Conclusion
65 In my opinion the challenges by Belmorgan to the primary judge's decision declaring the Consent void and of no effect should be rejected. It follows that the appeal should be dismissed with costs.
66 BASTEN JA: The issue which arises on this appeal is whether the consent given to the Appellant's development application on 5 August 2005 involved a valid exercise of statutory power. The Wollongong City Council, as the relevant consent authority, was required to determine the development application either -by granting the consent, conditionally or unconditionally, or refusing consent: Environmental Planning and Assessment Act 1979 (NSW) ("the EP&A Act), s 80(1). It was not disputed that, in order validly to determine the application, the consent authority was required "to take into consideration" such of the matters set out in s 79C as were "of relevance to the development the subject of the development application".
67 The Council was not required to determine the application itself: there had been, on 7 April 2004, a resolution, the validity of which was not in question, delegating to the general manager "all of the functions of Council as provided in the Act, subject to any policies and procedures that may be determined from time to time". The reference in that resolution to "the Act" was a reference to the Local Government Act 1993 (NSW) and, although the relevant function was conferred by s 80 of the EP&A Act, it was common ground that that function was within the phrase "as provided in" the Local Government Act, because s 22 of the Local Government Act provides that a Council "has the functions conferred or imposed on it by or under any other Act or law".
68 On 1 August 2005 the application came before the Council with a report identifying three options for the Council's consideration: see at [10] above. The recommendations of the responsible council officer (Mr Zwicker) were not adopted and the resolution passed was that set out at [13*]. Because approval was not recommended, the report did not include appropriate conditions. The Council did not purport to identify those conditions, except for the requirement of a two metre setback, referred to in par 3 of the resolution of 1 August. Otherwise, it resolved to delegate authority to the general manager "to approve" the application.
69 The ultimate approval included 174 conditions, which were not before the Council at its meeting on 1 August. No doubt for this reason, it was common ground that the Council resolution of 1 August did not purport to determine the application in accordance with s 80 of the EP&A Act. In other words, the Council did not exercise that power.
70 If the resolution of 1 August constituted a further delegation of power to the general manager, that was unnecessary and ineffective. The general manager already had power to determine the application pursuant to s 80(1). To describe the resolution of Council on 1 August as an implied repeal of the general delegation, with respect to this application, together with a new conferral of authority to determine it, but only by approving it, with appropriate conditions, requires a rewriting of the resolution with, as will be seen below, several elements of speculation. This approach gave rise to a question, much debated in the proceedings, as to whether a power to act in one way, but not another, was a valid delegation of statutory authority. The preferable understanding of the resolution is that it constituted a direction by the Council to the general manager as to how the power should be exercised, albeit the formulation of conditions was left to the general manager as a matter for exercise of discretion.
71 That gave rise to a further question as to whether such a direction fell within the proviso to the general delegation, namely the conferral of power "subject to any policies and procedures that may be determined from time to time". As a matter of ordinary usage, "policies and procedures" are likely to be understood as matters of general application, and not as matters specific to a particular decision. Putting procedures to one side, defined policies have a legitimate role in administrative decision-making, because they promote the justifiable outcome of treating like cases alike: see Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206 (French and Drummond JJ). In the case of determining development applications under the EP&A Act, such policies may be contained in planning instruments of various kinds, including development control plans: see s 79C(1)(a). However, it was the failure of the development to conform to existing planning policies which led the responsible Council officer to recommend rejection.
72 If an application which did not comply with planning policies were thought to warrant approval, that might have provided at least part of the reason for referral of the application to Council, because, consistently with the terms of the delegation, the general manager might have been constrained to refuse the application.
73 If the Council were to approve the application, it would have been required to give due consideration to the matters set out in s 79C of the EP&A Act and to consider and approve relevant conditions. This, it was common ground, was not done by the Council. However, given the terms of the resolution, and the subsequent directions given by the general manager to Mr Zwicker (set out at [16]-[18] above) it is clear that the general manager did not determine the application on the basis of an independent assessment of the factors set out in s 79C of the EP&A Act. Indeed, I would infer that the report prepared by the responsible officer (Mr Zwicker) was known to and at least tacitly approved by the general manager before it went to Council. From that fact one may draw the inference that had he not been acting subject to direction, the general manager might well have exercised his power to refuse the application. That consideration provides further support for the conclusion that the general manager acted in accordance with what he understood to be the intention of Council, in compliance with the Council resolution of 1 August.
74 However, unless the general delegation was varied, at least by removing the proviso referring to "policies and procedures", or those policies themselves were varied for the purpose of determining this application, the power conferred on the general manager, if properly exercised, may well not have resulted in a valid approval, because the application did not conform to relevant existing policies of the Council. The more straightforward course would have been for Council to remove the constraints imposed by existing policies. But to do that in a proper fashion, the resolution of 1 August 2005 should have done that clearly and expressly and, further, should have identified the policies which were not to be applied to this application. In fact, the resolution did neither. It would be speculation to say that this course was intended; it would be to add a further layer of speculation to say what policies were not to be applied. But even this exercise in reconstruction would fail to assist the Appellant, because the evidence indicated that the general manager did not purport to address the s 79C considerations, unfettered by specific policies, or at all.
75 On the assumption that both the general manager and the Council had power to determine the application (see Bayly v Sydney Municipal Council (1927) 28 SR(NSW) 149 at 152 (Street CJ, Gordon and Ferguson JJ concurring)) the apparent division of responsibility which took place in the present case resulted in neither forming the necessary satisfaction, taking into account the mandatory statutory considerations set out in s 79C of the EP&A Act. The exercise of power therefore miscarried and the application has not been validly determined.
76 I do not think that this reasoning is inconsistent with the approach of Tobias JA, nor, for that matter, with the reasoning of Biscoe J in the Land and Environment Court. However, I would not adopt the passage in the judgment below, quoted above at [28] in which it is said that the consent authority must give "proper, genuine and realistic" consideration to the matters prescribed by s 79C: GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303 at [44]. Biscoe J, in my view correctly, noted the need to apply those epithets cautiously lest they "encourage a slide into impermissible merit review", referring to Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, (2006) 143 LGERA 277 where that risk was noted at [74]-[79]. That caution was reiterated in Azriel v NSW Land and Housing Corporation [2006] NSWCA 372 at [49]-[51].
77 By way of explication, it may be noted that use of the word "proper" may be understood to invoke the requirement that a power can only be used for the purpose or purposes for which it is conferred and not for some extraneous purpose: see, eg, Sydney Municipal Council v Campbell [1925] AC 338 and The Queen v Toohey; Ex parte Northern Land Council (198081) 151 CLR 170 at 232-233 (Aickin J). Similarly, the word "genuine" may be understood to reflect the well-established principle that the decision-maker must undertake his or her function in good faith, a requirement bound up in the concept of "improper purpose", as explained by Aickin J in Ex parte Northern Land Council. Nevertheless, both those obligations are properly related to the exercise of power, rather than some discrete aspect of the exercise, namely taking into account a particular mandatory consideration. The third limb of the trinity, "realistic" finds no ready referent in the language of judicial review.
78 That is not to say that to give grossly inadequate weight to a matter of some importance may not provide a basis for review; however, to qualify as a ground of judicial review, such conduct must satisfy the test of manifest unreasonableness as applied to the exercise of the power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-86) 162 CLR 24 at 41 (Mason J). It is not helpfully reflected in a supposed obligation to give "realistic" consideration to a particular matter.
79 For these reasons, I agree that the appeal should be dismissed with costs.
**********