28 The decision whether to make an order under s 25B must depend on the facts of each case. In this case the failure is not in relation to a s 79C assessment, which was before the Council in the form of a Council officer's report (dated 23 July 2007). I will consider firstly the invalidity which arises because I held that the Council failed to form the opinion required by cl 35 of Sch 3 to the Regulation in relation to the alterations and additions to the amended DA so that that issue remains to be determined by the Council. As found at [102] in Boral No 1 there was no material on the Council's file which could give rise to an inference that the opinion had been formed. Matters the Council is required to consider in forming the opinion in cl 35 are specified in cl 36 in some detail. Clause 36 of Sch 3 to the Regulation provides:
36 Factors to be taken into consideration
In forming its opinion as to whether or not development is designated development, a consent authority is to consider:
(a) the impact of the existing development having regard to factors including:
(i) previous environmental management performance, including compliance with the conditions of any consents, licences, leases or authorisations by a public authority and compliance with any relevant codes of practice, and
(ii) rehabilitation or restoration of any disturbed land, and
(iii) the number and nature of all past changes and their cumulative effects, and
(b) the likely impact of the proposed alterations or additions having regard to factors including:
(i) the scale, character or nature of the proposal in relation to the development, and
(ii) the existing vegetation, air, noise and water quality, scenic character and special features of the land on which the development is or is to be carried out and the surrounding locality, and
(iii) the degree to which the potential environmental impacts can be predicted with adequate certainty, and
(iv) the capacity of the receiving environment to accommodate changes in environmental impacts, and
(c) any proposals:
(i) to mitigate the environmental impacts and manage any residual risk, and
(ii) to facilitate compliance with relevant standards, codes of practice or guidelines published by the Department or other public authorities.
29 One matter I took into account in Boral No 1 as part of my analysis of whether the requisite opinion under cl 35 had been formed was that there were no conditions of consent before the Council in September 2007, when it granted development consent, which would have enabled it to weigh up the environmental significance of the proposal as required under cl 36 compared to the activities conducted previously pursuant to the 1978 development consent (at [102], see also the chronology set out at [3] in Boral No 1). I also take into account that the only matter recognised by the Council officer's report (prepared in relation to the earlier May 2007 DA) as adequate under the s 79C assessment was the proposed waste water system. The DA was subsequently amended and then considered at the September 2007 meeting when development consent was granted. These factors are relevant to my consideration of whether an order under s 25B ought be made as they inform an understanding of the extent of the further assessment the Council would have to undertake in relation to cl 35 of Sch 3 of the Regulation if an order under s 25B is made.
30 I also agree with the submissions of Boral at par 16(ii) that the formation of the opinion was not a procedural step or component of an otherwise valid environmental assessment under s 79C. The formation of that preliminary step is necessary to inform the nature of the assessment required under s 79C. To the extent there was an assessment under s 79C that assessment was not made in the context of the formation of the necessary opinion under cl 35 that the amended DA was not designated development. I do not consider the formation of the opinion under cl 35 is to be considered as separate from the s 79C evaluation so that the existing s 79C assessment can simply stand regardless of what opinion is reached in relation to cl 35 if an order under s 25B were to be made. That is another relevant factor to consider in determining whether an order ought be made.
31 Where the defect in the decision-making process which may be the subject of a s 25B order involves the assessment of subjective matters about which minds may differ and which may result in a different outcome from that reached previously by a council, as in this case, such an order does not necessarily result in the breach the subject of these proceedings being validated. I agree with Biscoe J's observations to that effect in Aldous in the context of the consideration of s 79C matters and as observed more generally by Sheahan J in Clark v Wollongong City Council (No 2). The breach in relation to cl 35 of Sch 3 is not a technical one but requires a substantive assessment to be undertaken by the Council. I therefore consider I should exercise my discretion by refusing to make an order under s 25B in relation to terms relating to the formation of the opinion required by cl 35 of Sch 3 to the Regulation. There is no utility in making an order under s 25B in relation to the public advertisement of the amended DA in accordance with the DCP in light of this finding.