87 An important factor identified in Timbarra at [65], Enfield (referred to as a precondition to a decisioni), and Pallas Newco at [46] as indicative of whether a question of jurisdictional fact arises is whether the fact is preliminary to the exercise of a statutory power or is to be considered as part of a decision-making process. If it is then it is more likely to be an objective fact which is jurisdictional. A fact arising in the course of a decision-making process is less likely to be. The principles in Pallas Newco emphasise that contextual indicators in the legislation are important (also as stated in Timbarra at [44]). The greater the extent of fact and degree required to be determined is suggestive that is a matter for a decision-maker rather than an error giving rise to a jurisdictional issue, and the level of inconvenience caused if a matter is a jurisdictional fact so that a consent valid on its face cannot be relied upon.
88 In terms of the legislative scheme in the EP&A Act and Regulation concerning the identification of designated development, in which scheme cl 35 is found, I note that designated development is significant in terms of the public participation processes required under the EP&A Act (s 79 EP&A Act and the Regulation) and the requirement to provide an EIS as part of the assessment process (s 78A(8)(c) EP&A Act and the Regulation). Third party appeal rights also arise for those who object within a specified time frame to the development. Clause 4 of the Regulation, made pursuant to s 77A of the EP&A Act states that designated development is declared to be described in Pt 1 Sch 3 unless declared not to be in Pt 2 Sch 3. Part 1 Sch 3 identifies various categories and descriptions of those categories. There is no reference in cl 4 to any subjective criterion or the formation of an opinion of consent authority as to whether development is designated. The wording of cl 4 given the scheme of the Act in relation to designated development suggests a decision under that clause is one of jurisdictional fact.
89 Given the importance of determining whether a proposed development is designated development under the scheme of the EP&A Act outlined above the opinion required to be formed by the Council under cl 35 is significant. The formation of that opinion is a precondition to the exercise of statutory power in relation to the granting of development consent. The factors identified in Pallas Newco and Timbarra and as applied in Lesnewski suggest that whether the Council has formed the opinion is a jurisdictional issue which the Court can determine. Where however legislation refers to the formation of an opinion by the consent authority there is a likelihood that the substance of the opinion is not a jurisdictional fact which enables the court to form its own opinion (per Timbarra at [64]). Clause 35 refers to the consent authority forming its opinion as to whether the additions and alterations do not significantly increase the environmental impacts of the total development. Clause 36 identifies numerous matters which a Council must consider in determining if a development is designated in terms of the environmental impact of the additions and alterations. Those matters suggest that local and subjective factors need to be considered by knowledgeable Councillors. Therefore, contrary to the Applicants' arguments these factors suggest that the opinion as to whether the proposed alterations and additions have a significant environmental impact is not a jurisdictional fact.
90 In terms of the negative factors identified in Pallas Newco, I consider cl 35 reflects a Parliamentary intention that once the opinion has been formed as to environmental significance by the Council whether that opinion is correct is an error within jurisdiction, rather than an error going to jurisdiction. As stated above in relation to the subjective nature of the opinion which the Council must form, local knowledge and expertise will be relevant to the assessment of the factors in cl 36 in determining whether there is or is not a significant environmental impact, a further negative factor as identified in Pallas Newco. There is also a degree of inconvenience whereby the incorrect assessment by a Council that an application for alterations and additions which does not result in significant environmental impact giving rise to a consent is valid on its face is subject to challenge. In conclusion therefore, the jurisdictional fact requiring determination is whether the Council did form its own opinion about the significance of the environmental impact of the proposed alterations and additions.
91 There have been differing submissions on what the opinion to be formed in cl 35 required. The Applicants submitted the Council had to form the opinion about the impact of the development in the form in which it is being undertaken at the time of the assessment and not the potential impact if the activities were undertaken to the maximum level which an existing development would sanction. The Second Respondent submitted the Council had to consider the differences between the 1978 consent fully exploited and the proposal the subject of the September 2007 amendment application. Clause 35 refers to the comparison being with the "existing or approved development". My preliminary view is that I agree with the Second Respondent's submission that the relevant comparison is with the approved development which in this case is the 1978 consent as fully exploited. The amendment to the development application sought is in relation to the approved 1978 consent, and hence is the relevant comparison under cl 35. This matter was dealt with briefly in submissions and neither party provided any authorities to support their case. This issue is not decisive in this case because of findings I make on other grounds of challenge hence I consider my view is preliminary and the issue warrants further consideration.
92 I should also note that I do not consider there is any basis for considering the evidence of the planners Mr Brady and Mr Rowan on the issue of whether the opinion of the Council was formed. Their evidence on environmental significance is otherwise irrelevant in light of my finding on jurisdictional fact. The limited basis on which expert evidence can be called in judicial review proceedings has been considered by me in Woolworths Ltd v Wyong Shire Council (No 2) [2005] NSWLEC 607 inter alia at [165]-[168] referring to King v Great Lakes Council (1985) 58 LGRA 366 at 371, ULV Pty Ltd v Scott (1990) 19 NSWLR 190 at 205 and Caldera Environment Centre Inc v Tweed Shire Council [1992] NSWLEC 82. None of the circumstances identified in Caldera as suggestive that expert evidence could be relevant arise on the issues now before me.
(ii) whether formation of opinion
93 The next issue to arise for determination is whether the Council formed the necessary opinion required by cl 35 in light of the matters referred to in cl 36. There is no specific evidence of whether the Council did so apart from the fact that it determined to grant development consent on 20 November 2007. The Council is not required under the EP&A Act to provide reasons for its decision to grant consent. It is therefore necessary to consider the evidence of what was before the Council to determine if the formation of such an opinion can be inferred. The Council has filed a submitting appearance in this matter so that all the evidence of the Council's decision-making process is what appears in the Council's file which, I am told, is largely in evidence. There is no evidence from either a Council officer or a Councillor, as has been tendered in some judicial review proceedings, to cast further light on the nature of the Council's decision-making process. The documents tendered in the proceedings identify those documents that were on the Council's file generally. The specific documents before the Council at its meeting on 20 November 2007 when development consent was granted are also identified. No draft conditions of consent which were contained in the Notice of Determination issued later were before the Council on 20 November 2007. They were not considered by the Council committee's report before the Council when it determined to grant development consent.
94 The Applicants seek to challenge the Council's decision to grant development consent and bear the onus of proof of error on the Council's part on the civil standard. Here that is the onus of establishing that the relevant opinion required by cl 35 was not formed. How that onus has to be discharged in this matter given that all that is before the Court is the Council file raises interesting evidentiary issues. In this case there is no evidence about what was the usual or actual arrangements concerning the availability of and access to the Council's files by the Councillors. The most usual arrangement would presumably be that these are available but there is no evidence on that matter. In terms of the documents as found on the Council file, the documents that were before the Councillors at the meeting of 21 August 2007 (when the May 2007 application was considered and deferred) and 20 November 2007 (when the September 2007 application was approved) did not include all the documents on the Council file on which the Second Respondent relies to demonstrate the Council did have sufficient material before it to form the necessary opinion under cl 35.
95 At the 21 August 2007 Council meeting to determine the May 2007 application, the Council had before it the report of the Council committee dated 14 August 2007 which recommended refusal of the May 2007 application, the relevant plans provided by the Second Respondent, the Council officer's report being the s 79C evaluation, the three submissions by way of objection and the Second Respondent's response to the objections. The Council committee's report stated that more information was needed in order to assess several aspects of the proposal including the impacts of the plant on the surrounding natural environment, based in part on the opinion of the officer that the proposal was for designated development. While the Council committee believed the proposed new wastewater treatment facility had been designed to a level appropriate for consideration as part of an EIS, the same level of detail was needed on the issues of flora and fauna assessment, noise, dust and traffic generation such as would be provided by an EIS. The Council committee believed an EIS was required to accompany the development application. The preferred option recommended was refusal of the development application because it was for designated development and had not been properly made. The Council committee's report stated that the proposal is not consistent with the primary aim of the 1(a) Rural (Agricultural Protection) Zone to protect, reserve and encourage the use of land in this zone for agriculture and uses compatible with agriculture. There is potential for the proposed concrete batching plant to have an adverse impact on the wetland areas of the site and the receiving waters of James Creek. The new wastewater management system complies with the relevant guidelines for environmental best practice guidelines for concreting contractors. Little excavation of the site is needed. The public interest is best served if the proposal is dealt with as designated development and an EIS prepared.
96 At the 20 November 2007 Council meeting to determine the September 2007 application, the Council had before it the report of the Council committee dated 13 November 2007 which recommended refusal of the September 2007 application and referred to the s 79C evaluation, the three submissions by way of objection from third parties and the Second Respondent's response to the objections. The amended application, the supporting documents accompanying the September 2007 application (the amended SEE and a plan of the proposed batching plant structure) and the Water Cycle Management Study were not referred to as documents before the councillors in the Council meeting minutes. There is no evidence that these documents which were essential to enable the opinion under cl 35 to be formed in light of the matters referred to in cl 36 of the Regulation were before the Council on that occasion.
97 The Second Respondent has relied on the presumption that all the documents on the Council's file are presumed to be read by the Councillors, per Ipp JA in Schroders. Schroders was an appeal from a refusal of Pearlman J to declare a development consent issued by a council invalid. The relevant LEP required that the Council be satisfied that the development was consistent with objectives of the zone. The appellant argued, inter alia, that the council failed to properly form this opinion. A consultant retained by the council had sought legal advice which found that the proposal was consistent with the zone objectives. This advice was reported by the consultant to the council. Although there was no direct evidence that the councillors had each individually read the legal advice as reported in the consultant's report, Ipp AJA (Spigelman CJ and Sheller JA agreeing) held it was appropriate to apply the inference that "material in the possession of the Council…be treated as being in the possession of Councillors" [67].
98 In Schroders the evidence before the Court was that the Councillors had before them a relevant report on the issue of consistency, that issue had been referred to on numerous occasions during the Council's assessment process and evidence of a Council officer who was responsible for keeping files. The prima facie presumption was that the Councillors had read the opinion on the Council file. The challenger bore the onus of rebutting that and failed to do so in that case.
99 I applied that presumption in Gee v Council of the City of Sydney (2004) 137 LGERA 157, at [18]-[22], in light of the evidence of the Council's decision-making processes in that matter. That evidence included an affidavit of the mayor of the relevant Council as to the general process for the consideration of development applications by councillors and the specific process followed in relation to the development consent under challenge. In Centro, another case where a Council's collegiate decision-making was subject to judicial review, McClellan J held that the Council had failed to properly consider a mandatory relevant consideration after the Court considered all the documents which were before the Council in relation to the assessment of traffic noise. Evidence included an affidavit of a Council officer stating what she had done about the issue. Her knowledge was not made known to the councillors however so that his Honour held that they did not consider a mandatory relevant matter. There was no reference to the presumption identified by the Court of Appeal in Schroders. Each matter must of course be decided on its own facts so that I should note the circumstances in this matter vary from those in Schroders and Gee in terms of the history of the matter before the Council.
100 The presumption of regularity in relation to Council decision-making (a more general presumption) was considered most recently by the Court of Appeal in GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256 by Basten JA (Bell JA and Young CJ in Eq concurring) in the context of whether a particular provision in a draft LEP, which was required to be considered under s 79C of the EPA Act, had been considered by the Councillors. As his Honour noted in obiter at [83] (below) such presumptions can be rebutted by evidence before the Court.
83. Although it may do more, it is no doubt correct, as was argued in Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7, that one aspect of such a presumption is to identify the person upon whom lies the burden of persuasion: cf Hill at [52]. Thus a party challenging the validity of an exercise of statutory authority must demonstrate, by appropriate evidence, some basis for a finding of invalidity. Furthermore, that party must affirmatively satisfy the Court that there has, for example, been a failure to comply with some necessary precondition to the exercise of the power: see Lane Cove Council at [31]. What is less clear from the authorities is what role, if any, the statutory presumption has once there is before the Court some "evidence to the contrary" and the equivalent position under the general law principle. Thus, in the present case, it would be open to the Court to infer that the Council did not give more than passing consideration to an important question, namely non-compliance with the draft LEP, for two reasons. The first was that the nature and extent of non-compliance was not drawn to their attention in any coherent fashion, so as to allow an appropriate judgment to be made., The second was that consent was granted on a basis which appeared to impose on the applicant the need to give consideration to compliance with the draft LEP.
101 The Applicants have the onus of demonstrating that there is invalidity in the Council's decision-making processes in granting development consent to the September 2007 application. In relation to the documents in evidence from the Council file that onus is discharged because the inference arises from what was (and was not) before the Council that no material was before the Council when it decided to grant development consent on 20 November 2007 to enable the necessary opinion under cl 35 to be formed, taking into account the numerous matters referred to in cl 36 of the Regulation.
102 As there is no evidence that the Councillors were provided with the relevant documents (see par 96) concerning the environmental impact of the September 2007 application compared to what was approved in 1978 for the meeting on 20 November 2007, I do not consider that there is evidence which can give rise to an inference that the necessary opinion under cl 35 was formed by the councillors. This view is reinforced by the Applicant's submission that the lack of conditions of consent meant that the Council could not have formed the necessary conclusions as to environmental significance of the proposed development in terms of the factors referred to in cl 36(c) of the Regulation, which refers to the mitigation of environmental impacts. Without knowing what conditions would be imposed the Council could not weigh up the environmental significance of the proposal compared to what had been conducted previously. Clause 36 specifies a number of matters that must be considered by a council in arriving at their opinion as required under cl 35. A number of the matters considered in the council officer and committee's report highlight that the matters requiring assessment under cl 36 had not been undertaken. The only area recognised as adequate in terms of assessment as referred to by the council officer's report on the May 2007 application considered by the Council in August 2007 concerned the waste water management system. The report before the Council in November 2007 was to similar effect. The evidence of the Second Respondent that he sent a letter to four of the councillors from his solicitor concerning the operation of cl 35 and cl 36 before the meeting on 20 November 2007 does not assist the Court in finding that the inference arises from the documents in evidence.
103 Whether material on a council file can be considered as before the councillors, as held in Schroders, was not referred to in GPT. In this case I am considering whether the Council has formed an opinion under cl 35 the existence of which opinion is a jurisdictional fact about an important matter under the EPA Act of whether the amended development application is to be considered as designated development. This case is considering a different issue to that in Gee, Schroders and Centro which were judicial review proceedings determining, inter alia, whether relevant mandatory considerations had been taken into account by Councillors as a whole exercising their planning functions. There was more evidence in those cases of the decision making processes of the Council. The formation of the opinion in cl 35 goes to the jurisdiction of the Council to further determine the September 2007 application other than as designated development. I consider that the reliance by the Second Respondent on a presumption that the councillors have read the file in the absence of any evidence of what the Council did apart from what appears on the file does not overcome by that presumption the inference to the contrary.
104 The Applicants have discharged the onus of establishing that the Council therefore failed to form the requisite opinion under cl 35 and that error gives rise to invalidity of the consent as the formation of that opinion was necessary to enable the September 2007 development application to be considered as other than designated development. In the absence of that opinion the development application was for designated development as the development was otherwise within the description of concrete works in cl 14 Sch 3 of the Regulation, and the necessary processes required by the EP&A Act were not followed in the granting of development consent. This ground of challenge is successful. That finding can give rise to a declaration that the consent is invalid, as found in cases such as R v Connell, Weal and Currey. The issue therefore arises once again of whether an order can or should be made under s 25B of the Court Act.
(iii) whether 1978 consent spent (Cemex)
105 Cemex argued that the 1978 consent was spent and could not therefore be the subject of an application for alterations and additions such as the September 2007 application. The concept of a consent being "spent" I do not consider arises under the EP&A Act once a development consent has been substantially commenced. The 1978 consent was granted under the Local Government Act 1919 and there is no issue raised suggesting that it could not continue with the passage of the EPA Act in 1979. The authorities relied on by Cemex are Pioneer Aggregates, a House of Lords decision that was referred to in Nehme in the Court of Appeal by Handley JA (Meagher and Beazley JJA concurring). In Nehme the issue was whether there had been abandonment of existing use rights, a quite different circumstance to this case. Handley JA held that a consent could not be extinguished by abandonment at [24]. He cited Pioneer Aggregates in support of this finding at [22]. This aspect of the case does not support the submission of Cemex that the 1978 development consent was spent and could not be relied upon by the Second Respondent as the basis for the September 2007 application. Handley J in Nehme otherwise held that a consent could not be extended beyond the life of the planning instrument it was granted under. In this case the 1978 consent was granted under the Local Government Act 1913 and continued to operate after the EP&A Act came into force in 1979. Nehme is not addressing that circumstance. The fact that the legislative regime changed, with appropriate transitional provisions, does not result in extinguishment or abandonment of that consent.
106 Further, the fact that an application for what would have been building approval under the Local Government Act 1913 as stated in condition 3 of the 1978 consent must now be sought under the EP&A Act does not change the status of the 1978 development consent. It is simply the case that a different statutory mechanism is required in order to give effect to condition 3. While Cemex has also relied on an alleged non compliance with condition 4 of the 1978 consent in relation to the previously constructed wetlands I do not consider that submission has any relevance to the argument of whether that consent is spent.
107 It is also clear from the evidence of Mr Hall that the 1978 development consent was being used from the time of the purchase by him of the business Big River Readymix Concrete in 1979 or 1980 up to 1989 when the silo was moved elsewhere. It was used thereafter until 2005 for storage of material with the filling and emptying of bins. Mr Cameron's evidence is that he leased the James Creek site to Mr Hall form 1977 to June 2005 and it was used for that period for the activities being conducted on the site by Mr Hall. Mr Lawry's affidavit evidence (par 17(v)) is further support for the type of activity taking place on the site as he was employed by Mr Hall between 1988 and 2004 and worked there. This evidence suggests that the evidence of Mr Peter that the James Creek site was not used after Big River Concrete moved to Yamba in 1989 is not correct. The evidence of Mr Avard (par 17(iii)) of what is required to continue the concrete batching activity on the site in the absence of the current development consent being implemented, that is no new silo, suggests the activity of concrete batching can be easily recommenced. This ground of challenge fails.
Issue 3 - The development application was a wholly new application rather than an amended application for development consent (Boral/Cemex)
108 As identified in par 76 above, whether a development application is for amendments or alterations is an issue that arises in this case in relation to cl 55 of the Regulation. A separate ground of challenge is raised by both Applicants that the September 2007 application was not for alterations and additions but rather was for a new development. Consequently the September 2007 DA was not able to be accepted under cl 55 of the Regulation and could not be validly approved by the Council.