Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388 (21 December 2006)

Last Updated: 29 December 2006

NEW SOUTH WALES COURT OF APPEAL

CITATION: GALES HOLDINGS PTY LTD v MINISTER FOR INFRASTRUCTURE AND PLANNING [2006] NSWCA 388



FILE NUMBER(S):
40900/05

HEARING DATE(S): 5 September 2006

DECISION DATE: 21/12/2006

PARTIES:
Gales Holdings Pty Ltd - Appellant
The Minister for Infrastructure and Planning - First Respondent
Tweed Shire Council - Second Respondent

JUDGMENT OF: Beazley JA Tobias JA Basten JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 41326/04

LOWER COURT JUDICIAL OFFICER: Bignold J

COUNSEL:
T.F. Robertson SC – Appellant
N/A – First Respondent
J.J. Webster SC – Second Respondent

SOLICITORS:
Woolf Associates – Appellant
N/A – First Respondent
Stacks/Northern Rivers – Second Respondent

CATCHWORDS:
PLANNING AND ENVIRONMENT – local environment plan – validity – preparation of environmental study – public exhibition of draft local environment plan – whether compliance with Environmental Planning and Assessment Act 1979 ss 57(2), 66 – effect of non-compliance – construction of legislative provisions – whether jurisdictional requirement – whether mandatory consideration – relevant considerations

LEGISLATION CITED:
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 11, 50, 56
Environmental Planning and Assessment Act 1979 (NSW), ss 5, 34, 54, 57, 61, 66, 68, 70, 117
Environmental Planning and Assessment Regulation 1994, cl 6

DECISION:
(a) Appeal allowed
(b) Set aside the orders made by Bignold J on 1 November 2005 and 2 December 2005
(c) Declare Tweed Local Environmental Plan (Amendment No 14) which purportedly came into effect on 6 August 2004 to be void and of no effect
(d) The second respondent to pay the appellant’s costs of the proceedings before the Land and Environment Court and of the appeal.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40900/05

LEC 41326/04

BEAZLEY JA

TOBIAS JA

BASTEN JA

21 December 2006

GALES HOLDINGS PTY LTD v THE MINISTER FOR INFRASTRUCTURE AND PLANNING & ANOR

Judgment

1 BEAZLEY JA: I have had the opportunity to read in draft the reasons of Tobias JA. I agree with his Honour’s reasons and proposed orders.

2 TOBIAS JA: On 6 August 2004 Tweed Local Environmental Plan (Amendment No 14) (Amendment 14) was published in the Government Gazette and, pursuant to s34(5) of the Environmental Planning and Assessment Act 1979 (the EPA Act) took effect from that date. Amendment 14 related only to a single parcel of land then owned by Tweed Shire Council (the Council) being Lot 32 in Deposited Plan 847319, having an area of 31.78 hectares with a frontage to Tweed Coast Road, Chinderah (Lot 32).

3 Immediately prior to the coming into effect of Amendment 14, the whole of Lot 32 was within Zone 5(a) Special Uses under Tweed Local Environmental Plan 2000 (the LEP). As such, part of it was occupied by and used for the purpose of the Kingscliff Sewerage Treatment Plant (the STP).

4 Prior to being so zoned under the LEP, the majority of Lot 32 had been within Zone 4(a) Industrial under Tweed Local Environmental Plan 1987 with a small portion in the south-east corner within Zone 5(a) Special Uses.

5 Amendment 14 rezoned between and 19 and 25 hectares of Lot 32 as 4(a) Industrial. Part of the balance remained within Zone 5(a) Special Uses and part was rezoned to 7(l) Environmental Protection (Habitat). This appeal is concerned only with that part of Lot 32 that was zoned 4(a) Industrial and to which I shall hereafter refer as “the subject land”.

6 Prior to Amendment 14 taking effect, the Council entered into a put and call option with Gales Holdings Pty Ltd (the appellant) with respect to the subject land and had also entered into a similar option with the appellant or one of its associated companies with respect to other land to which it wished to transfer the STP.

7 It would appear that from the appellant’s point of view, its preference was that the subject land be rezoned for some retail or commercial use. In this respect, the appellant was a large landholder in the area and, relevantly, owned some 42 hectares of land adjoining the northern boundary of the subject land within Zone 4(a) Industrial under the LEP. That land was undeveloped and when combined with the subject land formed a parcel of well over 50 hectares. These facts were known to the Council prior to Amendment 14 taking effect.

8 Accordingly, being dissatisfied with the rezoning of the subject land to Industrial, the appellant instituted Class 4 proceedings in the Land and Environment Court in 2004 seeking a declaration that Amendment 14 was invalid. Those proceedings were heard by Bignold J in April 2005 and on 1 November 2005 his Honour delivered judgment rejecting the appellant’s challenges to the validity of Amendment 14 and dismissing its application. It is from that decision that the appellant appeals to this Court.

The issues before the primary judge and on the appeal

9 The appellant advanced the following challenges to the validity of Amendment 14 both before the primary judge and this Court. First, it was submitted that an environmental study of Lot 32 prepared on behalf of the council by GeoLINK, Consultant Town Planners, pursuant to s57(1) of the EPA Act, had not been prepared in accordance with the specifications notified to the Council by the Director-General of Planning NSW pursuant to s57(2) of that Act. The relevant specification, with which there was said to be non-compliance was that the study should include an assessment of the Council’s commercial retail needs in the Kingscliff and Tweed Coast area when addressing the issue of its Urban Release Strategy.

10 Second, it was submitted that the Council had contravened s66(1)(b) of the EPA Act in that it had exhibited a copy of the draft local environmental plan (draft Amendment 14) pursuant to that provision in a form which was misleading or which would generate confusion in the public or a section of the public viewing the public exhibition in order to determine whether or not make submissions on that draft pursuant to s67 of the Act.

11 Third, it was submitted that in making what it considered to be necessary alterations to draft Amendment 14, the Council failed to take into account a relevant consideration, namely, the final report of Core Economics dated 12 January 2004 which had been commissioned by it in August 2003 to prepare a retail strategy to meet the future expectations and expenditure capacity of the Tweed Shire communities.

12 The final Core Economics report contained options and strategies for various parts of the Shire including the Tweed coast and Kingscliff areas. It was submitted therefore, that in accordance with the principles adumbrated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 45, the Council was bound to take the Core report into account as the most current material available to it for the purpose of determining the appropriate zoning of the subject land and that it was required to do so on or prior to its meeting of 3 March 2004 where it resolved pursuant to s68(4) of the EPA Act to submit draft Amendment 14 to the Director-General without amendment with a view to the plan being made by the Minister pursuant to s70(1)9a)(i) of that Act.

13 The primary judge set out the history of Amendment 14 in some detail in his judgment together with the relevant sections of the environmental study and the GeoLINK report upon which the appellant relied in support of its challenges to the validity of Amendment 14. However, it will be more convenient to deal with the documentary evidence which formed the basis of the appellant’s challenges when dealing with each of the issues that I have identified. Although there is some overlap, the documentary evidence relevant to each issue is different.

14 It is therefore appropriate to structure this judgment by dealing separately with each of the grounds of challenge by setting out the documentary evidence relevant to that ground, the primary judge’s decision on the issue so raised by the ground of challenge, the submissions on the appeal with respect to his Honour’s decision thereon and my opinion as to the proper resolution of the competing submissions. I shall deal with the issues in chronological order.

The failure by the Council to comply with the specifications notified by the Director-General for preparation of the environmental study (Grounds of Appeal 1 and 2)

(a) The relevant statutory provisions

15 The statutory provisions bearing on this issue are ss57(1), (2), (4) and 61 of the EPA Act which relevantly provide as follows:

“57(1) Where a council decides to prepare a draft local environmental plan ...it shall prepare an environmental study of the land to which the draft local environmental plan is intended to reply.

(2) A council shall prepare an environmental study in accordance with such specifications, if any, relating to the form, content and preparation of the study as have been notified to the council by the Director-General and are then applicable.

...

(4) The environmental study referred to in subsection (1) shall be prepared with regard to such matters, relating to the environment of the area to which the draft local environmental plan is intended to apply, as the council, subject to the specifications, determines.

...

61. The council shall prepare a draft local environmental plan having regard to the environmental study prepared by the council under s57.”

(b) The documentary evidence relating to the preparation of the environmental study

16 On 4 October 2000 the Council passed the following resolutions in respect of its STP at Kingscliff:

“1. Council negotiates with Gales Holdings a Contract of Sale, or equivalent binding legal agreement, for the sale of Council’s land at Chinderah comprising part of Lot 32 DP 847319, the current Sewage Treatment Plant site and the purchase of 20-30ha from Lot 2 DP 611021 owned by Gales Holdings, generally in the terms of the Gales Holdings offer and this report to Council on 4 October 2000.

2. The draft document be submitted to Council for final adoption.

3. Proposals be invited from Consultants for the preparation of an Environmental Impact Statement for the establishment of a Sewage Treatment Plant on part of Lot 2 DP 611021.

4. Council under Section 54 of the Environmental Planning and Assessment Act informs the Regional Manager of the Department of Urban Affairs and Planning of its intention to prepare a draft LEP to rezone Lot 32 DP 847319 for industrial purposes and advises Dr Segal and Gales Holdings that Council acknowledges that the completion of the contract depends on the land being rezoned for industrial purposes.

5. Council advises Dr Segal and Gales Holdings that Council cannot at this stage pre-empt its final decision on the rezoning.

6. Council engages independent consultants for the rezoning activities.”

17 The terms of these resolutions were notified to the Department of Urban Affairs and Planning (DUAP) by letter dated 16 October 2000 in compliance with cl 6 of the Environmental Planning and Assessment Regulation 1994 (the Regulation).

18 By letter dated 25 January 2002 and headed “PROPOSED LOCAL ENVIRONMENTAL PLAN TO REZONE THE KINGSCLIFF SEWAGE TREATMENT PLANT IN CHINANDERAH ROAD FOR INDUSTRIAL PURPOSES”, DUAP wrote to the Council in the following terms:

“Thank you for your letter of 16 October 2000 advising of the Council’s decision to prepare the above local environmental plan. The Director-General has decided that there is a need for an environmental study in this case. Therefore, sections 57 and 61 of the Environmental Planning and Assessment Act 1979b will apply to this draft plan. The environmental study should address the following issues:

(a) all relevant issues contained in the NSW Coastal Policy that affect the land;

(b) the effects of flooding on the land and any impact from possible fill and development on the land on the surrounding area;

(c) the arrangements that are proposed to provide sewerage reticulation to the catchment once the treatment land ceases to operate; and

(d) the consistency of any proposed zoning with Council’s Urban Release Strategy for the area.

It is noted that an alternative location for the sewerage treatment plant is likely to have a significant effect on Council’s urban Release Strategy for the area. I understand also that there is a large area of uncommitted land in West Kingscliff. This proposed local environmental plan presents an opportunity to consider the current zoning of all of this area and to review whether it provides the best solution for future development. I, therefore, encourage council to undertake an amendment of its Residential Development Strategy for Kingscliff to take account of development opportunities in the area. The Strategy would set the framework for future development in the Kingscliff area.”

19 The documentary evidence before his Honour did not specifically identify what was referred to in the DUAP letter as Council’s Urban Release Strategy for the area although the reference to Council’s residential development strategy for Kingscliff may have been to its 1991 Tweed Shire Residential Development Strategy. Certainly, the evidence established that the Council’s purpose in identifying a new site for its STP in the west Kingscliff and Chinderah area was because a larger plant was required to service the future population growth in those areas.

20 As at January 2002, the Council had exhibited a draft study for the Kingscliff Commercial Centre prepared by its then planning consultants, Patrick Partners, and had also had prepared a draft document entitled “Tweed Coast Strategy”. It had the latter prepared to provide an overview of the major strategic issues facing the area in a framework for sustainable and integrated planning outcomes. This objective was consistent with the comment in DUAP’s letter that the strategy would set the framework for future development in the Kingscliff area.

21 The final report on the Kingscliff Centre study was dated September 2001 and was publicly exhibited from 3 to 31 October 2001. It contained an assessment of the current and future population retail demand and proposed a district centre in Kingscliff. The most obvious site for such a centre was one already in single ownership, the appellant being referred to as such an owner. The report stated that the consultant’s preference for the future location of the core area of the district centre was along Turnock Street, Kingscliff. On the other hand, the document recorded that the appellant had expressed a preference for the location of retail facilities on land adjacent to its industrial estate near the intersection of Chinderah Road and the Pacific Highway, this being the subject land. However, such location was not favoured by the consultants as it was next to an industrial estate and

“would have major problems in becoming an active, vital, mixed use town centre.”

22 The document then set out some nine reasons for the rejection of the subject land as the site of a district centre. Relevantly, one of those reasons was first, that site amenity would be negatively influenced by the adjoining industrial estate (owned by the appellant); second, that that estate would lose any expansion potential if the subject land became unavailable for industrial purposes, and third, and of particular significance in the present case, was that

“the industrial (sic) site is more suited to more bulky business uses.”

The draft Kingscliff Centre Strategy was subsequently an input into the draft Tweed Coast Strategy.

23 The draft Tweed Coast Strategy was in the course of preparation from about March 2001 onwards. It was completed as a draft in August 2002 and exhibited publicly on 8 November 2002 in the form of a discussion paper. Its Table of Contents referred to a number of subject matters including the following:

Urban Centres Hierarchy and Integrated Design
Vehicular and Pedestrian Access
Social and Physical Infrastructure Provisions
Environmental and Coastal Issues
Locality specific Issues
Kingscliff District Structure Plan.

24 In terms of policy, it was noted that the Strategy provided a broad outline plan for the district but that detailed planning at the local level would be implemented through locality specific development control plans, each of which would comply with the overall direction and intent of the Strategy.

25 Under the heading “Urban Centres Hierarchy and Integrated Design” and the sub-heading “District Centre”, par 4.3.1 stated that West Kingscliff was the preferred location for the establishment of a District Urban Centre as a natural extension of the Town Centre along Turnock Street. This was consistent with the recommendation in the Patrick Partners’ Kingscliff Centre Strategy.

26 Paragraph 6.2 of the draft Strategy referred to the relocation of the Kingscliff STP. After referring to the Council’s 4 October 2000 resolution with respect to the sale of the existing STP site (being the subject land) to the appellant, and the purchase from the appellant of land located to the west of Kingscliff, and further noting that the completion of any such contract would depend on the subject land being rezoned for industrial purposes and that the sale agreement should allow for a re-evaluation of the site to be rezoned other than 4(a) Industrial, the document continued in these terms:

“Relocation of the STP would improve general amenity particularly within residential areas in proximity to the current STP site. Consideration must be given to appropriate future uses of the current STP site. Any rezoning of the STP site must take into consideration the likely need for the envisaged future use(s) of the site, the capacity of the flood prone land to accommodate further development and the relationship of the envisaged future use of the land to other land uses in the district.

Potential industrial and commercial uses of the site must be viewed within a district and shire wide context. In particular, if the land were to be rezoned industrial, this would result in over 50ha of zoned industrial land to the west of Kingscliff. The desirability of the location and this amount of industrial land would need further consideration. This would include consideration of the planning objectives for the supply of industrial land in the Shire, the anticipated market demand for industrial land in this location, the desired future character of West Kingscliff and the capacity of the land for further development. Any consideration of the use of the land for commercial/retail purposes would need to take account of the recommendations of the Kingscliff Centres Study.”

27 In June 2002, the Council invited tenders for the preparation of an environmental study for Lot 32. In doing so it enclosed the consultant’s brief which it had prepared.

28 Paragraph 2 of the brief was headed “Department of Urban Affairs and Planning Response”. After referring to DUAP’s letter of 25 January 2002, the brief stated that the Department had further advised that the study should include the “following matters” which then repeated sub-paragraphs (a), (b) and (c) of that letter but then referred to sub-paragraph (d) in the following terms:

“The relationship of this proposed amendment with the development of surrounding Kingscliff District”

Given that at this point in time the Council’s draft Tweed Coast Strategy was still in the course of preparation, it was thought that the form of wording adopted in the brief would achieve the same result but more accurately than that adopted in DUAP’s letter of 25 January 2002. At that time the Council did not have an Urban Release Strategy for the area. As I have indicated, the tender was awarded to GeoLINK.

29 In a report to the Council meeting on 6 November 2002 it was noted that the draft Tweed Coast Strategy had been placed on public exhibition and had identified options for the potential location of the Kingscliff Centre. The report then set out that part of the draft Tweed Coast Strategy that I have recorded in [26] above. The author indicated that the draft Strategy had identified three potential locations for the future expansion of the Kingscliff Centre, of which Option 1 was within the Kings Forest urban release area; Option 2 was Turnock Street, West Kingscliff and Option 3, also at West Kingscliff, was Council’s existing STP site (being the subject land) and land zoned industrial owned by the appellant: no doubt a reference to the land zoned industrial immediately adjoining the subject land to its north.

30 The report continued by stating that Option 2 had been presented as the preferred option but that the Council had not, at that stage, adopted that Strategy as policy. Accordingly, it was stated that Option 3 should not be restricted by the original Council resolution to undertake to prepare a draft LEP for the subject land for industrial purposes.

31 Under the heading “Tweed Local Environmental Plan 2000 Amendment”, the author of the report stated:

“Investigations for the future use of the existing Sewerage Treatment Plan should not be restricted to industrial uses, as was originally notified to the Department of Urban Affairs and Planning (Planning NSW). This is important considering that Council has not adopted any policy direction for the future expansion of the Kingscliff Town centre.”

32 The report concluded that in the circumstances a more efficient rezoning process would be to combine the legal advice that the Council had received to commission an external consultant to investigate and report upon whether rezoning of the STP site to 4(a) Industrial represented the best planning outcome for that site with the rezoning in an Environmental Study and draft LEP so as to identify

“the best land use for the property, not specifically for industrial purposes as previously resolved by Council.”

33 At its meeting on 6 November 2002, the Council relevantly resolved to write to Planning NSW and advise that the preparation of draft Amendment 14 for Lot 32 was

“now being prepared for the best land uses rather than specifically for industrial purposes as original proposed.”

34 It further resolved to revise the consultant’s brief for the environmental study to adequately reflect the draft Tweed Coast Strategy as exhibited. Planning NSW was advised of the revised proposal for Lot 32 by letter dated 16 October 2002.

35 On 11 November 2002, Planning NSW wrote to the Council under the heading “DRAFT TWEED COAST STRATEGY 2002 DISCUSSION PAPER”. That letter referred to the discussion paper which had been forwarded to the Department for comment and indicated its support for the approach taken and the nature of the vision and policy principles set out in that document. The letter further advised that the Department supported the development of a hierarchy of centres as a most appropriate approach to the provision of facilities and services. It continued in these terms:

“The discussion paper and the summary sheet identified possible locations for a district centre although the term is not clear as the summary paper also refers to ‘major centre’. The Department would not support the option to locate a district centre on the former Sewerage Treatment Plant site [namely, the subject land] as it is remote from the main areas of Kingscliff and Kings Forest. A centre in this location is not strategically located and would encourage local traffic onto the Pacific Motorway. A site more central to the future population would be much more sustainable and greatly improve the liveability of the locality.”

36 After referring to some environmental issues not presently relevant, the letter concluded in these terms:

“I trust these comments are of value in progressing this strategy/master plan. The Department would be pleased to assist Council in its further development.”

37 By letter dated 12 November 2002, the Council notified Planning NSW of its resolution of 6 November. That letter referred to the progressing of work with respect to a strategic review and proposed land use options for Kingscliff in the draft Tweed Coast Strategy currently on public exhibition. It noted that that study identified the existing Kingscliff STP site as having the potential to accommodate a future commercial/retail centre. Accordingly, it considered the original intention to prepare an amendment to the LEP for Lot 32 specifically for “industrial purposes” was too restrictive. It would appear that this letter crossed with that of Planning NSW of 11 November 2002.

38 On the same date Council wrote to Kareena Developments Pty Limited, an associated company of the appellant, setting out the relevant part of its 6 November resolution and observing that the purpose of that resolution was

“to ensure that all possible options identified in the draft Tweed Coast Centre Strategy are ruled out prior to council considering the final Strategy.”

39 By letter dated 29 November 2002, Planning NSW wrote to the Council under the heading “Tweed Local Environmental Plan 2000 Amendment No 14 – Kingscliff Sewerage Treatment Site, Chinderah”. The letter commenced by thanking the council for its 16 October 2002 correspondence advising of its revised proposal for the above site. No such letter exists apparently or, at least, it was not part of the documentary evidence. It seems to be an error. In any event Planning NSW’s letter continued in these terms:

“It would appear that the specifications identified in the Department’s letter of 25 January 2002 will be adequate to cover the revised plans for the treatment site. However, in addressing the issue of Council’s Urban Release Strategy, Council should include an assessment of its commercial retail needs in the Kingscliff and Tweed Coast area. In this regard, I refer to the Department’s letter of 11 November 2002 in regard to the draft Tweed Coast Strategy 2002.

I trust this clarifies the requirements for the environmental study for the above amendment.” (Emphasis added)

40 The issue which arose out of the last-mentioned letter was whether the statement that the

“Council should include an assessment of its commercial retail needs in the Kingscliff and Tweed Coast area”

constituted the notification of a specification for the preparation of the environmental study for Lot 32 within the meaning of s57(2) of the EPA Act. The primary judge held that it did not constitute such a specification. However, before turning to his reasons for that conclusion two further evidentiary matters should be referred to.

41 The first is that the consultant’s brief was modified on 7 January 2003 but there was no amendment to that section of the original brief relating to Planning NSW’s letter of 29 November 2002 and in particular, to that part which I have emphasised in [39] above. On the other hand, in the Environmental Study prepared by GeoLINK dated November 2003, Table 1.1 which is headed “Responses from Authorities Consulted” referred to Planning NSW’s letter of 25 January 2002 and, under the sub-heading “Summary of Issues”, set out the four issues which the Department required to be addressed including

“The consistency of any proposed zoning with Council’s Urban Release Strategy for the area.”

42 Of greater significance was a reference in the Table to Planning NSW’s letter of 29 November 2002 and the statement under the column headed “Summary of Issues” in that Table that

“In addressing the issue of council’s urban release strategy, assessment should be included on the commercial retail needs in the Kingscliff and Tweed Coast area.”

Paragraphs 3.16, 4.2, 4.4 and 4.5 are then identified as the parts of the study where that matter is addressed.

43 His Honour considered the first ground of challenge under what he referred to as “Ground (i) Failure to consider ... the draft Retail Strategy prepared by Core Economics”. At [153] he noted that this ground of alleged invalidity had been raised in respect of three discrete actions occurring serially in the relevant history of the preparation of Amendment 14, namely,

(i) the preparation of the Environmental Study;

(ii) the Council’s decision on 19 November 2003 to publicly exhibit draft Amendment 14; and

(ii) the Council’s decision on 3 March 2004 to request the Minister to make Amendment 14.

44 The reference above to the “draft Retail Strategy prepared by Core Economics” is a reference to the Core Economics’ Tweed Shire Retail and Centres Strategy report, draft versions of which were provided to the Council on 31 October 2003 and 15 November 2003 and the final version (being the Core report) on 12 January 2004. The Environmental Study, and draft Amendment 14 were publicly exhibited pursuant to s66 of the EPA Act for 30 days as and from 3 December 2003 pursuant to the issue under delegation of a certificate under s65 of the EPA Act pursuant to a resolution of the Council of 19 November 2003.

45 At its meeting on 2 July 2003, the Council had resolved that it did not favour the location of a district shopping centre of any kind on Turnock Street, Kingscliff. At the same meeting it resolved to request three suitably qualified consultants to prepare a retail strategy for the Shire. The terms of reference required the draft retail strategy to, relevantly, recommend areas and specific locations for future retail centres. At its meeting on 20 August 2003, Core Economics was engaged by the Council to undertake the preparation of a draft Tweed Retail Development Strategy at a fee of $22,438. As I have already observed, Core Economics produced its first draft of that study on 31 October 2003, a second version on 15 November 2003 and the final version on 12 January 2004.

46 The recommendation to prepare such a draft strategy was made by Council’s Director Development Services upon the basis that notwithstanding the Kingscliff Centre Study of Patrick Partners prepared in 2001, no strategic Shire-wide strategy on the future size and location of retail centres had been undertaken whereas over the next few years considerable pressure was expected to be placed upon the Council to make decisions on the appropriate size and location of such centres. Accordingly, the Director considered that it was

“important to undertake this strategic assessment now so that future retail developments are placed in a Shire-wide framework and to prevent an ad hoc and piecemeal approach that would eventually undermine future strategic directions and would mean that the decision would be lead potentially by a particular developer’s interests and not by Council on the communities behalf.”

47 I have already referred in [41] and [42] to Table 1.1 of the Environmental Study prepared by GeoLINK in which, under the heading “Authorities Consulted”, reference was made to Planning NSW’s letter of 29 November 2002 and a summary of the issue raised in that letter namely, that in addressing the issue of Council’s Urban Release Strategy, assessment should be included on the commercial retail needs in the Kingscliff and Tweed Coast area. As I have indicated, Table 1.1 then asserted that that issue was addressed in the Study at pars 3.16, 4.2, 4.4 and 4.5.

48 Paragraph 3.16 is headed “Relationships with Surrounding Development”. It refers to the Kingscliff Centres Study prepared by Patrick Partners in 2001 and to the draft Tweed Coast Strategy, noting that in both studies the subject land had been considered for district commercial purposes although the Centres Study supported a district centre closer to the existing Kingscliff Town Centre. The balance of that paragraph then summarised the reasons contained in the Centres Study for that conclusion.

49 Chapter 4 of the Environmental Study was headed “Statutory and Strategic Planning”. Paragraph 4.2 was headed “Draft Tweed Coast Strategy”. It noted that the Council had resolved on 2 July 2003 to place the relevant components of the draft strategy into a Development Control Plan for Kingscliff. Again, like par 3.16, par 4.2 summarised that part of the draft Tweed Coast Strategy that dealt with the subject land as a potential location for a district centre and concluded that it was considered unsuitable for that purpose. Some nine reasons for that conclusion were then set out.

50 Paragraph 4.4 was headed “Tweed Economic Development Strategy”. It noted that that Strategy provided support for the extension of the Chinderah industrial area to the subject land following relocation of the existing Kingscliff STP and the rezoning of that land for industrial purposes.

51 Finally, par 4.5 was headed “Tweed Shire – Potential Industrial Land Investigation (2000)”. It was noted that that study reviewed the demand for, and availability of, industrial land within the Shire. Relevantly, the subject land was identified as an area for investigation for that purpose. Table 4.1 set out a number of criteria which were regarded as necessary for the land to be zoned for industrial purposes, whether Manufacturing or Wholesale/Trade, and set out whether the subject land did or did not meet those criteria. It concluded that the subject land was suitable for commerce/trade type industrial uses because of its excellent accessibility to the major road network, substantial size (especially when aggregated with adjacent land) and the availability of adequate buffers to other land uses. The reference to its size when aggregated with adjacent land was obviously a reference to the industrially zoned land immediately adjoining the subject land to its north and owned by the appellant. As will appear, that was a factor of some significance.

52 What is clear from these paragraphs is that although they addressed so much of the then available studies and draft strategies as identified the potential of the subject land as either a district centre or for some form of industrial wholesale and/or trade use, they did not constitute an assessment of the commercial retail needs in the Kingscliff and Tweed Coast area. As I have already observed, there was no document either in draft or final form which was titled “Urban Release Strategy”. The closest was the draft Centres Study prepared by Patrick Partners and the draft Tweed Coast Strategy.

53 Lest it be suggested that GeoLINK considered that one of the Director-General’s specifications within the meaning of s57(2) was an assessment of commercial retail needs in the Kingscliff and Tweed Coast area, in its report dated 24 February 2004 to Council containing its review of the submissions received pursuant to the public exhibition of draft Amendment 14 and the Environmental Study, GeoLINK noted that its recommendation that the subject land be zoned 3(c) Commerce and Trade was made primarily because of the demand analysis and location criteria outlined in the Council’s Potential Industrial Land Investigation dated February 2000.

54 Under the heading “Retail Strategy” GeoLINK observed:

“Commerce and trade zones generally have a retail component, albeit of a type and scale that is not compatible with a conventional business zone (i.e. bulky goods). To that end, the appropriateness of a commerce and trade zoning needs to be examined in a wider retail context, to determine where this type of retail demand is located and whether the zoning of this land would have any retail impacts (positive or negative) on the existing Kingscliff retail centre. Insufficient detail currently exists to enable a comprehensive assessment of these matters.

I note, however, that a Shire-wide retail study, being undertaken for Council by Core Economics, is currently underway. That study is examining conventional retail as well as commerce and trade uses and will provide more information upon which to base the future zoning of the site. However, we are advised that its conclusion is some time away.

Given the urgent need to commence the establishment of a new Sewerage Treatment Plant to service the Kingscliff locality, and the fact that the rezoning of this site is the first step in this process, there are significant concerns relating to delaying a decision about the zoning of this site until the retail study is concluded.

Given this urgency, and given the question marks that remain before it can be categorically stated that a Commerce and Trade zone is more appropriate than an Industrial Zone, the ‘safest’ action at this time would be to proceed with rezoning of the site to 4(a) Industrial, as exhibited by Council. The industrial zoning can be justified as there is demand for such land, the site is suitable for industrial uses, such uses are less affected by flooding constraints than alternate more intense uses, and it is unlikely to have any detrimental impact on the existing Kingscliff retail centre.” (Emphasis added)

I shall return to this statement when dealing with the third ground of challenge to which it is directly relevant.

(c) The decision of the primary judge

55 The primary judge (at [160]) concluded that properly construed, Planning NSW’s letter of 29 November 2002 did not relevantly specify that there should be “an assessment commercial of the retail needs in Kingscliff and the Tweed Coast area”. His Honour did not consider that the text of that letter supported such an interpretation. Considerations of context such as the requirement that the environmental study be prepared in respect of a single parcel of land comprising 32 hectares, rendered

“it both improbable and unreasonable that the Department intended to require the Environmental Study to make an assessment of retail/commercial needs in Kingscliff and the Tweed Coast. Moreover, a ‘specification’ given for the purpose of s57(2) obviously needs to be specific and unambiguous (cf Prineas v Forestry Commission of NSW (1984 53 LGERA 160 and 167) ...”

56 The passage from Prineas referred to by his Honour related to an observation by Hutley JA that a statement in a letter from the then Department of Environmental Planning, that it was

“considered that the Environmental Impact Statement should examine any hardwood as rain-forest logging in the defined area ...”

was not a requirement, the essence of which was that there should be a direction and not a recommendation. His Honour read the statement in the Department’s letter separately as a recommendation.

57 Having concluded as a matter of construction of Planning NSW’s letter of 29 November 2002 that the statement in the letter that

“Council should include an assessment of its commercial retail needs in the Kingscliff and Tweed Coast area”

was not a “specification” within the meaning of s57(2), the primary judge then appeared to contradict that finding when, in [161], he accepted that the letter of 29 November 2002 contained a qualification to the statement in the Department’s letter of 25 January 2002 that the environmental study should

“address the issue of ... (d) the consistency of any proposed zoning with Council’s Urban Release Strategy for the area.”

58 Accordingly, his Honour concluded that what was now being required of the environmental study was that that issue

“should include an assessment of its commercial retail needs in the Kingscliff and Tweed Coast area.”

59 His Honour then concluded that

“the relevant specification was requiring the environmental study ‘to address the issue of the consistency of any proposed zoning (of the subject land) with the Council’s Urban Release Strategy for the area including an assessment of the commercial retail needs in the Kingscliff or Tweed Coast area.”

60 His Honour then went on to state (at [162]) that the qualified specification was related to the contents of the draft Tweed Coast Strategy which had included a detailed discussion of the principles for future development in the Kingscliff District and that they provided the source of information for the relevant assessment required by the Department. Accordingly, his Honour considered that the Environmental Study

“was prepared on that basis and in my judgment this accorded with the relevant ‘specification’ in terms of s57(2) which was directed to the object of consistency of the proposed zoning of the subject land with the Council’s Urban Release Strategy.”

61 As the Environmental Study addressed both the 2001 Centres Study and the draft Tweed Coast Strategy and as both these documents had addressed the question of future retail/commercial needs for the Kingscliff District, the primary judge considered (at [165]) that it was unnecessary for the Environmental Study to go any further than adopting their content so far as concerned the suitability of the subject land for commercial/retail development. Accordingly, he in effect concluded (at [173]) that the Environmental Study had not been prepared in contravention of the Director’s notified specifications under s57(2) of the EPA Act.

(d) The submission on the appeal and that resolution

62 With respect to [160]-[162] and [165] of his judgment, I find his Honour’s reasoning therein somewhat confusing. However, that notwithstanding, it may be legitimately observed that the statement of Planning NSW in its letter of 29 November 2002 that

“in addressing the issue of Council’s Urban Release Strategy, Council should include an assessment of its commercial retail needs in the Kingscliff and Tweed Coast area”

was, at the very least, ambiguous insofar as it was contended by the appellant that it was notifying an additional specification to the four specifications set out in the letter of 25 January 2002 in respect of which it was stated in the letter of 29 November 2002 that those specifications would “be adequate cover the revised plans for the treatment site”.

63 In the foregoing circumstances, I am of the view that the primary judge was correct when he construed the letter of 29 November 2002 as not notifying a further specification within the meaning of s57(2) in addition to those set out in the letter of 25 January 2002. Therefore, the request in that letter that the Council should include an assessment of its commercial retail needs for the Kingscliff and Tweed Coast area was directed not to the content and/or preparation of the environmental study but to the content of council’s draft Tweed Coast Strategy 2002.

64 I have already observed that there was no existing document in either draft or final form that answered the description of an “Urban Release Strategy”. Nevertheless, it is apparent that Planning NSW was, in truth, referring to the draft Tweed Coast Strategy, given that the letter of 29 November 2002, after referring to an assessment of Council’s commercial retail needs in the Kingscliff and Tweed Coast area stated:

“In this regard, I refer to the Department’s letter of 11 November 2002 in regards the draft Tweed Coast Strategy 2002.”

65 It is clear from its letter of 11 November 2002 that Planning NSW was making, as it had been requested to do, comment upon the content of the draft Tweed Coast Strategy 2002 Discussion Paper. In so doing, the Department made it clear that it would not support the option referred to in the draft Strategy to locate a district centre on the subject land. The Department’s comments contained in that letter were therefore for the purpose of enabling the Council to progress the draft Strategy further in light of its categoric non-support for a district centre on the subject land.

66 It seems to me that it was in this context that in its letter of 29 November 2002, Planning NSW was suggesting that in progressing the draft Tweed Coast Strategy 2002 Discussion paper, the Council should include an assessment of its commercial retail needs in the Kingscliff and Tweed Coast area. That would have been a logical progression of the draft Strategy given the Department’s reference in the third paragraph of its letter of 11 November 2002 to the possible locations referred to in the draft Strategy for a district centre and its preference for a site more central to the future population of the area of Kingscliff and Kings Forest which, apparently, were the two major urban release areas relevant to this part of the Tweed Coast.

67 It is to be noted that the lack of support from the Department for the option to locate a district centre on the subject land was based not only upon its remoteness from the main areas of Kingscliff and Kings Forest, but also upon the view that it was not strategically located and would encourage local traffic onto the Pacific Motorway.

68 The appellant acknowledged that in its letter of 29 November 2002 Planning NSW was requiring the Council to consider its commercial and retail needs albeit in the context of the Department not favouring a proposal to locate a district centre upon the subject land. Nevertheless, it submitted that under s57(2) of the EPA Act the Council had been directed by the Director-General to assess the commercial and retail needs in the Kingscliff and Tweed Coast area in the environmental study as well as in the context of progressing its Urban Release Strategy.

69 However, I do not read the second sentence of the second paragraph of that letter as containing a direction by the Director that the relevant assessment was to constitute a specification within the meaning of s57(2). To constitute such a specification the notification of it must, in my opinion, be expressed in mandatory and clear terms. It is true that in the letter of 25 January 2002, DUAP when setting out the four issues to which reference has already been made, prefaced them by stating that the “environmental study should address” those issues. Nevertheless, it is clear that although the word “should” was used, it was intended by the Department in the context in which it was used that the environmental study was required to be prepared in a manner which addressed those four issues.

70 However, in my opinion, the same cannot be said about the letter of 29 November 2002. When read, as it clearly required, in conjunction with the Planning NSW’s letter of 11 November 2002, in my opinion the Director-General was not, within the meaning of s57(2), notifying to the council that the environmental study must contain an assessment of the commercial retail needs in the Kingscliff and Tweed Coast area. Rather, that assessment was to be addressed in the Council’s Urban Release Strategy which was then a work in progress as the letter of 11 November 2002 makes clear.

71 That is not to say that the Environmental Study prepared by GeoLINK ignored the issue or the commercial and retail needs of those areas – it did not. It drew, understandably, upon the work that had already been carried out in the 2001 Centres Study and the draft Tweed Coast Strategy as well as other studies, to assess the commercial and retail needs in the Kingscliff and Tweed Coast area insofar as they were relevant to the appropriate rezoning of the subject land.

72 However, the appellant’s submission as I understand it, is that what was specified by Planning NSW in its letter of 29 November 2002 was that the environmental study should have contained an investigation and assessment of the nature of that performed by Core Economics. Thus, a retail strategy for that part of the Shire constituted by the Kingscliff and Tweed Coast area should have been produced as part of the environmental study. It is apparent that the Council did not so understand Planning NSW’s letter of 29 November 2002. As the Council submitted, it was apparent that that was also not the understanding of Planning NSW. I say that because, as the Council submitted, it is clear that at no time did Planning NSW suggest that the Environmental Study, a copy of which had been provided to it under cover of the Council’s letter of 11 March 2004, did not comply with the specifications notified by the Director-General to the council pursuant to s57(2). This is so notwithstanding correspondence between the Department and the Council subsequent to 11 March 2004 relating to representation by the appellant to the Department that the subject land be zoned for commercial development.

73 Thus in its letter to the Council of 23 April 2004, the Department acknowledged that the zoning of the subject land for commercial development

”should only proceed after the preparation of a Commercial strategy identifying the site as an appropriate location for commercial development in the Kingscliff area.”

74 In response to this letter the Council wrote on 30 April 2004 referring to the Environmental Study and its recommendation that the subject land be zoned 3(c) Commerce and Trade. The letter continued:

”Council has debated the issue of establishing a Council policy on the development of a district centre in Kingscliff for some time. Currently a Retail Centre Strategy is being finalised for the Tweed Shire and this will further the economic and retail consideration of a district centre at Kingscliff.”

75 Reference was also made to the Environmental Study in an internal memorandum within the Department dated 20 July 2004 and it was referred to and its contents dismissed in the Director’s s69 report to the Minister dated 2 July 2004. It was noted in the latter that

”a commercial/retail strategy has not been completed that will identify a suitable site for”

a district centre for the Kingscliff-Tweed Coast area.

76 The point to be made from the foregoing is that it is readily apparent that the Department did not regard the Environmental Study as the appropriate medium for a commercial retail study for the Kingscliff-Tweed Coast area. Rather, it accepted that such a study was underway independently of the rezoning process for the subject land. These factors confirm, in my opinion, that the Department did not intend in its letter of 29 November 2002 to notify to the Council pursuant to s57(2) that it required the environmental study to address or assess the commercial/retail needs of the Kingscliff and Tweed Coast area.

77 However, leaving to one side the matters referred to in the preceding paragraphs as being irrelevant to the proper construction of Planning NSW’s letter of 29 November 2002, I reiterate my conclusion, which is consistent with that of the primary judge, that that letter did not purport to add a further specification to those set out in DUAP’s letter of 25 January 2002 which required the environmental study to undertake an independent assessment of the commercial and retail needs in the Kingscliff and Tweed Coast area of the nature of that later undertaken by Core Economics.

78 As I have already observed, the Environmental Study referred to the existing studies and strategies which contained an assessment of the potential of the subject land to meet the then contemplated commercial and retail needs in the Kingscliff and Tweed Coast areas and it may well have been that it was that type of assessment to which the primary judge was referring in [161] of his judgment referred to in [59] above.

79 If that is how that paragraph of his Honour’s judgment is to be understood, then upon the assumption that the letter of 29 November 2002 contained an additional or an amended specification to those referred to in DUAP’s letter of 25 January 2002, his Honour’s construction of that letter contains no error. In other words, specification (d) in the letter of 25 January 2002 that the environmental study should address the issue of consistency between any proposed zoning of the subject land and the Council’s Urban Release Strategy for the area, did no more than require the study, when addressing that issue, to include an assessment of the commercial and retail needs in the Kingscliff and Tweed Coast area insofar as they were addressed in the draft Tweed Coast Strategy and other relevant studies such as the 2001 draft Centres Study in terms of their impact upon the ultimate recommendation in the Environmental Study as to the appropriate zoning of the subject land.

80 On the foregoing basis I would agree with the primary judge when, in [165] of his judgment, he concluded that the Environmental Study complied with the Director-General’s specification as so understood.

81 Before leaving this ground of challenge, I should mention the appellant’s submission that although the Environmental Study was completed by GeoLINK in October 2003, it was not adopted by the Council until 19 November 2003 at the earliest and not exhibited until 3 December 2003. By that time the Council had commissioned the Core Economic report, the first draft of which was submitted to Council at the end of October 2003, and the second draft in November 2003.

82 It was submitted that s57(1) of the EPA Act required the Council to prepare an environmental study. Although the Council was entitled to have the study prepared on its behalf by an independent consultant, as it was responsible for the preparation of the study, it was bound to ensure that it contained all relevant material prior to its exhibition. It followed that the Study completed in October 2003 should have been amended to include the contents, so far as they were relevant to the Kingscliff and Tweed Coast areas, of the first or second drafts of the Core Economics report in order to satisfy the further or amended specification which the appellant asserted was contained in Planning NSW’s letter of 29 November 2002.

83 The difficulty with this submission is that it assumes that that letter contained an additional or amended specification that could only be satisfied by including in the Environmental Study the relevant assessment of the commercial retail needs of Kingscliff and the Tweed Coast contained in the first or second draft versions of the Core Economics report. In my view, that assumption is incorrect with the result that it undermines the appellant’s submission. That is not to say that the Core Economics reports were not relevant considerations which the Council was required to take into account when it determined on 3 March 2004 to submit draft Amendment 14 to Planning NSW without alteration. However, that is a different issue to the one I am now considering.

84 In summary, therefore, in my opinion Planning NSW’s letter of 29 November 2002 did not contain notification of a specification by the Director-General that the environmental study was required to undertake an independent examination of the commercial and retail needs of the Kingscliff and Tweed Coast area of the nature of that ultimately undertaken by Core Economics. I would therefore reject that ground of challenge to the validity of Amendment 14 based upon a breach by the Council of the provisions of s57(2) of the EPA Act insofar as it alleged that the Environmental Study prepared by GeoLINK was not prepared in accordance with the specifications notified to the Council by the Director-General.

Did the exhibition process required by s66(1)(b) of the EPA Act miscarry? (Ground of Appeal 5)

(a) The history leading to the exhibition process

85 The Environmental Study divided Lot 32 into Portions A, B and C. Portion A contained approximately 19 hectares, was generally cleared and vacant although it was flood liable and required filling to facilitate development. Under the heading “Potential Land Uses”, the Study noted that the development of Portion A for wholesale/trade/industrial purposes had merit considering the surrounding land uses. Further, the Tweed Coast had a need for additional industrial land, but the Tweed Shire – Potential Industrial Land Investigation (2000) indicated that there was a significantly higher demand for wholesale/trade industrial uses as opposed to manufacturing industrial uses. Accordingly, the subject land had been demonstrated to have good suitability for wholesale/trade type industrial uses given the criteria identified in that investigation.

86 Under the heading “Commercial”, the Environmental Study also considered the potential of Portion A for such a use. As the planning strategies for the Tweed Coast had identified the subject land as being unsuitable for the development of a new district centre, that option was not further considered. However, the land’s accessibility to the major road network including the Pacific Highway provided support for a commercial use requiring good vehicular accessibility such as bulky goods or trade-based retail. The Study further considered that the site had the potential to economically complement nearby industries and might well reduce the intrusion of commercial uses into nearby industrial areas thus serving to protect industrial land for industrial uses. It also made it suitable for the development of warehouse based retail or wholesale/trade uses.

87 Section 7 of the Study contained its draft LEP recommendations. Based on the findings of the Study, it was recommended that Portion A (which later become the subject land although somewhat larger than 19 hectares) should be zoned 3(c) Commerce and Trade. The Study justified that recommendation in the following terms:

“Including Portion A within a 3(c) Commerce and Trade zone is a response to the site’s suitability for wholesale/trade development and the strong demand for land suitable for such uses on the Tweed Coast. The objectives of the zone promote commercial, bulky goods, light industry and trade activities that do not jeopardise the viability or function of sub-regional or business centres. It is important to note, however, that a minimum 50% of the flood liable land should remain available for flood flows. Therefore, up to approximately 9.5 ha would be available for industrial (wholesale/trade) development.”

88 In the Executive Summary to the Study, reference was made to the development of Portion A for industrial purposes having merit considering the surrounding land uses, the biophysical environment, transport networks and demand for employment generating industry in between regions. Further, according to the Tweed Shire – Potential Industrial Land Investigation (2000), the Tweed Coast had a need for additional industrial land.

89 The Executive Summary then noted that the Industrial Lands Investigation also addressed the need for “wholesale/trade uses”. It repeated the reference in the body of the Study to the potential of Portion A to provide an extension to the existing and intended industrial land to the north. Further, the lower scale commerce and trades uses would generate minimal amenity impacts upon residential and tourist areas given the buffering opportunities available.

90 Under the heading “Conclusions” it was noted that the major constraints to the future development of the subject land related to flooding and the proximity of existing and future residential land uses. The Executive Summary then concluded in these terms:

“Strategic Planning undertaken by the Council has identified a need for both commerce/trade and industrial (Manufacturing) land in the area. Whilst the site’s proximity to residential land uses would indicate that industrial (manufacturing) land uses are not ideal, there is sufficient buffer area available for commerce/trade uses. Conversely, the flood prone nature of the Tweed Coast Way would constitute slightly less of a constraint to industrial development than it would to commerce/trade uses.

On balance of all these issues it is the recommendation of this LES that the site be rezoned to provide for a Commerce and Trade zone.”

91 The Environmental Study was the subject of a report by the Council’s Strategic Town Planning Staff to the meeting of the Council on 19 November 2003. It contained a review of the Environmental Study and noted that considering the location and strategic importance of the subject land, both 3(c) Commerce and Trade as well as 4(a) Industrial were suitable zones “with little to choose between the two”.

92 Further, due to the current strategic planning being undertaken for Kingscliff, including the preparation of draft Development Control Plan No. 51 – Kingscliff and the Tweed Retail Development Strategy [being the Core Economics study], a certain level of flexibility needed to be maintained within the zoning of the subject land. This was to ensure that any proposed land uses identified from the Development Control Plan could be accommodated without further LEP amendment.

93 In summary, it was reported to the Council that there were three options available for the exhibition of draft Amendment 14. The first was that it be exhibited as presented by GeoLINK, namely, with the subject land being zoned 3(c) Trade and Commerce. The second was that it be exhibited with the zones proposed by GeoLINK but amended in accordance with the recommendation of the Council’s Engineering Services Division that the subject land be zoned 4(a) Industrial. The third was that draft Amendment 14 not be exhibited until after completion of planning for West Kingscliff and the Retail Development Strategy had been adopted by the Council. It was pointed out that this would allow a land use zone to better reflect the intended land uses but would slow the process down considerably.

94 The Engineering Services Division of the Council opposed the recommendation of GeoLINK that Portion A be zoned 3(c) Commerce and Trade on a number of grounds. These included the land geometry and compatibility of zoned boundaries with future road and lot layouts, flooding and the fact that the uses permissible within the 3(c) Commerce and Trade zone would constitute de facto retail and lead to the generation of high traffic volumes.

95 At its meeting on 19 November 2003 the Council resolved that a s65 certificate be issued under delegation for the exhibition of draft Amendment 14 but that, relevantly, the proposed 3(c) Commerce and Trade zone be replaced with a 4(a) Industrial zone.

96 Pursuant to s66(1)(a) of the EPA Act, public notice of the place, the dates and the times during which the Environmental Study and draft Amendment 14 could be inspected by the public was published in accordance with the Regulation. Having noted that Lot 32 was currently zoned 5(a) Special Uses (Sewerage Treatment Plan), the notice then stated that the draft amendment proposed to relevantly rezone the land to 4(a) Industrial. It then continued in these terms:

“The draft plan does not fully reflect the recommendations of the environmental study prepared for Council by GeoLINK (October 2003) that recommended a 3(c) Commerce and Trade zone for part of the site and not 4(a) Industrial zone as recommended by council. Information on the reasons for this variation is on exhibition (Supplementary Information) with the environmental study and draft plan.”

The notice then set out that the draft plan, environmental study and supplementary material was on exhibition at the Murwillumbah and Tweed Heads offices of the Council for a period of 30 days commencing 3 December 2003 and ending 2 January 2004. There was no challenge to the validity of this notice.

97 However, there was a challenge to the public exhibition of draft Amendment 14 pursuant to s68(1)(b)(i). As displayed at the exhibition, it was, relevantly, in the following form:

“2. Aims, objectives etc

This plan aims to:

a) rezone land to which this plan applies at Kingscliff to allow for Commerce and Trade and environmental protection land uses;

b) ...

c) ...

3. Land to which this plan applies

This plan applies to land zoned 7(l) Environmental Protection (Habitat) zone and land situated in the local government area of Tweed, being Lot 32 DP 847319, Tweed Coast Road, Kingscliff, as shown edged heavy black and distinctly coloured on the map marked Tweed Local Environmental Plan 2000 (Amendment No 14) deposited in the offices of Tweed Shire Council.

4. Amendment of Tweed Local Environmental Plan 2000

Tweed Local Environmental Plan 2000 is amended by:

(a) inserting under Part 2 of Schedule 6 the following words:

Tweed Local Environmental Plan (Amendment No 14).

(b) ...”

98 As the primary judge observed (at [36]), the amendment to the LEP to be effected by cl 4 of draft Amendment 14 identified Lot 32 with its new zonings on the map marked “Tweed Local Environmental Plan 2000 (Amendment No 14)” which was listed in Part 2 of Schedule 6 to the LEP by virtue of the definition of “zone map” contained in Schedule 1 to the LEP. That map showed Lot 32 with its proposed zonings including the designation of the subject land as “Industrial 4(a)”. There was, therefore, in the terms adopted by the primary judge (at [37]), a textual conflict between the 4(a) Industrial zoning shown in the relevant map and the “aim” stated in (a) of clause 2 of the written text of draft Amendment 14 “to rezone land to which this plan applies at Kingscliff ... to allow for Commerce and Trade ... land uses”.

99 His Honour then noted (at [38]) that the public exhibition of draft Amendment 14 included a number of additional documents including relevantly, a document headed “Explanatory Notes” and supplementary materials which included a document entitled “Supplementary Notes”. The latter set out the history of the rezoning process including the change effected by the Council’s resolution of 19 November 2003 to rezone approximately 19 hectares of land in the western portion of Lot 32 from 3(c) Commerce and Trade as recommended in the Environmental Study to 4(a) Industrial. Figure 3 in the Supplementary Notes set out the recommended zones in the Environmental Study and Figure 4 set out the zones adopted by the Council which made clear the change from 3(c) to 4(a) with respect to the subject land.

100 However, of critical relevance to the present issue were the terms of the “Explanatory Notes” which I set out in full:

Draft Tweed LEP 2000 (Amendment No.14)
Kingscliff Sewerage Treatment Plant

At its Ordinary Meeting of Wednesday 4 October 2000 Council resolved, pursuant to section 54 of the Environmental Planning and Assessment Act 1979, to prepare a draft LEP Amendment to rezone the existing Kingscliff Sewerage Treatment Plant site known as Lot 32 DP 847319 for industrial purposes.

Subsequently, at its ordinary Meeting of 6 November 2002, Council resolved to broaden the LEP amendment to consider the best land uses for the site as opposed to industrial development alone.

The draft Tweed LEP 2000 (Amendment 14) and the environmental study have now been finalised for public exhibition. The purpose of draft Tweed LEP 2000 (Amendment No.14) is to rezone approximately 19 hectares of land in the western portion of the site to 4(a) Industrial and 8 hectares in the north east portion of the site to 7(l) Environmental Protection (Habitat), with the remaining 5 hectares to remain as 5(a) Special Uses.

Draft Tweed LEP 2000 (Amendment No.14) has been prepared based on the outcomes of a Local Environmental Study prepared for the land. Details of the environmental investigations carried out in relation to the land are contained within the Local Environmental Study. Council also resolved to exhibit the draft plan in accordance with ‘Best Practice Guidelines – LEPs and Council Land’ (DUAP 1997).

(b) The primary judge’s decision on the exhibition issue

101 Because of the textual conflict between the aims and objectives set out in the exhibited draft Amendment 14 and the zoning of the subject land as shown on the accompanying map, it was submitted both before the primary judge and this Court that the public exhibition process required by s66(1)(b) had miscarried in that it was relevantly misleading and on that account fatally flawed. His Honour rejected this argument (at [185] upon the basis that it was

“self-evidently founded upon dry literalism and excessive legalism. In my judgment, they must be wholly rejected as lacking any substantive merit.”

102 The primary judge also considered (at [188]) that

“the obvious contextual conflict was completely revealed and explained and resolved by the supporting materials that were included in the public exhibition of draft LEP Amendment No.14 in the sense that it was obvious that clause 2(a) had mistakenly referred to the 3(c) Trade and Commerce Zone instead of referring to the Industrial Zone.”

103 Because this textual conflict was obviously capable of resolution given the unambiguous content of the supplementary materials forming part of the public exhibition, it could not be said that the public exhibition of draft Amendment 14 was relevantly misleading so as to vitiate the statutory exhibition process required by s66(b).

(c) The submissions on the appeal

104 The appellant submitted that the core material to be exhibited was draft Amendment 14 and the Environmental Study: see s66(1)(b)(i). Although s66(1)(b)(d) empowered the Council to publicly exhibit such other matter

“as it considers appropriate or necessary to better enable the draft plan and its implications to be understood”

and although the Council did exhibit the supplementary materials including the Supplementary Notes, it was submitted that apart from draft Amendment 14 and the Environmental Study, all other materials exhibited formed a subsidiary function.

105 It was contended that a person who inspected the material on exhibition would most likely commence by reading the draft plan or perhaps the Environmental Study. Whether that person read the other documents required to be exhibited or which were in fact exhibited, would depend upon whether that person’s interest was engaged by what he or she had read in the two primary documents.

106 The point, so it was submitted, was that the text in draft Amendment 14 was the most important element in the package of information publicly exhibited. The aims and objectives set out in the text of the draft plan were contradicted not only by the public notice given pursuant to s66(1)(a) but, importantly, by the zoning map displayed with the draft plan. The former stated that the objective of the proposal was to rezone the majority of the land 3(c) Commerce and Trade whereas the map depicted that part of the land as 4(a) Industrial. In these circumstances, a reasonable member of the public (not being a planning lawyer) could not be taken to understand the impact of draft Amendment 14 on the LEP: nor would he or she be able to resolve the question of whether the inconsistency between the text and map would necessarily be resolved in favour of the latter.

107 It was therefore submitted that his Honour had asked himself the wrong question. The fact that it was obvious to his Honour that the textual conflict in the draft instrument was resolved by the primacy of the accompanying zoning map was not to the point. The correct question was: would a reasonable reader, without knowledge of planning law or an understanding of the rules of statutory interpretation, have been confused and possibly misled by the conflict within draft Amendment 14 itself, when accompanied by an Environmental Study which recommended a Commerce and Trade zone in preference to an Industrial zone?

108 So far as the Explanatory Notes were concerned, it was submitted that that only added to the confusion given that the Environmental Study clearly recommended a 3(c) Commerce and Trade zone. Those Notes expressly stated that draft Amendment 14

“has been prepared based on the outcomes of a Local Environmental Study prepared for the land.”

109 It was thus submitted that draft Amendment 14 was not based on the outcomes of the Environmental Study but contradicted them. Nothing in the explanatory material explained why the relevant objectives of the draft plan were at odds with the zoning on the map. There was no explicit statement to clarify the source of that confusion.

110 The appellant then set out the principles developed to determine whether the obligation to give a public notice pursuant to s66(1)(a) of the EPA Act had miscarried. Those principles, which I accept as accurate and which were not disputed, are stated in the appellant’s submissions in the following terms:

(a) A public notice that is misleading is invalid and not a public notice as required by s66(1)(a): El Cheikh v Hurstville City Council [2002] NSWCA 173; (2002) 121 LGERA 293 at 297-298 [12] applying Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 at 101-102 per Rolfe AJA;

(b) ‘Misleading’ is a word of pejorative connotation but for present purposes probably means little more than failing fully to advise members of the public, through public notification of the exhibition of the draft plan, or by making a limited statement lulling them into a false sense of security: Litevale at 102;

(c) Where one document expressly or impliedly refers to another document, then regard should be had to the latter document when determining whether the former is misleading: El Cheikh at 301-302 [33];

(d) The reasonable person the subject of the relevant test is a person with no knowledge of planning law and the relevant provisions of the LEP: Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341 at 357.

111 It was submitted that although the decisions referred to relate to misleading the public at the s66(1)(a) stage and whereas the present case is concerned with misleading the public at the stage of public exhibition pursuant to s66(1)(b), there was no reason in principle why the tests applicable to the former should not apply to the latter: Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148 at 183 [170]. Smith did not involve the exhibition of documents alleged to be misleading or confusing but a failure to exhibit documents which, so it was held, were required by s66(1)(b) to be exhibited. In that context, it was also held that given the objectives underpinning the public exhibition process, the trial judge in that case was wrong to categorise the documents required by s66(1)(b)(i) to be exhibited as the principal documents to be exhibited whereas those referred to in s66(1)(b)(ii) and (iii) were to be categorised as secondary or ancillary.

112 It was thus submitted that a member of the public with no knowledge of planning law or statutory interpretation, who was in fact the ‘reasonable person’ for the purpose of the relevant test, would have been incapable of resolving the “obvious textual conflict” referred to by the primary judge. On the contrary, such a person would have read the principal document namely, draft Amendment 14 by first starting at the top and would have read cl 2(a) which would have attracted his or her attention because it provided an overall summary of the contents of the document. He or she would have read that the aim of the entire plan was, relevantly, to

“rezone land to which this plan applies at Kingscliff to allow for Commerce and Trade and environmental protection land uses.”

113 Such a person would conclude from this statement that the land would in fact be so rezoned and would therefore be lulled into a false sense of security if otherwise he or she was concerned that the land may have been rezoned differently such as for industrial purposes. Those concerns would have been allayed and there would have been no reason for them to read further.

114 Being a fundamental discrepancy relating to a core aspect of the draft plan, namely, how the land was rezoned, the exhibition of what was a misleading (and on one view of it false) document resulted in the public exhibition process required by s66(1)(b) miscarrying. Such a breach must result in the subsequent invalidity of the draft plan when made: Smith at 159 [59]-[63] per Spigelman CJ; 184 [174]-[176] per Tobias JA.

(d) Should the appellant’s submissions be accepted?

115 In Smith at 183 [171] I said that the purpose of s66(1)(b) was to facilitate the object of the EPA Act identified in s5(c), being the enhancement of public involvement and participation in the plan-making process. That object could not be achieved if documents relevant to better informing the public in that regard are withheld (whether intentionally or not) from the public domain despite the mandatory terms of the statutory provision in question.

116 The present case is not one involving the non-public exhibition of documents which s66(1)(b) mandates must be exhibited. All documents required by s66(1)(b) to be exhibited were in fact so exhibited. The issue in the present case is somewhat different. It involves an exhibition of documents which, so it was submitted, were misleading so that the process of public exhibition miscarried in a fundamental respect.

117 I would accept the proposition that if a relevant document required to be publicly exhibited was misleading in the sense that the reasonable member of the public referred to by the appellant would be misled into believing that the subject land was to be rezoned Commerce and Trade and not Industrial, then the appellant should succeed on this ground of challenge. The question, however, is whether a reasonable person would be lulled into such a false sense of security, as the appellant submitted, even if he or she only read sub-paragraph (a) of the aims and objectives of draft amendment 14 and no further.

118 One of the difficulties in the present case is that there was no evidence as to how the documents were in fact displayed. The Environmental Study would not have been displayed page by separate page for one can assume it was a bound document as it contained some 108 pages. I think it reasonable to infer that there were at least eight pages of the document that would have been displayed by being pinned or taped to a wall or notice board in the following order: the text of draft Amendment 14 which comprised two pages; the Explanatory Notes comprising one page; the Zoning Map which made clear that the subject land was zoned 4(a) Industrial and would have been coloured accordingly; Figure 1 showing the site location, Figure 2 showing the existing zoning under the LEP; Figure 3 being an aerial photograph of the area and lastly Figure 4 which was identical to the Zone Map.

119 Given that we are concerned here with the ”reasonable” member of the public, in my opinion such a person would at least read and/or take note of the eight pages of documents which I have listed above. Although that person would have read the aim of draft amendment 14 upon which reliance was placed by the appellant, there is no reason to believe he or she would not also have read clause 4(a). The reasonable person would be aware that planning documents such as a local environmental plan have zoning maps which have different colours applicable to different zones. Such a person would, in my view, have at least looked at the zoning map when it would have become obvious that it was proposed to zone the subject land 4(a) Industrial. In this context it is to be noted that per (a) of the “Aims, Objectives etc” refers to the rezoning of the land to which the draft plan applied to allow not only for Commerce and Trade but also for environmental protection land uses.

120 The reasonable person would not only wish to know the extent of the land to which the plan applied but also the area of land proposed to be rezoned Commerce and Trade and the area proposed to be zoned Environmental Protection. This would inevitably have led that person to look at the zoning map where it would have become clear that the subject land was to be zoned 4(a) Industrial. If that person was still in doubt, then as a reasonable person he or she would have read the Explanatory Notes. The latter was only a short document and, given its stated purpose to explain the proposed rezoning, it would have been read. The reading of the Explanatory Notes and, in particular, the second sentence of the third paragraph would have put beyond doubt that it was intended to rezone approximately 19 hectares of land in the western portion of lot 32 as 4(a) Industrial. When combined with the zoning map which depicted the rezoning of those 19 hectares as 4(a) Industrial, any residual confusion on the part of the reasonable reader would have been dispelled.

121 Although the last paragraph of the Explanatory Notes referred to the fact that draft Amendment 14 had been prepared based on the outcomes of the Environmental Study, one would not have necessarily expected the reasonable reader to have waded through that document which would not have been displayed page by page. In any event, the statement in the Explanatory Notes is that draft Amendment 14 was based on the outcomes of that study: not in accordance with those outcomes. In any event, irrespective of what was stated in the Environmental Study, the reasonable person, wishing to be made aware of the proposed rezoning of Lot 32 need not have looked further than the Explanatory Notes and the zoning map to have confirmed that the proposed zoning of the subject land was in fact 4(a) Industrial.

122 In [110] above I set out the principles which the appellant submitted applied to the present issue. One of those was that where one document expressly or impliedly referred to another document, then regard should be had to the latter document when determining whether the former was misleading. In the present case, the misleading document was said to be draft Amendment 14 and, in particular, clause 2(a) thereof. On the other hand the Explanatory Notes expressly referred in terms to draft Amendment 14 and, therefore, in accordance with the principle referred to, regard is to be had to the Explanatory Notes when determining whether clause 2(a) of draft Amendment 14 was misleading. When one has regard to the Explanatory Notes and, in particular, the third paragraph thereof, it becomes clear that draft Amendment 14 intended to rezone approximately 19 hectares of land in the western portion of Lot 32 as 4(a) Industrial. Accordingly, it follows that any misleading aspect on the first page of the draft plan was dispelled.

123 Any false sense of security that the land to which draft Amendment 14 applied was to be rezoned to allow for “Commerce and Trade” (whatever that might entail which is not apparent on the face of the document) would also be dispelled. Again, any confusion that the reasonable person might have been under on reading clause 2(a) of the draft would be resolved by reference to the Explanatory Notes and/or the displayed zoning map.

124 Accordingly, in my opinion the public exhibition process mandated by s66(1)(b) has not miscarried and his Honour was correct in so concluding.

The failure of the Council to take into account as a relevant consideration the Core Economics report when it adopted draft Amendment 14 as exhibited without alteration on 3 March 2004

(a) The contents of the Core Economic reports

125 As I have already noted, the first draft report of Core Economics was dated 31 October 2003. The relevant part of that report is set out in [106] of his Honour’s judgment under the heading “Options and Strategies”. It contemplated a population increase by 2016 that would support a large general-purpose retail centre. Such a centre would contain one or two supermarkets, one or two discount department stores and a range of other retailers. A centre of such scale would occupy a site of up to 10 hectares.

126 The report continued in these terms:

“The site should also be able to reasonably service the majority of the coastal catchment; a poorly located centre will simply mean residents will continue to shop in South Tweed. Additionally, the site should have the capacity to host the desired amount of placed-based retail (24Ha), the general retail centre (10Ha) as well as becoming part of the urban fabric by including residential, commercial and other centre uses. Core Economics has considered a range of potential site options and only one area in the vicinity of the Pacific Highway is apparent, being located at Chinderah Road at Chinderah, which seems to have the capacity to effectively host such a centre.

The site for such a centre should be in the order of 50Ha plus and be capable of incremental expansion over time so as not to incur the same problematic expansion issues being faced by Tweed Heads and Tweed South.”

Although it is apparent from the first draft report that the authors had in mind the area within which the subject land was located as being the site of such a centre, it is also clear that the subject land alone would not be adequate for that purpose. It would need to include the adjoining industrial land to the north owned by the appellant.

127 However, that would not of itself necessarily be an impediment to the location of such a centre given that the Council was aware, at least from January 2004, that the appellant and its consultants had consistently identified the land which it owned at Chinderah as well as the subject land as being “ideal for a District Centre”.

128 Furthermore, in a letter to the Council dated 29 June 2004, the appellant’s consultant town planners sought reconsideration of the proposed 4(a) Industrial zoning of the subject land and indicated that the area of the rezoning should be expanded to include all or parts of the appellant’s property to the north of the subject land.

129 When Mr Douglas Jardine, Manager, Strategic Management of the council, gave evidence before his Honour, he acknowledged in cross-examination that he was aware that the appellant owned some 41 hectares of land adjoining Lot 32; that he was also aware that Core Economics had said that the only reason the subject land would not sustain a district centre was because it was not large enough; but that he had not informed Core Economics that the appellant’s land adjoining the subject land was available for that purpose. Certainly the combined sites were in excess of 50 hectares although, as was disclosed in the Environmental Study, the whole of the land in this area was flood prone and some 50% of it would have to be left undeveloped to facilitate flood flows and the balance filled to permit development.

130 Accordingly, although the appellant’s land to the north of the subject land had an area of 42 hectares, and the extent of the industrial zoning as ultimately determined with respect to Lot 32 was approximately 25 hectares making a total of some 67 hectares, if only 50% of that land was capable of development for the purpose of a district centre, it would only amount to some 33-34 hectares, thus falling well short of the 50 hectares plus contemplated as necessary for such a centre by Core Economics.

131 No doubt the question of the ultimate area of land available for development for a district centre that still catered for the flooding issue was to a point flexible so that it may well have been that more than 37 hectares of land would have been available for the purpose of such a centre.

132 The second version of the Core Economics report was dated 15 November 2003 and included an additional topic not found in the original draft entitled “The Tweed Coast Centre”. The relevant position of that topic is set out in [107] of his Honour’s judgment. Relevantly, it stated as follows:

“The growth of population in the coastal area of Tweed Shire will see (in the period to 2016) sufficient demand to support a new DDS (i.e. Discount Department Store) based centre with one or two discount department stores (or similar) and two to three supermarkets. The population growth will also sustain 60,000 Sq M of retail warehouse floor space (requiring a 15Ha site).

To date three locations have been identified:

· Site 1 is located in the vicinity of the sewage treatment works at Chinderah. It is understood from Tweed Shire council that this site has about 15Ha of developable land due to flood restrictions.

· Site 2 is centred on Turnock Street at Kingscliff. The entire land area available is 30Ha but it is understood this may be reduced to about 20Ha after land for environmental purposes is removed.

· Site 3 is an undetermined site at Kings Forest. It is assumed that the site is of suitable size and location to cater for all of the land use needs for the centre.

From a functional perspective it is considered desirable to locate all the identified uses (DDS centre, retail warehouses and other uses, eg residential) in a single multi-purpose centre. This would require a site that is 25 plus Ha in size and meets the locational requirements of all of the component uses.

Overall Assessment

The outcome of the overall assessment is that Tweed Shire Council has effectively two options in relation to the establishment of the Tweed Coast Centre.

Option 1 – Retail Warehouses at Chinderah and the DDS Centre at Kingscliff

This option would see the designation of the sewage treatment plant as suitable for the provision of retail warehouses. At 15 Ha, the site has sufficient capacity to cater to this demand past 2016 and would provide a similar level of floor space to South Tweed. Each of these precincts would cater to a Shire plus catchment and require high degrees of accessibility and exposure. It is considered likely that this site would be suitable to end users (both retailers and patrons) and offers the opportunity for a master planned approach.

The second part of Option 1 is the establishment of the Tweed Coast Centre centred on Turnock Street at Kingscliff. This centre may have one to two DDS’s and two to three supermarkets (in addition to the current supermarket in Kingscliff). The Turnock Street site will be more difficult to establish than a stand-alone site, as it is located in an urban environment.

...’

Option 2 – DDS Centre at Chinderah and Supermarket at Kingscliff

This would entail identifying an alternative 15Ha site for the retail warehouses south of the Tweed River and with suitable access from the motorway. A DDS centre at Chinderah would also provide the best fit with the shopping centre model presently preferred by retailers and developers. However the site would not be closely integrated into the community due to the lack of developable land in this precinct. The site offers a good interceptory location and would service the intended catchment.

Conclusion

Option 2 provides the easiest option for developing a successful DDS centre based on the current preferences of developers and retailers. However this option does not fully address the needs of the community in relation to retail warehouses and an additional site would need to be identified for these uses.

Option 1 provides the best alternative for establishing a multi-use integrated centre but carries more risk as it will be reliant on an attractive, functional design that will appeal to the catchment population, attract popular retailers and overcome the issues associated with traffic and distance from the motorway.

It is beyond the scope of this strategy to endorse one option over another; particularly as site constraints and land availability issues are still being resolved at the time of preparation. The role of the study is to advise Council of the retail, economic and demand issues that will influence the future Tweed Coast Centre.”

133 It is to be noted from the foregoing that, first, Site 1 (which is the subject land) was understood to have about 15 hectares of developable land due to flood restrictions but that it had sufficient capacity to provide for retail warehouses. On the other hand, to locate all identified uses in a single multipurpose centre would require a site of 25 hectares plus which a combination of the subject land and the appellant’s land adjoining to the north would be able to satisfy.

134 It is clear from the last the paragraph of the report referred to above that from the perspective of Core Economics, land availability issues were still being resolved at the time of preparation of that report. If that comment was intended to indicate that Core Economics was unaware that the appellant owned the land to the north of the subject land and proposed to acquire the subject land, then it may have been correct given Mr Jardine’s evidence that Core Economics was never informed of the fact that the appellant owned the land to the north of the subject land. That land if combined with the latter would in all probability have provided a developable site of 25 hectares plus.

135 The final version of the Core Economics report was dated 12 January 2004. It introduced a number of changes to the contents of section 5.8 that appeared in the second version. It eliminated consideration of Site 2 located on Turnock Street, Kingscliff as a potential site for a district centre as it had been informed that the Council did not propose to consider that site any further for that purpose. The possibility that there would be no district centre established was introduced into the final version.

136 Under the heading “Overall Assessment”, the third version of the report presented, according to his Honour (at [109])

“a radically reduced picture from that presented in the second version of the report.”

I set out that assessment in full:

“Overall Assessment

The outcome of the overall assessment is that Tweed shire council has effectively two options in relation to the establishment of the Tweed Coast Centre.

Option 1 – Retail Warehouses or DDS Centre at Chinderah

This option would see the designation of the sewage treatment plant as suitable for the provision of retail warehouses or a DDS Centre. At 15 Ha, the site has sufficient capacity to cater to either showrooms or the DDS Centre past 2016 but can not accommodate both.

This option would require either an additional site for the component that can not be accommodated at Chinderah or recognition that no new site will be designated.

Option 2 – Identification of a new centre site

Neither Chinderah or Kings Forest are considered suitable for the long term establishment of a 25Ha Tweed Coast centre that contains both the DDS anchored centre and 60,000 Sq M of retail warehouse. Consequently, Council needs to identify a new site that can accommodate the intended uses if an effective Tweed Coast Centre is to be established.

Conclusion

It is beyond the scope of this strategy to endorse one option over another, particularly as site constrains and land availability issues are still being resolved at the time of preparation. The role of the study is to advise Council of the retail, economic and demand issues that will influence the future Tweed Coast Centre. However, none of the alternative sites offer a consolidated solution to the future demands created by the population growth in Coastal Tweed.

Consequently, Tweed Shire Council needs to identify an alternative site for either or both the DDS centre and retail warehouses or be prepared to deal with the long term consequences of not establishing a Tweed Coast Centre.”

137 As far as the subject land was concerned, given Core Economics understanding that only 15 hectares of developable land was available, it had sufficient capacity to cater for either showrooms or a DDS centre, but not both. Additional land over and above the 15 hectares available upon the subject land would be required to accommodate both. It is clear from the foregoing, as confirmed by Mr Jardine, that Core Economics was unaware that that extra land to the north was available immediately given the appellant’s ownership thereof and its communicated desire to the Council to amalgamate it with the subject land for the purpose of providing a larger area for the type of development contemplated by the consultants.

138 This is particularly so given that the third and final version of the Core Economics’ report contemplated a total area for the Tweed Coast centre of 25 hectares. The Council’s need to identify a new site that could accommodate both the DDS centre as well as 60,000 square metres of retail warehouse in order to produce an effective Tweed Coast centre could potentially have been satisfied by extending the subject land to include the appellant’s 42 hectares adjoining to its north.

139 Again, in the conclusion to the report, Core Economics referred to land availability issues still to be resolved, noting that none of the alternative sites (all of which excluded the appellant’s 42 hectares of land adjoining the subject land) offered a consolidated solution to the future demands for a centre created by the population growth in coastal Tweed. The report concluded that the Council needed to identify an alternative site that would accommodate both the DDS centre and the retail warehouses; or if it could not do so, then it might need to abandon the idea of establishing such a centre.

(b) The decision of the primary judge with respect to the relevance of the Core Economics report

140 In [151(i)] of his judgment, the primary judge stated the ground of challenge based upon the Core Economics report in these terms:

“The failure of the Council to take into account relevant considerations, namely, (a) the JHD Retail Assessment; and (b) the draft Retail Strategy prepared for the Council by Core Economics.”

Only the failure to take into account the Core Economics report was the subject of submissions on the appeal.

141 At [153] his Honour considered that ground of challenge at three points of time. The first was at the time of preparation of the environmental study. The second at the time of Council’s decision on 19 November 2003 to publicly exhibit draft Amendment 14. The third was its decision on 3 March 2004 to request the Minister to make draft Amendment 14.

142 So far as the preparation of the environmental study was concerned, his Honour considered the “retail studies” (constituted by both the JHD Retail Assessment and the draft Retail Strategy prepared by Core Economics) in terms of the Director-General’s specifications for the environmental study notified pursuant to s57(2) of the EPA Act.

143 As I have already observed, his Honour found (at [173]) that neither s57(2) nor the relevant “specifications” notified thereunder to the Council, required consideration of the retail studies relied upon by the appellant. Again, in [177] his Honour concluded that the appellant’s attack on the Environmental Study for failing to consider those retail studies must fail. His Honour then considered (at [178]) that his conclusion that the Council, including its consultant GeoLINK, in preparing the environmental study was not bound to consider the retail studies had

“obvious consequences for the [appellant’s] challenge based upon the same ground (i.e. failure to consider the retail studies) in respect of the council’s decisions (of 29 November 2003 and 3 March 2004) in respect of the draft LEP Amendment No. 14, unless some other basis could be established for holding that the council, in making those decisions, was duty bound to consider retail studies.”

144 His Honour then went on to observe that the only suggested source of duty was that founded on a relevant “specification” notified pursuant to s57(2) and (in [179]) that the appellant had not suggested any other source of statutory duty that bound the Council to consider the retail studies either in undertaking its statutory task under s61 to prepare a draft local environmental plan having regard to the Environmental Study or its statutory task in terms of s68 of the EPA Act in considering the submissions made as a consequence of the public exhibition of draft Amendment 14 or of the submission of the draft plan to the Director-General.

145 Without further consideration, therefore, his Honour concluded (at [180]) that the appellant had failed to establish any basis for its contention that in undertaking those respective statutory tasks in respect of draft Amendment 14 according to its decisions made on 19 November 2003 and 3 March 2004 respectively, the Council was bound to consider these retail studies.

146 The primary judge did return to this issue when considering what he regarded as the third ground of challenge, namely, that the council’s decisions in respect of draft Amendment 14 were manifestly unreasonable.

147 Having referred to the nature of the Wednesbury unreasonable test, explained by Mason P in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at 188, and to the judgment of the Chief Justice in Murrumbidgee Ground Water Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 at [127]- [129], his Honour observed (at [194]) that the appellant’s argument

“once again depends upon an acceptance of its assertion that the Council was bound to consider the two particular retail studies it has identified. This asserted duty in turn depends upon the [appellant’s] assertion that in preparing the Environmental Study, the Council was required to make an assessment of the commercial/retail needs of Kingscliff and of the Tweed Coast.”

148 The primary judge then reiterated (at [195]) that his

“earlier conclusions holding that the Council was not bound to consider the retail studies and was not required when preparing the Environmental Study to make an assessment of the commercial/retail needs of Kingscliff and of the Tweed Coast, entirely undermine the [appellant’s] present ground of challenge.”

149 Furthermore, at [198] his Honour considered that it could not be said of those studies that they were “material that is readily available and is centrally relevant to the decision to be made”, citing a passage from the judgment of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 170.

150 Finally, his Honour concluded that once it was recognised that the Council was not bound to consider the studies, there was no basis for impugning the council’s decisions of 19 November 2003 to publicly exhibit draft Amendment 14; or its decision on 3 March 2004 to request the Minister to make the draft plan.

151 His Honour further remarked (at [201]) that in any event it was unnecessary for the council to be aware of the third and final version of Core Economics’ draft Retail Strategy as Mr Jardine reasonably considered that additional input was required before it was in a condition which he considered would justify its reference to the Council. He thus found that the history of Amendment 14 demonstrated the reasonableness of the Council’s decision to complete the rezoning process in respect of the subject land, notwithstanding the incompleteness and uncertainties of the draft Retail Strategy.

152 Accordingly, his Honour found that the relevant decisions by the Council were not Wednesbury unreasonable.

(c) The appellant’s submissions

153 The appellant’s challenge on the hearing of the appeal was confined to the failure of the Council at its meeting on 3 March 2004 to take into account as a relevant consideration the Core Economics’ third and final report. The critical relevance of that report to the Council’s decision on 3 March 2004 not to amend the 4(a) Industrial zoning of the subject land notwithstanding submissions by the appellant to the contrary, was based upon the report of 24 February 2004 by GeoLINK on the exhibition of draft Amendment 14. I have recorded the relevant parts of that report in [54] above. In its report GeoLINK noted that the question still remained:

“Is the subject site the most appropriate location to provide for the demand indicated in the investigations report for ‘wholesale/trade’ uses?”

154 Reference was then made to two studies which were underway of which one was the Core Economics retail study which GeoLINK asserted might provide a greater level of certainty with regard to the appropriateness of the 3(c) Commerce and Trade zoning of the subject land but for the fact that the findings of the report were not available when the environmental study was being prepared and nor were they currently available. The latter was incorrect but no steps were taken by the Council officers to correct it.

155 Having observed that insufficient detail currently existed to enable a comprehensive assessment of the appropriateness of a Commerce and Trade zoning of the subject land in a wider retail context and, in particular, whether the zoning of the subject land for Commerce and Trade would have any positive or negative retail impact on the existing Kingscliff Retail Centre, GeoLINK again noted that the Core Economics study was examining not only conventional retail but also commerce and trade users and would, when concluded, provide more information upon which to base the future zoning of the subject land.

156 However, because it was advised that the conclusion of that study was “some time away”, GeoLINK supported the proposed industrial zoning of the subject land as “the ‘safest’ action at this time”. GeoLINK also referred to the urgent need to commence the establishment of a new STP to service the Kingscliff locality and that there were, therefore, considerable concerns relating to the delay of the decision about the zoning of the subject land until the retail study had been concluded. Its industrial zoning could be justified, so it was stated, as there was demand for such land, the site was suitable for such uses which were less affected by flooding constraints than alternative more intense uses and such a use was unlikely to be detrimental on the existing Kingscliff retail centre.

157 Part 2 of the report set out a summary of the submissions to draft Amendment 14 including one from Dr Stephen Segal, a director of the appellant, asserting that the Environmental Study did not consider the subject land together with other land owned by the appellant in the locality. GeoLINK’s response to that submission was that its brief was to examine Lot 32 only.

158 The appellant submitted that GeoLINK’s advice to the Council was erroneous in that Core Economics had completed their contractual task and had produced their final report in January 2004. Moreover, as that advice was premised on the absence of information concerning retail uses, a gap which would have been filled by the Core Economics report, it was evident that a step in GeoLINK’s reasoning process did not exist and its conclusion may well have been different had it been aware of the work which Core Economics had performed.

159 Accordingly, it was submitted that the Council had failed to take into account a material consideration being the most recent information concerning the commercial retail needs of the Tweed Coast and Kingscliff and which bore upon the suitability of the subject land, either alone or in conjunction with the appellant’s land immediately to the north, as the site for some form of commercial or retail development including Trade and Commerce uses as permitted with consent in the 3(c) zone. It was also submitted that failure to take those considerations into account resulted in the Council’s decision to adopt draft Amendment 14 without alteration was manifestly unreasonable.

160 It was thus submitted that the Council’s consideration of the matter, at least at its 3 March 2004 meeting, centred upon the choice between retail and industrial uses of the subject land. In these circumstances, whether the site was suitable for retail uses was a mandatory or at least a highly relevant consideration. In other words, had the Council maintained that the land was to be zoned 4(a) Industrial without giving any consideration to its suitability for some form of retail use including that of Commerce and Trade, its decision to maintain the 4(a) Industrial zoning plainly miscarried as it had failed to take into account a relevant consideration which in the circumstances it was bound to do.

(d) Did the primary judge err in holding that the council was not bound to take into account for relevant consideration the third and final Core Economics report?

161 As I have already indicated, the primary judge in effect dealt with this issue in [194], [195] and [199] of his judgment upon the basis that the Council was not bound to take the Core Economics final retail study into account as it did not constitute a specification notified it by the Director-General pursuant to s57(2) of the EPA Act. If it was not a specification, it was not required to be taken into account in the environmental study and, as I understand his Honour’s reasoning, it followed that the Council was not bound to take it into account at any subsequent decision making stage. Why this was so was not explained. In [195] his Honour seems to have conflated the issue as to whether there had been compliance s57(2) with the quite distinct issue as to whether, when determining on 3 March 2004 to submit draft Amendment 14 to the Director-General pursuant to s68(4)(c) of the EPA Act without alteration, it had failed to take into account a relevant consideration arising out of GeoLINK’s report of 24 February 2004 referred to in [156]-[158] above. It was not suggested by the council that it was not open to it to have altered draft Amendment 14 based on the submissions received on its exhibition or as a consequence of GeoLINK’s report to the Council on those submissions.

162 Rather, the Council’s submission on the appeal was that his Honour was correct when he held (at [207] and [204]) that, based on Mr Jardine’s evidence, it was reasonable for the Council officers to have withheld the final Core Economics report from the Council itself as Mr Jardine in particular had considered that additional input was required before he would be satisfied that a draft Tweed Retail Strategy could be formulated and the question of the location of the District Centre for Kingscliff resolved.

163 Mr Jardine’s opinion was formed notwithstanding that the Council’s own in-house economic planner had advised on 5 March 2004 that Core Economics had finalised its report, that it was ready for public exhibition and recommended that it be exhibited for a period of six weeks. A further draft report by that planner dated 1 July 2004 recommending that the Core Economics report be placed on public exhibition also did not see the light of day. In any event, at its meeting on 6 October 2004, the Council resolved to provide a further $32,000 for Core Economics to “finalise the Tweed Retail Strategy”.

164 The reason for this was that the Council’s planning officers had taken the view that a review of the existing material in the Core Economics third report had outlined the importance of it being bolstered with some empirical evidence to support its recommendations. This would have involved undertaking a retail floor space survey in the Tweed which, although costly, was regarded as “extremely important”. It was important, so the planners stated, because those retail developments were typically very controversial and it was therefore important for the Council to have a robust and detailed Retail Development Strategy.

165 The appellant relied upon the judgment of Mason J in Peko-Wallsend at 44-45. In that case the Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976, (Cth) on an application by Aboriginals who claimed to have a traditional land claim to unalienated Crown Land, was required to ascertain whether they were the traditional owners and, where he found this to be so, was to recommend to the Commissioner the granting of land to them. Section 50(3)(b) required the Commissioner to comment in his report on the detriment to persons in the community that might result if the claim were acceded to. The Commissioner held an inquiry into the claims and recommended that the grant be made. He commented on the detriment that a grant might have on certain uranium exploration companies, but he was unaware that the deposit lay wholly within the 10% of the block recommended for grant. Thereafter the companies informed the then Minister of the true position. A successor to the Minister, without reference to that information, recommended to the Governor-General that the grant be made, including the land containing the deposit. The High Court held that the Minister was bound to take into account the Commissioner’s comments on detriment under s56(3)(b) in exercising his power under the Act to decide whether or not he was satisfied that a grant should be made but that in the present case the Minister’s recommendation was void on the ground that he was bound to take into account any submissions made to him which corrected, updated or elucidated the Commissioner’s comments on detriment.

166 In his judgment Mason J (at 44-45) observed that the question which lay at the heart of the appeal was whether the Minister was bound to take into account submissions made to him which corrected, updated or elucidated the Commissioner’s comments on detriment. Once it was accepted that the subject matter, scope and purpose of the Act indicated that the detriment that might be occasioned by a proposed land grant was a factor vital to the exercise of the Minister’s discretion, it was but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister had at hand.

167 After referring to the fact that a considerable time might elapse between completion of the Commissioner’s report and the date on which the Minister makes his decision, his Honour continued:

“It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him in the time the decision is made. But that principle itself is a reflection of the fact that there may found in the subject-matter scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”

168 The appellant submitted that the facts in Peko-Wallsend bore a considerable resemblance to the facts of the present case. GeoLINK had reported to the Council after the public exhibition of draft Amendment 14 that there were studies underway, including the Core Economics study, which might provide a greater level of certainty with regard to the appropriateness of a 3(c) Commerce and Trade zoning of the subject land, but that that report was not then available. This was incorrect as at 3 March 2004 being the date of the council’s decision to proceed with the 4(a) Industrial zoning of the subject land.

169 Furthermore, in its original resolution made pursuant to s54(1) of the EPA Act to prepare a draft local environmental plan with respect to Lot 32, the Council had proposed that that draft rezone that land for industrial purposes. Nevertheless, it later changed its mind and on 6 November 2002 resolved that draft Amendment 14 be prepared

“for the best land uses rather than specifically for industrial purposes as originally proposed.”

170 The environmental study which the Council had engaged GeoLINK to prepare recommended that that best land use was 3(c) Commerce and Trade. The Council rejected that recommendation and publicly exhibited draft Amendment 14 which proposed the rezoning of the subject land to 4(a) Industrial. Its original change of heart was based on the draft Tweed Coast Strategy which saw the potential of the subject land for some form of retail use. Submissions were made in response to the public exhibition that the Trade and Commerce zoning or some other retail type use be reinstated.

171 GeoLINK’s report on the submissions made in response to the public exhibition to the Council meeting of 3 March 2004 recognised that the central issue was whether the subject land should be rezoned 4(a) Industrial or 3(c) Commerce and Trade. Its report further noted that the Commerce and Trade zone had a retail component (such as bulky goods) albeit of a type and scale not compatible with a conventional business zone. Nevertheless the appropriateness of the subject land being zoned Commerce and Trade needed to be examined in the wider retail context and that a Shire-wide retail study in order to provide a comprehensive assessment of the issues was currently being undertaken by Core Economics, but that its conclusions would not be available for some time.

172 In the absence of that study there were questions that remained before it could be “categorically stated” that a Commerce and Trade zone was more appropriate than an Industrial zone in respect of the subject land.

173 The foregoing factors may be combined with the objects of the Act referred to in s5(a)(i) and (ii) which are, relevantly, to encourage the proper management and development of natural resources including towns and villages for the purpose of promoting the social and economic welfare of the community as well as the promotion and co-ordination of the orderly and economic use and development of land. Given the subject matter, scope and purpose of the EPA Act so referred to, and given the nature of the decision which the Council was called upon to make on 3 March 2004 as to whether to proceed with an Industrial zoning or to alter the exhibited zoning to a Trade and Commerce zoning or some other form of retail zoning, it would, to adapt and adopt the language of Mason J in Peko-Wallsend, be a strange result indeed to hold that the Council was entitled to ignore the Core Economics’ final report of which it had constructive knowledge and which “may” have had a direct bearing on the final form of the rezoning of the subject land which the council was considering submitting to the Minister pursuant to s68(4) of the EPA Act.

174 In the foregoing circumstances, for the Council to proceed on the basis of material that was clearly incomplete and in circumstances where both it (as a collegiate body) and GeoLINK were ignorant of the existence of the Core Economics’ final report received some six weeks prior to the meeting at which the critical decision was to taken, the conclusion that the Council was bound to but failed to take into consideration the Core Economics’ final report which may (not must) have had a direct bearing upon the its ultimate decision is compelling.

175 In my opinion, therefore, the primary judge erred not only in the manner in which he approached this issue but also in his conclusion that the Council was not bound to take into consideration that Core Economics retail study.

176 It follows that the Council’s decision of 3 March 2004 to submit draft Amendment 14 in the form in which it was exhibited and without alteration was vitiated by error and was thus invalid. The Council did not contest the proposition that that invalidity, if established, infected the balance of the statutory process as a consequence whereof his Honour ought to have declared Amendment 14 invalid.

Conclusion

177 In my opinion the third of the three grounds of challenge to the invalidity of Amendment 14 should succeed. I would therefore propose the following orders:

(a) Appeal allowed.

(b) Set aside the orders made by Bignold J on 1 November 2005 and 2 December 2005.

(c) Declare Tweed Local Environmental Plan (Amendment No 14) which purportedly came into effect on 6 August 2004 to be void and of no effect.

(d) The second respondent to pay the appellant’s costs of the proceedings before the Land and Environment Court and of the appeal.

178 BASTEN JA: This matter involves a challenge to the judgment of the Land and Environment Court which in turn rejected a challenge to the validity of a local environmental plan affecting the land of the Appellant. The relevant plan, known as Tweed Local Environmental Plan (Amendment No. 14) (“the Plan”) was promulgated on 6 August 2004. The challenges to the validity of the Plan did not address any conduct of the Respondent Minister or officers of the Department; rather it asserted legal error on the part of the Tweed Shire Council in the steps taken prior to submitting the Plan to the Minister. As Tobias JA has explained, the grounds of challenge relied on below and repeated in this Court may be summarised as follows:

(1) failure by the Tweed Shire Council to comply with a specification notified by the Director-General, pursuant to s 57(2) of the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”);

(2) the draft Plan had not been properly exhibited by the Tweed Shire Council, in contravention of s 66(1)(b)(i) of the EP&A Act, and

(3) the Council, in deciding to submit the Plan (unamended) to the Director-General, pursuant to s 68 of the EP&A Act, failed to give consideration to a report prepared by private consultants engaged to advise the Council on a “retail development strategy” for an area which included the land the subject of the Plan.

179 The point of dispute between the Appellant and the Tweed Shire Council was not whether the land should be rezoned, but whether it should be rezoned for industrial uses or for commercial/retail uses. The Appellant preferred the latter, but the Plan adopted the former zoning. The need for further retail development in the Shire, including the development of what was described as a “district centre”, was accepted by the Council. Whether the land, taken by itself, would have been sufficient to permit such a use was doubtful, but the Appellant owned adjoining land which it intended to combine with the land to be rezoned giving an area sufficient for the proposed retail development. However, the Council was not bound to accept the Appellant’s proposal and the only question for present purposes is whether it failed to comply with its legal obligations in formulating the Plan which was submitted to the Director-General.

Failure to comply with specification

180 In Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148, this Court (Spigelman CJ and Sheller JA) held that failure to comply with a direction given by the Minister under s 117 of the EP&A Act did not, of itself, invalidate the resultant local environmental plan: at [46] and [65]. It might have been contended in the present case that a similar conclusion should be reached in relation to the operation of s 57(2) of the EP&A Act. Such a conclusion receives support on the Appellant’s own case, which was that a specification given by the Director-General, pursuant to s 57(2), could be clarified, or varied, by correspondence between the Council and the Director-General. If that argument were correct, it would give force to the contention that Parliament intended to vest in the Director-General the authority to determine whether or not a specification was adequately complied with. This consideration would militate against the conclusion that, if a court held that the specification had not been complied with, invalidity followed.

181 The effect of non-compliance with s 57(2) was expressly reserved as a matter not necessary to be determined, by the trial judge: see Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 617 at [207]- [208]. Because the Respondent did not suggest that this Court should adopt a different approach, it is necessary to proceed on the basis that a failure to comply with a specification under s 57(2) could lead to invalidity of the Plan.

182 It does not, however, follow that it is necessary for this Court to make a determination as to the precise scope of the specification notified by the Director-General, nor to determine on the facts, whether it has been complied with. The complex factual considerations entered upon by Tobias JA demonstrate, to my mind, the unlikelihood that Parliament intended to make such compliance a jurisdictional requirement, which could only be authoritatively ruled upon by a court. Although ss 68 and 69 make provision for reporting by Council and consideration by the Director-General of whether directions under s 117 have been taken into consideration, without reference to specifications under s 57(2), there can be no doubt that the Director-General would have power to inquire and take into consideration compliance or non-compliance with a specification under s 57(2) and, having notified the specification, would be mindful of the Council’s obligation to comply with it. Compliance will not necessarily be a matter involving a simple question of fact. Compliance may be adequate or inadequate and may require matters of evaluation or judgment, taking into account the purpose for which the specification was notified. These are pre-eminently matters for consideration by the Director-General. If he or she reports to the Minister and the Minister makes the Plan under s 70(1), in my view it should be assumed, absent evidence to the contrary, that the specification has been adequately complied with. Accordingly, this ground of challenge should be rejected.

Adequacy of public exhibition

183 In my view, this challenge should also be rejected. I am content to adopt the reasons given by Tobias JA at [85]-[124] above.

Failure to consider consultant’s report

184 This ground forms the basis upon which Tobias JA would allow the appeal and set aside the judgment of the Land and Environment Court. In order to support this conclusion it is necessary to identify a statutory obligation on the Tweed Shire Council to consider the content of the report before determining whether or not to make any alterations to the draft Plan as exhibited, pursuant to s 68(3), and before submitting the draft Plan to the Director-General, pursuant to s 68(4).

185 Section 68(4) reads as follows:

“(4) The council shall, subject to and except as may by provided by the regulations, submit to the Director-General:
(a) details of all submissions,
(b) the report of any public hearing,

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

(d) a statement:

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

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

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

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

(Subsection (5) permits a council to defer consideration of part of the land.)

186 The principles in relation to review for failure to take into account a relevant consideration were authoritatively stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. The application of the reasoning in that case requires reference to the statutory scheme under which the Minister was empowered to make a grant of land to a land trust, for the benefit of Aboriginal people, pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Minister could only take such steps where the Aboriginal Land Commissioner had reported findings of an inquiry into traditional Aboriginal ownership of the land and had recommended a grant of the land: s 50(1)(a)(ii). The Commissioner was required, in the report, to “comment on”, but not determine the effect of, detriment to other persons or communities, if the grant were made: s 50(3)(b). The High Court held that, although there was no express statement to this effect, the Minister was bound to have regard to the comments of the Commissioner in exercising a discretionary power to grant the land, when “satisfied ... that the land ... should be granted”: s 11(1)(b)(i) – see 162 CLR at 44 (Mason J). His Honour continued:

“The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner’s comments on detriment. Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most accurate and information that the Minister has at hand.”

187 Although there was no provision for interested parties, who might suffer detriment, to have an opportunity to make submissions to the Minister, where such submissions were made which “may have a direct bearing on the justice of making the land grant”, there was an implication to be derived from the statutory scheme that the Minister was required to have regard to them: at 45. As Mason J further noted, to fail to do so might involve a breach of procedural fairness: pp 45-46. This approach is in conformity with the reasoning adopted in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ) and at [87] and [88] (Kirby J) referred to by this Court in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [73].

188 However, the present case is not directly analogous to Peko-Wallsend. The analogy would arise if the Appellant had made submissions to, or drawn the attention of, the Director-General or the Minister to the relevant consultancy report and the Director-General or the Minister had disregarded the content of the report. Rather, in the present case, it was the body in the position of the Aboriginal Land Commissioner which is said to have disregarded information it was bound to consider.

189 This point of distinction is important: the Council is not the authority with power to make a local environmental plan, and the Minister may vary a draft plan submitted by Council, at least if there is a matter of State or regional significance involved: s 70(1)(a)(ii). Otherwise the Minister may decide not to proceed with the draft plan – s 70(1)(c) – or the Director-General may seek to obtain variations to the draft: see s 68(9)(a).

190 There is a second point of distinction from Peko-Wallsend, namely that the land the subject of the proposed grant in that case, according to the undisputed evidence, partly covered a major uranium ore body in respect of which Peko-Wallsend had an unresolved mineral lease application. As noted by Gibbs CJ, the obligation of the Minister was to consider matters “in the light of the actual facts as disclosed by the material in his possession”: at p 30. His Honour continued:

“It does not follow that the Minister is bound to consider every argumentative submission made to him after the Commissioner has furnished his report; in the present case we are concerned only with material which reveals that the comments in the report were based on an erroneous view of the facts.

... No complaint could be made if the Departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a Departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.”

191 As noted in Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442, the “level of particularity with which a matter is identified for the purpose of applying this principle may be significant”: at [23] (Gleeson CJ and McHugh J). That was a matter of significance where it was not suggested that the Minister had entirely neglected a mandatory consideration, but where a particular level of detailed inquiry was said to be required. To similar effect, Gaudron and Hayne JJ stated at [38]:

“The relevant state of satisfaction is of matters described in qualitative terms which call for the making of value judgments about which reasonable minds may differ.”

192 In the present case, what was in issue was not the failure to take account of a specific fact, but the failure to have regard to an opinion expressed by a consultant, namely a report prepared by an organisation called “Core Economics”, which had been engaged by Council on 20 August 2003 to prepare a retail development strategy for the Shire. The relevant report was provided to Council on 12 January 2004, some six weeks before the decision under challenge. Had that report constituted the “environmental study” required to be undertaken pursuant to s 57(1) of the EP&A Act, to which the specifications were notified, the Council would have been bound to have regard to it, in accordance with the express terms of s 61 of the EP&A Act. However, the relevant environmental study was undertaken by a different organisation, known as “Geolink”. Geolink submitted its report on 24 February 2004. In that report, Geolink noted that two studies were “currently underway (the findings of which were not available when the LES was prepared; nor are they available now)”: at p 61 of the Council Minutes of 3 March 2004. One of those reports concerned flooding; the other concerned the retail strategy being considered by Core Economics. The Geolink report continued (Minutes, p 62):

“That study is examining conventional retail as well as commerce and trade uses and will provide more information upon which to base the future zoning of this site. However, we are advised that its conclusion is some time away.

Given the urgent need to commence the establishment of a new Sewerage Treatment Plant to service the Kingscliff locality, and the fact that the rezoning of this site is the first step in this process, there are significant concerns relating to delaying a decision about the zoning of this site until the retail study is concluded.

Given this urgency, and given the question marks that remain before it can be categorically stated that a Commerce and Trade zone is more appropriate than an Industrial Zone, the ‘safest’ action at this time would be to proceed with rezoning of the site to 4(a) Industrial, as exhibited by Council.”

193 It cannot be said that Council did not know of, or was unaware of, the retail strategy study, which it had commissioned Core Economics to undertake in August 2003. Its attention was drawn by Geolink to the fact that the study by Core Economics was currently underway. In effect, the complaint is that it should have been advised that, far from the conclusion being “some time away”, Core Economics had already provided what is described as a “third report”, of which Geolink was unaware.

194 The history to the strategic planning undertaken by the Council with respect to the Tweed coast, between 1998 and 2004, was set out in some detail in an affidavit sworn by Mr Douglas Jardine, the Manager, Strategic Town Planning, for Tweed Shire Council, a position he had held for approximately 14 years. He had been involved in discussions between the Council, Core Economics and other parties, including representatives of the Appellant, throughout the second half of 2003, in relation to the preparation of a retail development strategy for the Tweed Shire Council. He referred in his affidavit to a “first working draft”, provided by Core Economics in October 2003: Affidavit, 23 February 2005, par 56. He concluded that the draft required further work, both in terms of the issues to be addressed and the analysis of future retail demand. On or about 15 November 2003, a “second working draft document”, was supplied to him, which addressed some of his concerns, but not all of them. He identified particular continuing concerns: Affidavit, par 59. He continued at par 60:

“It was my opinion that the strategy did not give a complete analysis of the retail needs of the Shire. Following discussions with the then Acting Director [of Planning], we agreed to defer any further action until the new Director was in place.”

195 The new Director, Mr Noel Hodges, was apparently appointed after March 2004: Tcpt, 29 April 2005, p 146. Mr Jardine gave evidence of further discussions with Core Economics which led, on 11 August 2004, to Core Economics requesting Council approval for an expansion of its consultancy to allow it to “expand upon this initial work by producing a detailed demand analysis that includes floor spacing and associated timing”. Approval was given by the Council at a meeting on 6 October 2004. A revised brief was sent to Core Economics the following day. As at the date of Mr Jardine’s affidavit, in February 2005, the work had not been completed.

196 At the trial, counsel for the Appellant cross-examined Mr Jardine as to why he had not put before the Council, at its meeting on 3 March 2004, the “third report” of Core Economics. This matter was pursued by the Appellant because the Core Economics assessment had reduced the possible sites for retail development to three, of which one had already been rejected by Council as unsuitable and a second of which was rejected as unsuitable by Core Economics, leaving the Appellant’s land as the remaining viable option. Accordingly, the Appellant sought to challenge Mr Jardine’s view, as held in March 2004, that the Core Economics proposal should not be taken to Council for approval of its public exhibition, and should not be before Council with respect to the rezoning. Nevertheless, his Honour accepted Mr Jardine’s evidence that the study was incomplete and there is no challenge to that finding: [2005] NSWLEC 617 at [200].

197 It follows that any inference as to the appropriate zoning which might have been drawn by Council members from the Core Economics material, would have been based on incomplete information which the Council’s own responsible planning officer did not think it appropriate to refer to Council. That Council implicitly accepted this judgment follows from its later conduct in expanding the brief given to Core Economics, in October 2004.

198 The precise relevance of this evidence was not fully explained in the course of the appeal. There was no suggestion that material submitted by the Appellant was not given appropriate consideration, nor that material the Council was bound to consider, such as the environmental study, was not given consideration. The complaint is that a Council officer formed an evaluative judgment that opinions provided by another consultant were not yet sufficiently refined to be appropriate for consideration by Council. It was not suggested that Council erred in failing to defer its consideration of the draft Plan. The correct approach is to ask whether, if Council itself had formed the view in fact formed by its planning officer, it would have erred in law. In other words, it may be stuck with the opinion formed by its officer, but it was not argued that it could not delegate to an officer the power to form such an opinion. However, to say that the Council (through its officer) erred in making a finding of fact, namely as to the materiality of the Core Economics material, is to engage in merit review of the fact-finding process, which is not open to this Court.

199 I therefore conclude that this ground of appeal has not been made out. The appeal should be dismissed with costs.

**********

LAST UPDATED: 21/12/2006