Kindimindi Investments Pty Ltd v Lane Cove Council & Anor [2006] NSWCA 23 (21 February 2006)

CITATION: KINDIMINDI INVESTMENTS PTY LTD v LANE COVE COUNCIL & ANOR [2006] NSWCA 23

FILE NUMBER(S):

40731/2005

HEARING DATE(S): 30 January 2006, 31 January 2006

DECISION DATE: 21/02/2006

PARTIES:

Kindimindi Investments Pty Ltd - Appellant

Lane Cove Council - First Respondent

Fabcot Pty Ltd - Second Respondent

JUDGMENT OF: Handley JA Basten JA Hunt AJA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40405/05

LOWER COURT JUDICIAL OFFICER: Cowdroy J

COUNSEL:

Mr I. Hemmings - Appellant

Mr M. Craig QC - First Respondent

Mr J. Ayling SC/Mr R. Lancaster - Second Respondent

SOLICITORS:

Hones Lawyers - Appellant

Wilshire Webb - First Respondent

Mallesons Stephen Jaques - Second Respondent

CATCHWORDS:

ADMINISTRATIVE LAW – challenge to development consent issued under Environmental Planning and Assessment Act 1979 (NSW) – measures taken to ensure pedestrian safety included in private deed between council and developer – measures did not constitute legally enforceable obligations – conditions imposed on development – whether conditions invalid for uncertainty – whether possibility of a significantly different development - whether conditions invalid for non-compliance with the s79C of the Act – whether there was a lack of time to consider the development application properly – whether the Council failed to apply its ‘collegiate mind’ to the application – whether the Council failed to consider the impact of the development upon the School - constructive failure to exercise the power

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 (NSW), s79C, s80A, s123

Environmental Planning and Assessment Regulation 2000 (NSW) clauses 1, 2, 50(1)(a)

Equal Opportunity Act 1984 (WA).

Land and Environment Court Act 1979 (NSW), s 25B

DECISION:

(1) Appeal upheld and decision of the Land and Environment Court set aside

(2) Remit matter to the Land and Environment Court for further consideration according to law, including as to the costs of the original hearing and any further hearing

(3) Order the Respondents to pay 50% of the costs of the Appellant of the appeal, and

(4) If either of the Respondents is eligible for a certificate under the Suitors Fund Act, give leave to it to make application in chambers for such a certificate within 14 days of the date of this judgment

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40731/05

LEC 40405/05

HANDLEY JA

BASTEN JA

HUNT AJA

21 February 2006

KINDIMINDI INVESTMENTS PTY LTD v LANE COVE COUNCIL AND FABCOT PTY LIMITED

This is an appeal from a decision of the Land and Environment Court concerning a development consent granted by the Lane Cove Council to Fabcot Pty Ltd, with respect to the construction of ‘Lane Cove Plaza’, a development which would be situated near the Lane Cove Public School.

As part of the investigation into the viability of the development, the Council obtained various reports, which made a number of recommendations to ensure that there were adequate measures taken to ensure pedestrian safety, particularly for school children arriving and departing from the School. One of those measures was the construction of a ‘pick-up and drop-off facility’ near the School, partly on land owned by the Department of Education and Training.

The Council issued a development consent to Fabcot which contained numerous conditions but not a requirement that a new drop-off facility be constructed. That particular measure with respect to pedestrian safety was not included in the consent, but rather in a deed between the Council and Fabcot.

A number of the conditions were subsequently modified.

Section 80A of the Environmental Planning and Assessment Act 1979 (NSW) (“EP&A Act”) allows conditions to be imposed as part of a development consent if certain criteria are satisfied.

The Appellant argued that the consent should be set aside on a number of grounds including uncertainty, non-compliance with the EP&A Act, the lack of time to consider the development application properly, the failure by the Council to apply its ‘collegiate mind’ to the application and the failure to consider the impact of the development upon the School.

Held by Basten JA (Handley JA and Hunt AJA agreeing):

1. A consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. There was no relevant uncertainty: at [28] - [37].

2. A consent may fail where it contains a condition, which has the effect of “significantly altering the development in respect of which the application is made”. This requires an evaluative judgement. Treating the development as a whole, neither the proposed change to the roof line of the residential component, nor the closing in of two sides of the carpark component, could be seen as significantly affecting the development: at [54].

Mison v Randwick Municipal Council (1991) 23 NSWLR 734 explained.

3. Since the relevant conditions were lawful, they did not have to satisfy the requirements of s80(4) of the EP&A Act and did not render the consent invalid: at [60].

4. The Appellant did not establish that the Council did not apply its ‘collegiate mind’ to application. It was necessary for the Appellant first, to identify some matter specified in s79C of the EP&A Act, or otherwise necessarily implied from the scheme of the legislation, as a mandatory consideration, and then to demonstrate that it had not been taken into account. Secondly, the Appellant needed to show that error was material: at [66] and [80] – [81].

Minister v Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1985-86) 162 CLR 24; IW v City of Perth [1997] HCA 30; (1996-97) 191 CLR 1; Bruce v Cole (1998) 45 NSWLR 163 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 referred to.

Kahn v Minister for Immigration, Local Government and Ethic Affairs [1987] FCA 457; (1987) 14 ALD 291 and Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 discussed.

Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 applied.

Parramatta City Council v Hale (1982) 47 LGRA 319 distinguished.

5. Given the extensive consideration of the drop-off facility in the recommendations and the ‘advice’ given by the Council to Fabcot in the development consent, it should be inferred that the Council intended the facility to be constructed in the first stage of the development. However, the conditions in the deed between the Council and Fabcot imposed no legal obligations on Fabcot to undertake the drop-off facility without the approval of the School or the Department.

6. To give effect to the council’s intention, the consent should have contained a requirement for the construction of the drop-off facility. It was not properly contained in a private deed alone. The exercise of statutory power miscarried because an intended and significant constraint on the proposed development was dealt with otherwise than by the imposition of a condition, being the mechanism provided in part 4 of the EP&A Act. There was a constructive failure to exercise the power in question with regard to a significant respect of the development: at [101].

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40731/05

LEC 40405/05

HANDLEY JA

BASTEN JA

HUNT AJA

21 February 2006

KINDIMINDI INVESTMENTS PTY LTD v LANE COVE COUNCIL AND FABCOT PTY LIMITED

Judgment

1 HANDLEY JA: I agree with Basten JA.

2 BASTEN JA: On 23 July 2004 Fabcot Pty Ltd (“Fabcot”), a company associated with Woolworths Ltd (“Woolworths”), lodged a development application with the Lane Cove Council. The application proposed a joint development, with the Council, of an area bounded on two sides by Longueville Road and Austin Street, Lane Cove, and to be known as ‘Lane Cove Library and Market Square’ or ‘Lane Cove Plaza’. The proposal involved a joint application with the Council, part of the land being owned by Fabcot, but the bulk being owned by the Council.

3 As a result of its interest in the development, the Council referred the application to an independent assessor for consideration. That assessor obtained further consultants to deal with traffic and pedestrian safety issues, to which reference will be made below.

4 On 20 December 2004 the Council approved the development, subject to conditions. The present Appellant took issue with the validity of the consent by proceedings commenced in the Land and Environment Court on 28 April 2005. (The Appellant was appropriately described as a concerned bystander: it had made a submission to Council with respect to the proposed development, but otherwise neither asserted, nor needed to assert any legal interest in the development: see Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”), s 123. That Court dismissed the challenge to the validity of the consent, judgment being delivered by Cowdroy J on 19 August 2005, Kindimindi Investments Pty Ltd v Lane Cove Council and Anor [2005] NSWLEC 398. On the appeal, the Appellant reiterated various of the grounds which had been raised unsuccessfully in the Court below. To understand the significance of the challenges made, it is necessary to have an understanding of aspects of the proposed development, the process by which it was assessed and the terms of the consent.

The proposal, assessment and consent

5 The proposed development involved the demolition of various structures currently on the land, with the exception of the Lane Cove Library. That building was to be extended, and a new supermarket, retail plaza and housing development constructed, with a multi-level carpark. The development involved the closing of at least one street and the construction of a new “link road”. The application lodged on 23 July 2004 was the culmination of a lengthy process of negotiation between the Council and Woolworths and Fabcot, which appears to have been under way since at least 2002. In March 2004 there was a Council election and between that time and 20 June 2004 the new Council considered further a proposal put forward by Fabcot and Woolworths which was to be the major tenant of the shopping centre. On 21 June 2004 the Council resolved to accept a commercial arrangement presented by Fabcot and Woolworths, which was incorporated into a deed executed on 6 July 2004. The deed, including its various schedules and annexures was a lengthy document of over 300 pages. The terms and conditions covered some 67 pages. The inter-relationship between the deed and the development application was a significant issue in the appeal, to which further reference will be made below.

6 On 4 August 2004 the Council appointed an independent assessor, Hanson Partnership Pty Ltd (“Hanson”). The relevant principal at Hanson who prepared the report for Council, was Mr Brad Roeleven.

7 On 30 September 2004 the Council organised an “information night” as part of its process of community consultation. Time for the receipt of submissions by Council was to run until 11 October 2004. On 1 October 2004 Mr Roeleven wrote to Fabcot noting that a significant issue raised at the information night had been “a common concern regarding pedestrian movements and safety within and around the development site”. He noted that Woolworths were prepared to engage an independent consultant to undertake a “pedestrian safety audit” of the proposal.

8 On its south side, the proposed development bordered on Austin Street, Lane Cove. On the other side of Austin Street, was the Lane Cove Public School. A significant aspect of pedestrian safety, referred to in numerous places throughout the documentation concerning the development, was the means by which some 800 children attending the school would gain access to it. A traffic report concluded that some 63% of the students crossed Austin Street in the morning peak period and some 50% crossed Austin Street in the afternoon peak period.

9 Hanson obtained assistance from various consultants, including Parsons Brinckerhoff Australia Pty Ltd (“Parsons”) in relation to traffic and pedestrian management. On 15 October 2004 Mr Michael Lee of Parsons, reported to Mr Roeleven (the report being forwarded to the Council) on a meeting with a body called the Sydney Regional Development Advisory Committee, attended by members of the Road Traffic Authority, the Police, Woolworths and professional consultants involved in the assessment process. Mr Lee noted a number of points raised at the meeting, including the following:

“From the Police perspective, the major issue they have is the pedestrian movements across Austin Street in particular school children.”

The report continued:

“Charles Waife from the RTA also raised an issue about pedestrian movements ... generally around the vicinity of the development site. Bruce Masson indicated that Woolworths have agreed to undertake a pedestrian audit. Charles Waife indicated that the RTA would make a recommendation for the findings of pedestrian safety audit to be addressed and incorporated into the development application and built in to the development consent to give the applicant sufficient lead time to implement the changes.”

(A significant complaint made by the Appellant is that the last step was not taken.) After dealing with other traffic issues, the report continued:

“Michael Lee raised as an issue whether the provision of the 10 parking spaces in the proposed drop-off/pick-up zone would be sufficient. Bruce Masson recognised that this is not enough and stated that this is the maximum they could provide due to the change [in?] the level between the kerb and the footpath. Michael Lee also has concern regarding the 6 designated drop-off/pick-up spaces within the carpark. The applicant responded by indicating that it is up to the school to manage or prevent school children from waiting inside the carpark.”

10 Either Hanson or Parsons, engaged Christopher Stapleton Consulting Pty Ltd to prepare a “pedestrian access and safety review”, which appears to have been completed in November 2004 (“the Stapleton review”) and incorporated into the report provided by Parsons in December. In addition to consideration of internal pedestrian access, within the development site, and access to and from the site, the Stapleton review gave extensive consideration to the position of students going to and from the public school and a proposal for a new drop-off facility in lower Austin Street, around a bend from the existing facility. Thus, at par 5.3, the review stated in part:

“The lower Austin Street drop-off facility was conceived in response to the lack of kerbside parking available around the site in general, because of the reduced kerbside accessibility that would result from the development of the New Link Road roundabout and service vehicle access point. It was also developed as a means of separating pedestrian (student) and vehicle traffic.

The drop-off provides a safe location for parents and carers to drop-off students (in the morning peak) and pick them up (in the evening peak). Providing ~11 parking spaces, the facility would operate in the same manner as those provided at other schools, with parents/carers stopping in the facility and the children – having seen their car arrive – leaving an on-site waiting area and then entering the vehicle from the kerbside.”

After considering a number of possible criticisms and benefits of the proposal, the review concluded:

“The proposed pick-up/drop-off facility in lower Austin Street provides an excellent long-term solution for the School.

The facility is well designed and differentiated from the carriageway, and is located in an accessible area for drivers.

Safety (and efficiency) of the facility could be improved further through the implementation of the recommendations outlined above.”

The recommendations referred to involved the establishment on the school grounds of a covered walkway and waiting area, to prevent students running on to the street or crowding the pavement.

11 In October 2004, Hanson completed a report entitled “Urban Design Assessment” for the Council. That document included a discussion of pedestrian movements in Austin Street and noted, at par 45:

“It is understood that the applicant has proposed works relating to the school site in Austin Street involving a 10 space pick up/drop off zone in lower Austin Street adjacent to the school; associated with new stairs allowing pupils to walk directly into and out of the school premises. This appears to be an appropriate design that relocates a potential congestion and conflict point well away from the primary retail entry.”

12 Hanson recommended adoption of the proposed school drop-off facility and the reinstatement of a pedestrian “wombat crossing” in association with the roundabout on Austin Street “to enable direct linkage from the school to the site”.

13 On 10 December 2004, Hanson completed a final assessment report to be considered at the Council meeting scheduled for 20 December 2004. The report itself, including recommended conditions of consent, ran to 90 pages. A number of reports, including those referred to above by Parsons, Stapleton and Hanson (October 2004) were annexed, together with a summary of submissions made to the Council.

14 It will be necessary to refer below to certain aspects of the Hanson report of 10 December 2004, but it is convenient at this stage to note its comments in relation to the issue of safe access to the public school from Austin Street. First, in the Executive Summary, among a small number of key conditions, reference was made to condition 4 which required the preparation of a Pedestrian Management Plan which was to “address all recommendations” of the Stapleton review of November 2004. In consideration of the proposal itself, the report had a separate heading “Austin Street Set-Down Area for Lane Cove Public School” under which it stated:

“The applicant has indicated a willingness to fund/construct a new set-down and collection area, and pedestrian access, for Lane Cove Public School. This facility would be located at the lower end of Austin Street and could provide 10 parking spaces. Associated works on the school site would include a new pedestrian entry, waiting area, pathway, landscaping and fencing.

The set-down area is shown on concept plans lodged with this application.

It is noted however that these works are not part of this application. The construction of any new works on the school site would need to be the subject of a separate application, lodged with the consent with the New South Wales Department of Education.” (Emphasis in original.)

15 The Hanson report contained a summary of the consultants’ reports, including the Stapleton review. It included a verbatim statement of the comments provided in writing by the Roads and Traffic Authority, which comments did not include the recommendation foreshadowed by Mr Waife at the meeting of the Sydney Regional Development Advisory Committee referred to above at [9]. There was no reference in the Hanson Report to the possibility of including, as a condition of consent, the construction of a drop-off facility in Austin Street. Further, the statement that “these works are not a part of this application” is ambiguous: although, without the consent of the Department of Education, works to be done within the school grounds could not have been part of the application, the provision of parking spaces on Austin Street could have been made a condition of the proposed consent.

16 It is also convenient to note at this stage that there was no consideration of the utility or safety of constructing the necessary parking facilities on Austin Street in the absence of agreement from the Department of Education to the construction of the ancillary walkway and waiting area within the school grounds. The Appellant contended in this Court that the tenor of the Stapleton review was that the two parts of the proposed drop-off facility were to be seen as an integral element of the proposal and that serious safety issues would have arisen if the Austin Street parking bays had been constructed without the co-operation of the school in relation to the associated structures on its land. It is, however, doubtful whether Stapleton went so far: no doubt it approved the integrated proposal, but there is no evidence that Stapleton, or the applicant, or the Council, gave serious consideration to an alternative, or fall-back arrangement, should the Department of Education not agree to the proposal.

17 This omission is curious, and will be addressed below. It is curious because the papers before the Council included a summary of numerous submissions, the very first of which was one received from Lane Cove Public School. Among 11 concerns identified in the summary of that submission, was “safety solution not adequate”. There was also reference to “proposed lower entry to school”. Precisely what had been said by the public school in the submission was not before the Court. Nor was it clear whether this submission came from the school itself, or expressed the views of the Department of Education.

18 The Council meeting took place on Monday, 20 December 2004: the agenda papers for the meeting, which included the Hanson report, but not its annexures, were distributed the previous Monday, December 13. The attachments to the Hanson report were distributed the following day, namely Tuesday, December 14. On 16 December Woolworths wrote to the General Manager of the Council commenting on a number of issues raised in the Hanson report and suggesting variations to the proposed conditions. That document was forwarded to councillors on Friday, December 17. In the early hours of Monday, December 20, Councillor Freedman submitted a list of questions and comments arising from her reading of the Hanson report and its attachments. Paragraph 10 read:

“10. School doesn’t agree to the lower drop-off zone.

One major concern I have with the recommendations is that they are predicated on the establishment of the lower drop-off zone in Austin Street and the school losing its existing Austin Street drop-off zones on the north and south sides. The majority of traffic and pedestrian safety measures assume this will happen. However it is clear from both the school and the DET’s submission that they don’t agree with the lower drop-off zone for numerous reasons. Also the impacts on the school of this proposal seem not to have been considered eg the impact on playground space of a lengthy walkway passing through it.

Maintenance costs etc. The fact that many children attend after school activities and would be picked-up from this drop-off zone well after teacher supervision has ended.

Has the author of the Safety review read the school’s and the DET’s submission? They are not referred to in the background sources referred to in the Introduction of the Safety Review (page 9).

Only the final Hanson Report ... acknowledges that the lower drop-off zone is subject to ‘adoption by the school and is reliant upon State Government acceptance’.”

19 This written comment is consistent with the issue put by Councillor Freedman during the debate. Her questions were not answered until after the meeting. Councillor Freedman’s statement in the transcript of the Council meeting that “at 1 o’clock this morning I sent through a list of questions to Council officers here, I haven’t had any responses to those questions”, was admitted without objection, as was the document itself: curiously however, objection was taken to statements in her affidavit to the same effect, which were rejected. Evidence of the response to the questions was tendered but rejected, as was the date on which she received the response.

20 Admitted as Exhibit C in the proceedings in the Court below without objection, was a transcript of the Council meeting of 20 December 2004. That transcript includes the following statement by Councillor Freedman (at pp 37-38):

“However, the most alarming thing about this whole independent assessment report is it is predicated on the fact that the school will move its drop-off zones to lower Austin Street. The safety measures, the traffic measures all depend upon removing current existing drop-off zones to Austin Street down to the bottom. I have a submission from the school and a submission from the Department of Education and Training that says they don’t want to do that for a huge number of reasons. I ask myself, how can you approve a DA requiring a school, that’s not even part of the development site to do things not on the development site that they don’t want to do ... .”

Although the reasons for opposition are not known to the Court, the fact that the school and the Department were opposed to the proposal appears to have been accepted by all the parties to the proceedings and the Court was not directed to any evidence contradictory of those comments by Councillor Freedman.

21 Consistently with the Hanson report, the consent was not conditioned on the construction of the drop-off facility for the school. However, section “E” of the consent, headed “Advice” provided as follows:

“Any separate development application of the construction of a the [sic] lower Austin Street set-down and pick [sic] area for Lane Cove Public school shall address and have regard to the recommendations in the Pedestrian Access and Safety Review prepared by Christopher Stapleton Consulting Pty Ltd dated November 2004.”

22 The consideration of the development application went through one further stage. On or about 20 January 2005 agents for Fabcot lodged an application to modify the development consent obtained in December 2004, reliance being placed upon the power to modify contained in s 96 of the the EP&A Act. After a number of technical errors in the application were rectified, a further report was obtained from Hanson with respect to the proposed modifications, the report being dated 6 April 2005, for referral to a Council meeting scheduled to be held on 18 April 2005. Following further comments by Woolworths made by letter dated 26 April 2005, the modifications were considered by Council at its meeting on 16 May 2005. To the extent that the modifications are relevant, they will be dealt with in relation to the relevant specific grounds addressed below.

23 Before leaving consideration of the background material, it may be noted that on 23 March 2005 the General Manager of the Lane Cove Council received a letter from Mr Ken Olah OAM, School Education Director of the Department of Education and Training (NSW), indicating willingness to consent to a development application for the drop-off development as proposed by the developer. The letter said that the Department was “keen to participate in the process of DA preparation for these works”.

Ground 1: Challenge to uncertain conditions

24 In accordance with principles explained by this Court in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, there may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of “significantly altering the development in respect of which the application is made”: at 737B (Priestley JA). The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application.

25 These two categories may overlap in circumstances where consent is granted subject to a condition which allows for significant variation of the development proposed.

26 In Mison, the condition in question required that the overall height of the dwelling house to be constructed be reduced “to the satisfaction of Council’s Chief Town Planner”. Because the approved height remained to be determined, and might, the Court held, fall at any point within an undefined range, the consent left open the possibility that that which was consented to would be significantly different from the development the subject of the application.

27 Alternatively, it was said that there was a substantial degree of uncertainty in relation to a condition which was “an important aspect of” the development: p 737B (Priestley JA). Meagher JA adopted a similar approach at 741. Clarke JA described the question of height as an aspect of the development “which was beyond question of critical importance”. However, his Honour preferred to rest his decision on the lack of finality, rather than the possibility of there being a consent to a significantly different development: p 740F. Clarke JA also considered that the failure to specify a criterion for determining height was a fatal omission.

28 Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests.

29 Since Mison, the EP&A Act has been amended to include new s 80A and in particular subs (4), which provides as follows:

(4) Conditions expressed in terms of outcomes or objectives

A consent may granted subject to a condition expressed in a manner that identifies both of the following:

(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b) clear criteria against which achievement of the outcome or objective must be assessed.

30 The first complaint made by the Appellant was that the consent had “deliberately” omitted reference to the plans which accompanied the development application and that without those plans the nature of the development could not be ascertained with sufficient certainty. That course was said to be deliberate because conditions 1 and 2 required that changes be made to the plans which accompanied the application and condition 3 required that a revised set of plans be filed. Until such plans had been prepared, the nature of the development remained, so it was submitted, uncertain in substantial respects.

31 In an opening summary, the letter to Fabcot advising of the determination of the Council stated that:

“The conditions included with the report reflect:

(a) Changes required to the architectural plans identified as a consequence of the independent assessment.

(b) Changes to the architectural plans agreed by Fabcot during the course of the independent assessment.

(c) General conditions.”

Condition 1 reflected the changes referred to in (a); condition 2 reflected the agreed changes referred to in (b).

32 Condition 1 so far as relevant, read as follows:

“The architectural plans prepared by B N Group Pty Ltd shall be altered to include the following modifications identified as necessary as a consequence of the independent assessment:

(a) the CBD housing roof form, at its eastern end, is to be split or setback, to reduce its visibility from Lane Cove Plaza.

(b) Enclosure of the open sections of the carpark to the west and south with facades providing visual relief and interest. Materials with a degree of transparency, to permit ventilation, are acceptable.

...

(e) Amend the design to provide a safe pedestrian path between the Link road and entry level access lobby area and existing commercial tenants in accordance with the Pedestrian Access and Safety Review ... .”

33 Pursuant to clause 50(1)(a) of the Environmental Planning and Assessment Regulation 2000 (NSW) (“the EP&A Regulation”) a development application must contain prescribed information and be accompanied by specified documents, as identified in Part 1 of Schedule 1 of the EP&A Regulation. Clauses 1 and 2 prescribe, respectively, the information to be included in the development application and documents to accompany the development application. In part, the accompanying documents are designed to provide a better indication, or at least an indication in a different form, of information required to be contained in the application. Thus, the first two specified documents are:

“(a) a site plan of the land,

(b) a sketch of the development.”

34 However, other accompanying documents, including a statement of environmental effects (par (c)) tend to serve a different purpose, namely providing information as to effects of a development which will be relevant to the matters to be considered by the consent authority under s 79C of the EP&A Act. In other words, some of the accompanying documents may properly be understood as providing information required for the identification of the development, whereas other documents fall into a different category. To that extent, there is force in the argument put by the Appellant that in identifying the development to which consent is being given, it will often be appropriate (and even necessary) for the consent authority to refer specifically to those accompanying documents which identify the nature and style of the proposed development.

35 Given the complexity of the present proposal, the application form stated, under the heading “Description of Proposal”, - “see Statement of Environmental Effects prepared by JBA dated July 2004”. Only part of that statement of environmental effects is included in the appeal book: nevertheless, so much as is included exceeds 150 pages in length and includes 17 separate sheets of architectural plans and landscape plans. The architectural plans were prepared by BN Group Pty Ltd, Architect. It follows that, in the present case, the description of the proposal is almost entirely dependent upon reference to the statement, and therefore to the plans included with the statement. It is those plans to which express reference is made in condition 1, noted above. It is those plans to which certain alterations or modifications are required to be made by the conditions of consent. It follows that the conditions of consent, and therefore the consent itself, will be meaningless unless taken to incorporate those plans.

36 The same reasoning applies to condition 2 which, omitting the particular sub-paragraphs (a)-(k), reads as follows:

“2. The architectural plans prepared by BN Group Pty Ltd development [sic] shall be altered to include the following modifications as agreed by the proponent in the letter from APP Corporation Pty Ltd dated 15/11/04 and the submission from BN Group Pty Ltd dated 25/11/04:

...

(l) Reinstate the wombat crossing in Austin Street, generally in its current position, and modify the associated entry into the carpark to provide for greater ease of movement and surveillance.

(m) the western wall of the CBD housing shall be consistent with details shown in design sketch SK 13.”

The same analysis as set out above with respect to condition 1 applies to condition 2, which may be treated as incorporating the relevant plans.

37 Condition 3 is in a different form and reads as follows:

“A complete set of revised plans, addressing the matters in conditions 1 and 2 above, to the satisfaction of Lane Cove Council, shall be submitted to Council PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE. The development shall be completed generally in accordance with the plans approved to satisfy this condition except as otherwise modified by this Notice.”

This condition would appear to be, in large part, administrative or mechanical in effect. Rather than requiring reference to a set of plans, plus a further set of amendments, a single complete revised set of plans was required to be lodged. A second purpose was to permit Council to satisfy itself that the operative plans reflected the changes which Council required or which had been agreed. Except to the extent that conditions 1 and 2 required alterations, the substantial effect of conditions 1, 2 and 3 taken cumulatively, was to approve the plans lodged with the statement of environmental effects which, by express reference in the development application, constituted the description of the proposed development. In my view, there is no substance in the first ground of appeal.

Grounds 2 and 3: Changes to proposed development

38 The preceding conclusion leaves open a possible challenge based on the nature and extent of the alterations required by conditions 1 and 2. Ground 2 alleged both that the conditions of the original consent rendered the consent otherwise than final and certain in that they altered the development in a significant or fundamental respect. The underlying premise of this ground was that the plans had not been incorporated into the consent. That conclusion being rejected, ground 2 must fail.

39 Ground 3, however, challenged the validity of conditions 1(b) and (e) and 2(m) on the basis that they failed to comply with the requirements of s 80A(4) and were therefore invalid. The cumulative effect of those conditions, together with condition 1(a), which the trial judge had accepted failed to comply with s 80A(4), was to render the consent invalid. Because the appeal relied upon, rather than asserting, a finding of invalidity in relation to condition 1(a), it is convenient to deal first with the three other conditions said not to satisfy s 80A(4).

40 Section 80A makes provision in a number of respects in relation to the imposition of conditions: thus, sub-s (4), set out at [29] above, identifies a form of condition which may be imposed in granting a consent. Unlike Mison, it says nothing about the validity of a consent which is subject to a condition which fails to comply with s 80A(4). It is appropriate therefore to consider whether the challenged conditions are valid, before considering the possible consequences of invalidity of a condition for the validity of the consent.

41 The Appellant challenged the validity of the modifications to the consent made in May 2005: Ground 6. However, the basis of that challenge was limited to the submission that one could not modify an invalid consent so as to create a valid consent. If the challenges to the original consent fail to establish invalidity, that consequential argument concerning modification, will also fall away. On the other hand, if, absent condition 1(a), the consent were invalid, there might be an interesting question as to whether a subsequent decision to remove the condition resulted in a valid consent at that later point in time. That question need not be determined in the present case, if condition 1(a) does not invalidate the original consent.

42 A further qualification should be noted: the relief sought in the present case was based on the absence of a valid original consent. Neither the Court below, nor this Court, was or is required directly to answer the separate question concerning the validity of particular conditions, except to the extent they may affect the validity of the consent.

43 Condition 1(b) (set out above at [32]), required the enclosure of open sections on two sides of the proposed carpark with facades “providing visual relief and interest”. Materials permitting ventilation, which might involve a degree of transparency as a result, were said to be acceptable. That condition, the Appellant argued, was expressed in terms of an outcome or objective, but it could not reasonably be said to express “clear criteria” against which the achievement of the outcome or objective could be assessed. Accordingly, it was submitted, that aspect of the application was not accepted by the Council, but was left, in effect, for determination at a later date. The condition therefore failed to satisfy a requirement of reasonable or substantial certainty and may therefore have been ineffective.

44 In my view condition 1(b) does not satisfy s 80A(4). However, the Council sought to justify it, if s 80A(4) were not available, by reference to pars (a) and (g) of s 80A(1). The relevant paragraphs read as follows:

“80A(1) Conditions - generally

A condition of development consent may be imposed if:

(a) it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent, or

...

(g) it modifies details of the development the subject of the development application.”

These provisions provide a basis for imposing a condition, but compliance with those provisions, or either of them, is neither necessary nor sufficient. It may be (although it need not be decided for present purposes) that satisfaction of one of the paragraphs of s 80A(1) is a necessary element of a valid condition. In this case both the challenged conditions would satisfy each of paragraphs (a) and (g). More importantly, that satisfaction may not be sufficient if the condition is uncertain but falls outside the terms of sub-s (4). Whether, if it does so, the condition may properly be described as invalid is a separate question, as is the effect of any such invalidity on the consent as a whole. It is convenient to consider the question of ‘uncertainty’ in the context of both conditions 1(a) and (b), after addressing the other challenges.

45 In relation to par (e) of condition 1, the amendment required is expressed in terms of a particular outcome or objective, namely the provision of a safe pedestrian path between particular points. That aspect of the condition would satisfy of subs (4)(a). The second question is whether it is expressed “in a manner that identifies” clear criteria against which the achievement of the objective must be assessed. In my view it can satisfy that requirement, by reference to the design being “in accordance with” the Stapleton review, the relevant part of which should be understood as incorporated by reference. The first part of condition (e) merely restates the recommendation of the Stapleton review up to the phrase “commercial tenants”. Stapleton’s recommendation then concluded:

“We understand that these design amendments are currently underway.”

46 If that were all that the review said, it would fail to specify any criteria against which an amendment could be judged. However, in discussing the reason for the recommendation, the review identified “the site distance standards provided in AustRoads Part 13 (section 3.3.4) as not being met on the present plan”. Although the route to this end is slightly obscure, the intended result of the condition is that the alteration must achieve compliance with that specified standard. That result constitutes identification of a relevant criterion for the purpose of s 80A(4).

47 The primary finding of the Court below in respect of this condition was that it did not “leave open the possibility of a fundamentally different development”: [2005] NSWLEC 398 at [70]. His Honour also concluded “for the reasons referred to above” that it satisfied the requirements of s 80A(4): [2005] NSWLEC 398 at [77]. Because his Honour did not apply the statutory test in terms, and because the test which he did apply was inappropriate, it must be concluded that his Honour did not address the validity of the condition in accordance with the requirement of the EP&A Act. Nevertheless, the error was not material because, if properly addressed, the condition did fulfil the requirements of s 80A(4).

48 Dealing next with condition 2, it may be noted immediately that each of the proposed modifications had been agreed to by the proponent of the development, with the result that it is at least unlikely that the conditions lacked certainty or finality. The alteration contained in par 2(m) required consistency with details shown in design sketch SK 13. This is not, in my view, a condition expressed with respect to outcomes or objectives and criteria by which those may be achieved. It is a condition which modifies a detail of the development in express terms and, if statutory description were required, falls within s 80A(1)(g). The Council filed a notice of contention supporting the validity of the condition on that ground, which contention, in my view, should be accepted.

49 In the Court below, evidence had been given that the drawing was too rough to constitute an appropriate specification of architectural details. If that were the basis of challenge, it would be difficult to perceive any error of law which might be established by reference to that evidence. His Honour treated the challenge as invoking the two categories of invalidity identified in Mison and, understandably, rejected the challenge summarily at [74]. His Honour also stated at [77], in conclusory form, that the conditions satisfied the requirements of sub-s 80A(4). I do not think that that provision was engaged, but no material error of law is demonstrated by that finding.

50 There is no basis for challenging condition 2(m) and ground 3, with respect to that condition, should be rejected as misconceived.

51 Before returning to the consequences of the conclusion with respect to 1(b), it is convenient to refer to his Honour’s conclusions with respect to condition 1(a), which he held involved “some degree of uncertainty” (at [62]) and which failed to comply with s 80A(4): [2005] NSWLEC 398 at [77]. His Honour also held that an amendment to the drawings, as proposed by condition 1(a), would not give rise to a development which was “fundamentally different” to that for which consent was sought.

52 The test in Mison, noted above, was not expressed in terms of fundamental difference, but of a consent having “the effect of significantly altering the development”. That, as was expressly recognised by Priestley JA, was a different and lesser test than that of compliance with a condition which would make the application an “entirely different development”: at 23 NSWLR, 737B. It is true that in Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [124]- [126], Powell JA spoke of “fundamentally altering the nature of the development” but, because the discussion followed immediately upon lengthy extracts from the judgments in Mison, without any suggestion that a different test was being applied to that espoused in Mison, I would not understand his Honour to have adopted the “harder to establish test” eschewed by Priestley JA in that case. On the other hand, the discussion in the judgment of Stein JA at [209]-[216], adopts a variety of terminology, and the precise implications of the variations may need to be explored in another case. The reason why that is not necessary in the present case derives from the nature of the errors asserted.

53 The trial judge also found that condition 1(a) of the consent did not specify the extent of the alteration required and the drawing SK 03A did not show any proposed redesign: [2005] NSWLEC 398 [62]. His Honour further noted the submission made by the Council and Fabcot that the condition was otiose because the drawing SK 03A already indicated the required setback. His Honour concluded, when considering the original consent, that the matter remained unclear. However, in dealing with the modified consent, his Honour noted that the condition had been varied in terms to provide that the housing roof form be in accordance with drawing SK 03A so that, in effect, no alteration was required to that aspect of the development: see [2005] NSWLEC 398 at [124].

54 According to the first category identified in Mison, the imposition of a condition which has the effect of significantly altering the development, will invalidate the consent because the development consented to is not that for which approval was sought. That test requires, of course, an evaluative judgment. Mison itself involved the construction of a single house. The principle it established would not necessarily operate in the same way in relation to a complex and extensive development with a number of severable elements. In the present case, accepting that a certain lack of precision in the two conditions 1(a) and (b) may make an evaluative judgment difficult, treating the development as a whole, neither the proposed change to the roof line of the residential component, nor the closing in of two sides of the carpark component, could be seen as significantly affecting the development. On the other hand, it would be possible, in some circumstances, to treat a change in the roofline of the residential part of the development as a significant alteration, if viewed in isolation as a separate part of the development. Whether that is the appropriate question to ask is an issue which can be put to one side, however, as no challenge was mounted on that basis.

55 A challenge based on the second category identified in Mison, which was relied upon, involves two elements which may need to be separated. Thus, a condition may be uncertain but final, in the sense that it does not foreshadow a further judgment, either by the consent authority, or by a delegate or a third party. However, as noted by Mason P in Transport Action Group Against Motorways Inc v Road and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598, at [112] mere uncertainty may not give rise to invalidity. Whether or not it does is likely to depend upon a different question, namely whether the condition complies with the statutory limits imposed upon the power of the authority. To the extent that the cases accept that a degree of “practical flexibility” (as in Scott v Wollongong City Council (1992) 75 LGRA 112 at 118 per Samuels AP) or imprecision (as in Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33, per Gleeson CJ) may not result in invalidity, the reason is that the relevant degree of flexibility or imprecision does not contravene any statutory limit on the power being exercised.

56 In Winn, Stein JA at [213], cited with approval a statement of Lord Reid in Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 at 90:

“Suppose that a planning authority purports to impose a condition which has nothing whatever to do with planning considerations, but is only calculated to achieve some ulterior object thought to be in the public interest. Clearly in my view the condition should be severed and the permission should stand.”

The reference to an “ulterior object” clearly suggests an impermissible, and therefore legally invalid, exercise of power. On the other hand, in the previous paragraph, Stein JA had noted:

“A condition (or part of one) may be severable where it is superimposed on a consent if it is incidental, trivial, unimportant or mere surplusage.”

If one is considering the effect of invalidity, that point may be accepted. However, there is an antecedent question to be answered, which concerns the lawfulness of the condition. A condition will not necessarily be beyond power because it is incidental, trivial, unimportant or mere surplusage, or because, as in Genkem, it lacks specificity or particularity.

57 Returning to the present facts, neither condition 1(a) nor condition 1(b) will be invalid merely because it is imprecise or uncertain. It will only be invalid if it falls outside the class of conditions permitted by the EP&A Act. The addition, since Mison and other pre-1997 authorities in this Court, of s 80A requires that that question be answered primarily by reference to the terms of that provision. Thus, to the extent that each condition relates to a matter referred to in s 79C(1)(a) (being the matters to be taken into consideration by the consent authority) and (g) (because each modifies a detail of the development) they are prima facie valid. Thus, the argument for the Appellant must be that each will comply with the statutory requirements only if they also satisfy sub-s 80A(4). However, care must be taken not to invert the intended purpose of that provision. It is not, in its terms, expressed as a restriction which would apply to all conditions: rather it appears to be intended permissively to allow a condition to be formulated in a particular manner. Thus, in referring to the identification of an outcome or objective and clear criteria against which the achievement of the outcome or objective “must be assessed”, the inference is that it is dealing with a condition which requires a change in a development which may perhaps take one of a number of forms, leaving to the proponent an element of discretion, subject to compliance with criteria against which the selected variation can and will be assessed. The intention appears to be to allow an initial level of uncertainty and lack of finality. It does not mean, however, that a condition cannot be imposed in order to satisfy a broad objective, without specifying matters of detail. For example, if condition (b) had merely required the enclosure of the open sections of the carpark without referring to the objective of “providing visual relief and interest”, it would have been difficult to argue that the condition fell within the terms of sub-s 80A(4) as a condition which stated an objective. The addition of reference to an objective should not lead to the imposition of some requirement for greater precision than would otherwise have been intended.

58 The need to apply a purposive approach to this provision is clear also from its use of the term “outcomes”. That should not be understood in its ordinary meaning of a result or a visible effect, but rather in the sense of a broader objective, which will not be sufficient to identify any particular result. Furthermore, there is no reason to apply the section in a mechanical way involving the separate identification of an outcome or objective and the criteria against which the achievement of that outcome or objective can be assessed. Objectives can be identified in a manner which includes the criteria, although the important qualification is that the criteria must be “clear”.

59 The apparent purpose of the provision is to allow a condition to require a variation of a proposal where the intended result is sufficiently identified, but the means of achieving it are left to the proponent. In my view neither of the conditions in question falls within these requirements. There is a danger that the adoption of an overly prescriptive approach will have the result of imposing on the consent authority an obligation to specify a level of detail which it did not intend to require and which was not necessary to comply with its regulatory functions. A consequential danger would be to permit an analysis of such matters which may encourage a court to cross the borderline into impermissible merit review of the decision.

60 In my view, conditions 1(a) and (b) do not need to satisfy the requirements of subs 80A(4) to be lawful conditions. If they are lawful, they cannot render the consent invalid.

Ground 5: Formation of a “collegiate” view

61 As a separate ground of appeal, it was asserted that the Council had failed to apply its “collegiate mind” to the consideration of the development application and that the trial judge had erred in finding that it had. The primary basis for this allegation was the complaint of at least three of the eight councillors that they had not had time adequately to consider the material provided to them in the last week before the Council meeting and that determination of the application should accordingly be adjourned to the following meeting.

62 The grounds of review of an administrative decision are the same in principle, whether the decision-maker is an individual or a group of persons. Where the statute confers a decision-making power on a group, it must act in accordance with the legal requirements which govern its processes and procedures. For example, such bodies are usually allowed to make decisions by majority, and in the absence of some members, so long as a defined quorum is present.

63 In Parramatta City Council v Hale (1982) 47 LGRA 319, this Court considered the decision-making process involved in giving approval to a large sports stadium on Cumberland Oval. The decision of the Council was set aside on the basis that it had failed to give proper consideration to matters specified by statute as matters required to be considered. As noted by Street CJ (at 335):

“A normal prerequisite to taking a matter into consideration is that the members of the council should have an opportunity of understanding the relevant implications of the proposal before them in relation to the topics that they are required to take into consideration.”

In the circumstances of that case, both the Land and Environment Court and the majority in this Court were satisfied, on an objective appraisal of the materials before the Council, that the complexity of the issues, changes made from the recommendations presented by expert officers of the Council, followed by a decision which, in the material respects left important aspects virtually at large, demonstrated that there had been a failure to take mandatory considerations into account.

64 In the course of his judgment in Hale, Moffitt P used a phrase which has been echoed in the present grounds of appeal, namely that it was necessary for the relevant matters to be considered by “the collegiate mind” of the Council: 47 LGRA at 345. Where, as in the present case, the Council members were divided in their opinions, it is unlikely to be helpful to identify issues in terms of a fictitious concept of this kind. It is also apt to cause confusion as to the kind of evidence which may be persuasive in determining the state of a “collegiate mind”. Thus, in the present case, evidence was tendered from two councillors who said that they had not had a sufficient opportunity to come to grips with the matters required to be determined in order to make a decision with respect to the application. That evidence was supported by the objective circumstances concerning the time which councillors had had to consider the Hanson report and its attachments, and the fact that the amendments to the proposed conditions contained in the Hanson report were only distributed on the night of the meeting, although, as his Honour found, the circulated summary “largely reflected the changes sought by Woolworths in its letter dated 16 December 2004”: [101].

65 In a passage adopted by the trial judge in the present matter (at [108]), Moffitt P stated that the decision of a council might be impugned if the majority had decided in a caucus, or otherwise informally outside the council meeting, to reach a particular decision, which was then adopted by the council, but in circumstances where the minority were “kept in the dark”, in the sense that they did not have an opportunity to consider relevant material.

66 This challenge to the decision of the Council requires that the Court make two factual determinations. The first is that a mandatory consideration was not taken into account; the second is that the error was material. Thus, in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1985-86) 162 CLR 24 at 40, Mason J stated:

“Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision ... .”

Where a decision is made by a collegiate body and the Court is not satisfied, as in the example given in Hale, that the majority who supported the decision had indeed taken into account all relevant considerations, it is not entirely clear why the failure on the part of a minority may be seen to have materially affected the decision.

67 In IW v City of Perth [1997] HCA 30; (1996-97) 191 CLR 1 a question arose as to whether a decision of the City Council was invalid because affected by a prohibited factor, namely a characteristic of certain individuals (being their physical impairment), rendered unlawful under the Equal Opportunity Act 1984 (WA). The case involved a decision made by a 13-12 majority. As noted by Toohey J (at pp 31-32):

“Consequently, in the words of Murray J, ‘it would be sufficient if the vote of one of those councillors was produced or grounded in the consideration of the impairment of the aggrieved person.”

Other tests were suggested, including that of considerations relied on by the majority, or by a majority of the majority. On the latter test, “presumably 7 councillors would have had to vote on an improper ground for that ground to be imputed to the Council”. However, Toohey J adopted the approach of Murray J.

68 Gummow J adopted a similar approach, but noted that a different conclusion may be reached where a decision is attacked on the ground of bias. His Honour stated (at p 50):

“It has been said that a decision of a collegiate body may be successfully attacked for bias even where but one member was biased and that member was not one of the majority. This is on the footing that in bias cases the court does not enter into difficult evidentiary questions as to the extent to which that person may have influenced the majority. However, where the body in question is the sole repository of a statutory power, an exception to such a stringent rule may be necessary to enable it to function.”

69 Kirby J reached a similar conclusion at pp 61-66, by comparable reasoning. Other members of the Court did not address the issue.

70 In the present case, no issue arose as to differential access to relevant materials or to the proposed conditions of consent. All members of the Council were in largely the same position, although the mayor, who explained the proposed changes to the Hanson recommendations, may have had more time to consider the specific matters than had other members of the Council. However, nothing was said to turn on this fact. Rather, the case for the Appellant depended upon an objective assessment of the material before the Council and the time available for its consideration, together with the expressed views of three members of the Council that further time was needed.

71 In relation to the first matter, the Court below accepted “that the provision to the councillors of the agenda papers and the Hanson report provided little time for consideration of the DA”: at [106]. However, his Honour further noted that the development was “not something new to the Council”, and that the substance of the proposal had been given considerable attention in the preceding months. His Honour was conscious of the variations to the recommendations in the Hanson report, but noted the summary of amendments, as explained by the mayor at the meeting, which explanation was recorded in a transcript in evidence before the Court. His Honour concluded (at [107]):

“These changes to the proposed conditions were relatively minor and were not such as to substantially alter any aspect of the development. All but one of the changes accorded with the amendments proposed in the Woolworths letter dated 16 December 2004.”

For this reason, his Honour considered that the facts were distinguishable from those identified in Hale. I am not persuaded that his Honour erred in this conclusion.

72 It is not entirely clear how his Honour dealt with the second aspect of the material relied upon by the Appellant. He identified the evidence given by two councillors before him, and by one further councillor as recorded by the transcript of the meeting, to the effect that they believed that they had had no real opportunity to consider the material in a manner which would permit a reasonable assessment for the purposes of determining the application. In substance, his Honour appears to have made an objective assessment of the material and determined that there had been a reasonable opportunity to consider the material.

73 There is something curious about the way this particular ground was presented, both in this Court and in the Court below. Thus, it is orthodox principle that mandatory considerations, failure to take which into account will constitute reviewable error, are those mandated by the relevant legal or statutory scheme. If they are not expressly set out (as often happens) they must be implied. However, in the EP&A Act, relevant matters are specified in s 79C. Which of a range of potentially mandatory considerations are relevant in a particular case may only be capable of determination by reference to the facts or circumstances of the particular case. However, submissions and supporting materials are not generally treated as constituting part of the mandated considerations. Thus, in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Gummow and Callinan JJ noted at [24]:

“To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.”

In an appropriate case, it will also constitute a constructive failure to exercise jurisdiction: at [25]. See also comments by Kirby J at [87] and [88]. On the other hand, the relevant consideration relied upon in the present case might have been identified as the likely impacts of the development, a requirement identified in s 79C(1)(b) which, arguably, could not have been properly considered without reference to the specific conditions proposed to be attached to the consent. However, little attention was paid to the need to distinguish between mandatory considerations, and relevant supporting documentation.

74 Secondly, and no doubt recognising that the dissenting councillors had clearly spent time in trying to get on top of the issues in order to reach an informed view, the Appellant cast its argument in terms that they were required to give “proper, genuine and realistic consideration to the merits of the case”. That terminology is taken from the judgment of Gummow J in Kahn v Minister for Immigration, Local Government and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, reiterated in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483. However, this terminology should not be turned into an assessment of the adequacy of the consideration accorded in a particular case. That kind of challenge must be assessed on manifest unreasonableness grounds: see Minister for Aboriginal Affairs v Peko Wallsend Ltd at 41 (Mason J) and see now Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165.

75 The dangers in giving too much weight to qualifying terminology in this area of judicial review were noted by Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at 186E:

“These particular formulations must be treated with care, so that the relevant/irrelevant considerations ground is not expanded to permit review of the merits. That ground is restricted in accordance with the now classic judgment of Mason J in [Peko Wallsend], to matters which the decision maker was obliged to take into account.”

76 In Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181, Mason P, although “attracted to” the language adopted by Gummow J in Kahn, adopted a constrained approach to review of a council’s decision-making process. On the other hand, Giles JA (with whom Priestley JA agreed) stated at [80]:

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

77 This latter formulation appears to treat identification of the correct test as a matter of construction of the clause “take into consideration” in the chapeau of s 79C(1). With respect, that approach runs the risk of falling foul of the admonition contained in the judgment of Spigelman CJ in Bruce v Cole, with whose reasons Mason P and Sheller and Powell JJA agreed.

78 The force of the statement in Bruce v Cole may, however, have been mitigated to some extent by the adoption by his Honour in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 of the language of Gummow J in Kahn. Although there is reference to the passage in Bruce v Cole (at [62]), at [64] the Chief Justice noted, by reference to Parramatta City Council v Hale at p 339, that “mere advertence to a matter required to be taken into consideration is not sufficient”. The reference in Hale, at p 339, in the judgment of Moffitt P read as follows:

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

79 So much must be accepted: the danger is that adoption of the epithets such as “proper, genuine and realistic” consideration, may be understood to qualify the statutory terminology in a manner inconsistent with accepted principles in relation to judicial review. As noted in Bruce v Cole, they risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review. Adoption of the principles set out by McClellan CJ in the Land and Environment Court in Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 at [37], to which this Court was referred by the Appellant, should be applied subject to a similar caution.

80 In the present case it was necessary for the Appellant to identify some matter specified in s 79C, or otherwise necessarily implied from the scheme of the legislation, as a mandatory consideration, and then to demonstrate that it had not been taken into account. In the absence of an egregious omission in the decision, and where the Council has substantially adopted recommendations made to it following a careful analysis by its expert consultants, such a task will be difficult. No such omission was suggested in the evidence. Indeed, the evidence given by the two councillors who were called, and by all three councillors who spoke in favour of the adjournment application before the Council, was concerned either with identifying matters which might have been dealt with differently, or complaining more generally that sufficient time had not been given to assess the application as a whole. If the resultant decision had omitted to take account of particular matters, one might have expected that, by the time two of the councillors gave evidence in Court, those matters would have been identified.

81 In my view, and subject to the comments which follow in relation to the question of access to the Lane Cove Public School, this ground has not been made out and was correctly rejected by the trial judge.

Ground 4: Failure to consider the impact of the development upon Lane Cove Public School

82 The background to this issue has been set out in the course of reviewing the nature of the proposed development, although it will be necessary to refer shortly to further aspects of the matter. Parts of the relevant legal principles have also been adverted to in considering the last-mentioned ground.

83 Pursuant to s 79C(1)(b) of the EP&A Act, the Council was required to consider “the likely impacts of” the proposed development, including “social ... impacts in the locality”. In addition, pursuant to par (c), it was required to consider “the suitability of the site for the development”. At least implicitly, it was required by s 80A to consider whether or not adverse impacts could be sufficiently ameliorated by the imposition of an appropriate condition.

84 The site of the proposed development abutted Austin Street and, although not identified in the plan of “the development site” as including Austin Street, the proposal in fact sought changes to both sides of Austin Street, by way of a new link road, the construction of a new mountable roundabout and a new “wombat” crossing. As noted above, the potential impacts on the school were appreciated and dealt with at some length, both in the Hanson report and in reports by specific consultants.

85 In response to the assertion that the Council had not taken these matters into account, the Respondents identified in some detail the steps taken to accommodate the needs of pupils entering and leaving the school grounds, particularly in the morning and afternoon peak periods. Not only were these matters considered in various reports and in the debate at the Council meeting, on 20 December 2004, but provisions tending to ameliorate any adverse impact of the development on the school were included in the conditions of consent, including a requirement that a pedestrian (wombat) crossing on Austin Street, be reinstated, contrary to the development proposal; the provision for six parking spaces which could be used for school pick-ups and drop-offs to be located close to the pathway connecting via the wombat crossing to the school and being subjected to a 15 minute parking limit; a condition limiting deliveries by larger trucks during peak school pick-up and drop-off times and the provision of parking spaces on the south side of upper Austin Street. In addition, as noted above at [21], the consent itself contained an “advice” which anticipated the separate development of the lower Austin Street drop-off and pick-up facility. These matters, it was argued, demonstrated that the social impact on the school had been properly considered. The Respondents suggested that the specific complaint was no more than an attempt at merit review, going to the sufficiency of the measures actually adopted to address the recognised concern.

86 The Respondents further argued that the deed adequately provided in relation to the drop-off facility proposed for lower Austin Street and that the Council was not only entitled to take the terms of the deed into account but it was entitled to rely upon its terms to satisfy itself that no condition was necessary to deal with that aspect of the matter. In support of that conclusion, they called in aid the decision of the Full Court of the Federal Court in Friends of Hinchinbrook Society Inc v Minister for Environment (No. 3) (1997) 77 FCR 153, which affirmed the decision of Sackville J, Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28.

87 However, the substance of the Appellant’s case, as developed in its written submissions, was that no condition was imposed on the development consent to ensure that the proposed drop-off facility was constructed, but rather reliance was placed upon the “private” deed entered into between the Council and the developer. Reliance on the effect of the deed was said to constitute an irrelevant consideration, which should properly have been disregarded.

88 The difficulty with the Respondents’ primary argument is that, as they recognised, Friends of Hinchinbrook dealt with a significantly different statutory scheme, involving, relevantly, a lack of power on the part of the Minister to impose conditions on his consent (77 FCR 189G-191D, per Hill J) and a statutory environment which involved the inter-relationship of state and federal laws which were given operation and effect via a memorandum of understanding between the respective governments and their agencies. One question raised by the present case is whether a consent authority under Part 4 of the EP&A Act could avoid the imposition of any conditions deemed necessary for the approval of a development, by reliance on a private agreement outside the terms of the Act. Counsel for Fabcot conceded, as was perhaps inevitable, that a council could not give unconditional consent to a development because it was satisfied that all necessary conditions which would otherwise be required in the exercise of the Council’s planning functions were to be carried out under a private agreement. The reason for that, as submitted for the Appellant, is that such an exercise would subvert the level of public participation in the planning process provided for in the EP&A Act, together with the public right to bring proceedings to review a legally flawed consent and to enforce conditions which have been breached. However, the next step to be faced by the Respondents was how, if the Council could not remove all its planning requirements into a private agreement, it could remove some, and if some, which and how many.

89 There are two other difficulties with the submission made by the Respondents. First, the suggestion that the Council relied upon the deed as providing satisfactorily in relation to the proposed drop-off facility is at least potentially inconsistent with the alternative submission that the Council did not consider the proposed drop-off facility necessary because it had otherwise dealt with the concerns relating to the students in the conditions of consent noted above at [85].

90 Further, the Appellant argued that if, as appeared to be the case, the Council had relied upon the provisions of the deed, it had misdirected itself in a material respect if it thought that the deed imposed a relevant binding legal obligation on the developer. That was because, as was well appreciated in December 2004, a major part of the drop-off facility could not be effected without the consent of the Department of Education and Training and the Department had manifested opposition to the proposal. Furthermore, the effect of the deed itself required careful consideration.

91 The parties to the deed were the Council, Fabcot as “developer” and Woolworths as tenant. The deed recited that the developer owned what was described as “the developer land”, which was in substance all of the land to be the subject of the development, other than that owned by the Council and, subject to what follows, that owned by the Department of Education and Training. The deed recognised that a development consent would be required, and imposed obligations on both the Council and Fabcot in relation to that process. The substantive obligations imposed on the developer were described as the “development obligations”, set out in clause 8, of which the primary obligation read as follows:

“8.1 Development obligations

The Developer covenants with the Council that the Developer will:

(a) carry out the Development in accordance with the terms of the Transaction Documents; and

(b) comply with all laws and Authorisations relating to the Development.”

92 The term “Transaction Documents” meant, inter alia, the deed itself. Whatever the obligation might be, it had to be determined by reference to various concepts, which included the “proposal”, the “development”, the “initial plans and specifications”, and the “final plans and specifications”. Whether the developer was obliged to carry out only those works which constituted part of the final plans and specifications (which were those the deed anticipated would be part of the development consent), or only so much of the plans and specifications as related to the development site (which did not include Austin Street or any part of the school), or all matters identified as part of the proposal, or the development as approved by the Council, was not entirely clear from the clauses in the deed.

93 Annexure A to the deed defined the proposal, and included within its terms the “role of the developer”. Within the proposal is a document entitled “Scope of Works” which is incomplete, in its own terms, but includes, in Part 11, certain “external works” which include:

“11.1 Public School Works (Note: Subject to Clause 30 of the Development Deed)

· Construct new school drop-off zone in lower Austin Street, generally using existing road and kerbs with minor adjustment to kerbs.

· Construct new school entry steps and concrete footpath.

· Reinstate grassed nature strip as required.

· Roundabout shown on plans at lower end of Austin Street by Council, at Council cost.

· Provide kerbside footpath at drop-off zone connected at intervals to existing footpath.

· Provide all associated regulatory signage.”

94 Annexure B to the deed contained a “milestone timetable”, which provided that the completion of the Austin Street works was part of stage 1 of the construction program. A note at the end of annexure B read:

“Subject to the Department of Education and Training support and receiving development approval the Developer undertakes to construct the works shown on SK 13A on Lane Cove Public School land comprising a new (secondary) entrance, steps, paving etc. If the proposed works on the school land are approved by the Department of Education and Training, the Developer will use it’s [sic] best endeavours to undertake these works on the school land during stage 1. In the event that the secondary entrance to the school is not able to proceed in conjunction with stage 1 works, due to circumstances beyond the control of the Developer, the Developer will erect a temporary safety fence along the southern side of Austin Street opposite the development site and/or other measures as required to maintain safe access for the schoolchildren attending the school.”

The nature and scope of this obligation was the subject of some debate.

95 The deed also defined the development site in a way which included neither Austin Street nor the school.

96 Clause 30 of the deed read as follows:

“30 EXCLUSION OF CERTAIN WORKS

(a) This clause 30 applies despite anything else contained in this Deed.

(b) The Parties acknowledge and agree that:

(i) excluded from the Development are any works described in the Initial Plans and Specifications within the boundaries of the land on which Lane Cove Public School is located; and

(ii) any works described in the Initial Plans and Specifications within the road reserve known as Austin Street adjacent to the land on which Lane Cove Public School is located are not affected by the exclusion set out in sub-paragraph (i) and remain part of the development; and

(iii) this Deed (and in particular the Initial Plans and Specifications together with the Milestone Timetable) are to be read and construed having regard to the exclusion of the works stated in this clause 30.

(c) On the date of this Deed the Developer must deliver to the Council an unconditional bank guarantee or cash in the amount of $92,694.00 (‘school works bond’). The Council will hold the school works bond as security pending any agreement being reached between the Council and the Developer regarding carrying out of the works described in the Initial Plans and Specifications within the boundaries of Lane Cove Public School (in particular, those works illustrated in plans SK 13A and SK 13B) or such other works that may be agreed between the Council and the Developer taking into account any submissions made by Lane Cove Public School. If such an agreement is reached the Council will return the school works bond to the Developer after those works have been completed to the Council’s reasonable satisfaction. If no such agreement is reached the school works bond will be forfeited to the Council who may apply those funds towards such works as it thinks fit.

(d) The Developer will conduct negotiations in good faith and use all reasonable endeavours to:

(i) reach an agreement with the Council regarding a scope of works that can be carried out on the land on which Lane Cove Public School is located that has regard to reasonable requirements advised by Lane Cove Public School (through the Department of Education or otherwise); and

(ii) procure the approval of the Lane Cove Public School (through the Department of Education or otherwise) to the scope of works referred in sub-paragraph (i).”

The effect of this provision was also the subject of some debate during the hearing of the appeal. The terms of clause 30 imply that, when the deed was entered into, the Council was not committed to the specific provisions of the plans in relation to the drop-off facility, nor had any approval been obtained from the school to undertake the necessary work on its property.

97 It should be inferred from the extensive consideration given to the proposed drop-off facility, its commendation in the Stapleton review, its adoption in the Parsons report and its adoption by the Hanson report, together with the “advice” in relation to it in the development consent itself, that the Council, based on the advice received from its consultants, accepted that it should and would be constructed and that its construction should be the first stage of the development. No consideration had been given, however, to what should be done if the school did not agree to the works proposed to be constructed on its land and in particular, whether a drop-off facility at lower Austin Street would have practical use, or would be safe, without such works on the school land. No fall-back position was considered. However, because no part of those works was on the development site, it was inevitable that a further development application would be required for them to go ahead, as envisaged in the consent to the proposal. Why, given the timing and importance of the proposed drop-off facility, consent was not deferred until an appropriate application had been lodged, or why the consent was not conditioned upon the lodgement and grant of development consent to the drop-off facility, was unexplained. The enforceability of the obligation under the deed was at least doubtful and the deed itself was potentially subject to variation by agreement between the parties, the variation being of a kind which might readily be foreseen if it contained an obligation which proved impossible to carry out. Indeed, the terms of the deed themselves envisaged further agreement in relation to the facility between the Council and the developer.

98 The inferences which should properly be drawn in these circumstances are as follows:

(a) the Council considered the drop-off facility a necessary part of the proposed development;

(b) although it knew that it was not giving consent to that aspect of the proposal, it intended that the facility be constructed;

(c) because the proposal identified the construction of the facility as stage 1 of the construction program, the Council envisaged that it would be the first work undertaken, and

(d) the Council was of the view that it was not necessary to impose a condition requiring the carrying out of the drop-off facility construction because the developer was bound under the deed to undertake the construction as stage 1 of the development.

99 The difficulty arises from the last of the inferences. Although the deed is opaque in this respect, a reasonable construction is that it imposes no enforceable legal obligations on Fabcot to undertake the drop-off facility without the approval of the school or the Department of Education and Training. Thus the councillors generally, or at least those who supported granting conditional consent, acted upon the legally incorrect view that the construction of the drop-off facility was an enforceable requirement under the deed.

100 The next question raised by that line of contention is whether that legal error is sufficient to vitiate the consent. However, the construction and effect of the deed is not, in my view, the critical issue. In a sense, the question is the reverse of that raised in Mison: the question is not whether a condition imposed by the Council created a significantly different development to that for which consent was sought, but whether the failure to impose a specific condition rendered the development a significantly different one from that to which the Council thought it was consenting, or at least left open the possibility that it could be.

101 Importantly, even if there had been a legally enforceable obligation in the deed, it was an obligation which was necessary in order to ameliorate that which had been identified as a highly significant adverse social impact on a major neighbouring facility, namely a public school with some 800 students. The requirement was therefore one which, it should be inferred, was viewed by the Council as appropriate and necessary for the proper performance of its planning functions. Accordingly, it was an obligation which should have been contained within the consent in order properly to give effect to the Council’s intention. It was not properly contained in a private deed alone. The exercise of statutory power miscarried because an intended and significant constraint on the proposed development was dealt with otherwise than by the imposition of a condition, being the mechanism provided in Part 4 of the EP&A Act. There was a constructive failure to exercise the power in question in a significant respect.

Conclusions

102 In these circumstances, the result resembles that which gave rise to invalidity in Hale. In Hale, this Court, affirming the view of the Chief Judge of the Land and Environment Court, concluded that there had, in substance, been a constructive failure on the part of the Council to carry out its planning functions under the Act. In that case, the Council, rejecting the expert advice available to it, simply failed to address a significant adverse environmental consequence of the development it was approving. In the present case, the Council was misled by the advice of its consultants, which it accepted, the advice being that a necessary ameliorating condition was unnecessary because of the terms of the private deed.

103 The deed itself was not an irrelevant (in the sense of proscribed) consideration; nor could it be said that the Council did not consider the relevant impacts of the development on access to the school – it manifestly did. Indeed, it accepted the importance of the impact and, at least implicitly, accepted the need for a new drop-off facility in Austin Street, to ameliorate the adverse effects of the proposal. Its error was in failing to impose this requirement, pursuant to its statutory powers as a consent authority, by way of a condition of the consent.

104 Because it should be inferred that the proposal, without this condition, was significantly different from the proposal with such a condition, there was a constructive failure by the Council to exercise its power to reach the intended decision. Understood in the particular statutory context, the separate agreement of the developer, outside the development as approved, to carry out works which might have the intended effect, was not an available alternative to the imposition of a condition under s 80A.

105 The other challenges to the validity of the consent were properly dismissed by the trial judge.

Discretion

106 In the event that the Court was of the view that there was a vitiating error affecting the validity of the consent, the parties joined in inviting the Court to remit the matter to the Land and Environment Court so that it could consider discretionary considerations needing to be taken into account under s 25B of the Land and Environment Court Act 1979 (NSW) in determining what relief, if any, should be ordered. Particularly in the light of the possible change of view by the Department of Education and Training (referred to at [23] above) that course is appropriate. Accordingly, I would propose the following orders:

(1) Appeal upheld and decision of the Land and Environment Court set aside;

(2) Remit matter to the Land and Environment Court for further consideration according to law, including as to the costs of the original hearing and any further hearing;

(3) Order the Respondents to pay 50% of the costs of the Appellant of the appeal, and

(4) If either of the Respondents is eligible for a certificate under the Suitors Fund Act, give leave to it to make application in chambers for such a certificate within 14 days of the date of this judgment.

107 HUNT AJA: I agree with Basten JA.

**********

LAST UPDATED: 24/02/2006