1993). The developer's appeal against deemed refusal to the Land and Environment Court was dismissed because of planning and landscaping/car-parking issues. Cowdroy J also held that the proposed development was not appropriate because it was contrary to various planning policies formulated by government and was adverse to the public interest.

ISSUES

The appeal before this Court was brought on four grounds arising out of Cowdroy J's treatment of the Sutherland Shire Local Environmental Plan 2000 (LEP 2000) and the draft State Environmental Planning Policy No 66 (SEPP 66) as relevant matters for consideration in determining a development application pursuant to s79C(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

The only significant difference between LEP 1993 and LEP 2000 relevant to the site was that LEP 2000 alone required each individual bulky goods retailer to have a minimum gross floor space of 1000m² (cl 51(2)). The proposed development had been designed to accommodate several tenancies with smaller gross floor space than this standard. The appellant submitted that Cowdroy J erred in law in attaching significant weight to LEP 2000, treating its provisions "as if they were certain and imminent because LEP 2000 [had] been gazetted" by the time of the hearing in the Land and Environment Court. The appellant also submitted that Cowdroy J erred in treating the draft SEPP 66 as an instrument to be taken into account under s79C(1) of the EPA Act.

The Council submitted that none of these grounds of appeal involve a question of law or disclose any error of law.

HELD per Mason P (Spigelman CJ and Ipp JA agreeing), dismissing the appeal with costs:

1) The trial judge did not err in law in treating the minimum floor space standard in cl 51(2) of LEP 2000 as a relevant matter for consideration, and in placing significant weight upon the fact that LEP 2000 was actually in force at the time of the proceedings before him. [51], [54]-[55], [57]-[58], [68]

(a) Clause 6(2) of LEP 2000 (the transitional provision) and s79C(1)(a)(ii) of the EPA Act both require that proper regard be given to draft instruments that have been exhibited. Proper regard means that a consent authority may give weight to its perception of the imminence of relevant provisions in a draft exhibited instrument; or if it has already come into force, to treat it as if its provisions were "certain and imminent": Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138; Ward v Warringah Shire Council (1963) 10 LGRA 114 at 119-120; Pymble Industrial Village Pty Ltd v Kur-ring-gai Municipal Council (1975) 3 LGATR 161 at 165; Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at 201-2; Mathers v North Sydney Council [2000} NSWLEC 84 at [42]; Hassell Pty Ltd v Warringah Shire Council [2000] NSWLEC 49 at [36]- [37]; Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209 at [6]; Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 at 297-8; Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works (1985) LGRA 346 at 353. [46]-[47], [49]-[50]

(i) The trial judge was entitled to assess and weigh expert evidence as to the reasonableness of applying the minimum floor standard in cl 51(2) of LEP 2000 and give considerable weight to its purpose of protecting the existing retail hierarchy. [54]-[55], [66]

(b) The weight to be given to a planning instrument does not involve a question of law, so long as legally irrelevant factors are not taken into account: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41; Attorney-General (NSW) v X [2000] NSWCA 199; (2000) 49 NSWLR 653 at 666 [57]

2) The trial judge did not err in considering Draft SEPP 66 to be relevant to the appeal to the Land and Environment Court, since it contained matters pertaining to the "public interest", to be taken into account according to s79C(1)(e) of the EPA Act. [80]

(a) Transitional provisions, which state that provisions of a draft planning or policy instrument are inapplicable to a development application made but not finally determined before its commencement, do not force the consent authority to shut its eyes to otherwise relevant provisions of the draft instrument. [78]

(b) Nothing in the EPA Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". A consent authority may range widely in the search for material as to the public interest: Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231 at 235. [81]

HELD also per Spigelman CJ (Ipp JA agreeing):

1) The trial judge was entitled to give considerable weight to the purpose of 51(2) of the draft LEP 2000 - namely to protect the existing retail hierarchy. [3], [7]

(a) The purpose of a draft instrument is entitled to be given significant weight in deciding whether to reject an application brought under a pre-existing planning instrument that would undermine the draft instrument's purpose in a substantial way. [7]

****************

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40883/02

SPIGELMAN CJ

MASON P

IPP JA

Friday 3 October 2003

TERRACE TOWER HOLDINGS PTY LIMITED v SUTHERLAND SHIRE COUNCIL

JUDGMENT

1 SPIGELMAN CJ: I have read the judgment of Mason P in draft. I agree with his Honour's reasons and the orders he proposes. I add the following observations by way of reinforcement of his Honour's conclusions.

2 The proposed development, the subject of these proceedings, involved the erection of a two storey building, with a gross lettable floor area of 29,386m². Of the 40 tenancies identified in the development, only ten would have a gross floor space of 1,000m² or more, although those ten tenancies would occupy fifty-nine per cent of the total floor space. Ten tenancies would have lettable areas between 500m² and 1,000m² and 20 tenancies would have lettable areas less than 500m². There may very well have been a serious question as to whether or not a development with this structure could accurately be described as a use for the permissible purpose within the zone of "bulky goods retailing". The structure of the development would appear to suggest a purpose of general retailing to such a substantial extent as to cast doubt on the characterisation of the proposal as being for the permitted purpose.

3 Be that as it may, it is that very structure which created the real prospect of conflict with the planning principle which his Honour applied, namely the support of the existing retail hierarchy. His Honour was entitled to reject the application on this basis and committed no error of law in doing so.

4 The introduction in LEP 2000 of a minimum gross floor space of 1,000m², subject, of course, to SEPP 1 variations, made explicit what was permissible under LEP 1993, namely that development for bulky goods retailing in an industrial zone should be confined to developments which by their nature would be difficult to integrate with existing retail centres. His Honour took into account the fact that the planning principle he otherwise applied was now reflected in a specific standard, but not in such a way as to be directly applicable to the development application before the Court. There was no error of law.

5 Mason P outlines the line of authority in the Land and Environment Court to the effect that the weight to be given to a draft environmental planning instrument will be greater after such an instrument has been gazetted on the basis of its "certainty and imminence". I agree with the proposition that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft.

6 Notwithstanding "certainty and imminence", a consent authority may, of course, grant consent to a development which does not comply with the draft instrument. Different kinds of planning controls will be entitled to different levels of consideration and of weight in this respect.

7 Where a draft instrument seeks to preserve the character of a particular neighbourhood, that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. The development proposed in this case, and the evidence of its significant implications for the area, may well be of a similar character insofar as the 1,000m² minimum gross floor space standard has the objective of protecting the existing retail hierarchy.

8 As the trial judge legitimately concluded:

"The zoning controls in LEP 2000 relating to retailing essentially require that it should take place in or adjoining established retail centres or bulky goods clusters. Only larger bulky goods stores which cannot be accommodated in these centres or clusters should be permitted in the industrial area. Whilst the standard cannot be given determinative weight it nevertheless supports the court's conclusion that this application should not be approved."

9 The "court's conclusion", to which his Honour referred, is found in para [64] of his Honour's judgment, which is set out in the judgment of Mason P.

10 MASON P: Terrace Tower Holdings Pty Limited (the appellant) challenged in the Land and Environment Court the deemed refusal of its application for development consent by the respondent Council.

11 On 24 July 2000 the appellant had sought consent for a bulky goods retail centre in Bay Road, Taren Point. The development involved the erection of a two-storey building with a maximum height of 12m and a gross lettable floor area of approximately 30,000m² together with car parking, landscaping and associated facilities. The building is designed to accommodate 42 tenancies ranging in size from 51m2 to 2,641m2. If approved, the development would include 779 off-street car parking spaces. The site has a total area of 48,634 m2. It is on the eastern side of Taren Point, with Woolooware Bay to its southeast. Under the Sutherland Shire Council Local Environmental Plan 1993 (LEP 1993) the zoning is 4(a) General Industrial in which "bulky goods sales rooms or showrooms" are permissible with consent.

Procedural background

12 The appellant joined the Council as the sole respondent to the Class 1 proceedings in the Land and Environment Court.

13 One of the objectors to the development was and is Colonial First State Property Limited (CPL). CPL owns Caringbah Supa Centa which is located a kilometre to the south. CPL applied to be joined in the proceedings in the court below. There was no dispute that the development would have some adverse economic impact on CPL, nor was there dispute about CPL's capacity to contribute to the resolution of some of the issues.

14 CPL's joinder "as a party" was opposed by the appellant and the Council, although the Council indicated that it did not object to limited representation on some issues, especially those touching the economic impact of the proposal. CPL's application was initially refused outright (see Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2001] NSWLEC 154).

15 A renewed application, made with the support of the Council, was partially successful. Pursuant to s38(2) of the Land & Environment Court Act 1979 CPL was given the right to tender evidence and make submissions and a limited right of cross examination (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2002] NSWLEC 24). The precise impact of such an order, both generally and as the source of a right of appeal under s57 of the said Act, remains to be decided in this Court (cf Lowy v Land & Environment Court of New South Wales (2002) 123 LGERA 179, [2002] NSWCA 353).

16 The appellant's challenge to the deemed refusal failed in the Land and Environment Court. Its appeal to that Court was dismissed and its development application was refused (Terrace Tower Holding Pty Limited v Sutherland Shire Council (No 2) (2002) 122 LGERA 288, [2002] NSWLEC 150).

17 The appellant has appealed to this Court, joining the Council as the sole respondent. CPL applied by notice of motion to be joined as a respondent, contending among other things that it should have been joined at the outset of the appeal. The Court heard limited argument on the motion, which becomes unnecessary to decide if this appeal is dismissed because it does not raise any question of law or disclose any error of law. I shall however return to CPL's position in this Court when addressing the question of costs.

18 The right of appeal to this Court against the dismissal of Class 1 proceedings is confined to questions of law (Land and Environment Court Act 1979, s57(1)). Four grounds of appeal are raised. The Council submits that none involve a question of law or disclose any error of law. The Council also contends that the decision is supportable on independent bases, some of which are not affected by the errors of law raised in the notice of appeal.

The substantive proceedings in the Land and Environment Court

19 The proceedings in the Land and Environment Court were heard by Cowdroy J sitting with Commissioner Bly as an assessor. Expert evidence was led by the Council, the appellant (described as the applicant in the Court below) and CPL (described as the Objector in the Court below). Several witnesses were cross-examined. Each of the participants took an active role in the proceedings.

20 The three participants joined issue by reference to an amended statement of issues filed by the Council. These issues spanned questions touching the application of various planning instruments and draft planning instruments, the public interest and matters raised by objectors (including CPL). The statement also tendered substantive issues about the economic and environmental impact of the development in a number of particulars.

21 The proposed development was permissible with consent. Council's consent having been deemed refused, the Land and Environment Court effectively stood in its shoes as the consent authority (see Land and Environment Court Act 1979, s39).

22 Cowdroy J addressed the issues under eight headings.

1. Planning

2. Economic impact

3. Visual impact and landscaping

4. On site traffic and parking

5. Public transport

6. Flooding

7. Stormwater drainage and impacts on Woolooware Bay

8. Flora and fauna impacts.

23 His Honour concluded that the development application passed muster completely as regards some of the issues raised by the Council and objectors or that it would do so subject to the imposition of conditions which he would have been prepared to impose: see as to economic impact pars [73]-[88], especially [88]; as to on site traffic and parking pars [104]-[111], especially [108] and [111]; as to public transport pars [112]-[115], especially [115]; as to drainage pars [129]-[134], especially [134].

24 However, the appeal to the Land and Environment Court was dismissed because of the appellant's failure to satisfy the Court as to the issues of (1) "planning", and (2) landscaping, also affecting car parking.

25 The "planning issue" is carefully stated by his Honour as "involving the question of whether this site is an appropriate one for a large bulky goods store of the kind proposed in an industrial zone" (at [34]). When Cowdroy J made his findings on planning issues he commenced by explaining that the question before him was whether this particular development was appropriate to be located in this particular site, with its proximity to existing retail centres or clusters; and the high likelihood that the proposal would reduce the range of bulky goods stores in existing centres, with consequential increased car dependency ([61]-[63]).

26 His Honour recognised that the proposal was permissible with development consent under both LEP 1993 and Sutherland Shire Council Local Environmental Plan 2000 (LEP 2000) ([53]).

27 The key finding was at [64]:

Despite the fact that LEP 1993 and LEP 2000 facilitate the approval of bulky goods stores outside existing retail centres, they contain no guide to indicate the appropriate location of bulky goods stores within the 4(a) zone. The Court however finds that the site would not be appropriate for a development of the kind proposed because of its conflict with the various state planning policies which overwhelmingly support the advancement of the existing retail hierarchy. The Court is thus persuaded that the proposal is clearly contrary to the objectives of the relevant policies and would be adverse to the public interest. The Court has also not been persuaded that this site comprises an appropriate location to establish a new bulky goods cluster. The application should, on this basis therefore be refused.

28 This finding was later referred to as the Court's conclusion, albeit that it found further support from additional matters (see [72], [115]). In other parts of his judgment, the learned judge expressed additional concerns which he indicated were not determinative of the application (see eg [88]).

29 It will be seen below that the appeal challenges the methodology that resulted in this determinative finding on the planning issue.

30 His Honour gave additional, independent grounds for rejecting the application. These involved the inadequacy of the landscaping and riparian buffer zone coupled with car parking (see at [99]-[103], [108], [142] - [143]). I accept the Council's submission that this alone is sufficient to justify dismissal of the appeal in light of Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177. Since, however, the Court heard full argument from the appellant on its four grounds of appeal and since it is conceivable that a further development application might be lodged which overcame the problems involved in the additional matters, it is appropriate to address the four grounds attacking the planning conclusion.

Issues in this Court

31 The appellant raises four grounds of appeal:

(i) Justice Cowdroy erred in giving the provisions of Sutherland Shire Local Environmental Plan 2000 ("SSLEP 2000") weight as if they were certain and imminent notwithstanding that subclause 6(2) of SSLEP 2000 required that it be regarded as a plan that had been exhibited but had not been made.

(ii) Justice Cowdroy erred in construing the terms of SSLEP 2000 as essentially requiring that retailing should take place in or adjoining established retail centres or bulky goods clusters.

(iii) Justice Cowdroy erred in holding that the perceived government policy supposedly manifested or evidenced by the release of draft State Environmental Planning Policy No 66 should be taken into account.

(iv) Justice Cowdroy erred in treating the perceived government policy in the form of material upon which consultation was sought for the purposes of considering draft State Environmental Planning Policy No 66, or alternatively for the purpose of considering the perceived government policy at all, as a matter or thing eligible to be taken into account under subsection 79C(1) of the Environmental Planning and Assessment Act, 1979.

32 Section 79C(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) provides the focus for the four grounds. It states:

79C Evaluation

(1) Matters for consideration---general

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

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and

(iii) any development control plan, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

that apply to the land to which the development application relates,

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

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

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

(e) the public interest.

Grounds (i) and (ii): Status afforded to LEP 2000

33 The development application was lodged on 24 July 2000, during the currency of LEP 1993. LEP 2000 was made and gazetted on 15 December 2000, ie before the hearing of the application in the Land and Environment Court.

34 The two planning instruments each had direct relevance to the application. As such, each was required to be given proper weight (cf s79C(1)(a)(i)).

35 Clause 4(1) of LEP 2000 repealed LEP 1993. However, clause 6(2) of LEP 2000 provided:

Despite Clause 4(1), local environmental plans (including Sutherland Shire Local Environmental Plan 1993) and deemed environmental planning instruments, as in force immediately before the commencement of this plan, apply to a development application that was made but had not been finally determined before that commencement as if this plan had been exhibited but had not been made.

36 Clause 6(2) (hereafter "the transitional provision") has a dual impact that is of direct relevance to the subject land:

(1) LEP 1993 is to be applied to the development application, despite its repeal; but

(2) LEP 1993 is to be applied as if LEP 2000 had been "exhibited but ... not ... made".

37 The appellant does not complain about the manner in which his Honour addressed the applicable provisions of LEP 1993.

38 Cowdroy J's reasons make plain that he construed the transitional provision as having the primary effect of requiring the Court to consider the development application pursuant to LEP 1993 (see [16], [17]). This is what he proceeded to do at [18]-[24]. He held that since "bulky goods sales rooms or showrooms" were permissible with consent in Zone 4(a) General Industrial under LEP 1993, the present development was permissible with consent ([18]). In concluding that the development was permissible, his Honour observed that there is no minimum floor area requirement under LEP 1993. He contrasted this with the situation under LEP 2000 ([19]). Other issues arising directly out of the terms of LEP 1993 were addressed and found to have been met in the subject development (see [20]-[24]).

39 The complaint raised by grounds (i) and (ii) concerns the status afforded to provisions of LEP 2000. The appellant submits that the primary judge erred in law in the weight he gave to LEP 2000, treating its provisions "as if they were certain and imminent because LEP 2000 [had] been gazetted" by the time of the hearing in the Land and Environment Court.

40 As regards LEP 2000, his Honour said that he treated it as one of the matters for consideration in the environmental assessment of the proposed development ([16], [17], [66]), but not as something that could be given determinative weight ([72]). It is clear that Cowdroy J considered himself entitled to give LEP 2000 significant weight because it had come into force (see [14]-[16]). This is the nub of the asserted errors of law.

41 LEP 1993 and LEP 2000 had substantially similar provisions relating to the proposed development. Under each planning instrument, in its application to the site:

* Zone 4(a) General Industrial allowed "bulky goods sales rooms or showrooms (bulky goods retailing)" (1993) / "bulky goods retailing" (2000), in each case with development consent;

* the respective definitions of "bulky goods retailing" focussed on factors which included the need for direct vehicular access to the site;

* shops were prohibited unless ancillary to a permissible use or to serve the daily needs of the workforce (1993) / local industries (2000);

* the maximum floor space ratio was 1:1; and

* the maximum height limit was 12m.

42 The one substantial difference was that LEP 2000 alone required each individual bulky goods retailer to have a minimum gross floor space of 1000m² (cl 51(2), which is in Part 5 of LEP 2000). Cowdroy J recognised that cl 51(2) was the only difference of significance relevant to the site (see at [53]).

43 Had this lastmentioned provision been considered to be directly applicable according to its terms there would have been no scope for approving the proposal. Nor would there have been any need to consider the appropriateness of giving consent in the circumstances. Yet this is exactly what Cowdroy J proceeded to do, as he contemplated the weight that should be given to the principle against small retailing sites expressed in cl 51(2) of LEP 2000. The key finding at [64] states this explicitly.

44 As required by the transitional provision, Cowdroy J considered the weight to be given to this factor having regard to the fact that LEP 2000 had been made and gazetted by the time that the Court came to address the proposal.

45 His Honour also applied a stream of caselaw in the Land and Environment Court addressing two related situations:

(1) transitional provisions similar to cl 6(2);

(2) relevant draft environmental planning instruments that have been placed on public exhibition and which are therefore required by s79C(1)(a)(ii) to be taken into account.

46 The cases permit a consent authority to give weight to its perception of the likely (or unlikely) imminence of the relevant provisions of the draft exhibited instrument coming into force; or if it has in fact come into force, to treat it (draft though it is in its direct applicability) as if its provisions were "certain and imminent". This approach has long been adopted by the Land and Environment Court and its predecessors, the Land and Valuation Court and the Local Government Appeals Tribunal (see Ward v Warringah Shire Council (1963) 10 LGRA 114 at 119-120; Pymble Industrial Village Pty Ltd v Kur-ring-gai Municipal Council (1975) 3 LGATR 161 at 165; Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at 201-2; Mathers v North Sydney Council [2000] NSWLEC 84 at [42]; Hassell Pty Ltd v Warringah Shire Council [2000] NSWLEC 49 at [36]- [37]; Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209 at [6]; Blackmore Design Group Pty Ltd v North Sydney Council (2001) 118 LGERA 290 at 297-8). See also Teston Investments Pty Ltd v Melbourne & Metropolitan Board of Works (1985) 62 LGRA 346 at 353-4.

47 The principles are well summarised by Pearlman J in Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138, a decision cited by Cowdroy J (at [14]). Pearlman J said:

33. Certainty and imminence of the making of a draft environmental planning instrument have long been applied in this Court as benchmarks for the attribution of weight in the consideration of a development application (see Balgownie Pty Ltd v Shoalhaven City Council (1980) 46 LGRA 198 at 202; Parramatta City Council v Takchi (Stein J, NSWLEC, 17 April 1996, unreported) and Davfast Pty Ltd v Ballina Shire Council and Anor [2000] NSWLEC 128, unreported). As to the certainty and imminence of the making of the Draft LEP, it is relevant to note that, not only was it placed on exhibition twice, but, according to Mr Czeref's evidence, submissions about the Draft LEP following its second exhibition were being considered, and it was intended to forward it in June to the Minister so that it could be made. There is no doubt in my mind that the Draft LEP will eventually be made, and to that extent it is certain and imminent, but its precise final form is not certain at this stage, for that depends upon any amendments made consequent upon submissions and amendments which might be required by the Minister. But those are matters of detail not of substance, and the planning approach which it adopts must in my opinion be regarded as certain to be brought into force within the reasonably foreseeable future. Hence I place significant weight upon its provisions in the assessment of the development application in this case.

48 Cowdroy J stated his acceptance of these principles at [14]-[17].

49 The appellant submitted that the stream of authorities should be overruled, because they reverse the clear drafting intent of provisions such as cl 6(2) of LEP 2000. I disagree.

50 The cases acknowledge that (as regards a proposal) the relevant instrument is not to be treated as made. But the terms of the transitional provision and the command of s79C(1)(a)(ii) themselves require proper regard to be given to draft instruments that have been exhibited. The cases recognise that proper regard means that some draft instruments are entitled to significant weight.

51 Cowdroy J did not err in law in paying significant weight to the fact that LEP 2000 was actually in force at the time of the proceedings before him. It remained a draft instrument as far as the proposal was concerned, by virtue of the command of the transitional provision. Section 79C(1)(a)(ii) nevertheless authorised the consent authority to pay regard to relevant provisions in a draft instrument. Its provisions had become certain and its commencement imminent (in relation to the date of lodgment of the instant development application). Common sense explains why significant regard may be given to one whose commencement is imminent and whose terms have become certain. "Imminence" indicates close temporal proximity of application, but stops short of "presence" or "arrival".

52 I am unpersuaded by the submission that his Honour misdirected himself when he said (at [16]) that "The only consequence of gazettal (of LEP 2000] is that rather than being a draft, LEP 2000 now prevails". This sentence should not be read in isolation, as the appellant effectively invites the Court to do. Throughout the judgment Cowdroy J had cited and applied provisions of LEP 1993 on the basis that it was the directly applicable planning instrument that was in force at the date the development application was lodged. His Honour had previously indicated acceptance of the earlier authorities, including Pearlman J's decision in Architect Haywood & Bakker Pty Ltd, as entitling him to place "significant weight" upon a proposed draft local environment plan. The sentence seized upon by the appellant should be seen as no more than a statement that LEP 2000 had proceeded beyond being a draft, to the status of a gazetted planning instrument.

53 The relationship between LEP 1993 and LEP 2000 was correctly stated in the next paragraph of the judgment (emphasis added):

17. Hence the relevant planning controls for the purposes of this development application are to be found in LEP 1993 although the otherwise applicable provisions of LEP 2000 are matters to be taken into consideration. Such provisions are to be given weight as if they were certain and imminent because LEP 2000 has now been gazetted (Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209).

54 When Cowdroy J addressed the planning issue, he treated cl 51(2) of LEP 2000 as a relevant matter for consideration (at [66]), but not something that could be given determinative weight (see at [72]). His Honour weighed the competing evidence of the experts as to the reasonableness of the minimum gross floor space standard, preferring to uphold and apply it on its merits, but not as a mandated prescription (see at [67]-[72]).

55 Cowdroy J was entitled to reach these conclusions and to apply them in his ultimate assessment of the proposal.

56 Section 79C(1) does not stipulate or imply a hierarchy among its various paragraphs or among the subparagraphs of (a). This was common ground in the appeal.

57 The transitional provision's requirement that LEP 2000 is to apply "as if ... exhibited but ... not ... made" does not prevent the consent authority from giving weight to such of its provisions as are pertinent to a proposal. The decision to give LEP 2000 significant (but not determinative) weight in the circumstances was a matter for his Honour. It raises no legal question, let alone legal error. The weight to be given to a planning instrument does not involve a question of law, so long as legally irrelevant factors are not taken into account (Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41; Attorney-General (NSW) v X [2000] NSWCA 199; (2000) 49 NSWLR 653 at 666). None were, in my view. (It is not suggested that the decision was manifestly unreasonable.)

58 The question raised in ground (i) does not involve any legal error.

59 A blunt variant of the appellant's submission on ground (i) was the contention that LEP 2000 could not be considered at all in light of the stipulations in s79C confining the consent authority to consideration of "matters of relevance" and provisions of draft environmental planning instruments "that apply to the land to which the development relates". The argument was that none of LEP 2000 was relevant or applicable under the transitional provision. This submission fails to recognise the second part of the transitional provision or the stream of caselaw forming the background against which its terms are properly to be construed. The transitional provision requires LEP 2000 to be taken into account, albeit on the basis that it is not to be regarded as "made". This cannot be read as a self-referential, self-defeating indication that only the transitional provision itself is to be taken into account. The obvious intent is that the consent authority may look at those provisions of LEP 2000 that are pertinent to the zone and the proposed development. This is what Cowdroy J did when he had regard to the "otherwise applicable" provisions of LEP 2000 (at [17]).

60 Just as s79C(1)(a) does not stipulate for a hierarchical relationship between planning instruments falling within subparagraphs (i) and (ii) thereof, neither does the transitional clause assign any hierarchical relationship between applicable provisions in LEP 1993 and LEP 2000. Naturally, any directly applicable commands of LEP 1993 must be complied with, as they were.

61 The decision to give weight to the policy indicated in cl 51(2) of LEP 2000 did not undercut any relevant provision of LEP 1993. LEP 1993 still required consent for the particular development. It did not mandate that consent be given. Nor did it require the consent authority to have no regard to matters external to it if otherwise applicable according to s79C(1).

62 Ground (ii) focuses upon Cowdroy J's statement at [72] where he said, in his findings on planning issues:

72. The zoning controls in LEP 2000 relating to retailing essentially require that it should take place in or adjoining established retail centres or bulky goods clusters. Only larger bulky goods stores which cannot be accommodated in these centres or clusters should be permitted in the industrial areas. Whilst the standard cannot be given determinative weight it nevertheless supports the Court's conclusion that this application should not be approved.

63 The appellant submits that this passage further evidences the error contended for under ground (i). This submission is rejected because it is directly contradicted by the opening words of the final sentence.

64 The separate matter raised as ground (ii) contends that his Honour erred because the location of bulky goods retailing is not dealt with in LEP 2000. Accordingly, LEP 2000 should not have been referred to as a "standard".

65 This submission misconstrues the reasoning in the judgment culminating in [72]. Cowdroy J had repeatedly acknowledged that, with one exception, nothing in LEP 2000 presented issues not found in LEP 1993.

66 The exception was cl 51(2) of LEP 2000, which requires that each individual bulky goods retailer must have a minimum gross floor space of 1000m². This stipulation is described as a "standard" at [69] and [70]. But such categorisation did not mean that his Honour was treating LEP 2000 as determinative. As indicated when I addressed ground (i), Cowdroy J assessed and weighed the evidence of the experts as to the reasonableness of applying that standard. He concluded that it was appropriate to do so in the circumstances of the particular case (see at [70]-[71]).

67 The first sentence in [72] is very compressed in its reasoning. However, the point being made becomes clear when it is recognised that the words "essentially require" refer to the conclusions previously drawn that were based upon the combined effect of the zoning controls found in LEP 1993 as reinforced by cl 51(2) of LEP 2000. There was expert evidence which his Honour was entitled to accept that this clause's requirement was a tool in maintaining vibrant and economically viable centres already in existence (see at [67], [70] and [71]).

68 Since Cowdroy J did not err in law in placing significant, but not determinative, weight upon the relevant provisions of LEP 2000 (cl 51(2) in particular) no appealable error is disclosed. Ground (ii) does not raise a true question of law because it misconstrues [72].

Grounds (iii) and (iv): use of Draft SEPP 66

69 Grounds of appeal (iii) and (iv) assert:

(iii) Justice Cowdroy erred in holding that the perceived government policy supposedly manifested or evidenced by the release of draft State Environmental Planning Policy No 66 should be taken into account.

(iv) Justice Cowdroy erred in treating the perceived government policy in the form of material upon which consultation was sought for the purposes of considering draft State Environmental Planning Policy No 66, or alternatively for the purpose of considering the perceived government policy at all, as a matter or thing eligible to be taken into account under subsection 79C(1) of the Environmental Planning and Assessment Act, 1979.

70 Section 79C(1) required the consent authority to have regard, among other things, to such of the following as were relevant to the particular proposal:

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

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

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

(e) the public interest.

71 In his reasons addressing the planning issues Cowdroy J referred (at [35]-[52]) to several publications from which he drew planning principles applied in the determination of the Class 1 appeal. These were:

* Planning NSW's Circular No C11-Flexible Industrial Lands Policy

* Planning NSW's Draft Retail Policy for the Greater Metropolitan Region

* A Report from a Ministerial Retail Advisory Group

* Planning NSW's Shaping Our Cities

* Planning NSW's Integrating Land Use and Transport.

72 The policies which his Honour derived from these sources were described (at [55]) as a "strategic framework which ... establishes that the existing retail hierarchy and the retail centres within the hierarchy are to be maintained and supported. This is because these retail centres represent `significant community and private sector investment in infrastructure and development and are the basis for a wide range of social networks'".

73 The appellant does not suggest that these conclusions were not open, nor that they entailed legally irrelevant considerations.

74 Earlier in his reasons, Cowdroy J had discussed Planning NSW's draft State Environmental Planning Policy No 66 - Integration of Transport and Land Use (Draft SEPP 66). This is a published draft planning instrument and provisions identified at [26] and [27] are relevant to the planning issues considered in this case.

75 Cowdroy J indicated his regard for Draft SEPP 66 as follows:

29. Consequently, and despite being a matter for consideration pursuant to s79C of the EP&A Act, if Draft SEPP 66 were to have been gazetted, it would not be applicable to this development application. On this basis Draft SEPP 66 should be given no weight at all as a draft because this would be giving it more weight than if it were gazetted. Notwithstanding[,] the fundamental planning principles contained within Draft SEPP 66, which emerge out of the Land Use and Transport Policy are matters which, in the public interest, are factors which can be taken into consideration.

(The comma after "Notwithstanding" does not appear in the judgment, but it was common ground before us that this is how the sentence should be read.)

76 A published draft SEPP is undoubtedly something which may taken into account to the extent that it is relevant (see s79C(1)(a)(ii)).

77 Clause 14(d) of Draft SEPP 66 provides that the Policy does not apply to "a development application that has been made but not finally determined before the commencement of this Policy". The appellant's complaint, raised as ground (iii), meant that this planning instrument could never disclose anything of relevance to the proposal because the development application had been lodged before the (draft) Policy became an actuality.

78 It will be seen that this submission parallels that advanced as to the transitional provision in LEP 2000. My response to the earlier submission is reiterated. A transitional provision in this form does not force the consent authority to shut its eyes to otherwise relevant provisions of the draft planning instrument.

79 Ground (iii) misconstrues par [29] of the primary judge's reasons. This said, the reasoning in that paragraph is opaque. The first two sentences read more like a summation of the appellant's argument than reasoning adopted by his Honour. Alternatively, these sentences represent an argumentative concession in the appellant's favour to which the appellant makes no objection (beyond the complaint that a similar concession was not repeated in the context of the transitional provision in LEP 2000).

80 On either basis, the last sentence (with the inserted comma) represents the nub of this portion of the reasoning of Cowdroy J. There is no legal error in the conclusion stated in this sentence. That is because the information drawn from Draft SEPP 66 was relevant to the appeal to the Land and Environment Court and because it was, as stated by Cowdroy J, pertinent to "the public interest" (cf s79C(1)(e)). The transitional clause in the draft SEPP did not bring about the effect that none of its substantive provisions could be examined as sources of information about the "public interest" touching a proposal lodged at a time when the SEPP was still in draft form. The information distilled from Draft SEPP 66 was also pertinent to pars (b), (c) and (d) of s79C(1) notwithstanding that his Honour did not need to identify it in those contexts. CPL had made submissions based upon the policies embodied in Draft SEPP 66 (Blue 388).

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

82 Draft SEPP 66 was published together with Planning NSW's Integrating Land Use and Transport. This was one of the documents from which Cowdroy J drew policies significant to the decision. As recognised in the last sentence of [29], there was a perceived degree of overlap between clause 9 of Draft SEPP 66 (see at [27]) and the policies derived from Integrating Land Use and Transport (see at [48]-[52]). His Honour paid regard to this and he was entitled to do so.

83 Ground (iii) hints at stating a question of law, but it does not do so in terms. Upon examination of the issues, there is no question of law in substance either.

84 Ground (iv) disputes the primary judge's capacity to perceive government policy otherwise than through the medium of an extant or operative environmental planning instrument. The ground is misconceived.

Disposition

85 Accordingly, the appeal should be dismissed with costs.

86 I would make no order as to CPL's costs. CPL's application to participate in the proceedings in this Court is consistent with the stance it adopted in the Land and Environment Court. But its motion was filed well after the appeal was launched and it has sought in this Court (as below) to adopt the role of an intervener supporting the respondent Council. Costs orders are rarely made in favour of any party in Class 1 proceedings in the Land and Environment Court. A would-be intervener cannot be placed in a better position.

87 In the upshot, it has become unnecessary to determine whether CPL should have been joined at the outset in this Court as a party respondent. If it should have been, this would have been in consequence of the supporting role it adopted in the court below, as distinct from the more substantial party role it had endeavoured to obtain. CPL did not challenge the procedural order made by Cowdroy J, except belatedly and inappropriately as an alternative prayer in the notice of motion filed on 13 March 2003.

88 IPP JA: I agree with Spigelman CJ and Mason P.

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LAST UPDATED: 10/10/2003