Aldous v Greater Taree City Council [2009] NSWLEC 17 | Case summary

Aldous v Greater Taree City Council [2009] NSWLEC 17 | Case summary | Zoe

[6]

Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337, (2008) 251 ALR 633 Belmore Residents' Action Group Inc v Canterbury City Council [2006] NSWLEC 530, (2006) 147 LGERA 226 Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171, (2007) 153 LGERA 450 Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172 Bruce v Cole (1998) 45 NSWLR 163 Bungendore Residents Action Group Inc v Palerang Council (No 4) [2007] NSWLEC 536 Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401, (2004) 135 LGERA 257 Charles & Howard Pty Ltd v Redland Shire Council [2007] QCA 200, (2007) 159 LGERA 349 Clark & Davis v Wollongong City Council (No 2) [2008] NSWLEC 226 F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235 Gippsland Coastal Board v South Gippsland Shire Council & Ors (No 2) [2008] VCAT 1545 GPT Re Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256 GPT Re Ltd v Wollongong City Council (No 2) [2006] NSWLEC 401, (2006) 151 LGERA 158 Gray v Minister for Planning [2006] NSWLEC 720, (2006) 152 LGERA 258 CASES CITED: Hastings Point Progress Association Inc v Tweed Shire Council and Anor [2008] NSWLEC 219 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, (2006) 143 LGERA 277 Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38, (2007) 150 LGERA 333 Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 Lyons v Sutherland Shire Council [2001] NSWCA 430, (2001) 117 LGERA 334 Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Ltd [2007] NSWLEC 411 Mid Western Community Action Group Inc v Mid-Western Regional Council & Anor (No 2) [2008] NSWLEC 143 Minister for Planning v Walker [2008] NSWCA 224, (2008) 161 LGERA 423 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2008] SASC 57 Notaras v Waverley Council [2007] NSWCA 333, (2007) 161 LGERA 230 Parramatta City Council v Hale (1982) 47 LGRA 319 Sharples v Minister for Local Government [2008] NSWLEC 328 Walker v Minister for Planning [2007] NSWLEC 741, (2007) 157 LGERA 124 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, (2001) 130 LGERA 508 Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589

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21 The council resolution did not authorise anyone to approve the appropriate conditions. Mr Boyce had no delegated authority to do so. Such delegated authority as he had was excluded by cl B1 of the instrument of delegation: see [5] above. A delegate must act within the delegation. Delegated authority can only be exercised if the conditions for its exercise are satisfied: Lyons v Sutherland Shire Council [2001] NSWCA 430, (2001) 117 LGERA 334 at [16], [40], [51]. Since the council itself did not grant final development consent and approve appropriate conditions and since Mr Boyce had no authority to do so, there has been no valid development consent and the statement in the Notice of Determination of 21 January 2008 that consent was granted on that day was wrong. If Mr Boyce had been given delegated authority to determine appropriate conditions left unresolved by the council resolution, then the development consent would have been granted in part by the council and in part by him. In my opinion, that would have offended the principle of indivisibility of the function to determine a development application under s 80(1) of the EPA Act: Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171, (2007) 153 LGERA 450 at [12] - [15], [30], [56], [59], [73] - [75]; see also Lend Lease Management Pty Ltd v Sydney City Council at 84. 22 In my opinion, for these reasons, the council resolution of 19 December 2007 was not a consent within the meaning of s 80(1) and the purported development consent and Notice of Determination of 21 January 2008 are invalid. Third challenge: climate change and coastal erosion 23 The applicant submits that the development consent is invalid because the council failed to take into consideration the principles of ESD, in particular the principles of intergenerational equity and the precautionary principle. More particularly, the applicant submits that the council failed to take into account or assess climate change induced coastal erosion. The applicant submits that the council made findings in that regard without any evidence or probative evidence to support them. The applicant submits that it was mandatory for the council to consider, but the council did not consider properly or at all, certain documents that indicated that the rate of coastal erosion had increased to about five metres [T 10/12/08 p 27.33] per annum from less than one metre [As subs say 0.3m at [90], T 10/12/08 at 29.3 say 0.66m] per annum on which the council's 100 year coastal impact line, behind which the proposed dwelling is to be built, was based. The applicant submits that the council was bound either to refuse the development application or to defer consideration of the application until receipt of the coastal impact study that the council was in the process of commissioning. This submission seeks to invoke the exception to the general rule that a decision maker is not obliged to obtain further information unless it is obvious to the decision maker at the time of making the decision that there is further information which is readily available and centrally relevant: Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172 at [111] per Preston J. 24 The present case concerns a purported development consent under Part 4 of the EPA Act. In that context, s 79C mandates that a council take into account the public interest when determining whether to grant development consent. The public interest includes the principles of ESD: Walker v Minister for Planning [2007] NSWLEC 741, (2007) 157 LGERA 124 at [77] where the authorities are collected; on appeal Minister for Planning v Walker [2008] NSWCA 224, (2008) 161 LGERA 423 at [42] - [43].

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(b) it is mandatory, that is, it is a condition of validity, that the Minister consider the public interest when determining a concept plan approval application under Part 3A: at [39] - [40]. That is because it is so central to the task of a Minister fulfilling functions under a statute like the EPA Act, and there is some confirmation of this from cl 8B of the Environmental Planning and Assessment Regulation 2000, s 79C of the EPA Act, and s 39(4) of the Land and Environment Court Act 1979 which requires this Court to have regard to the public interest when dealing with appeals under ss 75L and 75Q of the EPA Act. However, the Court of Appeal held that the public interest here does not embrace ESD because encouragement of ESD is only one of the objectives of the EPA Act : at [52] - [56]. Although "good decision-making" would involve the Minister taking into account whether any objects of the EPA Act were relevant and taking into account those that were relevant, failure to do so would not make the decision void: at [55]. Consequently, my decision and the similar decision in relation to Part 3A in Gray v Minister for Planning [2006] NSWLEC 720, (2006) 152 LGERA 258 were wrong: at [51] - [55]. 27 The majority (Hodgson JA, Campbell JA agreeing, Bell JA expressing no view) then held, at [56]: "However, I do suggest that the principles of ESD are likely to come to be seen as so plainly an element of the public interest, in relation to most if not all decisions, that failure to consider them will become strong evidence of failure to consider the public interest and/or to act bona fide in the exercise of powers granted to the Minister, and thus become capable of avoiding decisions. It was not suggested that this was already the situation at the time when the Minister's decision was made in this case, so that the decision in this case could be avoided on that basis; and I would not so conclude." 28 This is a timing point. As I understand it, if the concept plan approval in Walker had not been given in 2006 but at some later time, there would be a strong prospect that failure to consider the principles of ESD would avoid the decision because of a growing public perception that ESD is plainly an element of the public interest. It appears that the burgeoning global ESD and climate change scientific and legal developments prior to the 2006 concept plan approval, which I surveyed in my judgment in Walker, were insufficient to persuade the majority of the Court of Appeal, as they had persuaded me, that that time was at hand when the 2006 concept plan approval was given. Earlier Preston J, the Chief Judge of this Court, had said in his article, "The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific" (2005) 9 Asia Pacific Journal of Environmental Law 109 at 211: "It is clear that the time for sustainable development has come, and it is essential that individual judges and national judiciaries seize the opportunity". 29 The majority in Walker agreed that the Minister had failed to consider the principles of ESD: at [59] - [60]. They spelt out what that consideration would require, at [60]:

[96]

At the meeting in your offices in Newcastle on the 23rd August, 2005, the issue of coastal erosion in the vicinity of Lewis Street, Old Bar was discussed. It was noted that a Coastline Management Plan had been completed for this area, which was adopted by Council on October, 1990. This plan has subsequently been used by Council when considering development proposals in the area. It was also noted that significant erosion of the dune area in front of properties at Lewis Street had occurred during recent storm events. During the mid 1990's the State Government's then Department of Land & Water Conservation undertook a photogrammetric analysis of the coastline of Greater Taree City Council from Wallabi Point in the south, and northwards to include the beach area on Mitchells Island. My recollection of the interpretation of the results was that these beaches were eroding at a rate of around 0.5 m per year for the previous 50 years. There is some question now as to whether this rate has increased in recent times. These issues have recently been discussed in Council's Estuary and Coastline Management Committee, and it is requested that your Department update the photogrammetric work such that the Committee can consider current, and future rates of erosion, and make a determination on whether the 1990 Coastline Management Plan needs to be reviewed. Member of the Committee have also taken a keen interest in the coastal erosion that is occurring on Mitchells Island, and would request that the updated photogrammetric analysis include this area, particularly considering the existing development at Manning Point and the sewage treatment works that are located behind the dune in this area." 46 On 11 August 2006 a Mr Ross Keys wrote to the council general manager, about the rate of erosion at Old Bar [Ex A tab 20]: "I am writing to you to try and gain some help with the erosion that is taking place in front of my homes at 34-36 Lewis St Old Bar. Since my purchase in 2000 no less than 16 metres of my front lawn has disappeared into the ocean with as of today's date only approx 7 metres left to the front of one of the homes. My neighbour to the south Mr J. Conklin has only 5m to his home. Something needs to be done now. At high tide the public has to trespass onto my property just to walk from Wallabi Pt to Old Bar. The water is so close to the homes it has effectively cut the beach in 2 with private property on both sides of me having front boundaries that extend down onto the beach into the surf. It is now a critical matter to have remedial works undertaken and I believe council should accept responsibility for the protection of the coastline and properties that front the ocean. I have tried on several occasions to have council and Dept Lands allow certain measures to be undertaken to prevent further loss of sand but I seem to be fighting against opposition who does not want the problem solved. I known council has implemented a 100yr impact line policy but what happens if the ocean doesn't agree with it and decides to attack homes built behind the line in 1, 2, 5 or 50 years? Do you do nothing just like now?" 47 On 27 September 2006 the council lodged an application with the Department of Natural Resources expressing interest in financial assistance for a review of its coastal management program.

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In reviewing the CMP it would appear that one of the principles was to remove any existing development forward of the one hundred year coastal impact line. This development seeks to do that if this application is approved. The existing dwelling forward of the one hundred year coastal impact line is to be demolished and removed." 57 On 12 December 2007 the council Planning Committee inspected the Property and then met to consider the development application. They were armed with a report from Mr Boyce and other documents which he had provided to them, including a copy of the development application, maps, plans, objections and submissions. At the site inspection Mr Aldous and his planning consultant, Mr Tony Fish, were present and addressed the councillors. Those present inspected the plans and elevations of the proposed development. Councillors asked questions about the height and layout. Mr Boyce said that the proposed height was RL 12.5AHD, which is approximately 7.5 metres above natural ground level and that the maximum height allowed by the development control plan was 8.5 metres. Mr Boyce spoke for approximately 10 minutes outlining his report, including addressing the topics of coastal dune impact/erosion, views and other issues under the development control plan. On the question of view impacts, Mr Boyce said that the objection of Mr Aldous was comprehensive and predominantly dealt with his concerns regarding continuing coastal erosion, but also with potential view loss. He pointed to Mr Aldous' property. Mr Aldous spoke on the topic of coastal erosion and noted that he had spent a great deal of time preparing his submission on coastal erosion. Mr Aldous asked whether his submission and the view loss mentioned in his submission had been considered. The Mayor said councillors read all submissions and consider all issues raised in them. 58 Mr Fish and Mr Aldous also addressed the Planning Committee meeting. Mr Aldous said, among other things, that he had seen 20 to 30 metres of land disappear in the five years that he had lived there. Mr Fish's address to the meeting included the following: "A significant 60 per cent of dwellings located in Queensland and New South Wales were potentially at risk from long-term sea level rise and large storm surges.

[138]

Mapping should be prepared for the estimate increases in sea level, which has already begun by Council." 66 The minutes of the council meeting of 19 December 2007 have been set out at [8] above. 67 In addition to Mr Boyce's two reports, a number of documents were before the council at its meeting of 19 December 2007, including objectors' letters, letters of response from the proponent's planning consultant (Eastern Solar Design) and lawyers, a newspaper article on global warming induced rising sea levels and erosion, a newspaper article on the erosion problem at Old Bar Beach, and photographs supplied by Mr Aldous. Two of the objectors' letters were from Mr Aldous. One stated that: "50-60 metres of beach erosion had occurred on the land since 1976, with 25-30 metres of this occurring in the past few years or at the very least, since the 1996 induced 1 in 100 year line. Ongoing erosion is occurring every day". Another letter from Mr Aldous before the council was very similar to his letter referred to at [62] above, although it omitted reference to the land lost in the last three years and the statement that the existing home should be vacated immediately. 68 At the council meeting on 19 December 2007 all councillors who attended the site inspection and the Planning Committee meeting were present, as well as two other councillors. Mr Aldous and his planning consultant, Mr Fish, spoke in opposition to the development and said (among other things) that the council should consider the impact of climate change and sea level rises on the coastline. Mr Fish said they understood that council discussions with the government department suggested that they still believed that the 1996 coastal impact line was relevant, and Mr Fish suggested that the department should put that advice in writing. 69 By letter written on 3 January 2008, but erroneously dated 3 January 2007, addressed to the Department of Environment Conservation and Climate, the council's Director Planning and Building stated: "I am writing in regard to a Council policy which has previously been developed based on the advice of relevant government agencies to identify appropriate planning controls for development in the Old Bar area. Council has recently considered new development in the area affected by coastal recession and is concerned about the potential impacts of climate change on beach recession rates. We are therefore keen to obtain a current opinion from the Government in regard to the suitability or otherwise of our development policies in this locality.

[191]

"It is apparent that the scheme commences with a single consent affected by some defect. Instead of declaring that consent invalid, it may be suspended on terms imposed by the Court. Once the terms have been satisfied the consent authority may decide whether: - (i) to revoke the suspended consent (s 103(2)), or (ii) any alteration to the consent is required having regard to the terms and matters arising in the course of complying with the terms (s 103(3)). If the consent authority does not revoke the consent or consider any alteration is required then the consent may become operative only by the making of orders and declaration under s 25C(1). Such a consent operates from the date of the original grant of consent unless the Court otherwise orders (s 104(1)). If the consent authority does not revoke the consent but does consider an alteration is required then the consent may be revoked and a new consent regranted in accordance with s 103(3). Such a regrant is protected from any requirement for preliminary steps to be taken other than steps required to comply with the terms of the orders under s 25B. The language of s 25B(1)(b) (which refers to validating the consent whether without alterations or on being regranted with alterations), the cumulative declarations and order in s 25C(2), and the provisions of s 104(2) disclose that a regranted consent takes effect as a consequence of the Court exercising its functions under s 25C(2). As Stockland submitted, the scheme treats suspended and regranted consents the same. Differences in descriptions apparent from comparing s 25C(1)(b) and s 25C(2)(b) and s 104(1) and s 104(2) are not material to this issue. It would be odd if a consent authority would be able to avoid the Court's supervisory role merely by making some alteration to the consent. Section 104(2)(b), moreover, is clear and must be taken to mean what it says. These considerations also confirm the difficulty with an alternative submission made on behalf of the Action Group that a declaration under s 25C(2)(a) (that the terms have been complied with) would be sufficient of itself to render the regranted consent operative." 96 The only determination which leads me to contemplate a declaration of invalidity is that in relation to the council resolution and the Notice of Determination (the first and second challenges) on which the applicant has succeeded. The council submits that a s 25B order is appropriate because (a) the nature of the conditions intended to be imposed is now clear and certain from the Notice of Determination; (b) the only procedural glitch was not having those conditions prepared prior to the council's final determination; and (c) the simple expedient may be adopted of requiring the council to examine those conditions and adopt them formally by further resolution.

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99 I would respectfully raise two difficulties with that construction in relation to s 79C, which may suggest that Hodgson JA's construction that s 25B is concerned with rectification of technical breaches is preferable, or, alternatively, that as a matter of discretion it is generally inappropriate to make a s 25B order that a council consider a s 79C matter. First, s 25B(1)(b) only permits an order specifying terms compliance with which "will" validate the earlier consent. Such terms should, I think, identify steps which have not been taken, which could appropriately be taken, and which, if taken, "will" result in validity. If a council, in granting development consent, has failed to consider a mandatory relevant s 79C matter when purporting to grant development consent, it cannot be said that an order that it now do so "will" validate that consent because, on consideration of that matter, which must then be weighed and balanced against all other matters relevant to the council's consideration, the council might decide to refuse consent. Secondly, the construction that s 25B authorises a term requiring consideration of a s 79C matter seems to conflict with the requirement of s 79C that "in" determining a development application a consent authority shall take into consideration the relevant matters specified therein. There is longstanding authority in relation to the former provision equivalent to s 79C (s 90(1)) that: "The legislative policy is to require, as a condition of validity of the decision, that the environmental questions be taken into consideration at the time the development is approved": Parramatta City Council v Hale (1982) 47 LGRA 319 (CA) at 344 per Moffitt J. A s 25B order purporting to impose a validating term that a council consider a relevant s 79C matter, would require the matter to be taken into consideration not at the earlier time that the consent referred to in s 25B had been purportedly but invalidly granted but later, pursuant to the order. That does not meet the requirement of s 79C that the consent authority take into consideration the relevant matters specified therein "in" determining the development application.

Aldous v Greater Taree City Council

At a glance

Court

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Judgment (202 paragraphs)

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Cases Cited (44)

Cited By (23)