Boydtown Pty Ltd v Minister for Planning and Public Spaces - [2023] NSWLEC 47 - NSWLEC 2022 case summary — Zoe

NSWNSWLEC

Boydtown Pty Ltd v Minister for Planning and Public Spaces

[2023] NSWLEC 47

Land and Environment Court (NSW)|2022-11-18|Before: Pritchard J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-11-18

Before

Pritchard J

Catchwords

98 ER 969 Boensch v Pascoe (2019) 268 CLR 593
[2019] HCA 49 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Council of the City of Ryde v Azizi (2021) 248 LGERA 204
[2021] NSWCA 165 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213
[2015] NSWCA 213 Kuru v State of New South Wales (2008) 236 CLR 1

Source

Original judgment source is linked above.

Catchwords

98 ER 969 Boensch v Pascoe (2019) 268 CLR 593[2019] HCA 49 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Council of the City of Ryde v Azizi (2021) 248 LGERA 204[2021] NSWCA 165 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213[2015] NSWCA 213 Kuru v State of New South Wales (2008) 236 CLR 1[2008] HCA 26 Lesnewski v Mosman Municipal Council [2005] NSWCA 99(2002) 123 LGERA 367[2016] HCA 37 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Judgment (59 paragraphs)

[1]

Boydtown Pastoral Pty Ltd (Second Applicant) Minister for Planning and Public Spaces (First Respondent) Bega Valley Shire Council (Second Respondent) Secretary, Department of Planning and Environment (Third Respondent) Representation: Counsel: A Galasso SC with J Mack (First and Second Applicants) K Lindemann (First and Third Respondents) A Pearman (Second Respondent) Solicitors: Harris Freidman Lawyers (First and Second Applicants) Department of Planning and Environment, Legal Services (First and Third Respondents) Madison Marcus (Second Respondent) File Number(s): 2021/236704 Publication restriction: Nil

[2]

Judgment Introduction Outcome Proper parties The decisions challenged The Minister's 31 August 2017 Gateway Determination The 19 May 2021 Endorsement Decision Council's 18 August 2021 approval decision Relief sought and grounds of review Relief sought Grounds against the Minister in relation to the Gateway Determination Grounds against the Secretary in relation to the Endorsement Decision Grounds against Council in relation to Council's approval decision Issues for determination As against the Minister As against the Secretary As against Council Statutory framework governing planning proposals and gateway determinations Council's proposed rezoning of the land, and the Lyon Group planning proposal Agreed background to the decisions under review Evidence The Northern Councils E Zone Review: October 2015 Final Recommendations Report The January 2017 Planning Proposal Minister's 31 August 2017 Gateway Determination Minister's 17 August 2018 alteration to the Gateway Determination Council's report on "Application of Zonings to the Boydtown Property" Council's March 2019 Planning Proposal Communications between Mr Tull of Council and Mr Stevens of the Lyon Group in August and September 2019 Mr Tull's summary of the 23 August 2019 meeting between Council and the Lyon Group WSP Boydtown Masterplan: Biodiversity Constraints Assessment Council's January 2021 request for an extension of time to complete the planning proposal Council's May 2021 Planning Proposal Briefing Note to Ms Lees prior to the Endorsement Decision Recommendation to Council prior to its 18 August 2021 meeting Witnesses Mr Stevens Mr Van Bracht Ms Thomson Mr Stevens' second affidavit Ms Lees Issue of leave pursuant to UCPR r 59.10 to commence proceedings out of time challenging the Minister's Gateway Determination Applicable principles Consideration Whether it arises to consider Grounds 1 and 2 against the Minister Whether the Gateway Determination was ultra vires because there was no planning proposal under s 55 sufficient to enliven the Minister's power under s 56(2) (Ground 1) Whether the Minister's Gateway Determination decision was ultra vires because it was incapable of constituting a determination under s 56(2)(a) (Ground 2) Whether Ms Lees failed to take into account relevant considerations in making the Endorsement Decision (Ground 3) Jurisdiction Relevant considerations Matters taken into account Whether Council failed to take into account mandatory relevant considerations in making its approval decision (Ground 4) Whether Council's approval decision was ultra vires for failure to comply with the time requirements of the Gateway Determination (Ground 5) Whether Council's approval decision was ultra vires for denying the applicants procedural fairness (Ground 6) Consideration of the existence of a duty of procedural fairness on the part of Council Disposition of Ground 6 Conclusion Orders

[3]

Introduction

By summons filed on 19 August 2021, Boydtown Pty Ltd and Boydtown Pastoral Pty Ltd (the applicants) commenced judicial review proceedings challenging what are said to be three separate decisions arising from a planning proposal to amend the Bega Valley Local Environmental Plan 2013 (NSW) (BVLEP 2013) to include, zone and apply minimum lot size standards to land at, amongst other places, Boydtown, near Eden on the south coast of New South Wales (the January 2017 Planning Proposal).
On 18 November 2022, the applicants were granted leave to file in Court an amended summons, substituting references in the summons to "plaintiff" and "defendant" to "applicant" and "respondent" (first amended summons).
The applicants own a 670 ha parcel of land in Boydtown (the land). The applicants have engaged with the Minister for Planning and Public Spaces (the Minister), Bega Valley Shire Council (Council), and officers of the Department of Planning and Environment (DPE) since 2017 in relation to the ecological attributes of the land. The applicants contend that the decision-making process has been devoid of critical information, and as such the process has miscarried on critical occasions.
In these Class 4 proceedings commenced on 19 August 2021, the applicants challenge: 1. the decision of the delegate of the Minister made 31 August 2017, purportedly under s 56(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), that an amendment to the BVLEP 2013 to include, zone and apply minimum lot size standards to land at, amongst other places, Boydtown, as detailed in the January 2017 Planning Proposal, should proceed subject to conditions (the Gateway Determination); 2. the decision of "DPE" (through DPE officer Ms Sarah Lees) on 19 May 2021 to endorse an amended planning proposal dated 16 May 2021 (the May 2021 Planning Proposal) in accordance with a condition (condition one) imposed by the Gateway Determination (described in the first amended summons as the Endorsement Decision); and 3. the decision of Council to approve, by resolution on 18 August 2021, the May 2021 Planning Proposal (Council's approval decision).

[5]

Proper parties

The Court raised with the parties how it was said that DPE is an entity capable of being proceeded against as third respondent.
In response, the Minister and DPE (with the applicants not disagreeing) submitted that the proper third respondent was the State of New South Wales in accordance with s 5(1) of the Crown Proceedings Act 1988 (NSW). They submitted as follows (footnotes omitted): The Department of Planning, Industry and Environment (the Department) was established by an administrative arrangements order made by the Governor under s 50D of the Constitution Act (NSW). The establishment of the Department was reflected in Sch 1 of the Government Sector Employment Act 2013 (NSW) (GSE Act), including in the form it appeared as at 19 August 2021 (being the date on which the Summons was filed). The Department is comprised of persons employed by the Government of New South Wales, in service of the Crown, under Part 4 of the GSE Act. The Department is, therefore, in effect an arrangement of persons employed by the government of New South Wales to enable Ministers and statutory officers to exercise their functions, and does not have any legal personality. It follows that the Department is not capable of being sued. The proper third respondent in those circumstances is the State of New South Wales, in accordance with s 5(1) of the Crown Proceedings Act 1988 (NSW), which provides: "Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title 'State of New South Wales' in any competent court." The First and Third Respondents therefore consider that the Department should be replaced by the State of New South Wales as the third respondent. It is respectfully submitted that orders substituting the State of New South Wales for the Department as the third respondent to the proceeding ought be made in chambers prior to the delivery of judgment. The First and Third Respondents are indebted to the Court for bringing this issue to the parties' attention.
The applicants referred to the position of the first and third respondents, and indicated to the Court that they expected to be able to provide a consent position regularising how the third respondent is described, consistent with the submission that the proper respondent is the State of New South Wales by Monday, 3 April 2023.
It was plainly correct that DPE is not an entity capable of being sued in these Class 4 proceedings.
On 4 April 2023, the Court raised with the parties how it was said that in relation to the decision of the DPE officer Ms Lees on 29 May 2021 to endorse the May 2021 Planning Proposal in accordance with condition one of the Gateway Determination, the proper respondent was the State of New South Wales, and how it was said that the Court has jurisdiction in relation to that decision of Ms Lees.
On 14 April 2023, the first and third respondents provided further written submissions noting that "the parties hav[ing] given further consideration to the proper third respondent to the proceeding", the better view was that the "Secretary, Department of Planning and Environment" was the proper third respondent. They submitted that having regard to r 59.3 of the Uniform Civil Procedures Rules 2005 (NSW) (UCPR), the relevant question was who is the "body or person responsible" for the 19 May 2021 Endorsement Decision.
They submitted that the Secretary of the Department of Planning and Environment (the Secretary) is employed under Part 4 of the Government Sector Employment Act 2013 (NSW) (GSE Act) (see s 23(5)), and that for present purposes, the Secretary was employed as the "head" of DPE (s 23(1)), and as the person who exercises the Government's employer functions in respect of other persons employed in the Department: s 25(3)(d) and s 26 of the GSE Act. This includes "all the functions of an employer in respect of employees": s 26(3).
Further, the first and third respondents submitted that Ms Lees was (and is) also employed in the Public Service by the Government of New South Wales under Part 4 of the GSE Act, and more specifically was employed within DPE at the time the Endorsement Decision was made: s 22(1)(a) of the GSE Act. Persons employed under Part 4 of the GSE Act (including the Secretary and Ms Lees) are in service of the Crown: s 20 of the GSE Act. However, they are not emanations of the Crown, and the decisions which they make are not, merely because they are employed in service of the Crown, attributable to the Crown in such a manner that would result in the Crown being the "body or person responsible" for the decision, as contemplated by r 59.3 of the UCPR.
Rather, the first and third respondents submitted, in circumstances where a decision is made by an employee of a government department (here, DPE), either the individual decisionmaker (here, Ms Lees) or the relevant secretary of the department, or both, are properly described as the "person … responsible" for the decision. Specifically, the individual decision-maker is responsible because they are the person who in fact made the decision, and the relevant secretary of the department is responsible because of his or her role as the "head" of the department on behalf of which the individual decision-maker made the decision, by reason of the fact that they exercise "all the functions of an employer" in respect of the individual decision-maker and on that basis are responsible for decisions they make in the course of their employment, and perhaps most significantly by reason of s 25(1) of the GSE Act. Section 25(1) provides that "[t]he Secretary of a Department is responsible to the Minister or Ministers to whom the Department is responsible for the general conduct and management of the functions and activities of the department in accordance with the government sector core values under Part 2." It is by reference to this provision, together with ss 23(1) and 25(3)(d) that the secretary of a department can be said to be the "person responsible for" a decision made by an individual employee of the relevant department made on behalf of the department.
I am satisfied that either or both of Ms Lees and the Secretary are proper respondents to the applicants' challenge to the Endorsement Decision.
However, in circumstances where the applicants seek an order restraining the third respondent from "further acting upon" the Gateway Determination and/or the planning proposal, it was submitted that it would be most appropriate for the Secretary, rather than Ms Lees personally, to be substituted as the third respondent. This is, it was submitted, because if Ms Lees were substituted as the third respondent, an order restraining Ms Lees from "further acting upon" the Gateway Determination and/or the planning proposal might not have the effect of binding all employees of DPE from further acting upon the Gateway Determination and/or the planning proposal. Only Ms Lees would be bound. By contrast, an order restraining the Secretary from further acting upon the Gateway Determination and/or the planning proposal would in practice bind DPE as the Secretary would be required under s 25(4)(c) of the GSE Act to "implement measures to ensure the Department complies with the law" which would include an order of the Court to the effect that the Gateway Determination and/or planning proposal should not be acted upon.
On 14 April 2023, the applicants provided written submissions adopting the position of the first and third respondents in their submissions dated 14 April 2023 that "Secretary, Department of Planning and Environment" is the correct and most appropriate third respondent.
I have accepted the submissions of the first and third respondents, adopted by the applicants, that having regard to the relief sought in the summons, the proper third respondent is the Secretary. This analysis is consistent with the approach in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs where the applicant brought judicial review proceedings in respect of "non-statutorily based administrative actions taken by the Departmental officers". [1] In that case, both the Secretary of the relevant department (the Department of Home Affairs) and the individual decision-maker (described as "Karen Dix - Position Number 60008218 in her Capacity as Assistant Director, Ministerial Intervention, Department of Home Affairs") were joined as respondents. This analysis is also consistent with the approach in DCM20 v Secretary, Department of Home Affairs, [2] where the applicant challenged a non-statutory decision of the Assistant Director, Ministerial Intervention of the Department of Home Affairs. In that case, both the Secretary of the Department of Home Affairs and the individual decision-maker, were considered to be the proper respondents.
I am also satisfied that the Court's jurisdiction to challenge the Endorsement Decision is found in s 16A(1A) of the LEC Act for the reasons set out in my consideration of Ground 3 at [167]-[172] below.
The applicants and the first and third respondents agreed a formulation of appropriate orders to regularise the proceedings by changing the name of the third respondent to the "Secretary, Department of Planning and Environment". In chambers on 17 April 2023, I made the following orders: (1) The applicants be granted leave to substitute the "Secretary, Department of Planning and Environment" as the third respondent. (2) The applicants be granted leave to amend their summons and outline of opening submissions to substitute the name of the third respondent to "Secretary, Department of Planning and Environment", and make any consequential amendments. (3) The respondents be granted leave to amend their points of defence and outline of submissions to substitute the name of the third respondent to "Secretary, Department of Planning and Environment", and make any consequential amendments. (4) The parties be granted leave to amend the Agreed List of Issues for Determination to substitute the name of the third respondent to "Secretary, Department of Planning and Environment", and make any consequential amendments.

[6]

The Minister's 31 August 2017 Gateway Determination

In their challenge to the Gateway Determination made on 31 August 2017 (by the Minister's delegate) under s 56(2) of the EPA Act, the applicants placed particular reliance on conditions 1 and 5. The Minister's response to Council's request for a gateway determination under s 56 of the EPA Act, and the Gateway Determination were, relevantly, in the following terms (emphasis added): As delegate of the Minister for Planning, I have now determined the Planning Proposal should proceed subject to the conditions in the attached Gateway determination. I have included a condition that the Planning Proposal be updated to propose zones and associated development controls based on the ecological significance of the land and its primary use. The Planning Proposal will need to confirm what criteria has been used for applying an environmental zone and should be determined in consultation with the Office of Environment and Heritage and the Department of Planning and Environment. The Department's Northern Councils E Zone Review: Final Recommendations Report provides an approach for applying environmental zones and associated development standards and could be used as a guide for this Planning Proposal. The amended Planning Proposal and any supporting maps and studies will need to be referred to the Department for endorsement prior to the commencement of community consultation. … Gateway Determination Planning Proposal (Department Ref: PP _2017 _BEGAV_003_00): to include, zone and apply minimum lot size standards to land at Millingandi, Tura Beach and Boydtown. I, the Deputy Secretary, Planning Services, at the Department of Planning and Environment as delegate of the Minister for Planning, have determined under Section 56(2) of the Environmental Planning and Assessment Act 1979 (the Act) that an amendment to the Bega Valley Local Environmental Plan (LEP) 2013 to include, zone and apply minimum lot size standards to land at Millingandi, Tura Beach and Boydtown should proceed subject to the following conditions: 1. Prior to undertaking community consultation Council, is to: • update the Planning Proposal to apply environmental and rural zones and associated development standards to land based on its ecological significance and primary use; • confirm what criteria has been used for applying an environmental zone, such as the presence of native vegetation communities, and confirm how the presence of these ecological attributes have been verified; • consult with the Office of Environment and Heritage and the Department of Planning and Environment regarding the proposed zones and development standards. The amended Planning Proposal and any supporting maps and studies are to be referred to the Department for endorsement prior to the commencement of community consultation. … 5. The timeframe for completing the LEP is to be 18 months following the date of the Gateway determination.

[17]

Statutory framework governing planning proposals and gateway determinations

At the time of the Gateway Determination, Division 4 of Part 3 of the EPA Act governed the making and amending of LEPs. The equivalent in the renumbered EPA Act is Division 3.4 of Part 3. Although the legislative regime in the renumbered EPA Act has been altered, it is not different in any respect relevant to these proceedings.
Subsection 53(1) provided that the Minister may make environmental planning instruments for the purpose of environmental planning in (inter alia) each local government area (LGA). Any such instrument may be called an LEP: s 53(2). The relevant planning authority in respect of a proposed instrument was the council for the LGA to which the proposed instrument was to apply (subject to an exception which is not presently relevant): s 54(1)(a).
In relation to planning proposals, s 55 provided as follows: 55 Relevant planning authority to prepare explanation of and justification for proposed instrument - the planning proposal (1) Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal). (2) The planning proposal is to include the following: (a) a statement of the objectives or intended outcomes of the proposed instrument, (b) an explanation of the provisions that are to be included in the proposed instrument, (c) the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117), (d) if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land - a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument, (e) details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument. (3) The Secretary may issue requirements with respect to the preparation of a planning proposal.
In relation to gateway determinations, s 56(1) provided that once a planning proposal under s 55 was prepared, the relevant planning authority might forward it to the Minister under s 56(1). The balance of s 56 (presently relevant) provided: 56 Gateway determination … (2) After a review of the planning proposal, the Minister is to determine the following: (a) whether the matter should proceed (with or without variation), (b) whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal), … (f) the times within which the various stages of the procedure for the making of the proposed instrument are to be completed. … (6) The relevant planning authority may, at any time, forward a revised planning proposal to the Minister. (7) The Minister may, at any time, alter a determination made under this section. (8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section.
Pursuant to s 58, the relevant planning authority could at any time vary its proposals. Subsection 59(2) empowered the Minister, following the completion of community consultation, to make the LEP with or without variations proposed by the relevant planning authority in the terms the Minister considered appropriate, or to decide not to make the LEP.
Subsection 3.36(2) of the renumbered EPA Act provides that the local plan-making authority (which includes the Minister and a council for the LGA if the gateway determination authorises it to do so (s 3.31(3)), may make the LEP.

[18]

Council's proposed rezoning of the land, and the Lyon Group planning proposal

Central to the decisions the subject of review is Council's proposed application of environmental zones (E zones) to the land. A document prepared by DPE titled, "Northern Councils E Zone Review Final Recommendation Report" dated October 2015 (E Zone Review) provided for E2 Environmental Conservation and E3 Environmental Management zones to be applied to an area only if the primary use of the land, being the main use for which the land has been used for the last two years, was considered to be environmental conservation or environmental management respectively, and if the land contained attributes which met one or more of the criteria for an E2 or E3 zone.
At all relevant times, the Bega Valley Local Environmental Plan 2002 (NSW) (BVLEP 2002) governed the zoning of the land. Under the BVLEP 2002 the land was zoned 1(a) Rural General Zone, 1(c) Rural Small Holdings Zone, 2(b) Residential Medium Density, 2(c) Residential Tourist, 6(a) Public Open Space, 7(d) Environmental Protection Zone and 7(f1) Coastal Lands Zone. The image below shows the current zoning of the land under the BVLEP 2002 as depicted in the May 2021 Planning Proposal.
In the BVLEP 2013, Council rezoned most of the land in the Bega Valley Shire LGA to reflect the standard environmental planning instrument (standard instrument). However, the BVLEP 2013 deferred the rezoning of a number of sites, including Millingandi, Tura Beach and Boydtown. These sites were identified as "Deferred Matters" on the gazettal of the BVLEP 2013 as zonings and/or lot sizes proposed by landowners representing a significant departure from the exhibited draft Bega Valley Local Environmental Plan 2010 (BVLEP 2010), or zonings that required more detailed investigations.
In the period between 2016 and 2021, Council sought to rezone the deferred Boydtown site, being the subject land, through a number of planning proposals: 1. the January 2017 Planning Proposal, titled, "Three Deferred Sites Planning Proposal January 2017: Millingandi, Tura Beach ('Mandeni'), Boydtown"; 2. the March 2019 Planning Proposal, titled, "Deferred Site Planning Proposal March 2019: Boydtown"; and 3. the May 2021 Planning Proposal, titled "Planning Proposal: Boydtown 2021".
In each of the planning proposals, Council made the following recommendation in relation to the land at Boydtown: That the land north of Nullica Short Cut Road be zoned RU2 (120ha) and E2 (no lot size); the remainder of the land west of the Princes Highway be zoned E3 (10ha) and E2 (no lot size); and the south eastern section of the property adjoining the Towamba River estuary be zoned E3 (40ha) and E2 (no lot size). A portion of the land near the Seahorse Inn and east of the Princes Highway was to remain a Deferred Matter (and correspondingly marked "DM" in the land application map), subject to a further planning proposal in the future.
Council's proposed rezoning of the applicants' land as displayed in each of the three planning proposals is depicted in the image below, extracted from the May 2021 Planning Proposal:
The E2 zone, "the most stringent zoning for environmental protection", (as stated at heading 2.1 of each of the three planning proposals), was proposed to be applied to parts of the land known as Reedy Creek, the riparian buffer zone (a potential koala habitat), and the coastal estuary and headland associated with the Towamba River to the east of the subject land.
The E3 zone was to be applied to "heavily forested areas" of the land, being the remainder of the land west of the Princes Highway, as well as the south-eastern section of the land adjoining the Towamba River estuary.
The applicants objected to Council's proposed rezoning of the land. On 25 June 2021, Mr Myall Stevens wrote to Council on behalf of the Lyon Group Australia Pty Ltd (the Lyon Group), the holding company of the applicants. Mr Stevens outlined the Lyon Group's proposed "masterplan" for the future development of Boydtown as follows: The development comprises a village centre focused around the existing Seahorse Inn, a medium density residential zone along Boydtown Creek, low density residential in the undulating terrain to the south of Boydtown Creek, Highway Service Centres on both sides of the Highway and rural residential development to the west of the highway.
The Lyon Group objected to Council's planning proposals, and developed its own planning proposal to support its masterplan for the site (Lyon Group planning proposal) as provided to Council in Mr Stevens' letter of 25 June 2021, and visualised for the Court in the form of an aide memoire. The Lyon Group's key proposed amendments in relation to zoning were described as follows: 1. E2 zone along Reedy Creek be changed to E3 zone along the creek to match the 40m Riparian Zone currently established; 2. zoning of all RU5 Rural Landscape land be changed to R5 Large Lot Residential; 3. areas marked by Council as "Deferred Matter" be zoned R2 Low Density Residential, R3 Medium Density Residential, B5 Business Development, B2 Local Centre and SP3 Tourist zones; 4. Council's proposed RE1 Public Recreation zone be changed to E3 zone; 5. Council's proposed E2 zone along Towamba River be changed to E3 zone; and 6. while the Lyon Group held the view that E4 Environmental Living was a more appropriate zone than the E3 zone because of the intended future use of the locality, if Council implemented the Lyon Group's proposed amendments, they would be agreeable to the implementation of the E3 zone.
The Lyon Group planning proposal proposed rezoning of the land as depicted in Mr Stevens' letter dated 25 June 2021, and the aide memoire, which is reproduced below:

[19]

Agreed background to the decisions under review

The agreed background to the decisions under review, derived largely from the Statement of Agreed Facts (SOAF), is as follows.
In January 2017, Council created a document titled 'Three Deferred Sites Planning Proposal' (referred to herein as the January 2017 Planning Proposal).
On 31 August 2017, the Minister for Planning created a document that stated that the planning proposal should proceed subject to conditions (referred to herein as the Gateway Determination).
As set out above at [21], condition 1 of the Gateway Determination required Council, prior to undertaking community consultation, to update the January 2017 Planning Proposal to apply environmental and rural zones and associated development standards to land based on its ecological significance and primary use, confirm the criteria used for applying an environmental zone, and consult with the Office of Environment and Heritage (OEH) and DPE regarding the proposed zones and development standards. Condition 1 also required that: The amended Planning Proposal and any supporting maps and studies are to be referred to the Department for endorsement prior to the commencement of community consultation.
Condition 5 of the Gateway Determination required that the LEP be completed within 18 months, that is, by 28 February 2019.
On 17 August 2018, the Minister, by his delegate, varied the 31 August 2017 Gateway Determination pursuant to s 3.34(7) of the EPA Act.
On 7 March 2019, following a request from Council pursuant to s 3.34(7) of the EPA Act, the Minister, by his delegate, again varied the Gateway Determination by deleting the existing condition 5 and replacing it with a new condition which extended the time for completing the LEP to 31 August 2020.
On 23 August 2019, a meeting was held between representatives of the applicants and representatives of Council, an outcome of which was that the applicants would engage an ecologist to address environmental constraints, site constraints and E zoning.
On or about 19 August 2020, the applicants submitted to Council a detailed justified masterplan and planning proposal, including a copy of a report dated August 2020 prepared by WSP titled "Biodiversity Constraints Assessment" (the BCA Report).
In the period between 31 August 2020 and 18 January 2021, Council did not seek any further extension of time to comply with the Gateway Determination.
On 18 January 2021, Council sought an extension of time to comply with the Gateway Determination.
On 21 January 2021, the Minister declined to exercise the power in s 3.34(7) and alter the Gateway Determination to extend time for compliance. In doing so, the Minister noted, amongst other things, that the intention of the Government was for planning proposals to take no more than 2 years to complete.
Prior to Ms Lees, on behalf of the Secretary, endorsing Council's May 2021 Planning Proposal on 19 May 2021, Council did not provide a copy of the BCA Report to DPE. Prior to endorsing the planning proposal on 19 May 2021, DPE had received: 1. a Briefing Note titled "Endorse Revised Planning Proposal - Boydtown, Bega" and attachments including: 1. Attachment A - Planning Proposal (PP_2017_BEGAV_003_00), dated 2021 prepared by Bega Valley Shire Council; 2. Attachment B - Council request for endorsement, dated 11 May 2021; 3. Attachment C - Gateway Determination of Marcus Ray, dated 31 August 2017; 4. Attachment D - Gateway Alteration of Marcus Ray, dated 17 August 2017; 1. a letter from the Biodiversity and Conservation Division in DPE (formerly DPIE), dated 26 July 2019.
It was agreed that Ms Lees did not consider the BCA Report. It was also agreed that the BCA Report was not provided to councillors prior to Council's meeting on 18 August 2021.

[21]

The Northern Councils E Zone Review: October 2015 Final Recommendations Report

The covering letter to the Gateway Determination referred to the E Zone Review. The letter stated that the document provided an approach for applying E Zones and associated development standards, and could be used as a guide for the planning proposal.
In its introduction, the E Zone Review explained that its final recommendations applied to the five LGAs of Ballina, Byron, Kyogle, Lismore and Tweed. Section 3 of the E Zone Review, headed 'Application of E Zones', relevantly stated: Application of E Zones 1 When will E zones be applied? • E2 and E3 zones will only be applied if the primary use of the land is considered to be environmental conservation (E2) or environmental management (E3) and the land contains attributes which meet one or more of the criteria for an E2 or E3 zone (Tables 1 and 2). • An E4 zone can be applied if the land contains attributes that are consistent with the Department's Practice Note PN09-002 Environment Protection Zones. … 4 What is the procedure for applying an E2 or E3 zone to land? • Councils will assess land against the E zone criteria and consider the primary use of the land before proposing an E2 or E3 zone. • An E2 or E3 zone can only be applied to land with a primary use of environmental conservation or environmental management and, which has attributes that have been verified to meet the E zone criteria. • If the land has attributes that meet the E2 criteria, however the primary use of the land is environmental management rather than environmental conservation, a council may apply an E3 zone. • If a council believes the primary use of the land does not warrant an E zone, and the land meets the E zone criteria, then a LEP Map and associated clauses can be applied. • The E zones will not include buffers to the vegetation attributes that meet the E zone criteria.
Table 1 to the E Zone Review provided criteria for land suitable for zoning E2, and Table 2 criteria for land suitable for zoning E3.

[22]

The January 2017 Planning Proposal

In the January 2017 Planning Proposal, titled, "Three Deferred Sites Planning Proposal January 2017 Millingandi, Tura Beach ('Mandeni'), Boydtown", land designated as "Site 3" concerned Boydtown, being the subject land.
The planning proposal provided a justification for the rezoning of Site 3 as follows: Section A Need for the Planning Proposal Q1. Is the planning proposal a result of any strategic study or report? No. The site has been the subject of various proposals over three decades, many of which have not been supported by planning authorities to lack of justified need for major urban land releases in the catchment. An extract from the Draft Rural Living Strategy is below showing the current demand and supply in the broader Eden catchment. Q2. Is the planning proposal the best means of achieving the objectives or intended outcomes or is there a better way? Yes. It is considered that this Planning Proposal is the most appropriate and available means of achieving the objective. Section B Relationship to Strategic Planning Framework Q3. Is the Planning Proposal consistent with the objectives and actions of the applicable regional or sub-regional strategy? South Coast Regional Strategy Section 8 of the SCRS states that: 'Local environmental plans will include provisions to limit dwellings in rural and environmental zones.' p.29 This re-zoning will have the effect of limiting a proliferation of rural residential dwellings by way of the RU2 zoning (MLS 120 Ha) and the E3 zoning over the more heavily forested lands (MLS 10 and 40 Hectares). Draft South East and Tablelands Regional Plan May 2016 Action 3.3.3 Protect valuable mineral and extractive resources in the region (p. 52) This planning proposal minimises the potential for land use conflict between any future urban uses and the current extractive industry on the site by not zoning any land for more intensive residential purposes (no E4, RS and R2 / R3 zones are proposed). Q4. Is the Planning Proposal consistent with a council's local strategy or other local strategic plan? The Draft Rural Living Strategy provides the following demand and supply information. … Conclusion Eden Cove north of the Eden town centre has the capacity for around 44 rural residential lots in accordance with the Eden Cove Master Plan and when developed, these lots will ensure the supply of vacant rural residential lots close to Eden. Within the Eden catchment there is also approximately 150ha of land zoned rural residential under BVLEP 2002 within the locality of Boydtown. This land is deferred from BVLEP 2013 and is currently the subject of investigations to determine appropriate zones and subdivision potential. Due to the uncertainty of the rural residential yield, no estimates of rural residential supply have been made for this area. Q5. Is the Planning Proposal consistent with applicable State Environment Planning Policies? This Planning Proposal is consistent with the State Environmental Planning Policies (SEPPs) Rural Lands as the rural planning principles are not compromised by the rezoning. … SEPP No. 44 Koala Habitat Protection The consultant Ecobiological conducted a thorough flora and fauna assessment in mid-2011, including assessment of the land for potential koala habitat. … SEPP No. 55 Remediation of Land Bega Valley Shire Council's records indicate that none of the subject land is contaminated. Q6. Is the Planning Proposal consistent with applicable Ministerial Directions? This Section addresses consistency with applicable Section 117 Directions. Attachment 3 contains a complete list of all 117 Ministerial Directions applicable within the Bega Valley Shire. 1.2 Rural Zones … This planning proposal is consistent with this direction as it zones land which is currently used for grazing livestock as Rural Landscape (RU2). It is considered that the proposed re-zoning does not fragment or remove any grazing lands. … 1.3 Mining, Petroleum Production and Extractive Industries … This planning proposal is considered consistent with this direction as the proposed re-zonings to RU2 and E3 both permit agriculture and/or industry which aligns with section 7 of the SEPP - Extractive Industries. … 1.5 Rural Lands … This planning proposal is considered consistent with this Direction as it affects rural zoned land and proposes to not to alter the area currently used for grazing. … 2.1 Environment Protection Zone … This planning proposal is consistent with this Direction as all lands will not result in any alienation or destruction of environmentally sensitive areas. As previously stated DA2011.500 authorises the staged destruction of 78 mature paddock trees to win sand and topsoil. A reafforestation plan using Manna Gums has been approved as part of the DA. The proposed E2 zones (the most stringent zoning for environmental protection) will be applied to Reedy Creek and the riparian buffer zone (potential koala habitat) along with an E2 zone protecting the coastal estuary and headland associated with the Towamba River to the east of the subject site. 2.3 Heritage Conservation … This planning proposal is consistent with this Direction as it includes provisions to protect and conserve any newly identified places or items of significant heritage value. … 3.1 Residential Zones … This Planning Proposal is consistent with this direction as it does not propose any significant urban development in a residential zone or future urban residential zone. … Section C Environmental, Social and Economic Impact Q7. Is there any likelihood that critical habitat or threatened species, populations or ecological communities, or their habitats, will be adversely affected as a result of the proposal? There is no critical habitat in the Bega Valley Shire. With regard to threatened species, populations or ecological communities, all the proposed sites will continue existing land uses. Therefore, it is unlikely that this rezoning, in itself, will cause harm to threatened species or habitats. The Bioecological Consultants field surveys of mid 2011 for the area covered by the RU2 and partial E2 and E3 zoning to the west of the highway identified six (6) fauna species which are listed as significant (Vulnerable) under the NSW TSC Act. … It is noted that the E2 zone will apply to Reedy Creek. The heavily forested areas of the subject site will be zoned E3. Note that the sand extraction DA2011.500 has several onerous environmental and land restoration conditions which are designed to protect the sensitive habit of Reedy Creek. Q8. Are there any other likely environmental effects as a result of the planning proposal and how are they proposed to be managed? Nil. The E2 zone will protect the most sensitive areas of Reedy Creek and the sensitive headland/ estuary strip of land (formerly 7 (b) land) to the far east of the site. Q9. Has the planning proposal adequately addressed any social and economic effects? Yes. The effect of this planning proposal will be to protect environmental sensitive lands close to the Towamba and Nullica River mouths and to protect existing grazing lands (sand extraction excepted) and forested areas. Section D State and Commonwealth Interests Q10. Is there adequate public infrastructure for the planning proposal? No additional public infrastructure requirements for the subject areas are required. Q11. What are the views of State and Commonwealth public authorities consulted in accordance with the Gateway determination? Consultation with State and Commonwealth public authorities has been partially undertaken (see JRPP decision August 2015). The level of consultation will be determined by the NSW Department of Planning and Environment when it makes its Gateway Determination.

[25]

Council's report on "Application of Zonings to the Boydtown Property"

In evidence was an undated report entitled "Application of Zonings to the Boydtown Property" (Zoning Report). It appears that the Zoning Report was prepared for the OEH by Council in response to the January 2017 Planning Proposal and condition 1 of the Gateway Determination. The Zoning Report outlined Council's methodology in applying the appropriate zoning as follows: Background When applying the new Standard Template zones, Council considered a range of factors including existing zonings, current and projected landuse [sic], environmental values (e.g. biodiversity, soil and landscape protection, biodiversity, catchment and waterway protection) environmental hazards and wide range of data provided to Council from various State Government Agencies. While acknowledging the need to appropriately protect the Shires natural resources, Council as a priority wanted to ensure that the Shires primary agricultural areas were recognised and appropriately zoned. As such when considering the application of appropriate natural resources zonings the Shire was essentially broken into 2 broad areas - the rural valleys and the coastal catchments. … The Coastal Catchments - this methodology was applied to the Boydtown Property … The Boydtown Property falls into the estuarine catchments of the Towamba River, Nullica River and Boydtown Creek. Lands currently zoned 1 (a) in the coastal catchments were generally zoned RU2 Rural General Zone or E3 Environmental Management, used for rural land within coastal catchment areas depending on environmental values. Land containing important environmental values (catchment protection or vegetation) with high levels of fragmentation of ownership were zoned E3. Importantly the E3 zoning still allows for 'Extensive Agriculture' as a permitted use. Council attempted to identify existing operating farms within the coastal catchments and has applied a RU(2) Rural General Zone to these areas. The LEP (2002) also had key environmental zonings 7f1 (Coastal Protection) and 7(d) Environmental Protection (Scenic) that encompassed part of the Boydtown Property. A large portion of the Boydtown property adjacent to the Towamba River was formerly zoned 7f(1) and this has been replaced by a mix of E2 and E3 zonings. The 7(d) zone has been incorporated into the E3 zone that runs south from the main ridge to the Towamba River. The heavily forested former 1(c) zone west of the highway was transitioned to an E3 zone, rather than an E4 zone due to the nature of the sites topography, vegetation cover and larger proposed lot sizing for this part of the property. … Appropriateness of Current Foreshore Zoning The majority of the current zonings have been in place since 1987. Our understanding of the natural functioning of estuaries and the community's appreciation of them has increased dramatically over the last 20 years and as such it is fair to say that many of the previous zonings were inappropriate and ineffective. The previous LEP attempted to provide some protection to sections of foreshore through the use of a 7(b) Foreshore Protection zone. However the application of this zone did not necessarily represent an appropriate riparian buffer (to achieve bank stability, water quality improvement of provide habitat). Nor did these zones accommodate the extent of existing riparian or wetland ecosystems. Further, in some areas the lack of an appropriate zoning of the land beyond the foreshore zone resulted in poor management of tributaries, drainage lines and stormwater meaning that what was achieved through the 7(b) zone was arguably compromised by the quality of water and sediments entering the estuaries from catchment sources. … Application of the E2 Zone to Estuarine Foreshores including Towamba River The current LEP template removed the old 7(b) Foreshore Protection zoning as an option and instead provides a number of Environmental or 'E' zonings. Bega Valley Shire Council decided that the E2 Environment Protection Zone is the most appropriate zoning for estuary foreshore areas. In non-urban estuary areas (outside of the National Park estate) an E2 zone of 80 -1 00m was applied. This is in line with recommendations of Haines (2005 Coastal Lake Management) and DECC (2008 submission to Council). Haines suggests that it is vital to consider both the vertical and horizontal components of the foreshore buffer, when determining appropriate setbacks. The vertical buffer accommodates the natural variability in ICOLL water levels and predicted sea level rise, whilst the horizontal buffer provides for the continued ecological functioning and if necessary up s pe migration of riparian vegetation communities. The preservation of the estuaries natural, social and economic values is of the upmost importance to Council and the LEP is seen as Councils primary tool in achieving this outcome. To compliment the foreshore zonings Council is proposing that the immediate catchments (non-urban) should be zoned RU2 Rural Landscape, E3 Environmental Management or E4 Environmental Living. The new LEP template also requires the zoning of waterways as either W1 Natural, W2 Recreational or W3 Working. Council is proposing to zone the vast majority of the estuaries as W1, with smaller sections of W2 and W3 where appropriate.

[26]

Council's March 2019 Planning Proposal

On 14 March 2019, Ms Sophie Thomson of Council sent a letter by email to Ms Alison Treweek of OEH attaching an updated planning proposal. The updated proposal was titled "Deferred Site Planning Proposal March 2019: Boydtown: Bega Local Environmental Plan 2013" (herein referred to as the March 2019 Planning Proposal). In Council's letter, Ms Thomson said: Council received a Gateway Determination for the planning proposal in August 2017 and some discussions have been held between Council and OEH staff regarding the requirements of this Gateway Determination. Accordingly, Council has prepared a document which outlines our methodology and justification in support of the environmental and rural zones and development standards proposed for that part of the Boydtown area affected by the planning proposal. Can you please provide some feedback regarding our justification in the context of the planning proposal so that we can proceed with updating the planning proposal as required by the Gateway Determination and commence our community consultation? … Please find attached to this email: • Gateway Determination • OEH information for proposed zones at Boydtown • Boydtown Planning Proposal
On 26 July 2019, Ms Treweek of OEH, which had been renamed the Biodiversity and Conservation Division within DPE (the BCD), responded to Ms Thomson's letter of 14 March 2019. Relevant aspects of the response are extracted below (emphasis added): We have reviewed the draft planning proposal you recently sent to us. … In essence BCD supports the Planning Proposal in particular the application of the E2 Environmental Conservation and E3 Environment management zones. BCD considers this zoning to be the most appropriate zoning to protect the various environmental and Cultural heritage values across the site. The site provides habitat for a range of threatened species and also has several areas of endangered ecological community. There are some areas which may be flood prone and therefore should be protected as per the E2 zoning proposed. There are also areas of coastal floodplains that should be protected. … Further detailed information on the above mentioned values can be found in Attachment A.
Attachment A to Ms Treweek's letter provided comment in support of the application of E2 and E3 zoning to significant areas of endangered ecological community across most of the land, considered to be "High Environmental Value land". This included Boydtown Creek, which runs through the centre of the land and is listed as a sensitive estuary. The BCD referred to the South Eastern and Tablelands Regional Plan, which indicated that areas of "validated High Environmental Value", as well as groundwater dependant ecosystems and aquatic habitats associated with rivers and streams, should be protected from development. The BCD made the following comments in relation to endangered ecological communities on the land: The BCD databases indicate the areas which are proposed for E2 and E3 zoning support habitat for several threatened fauna species including yellow bellied gliders, several species of microbat, masked owls, powerful owls and Gang Gang's. It also provides a movement corridor for koalas and other species which have been recorded outside the boundary of the planning proposal. There are currently significant areas of Endangered ecological community across the Planning proposal area these include. [sic] • Lowland grassy woodland • Swamp Oak Floodplain woodland, • Bangalay Sand Forest and • River Flat Eucalypt Forest • Swamp Sclerophyll Forest • Coastal Salt Marsh • Freshwater wet ands • Littoral rainforest BCD supports these areas of EEC being protected under the E2 and E3 zoning.
The BCD also referred to certain cleared areas, indicated on "Map 1" which was not in evidence, that were mapped as E3 zoning, but suggested it might be beneficial to rezone these areas to a "more suitable zoning". The BCD advised that any zoning of these areas for the purpose of protecting cultural heritage values should be clearly explained.

[29]

WSP Boydtown Masterplan: Biodiversity Constraints Assessment

On 19 August 2020, Mr Stevens on behalf of the Lyon Group sent Council a planning proposal for all land at Boydtown under the control of the applicants. The email attached the document dated 13 August 2020 titled, "Boydtown MasterPlan: Biodiversity Constraints Assessment" prepared for the Lyon Group by WSP (referred to herein as the BCA Report).
The stated purpose of the assessment was to provide an understanding of the baseline biodiversity values of the land under the control of the applicants to further inform constraints and areas of sensitive ecological values for avoidance in the ongoing masterplan evaluation. In particular, two aspects of the assessment were the subject of submission by the applicants at the hearing before me.
In section 2.5.1, the BCA Report noted as follows: 2.5 Field Survey Limitations 2.5.1 Survey and Assessment Survey and field investigation predominately targeted areas of the Subject Land within the proposed development footprint. Areas outside the development footprint may need additional targeted surveys if changes to the development footprint occur. Detailed desktop assessment was undertaken prior to field surveys to identify the threatened biodiversity likely to occur in the locality and determine the field survey effort required for the scale of the project and its ecological context for a constraints assessment. However, the precise range of habitats utilised by some species is not well understood. Furthermore, the discovery of hitherto unknown populations of threatened species, even well outside their known range, is always present. This applies particularly to cryptic species of plants and animals and plant species which can persist as soil seedbanks and easily go undetected despite intensive survey. No sampling technique can totally eliminate the possibility that a species is present within the Subject Land. For example, some species of plant may be present in the soil seed bank and some fauna species use habitats on a sporadic or seasonal basis and may not be present within the Subject Lands during surveys.
In section 9.4, the BCA Report stated: 9.4 ADDITIONAL SURVEYS The following additional surveys are recommended for the Subject land: - Targeted amphibian surveys during spring - summer conditions or after significant rainfall events during spring - summer periods. - Vegetation surveys and BAM plots within PCT plot data - Additional targeted threatened species surveys throughout the Subject Land.

[30]

Council's January 2021 request for an extension of time to complete the planning proposal

On 18 January 2021, Ms Thomson of Council sent an email to Mr Graham Judge, senior planning officer at DPE, seeking an extension of time to complete the planning proposal, noting that the Gateway Determination issued on 31 August 2017 to rezone and apply minimum lot size standards to land at Boydtown had conditioned a completion date of 31 August 2020.
On 21 January 2021, Ms Lees, as delegate of the Minister, responded to Council's request for an extension of time to complete the planning proposal as follows (emphasis added): I refer to Council's request seeking an extension of time to complete planning proposal PP 2017 BEGAV_003_01 for land at Boydtown. While I acknowledge the benefits of the proposal to bring deferred land into the Bega Valley LEP 2013 and to provide environmental protection, I have determined, as delegate for the Minister, not to alter the Gateway determination which was originally issued on 31 August 2017. Council's request for a further extension to complete the planning proposal is denied because of the amount of time that has lapsed since the Gateway determination was issued and as there remain outstanding matters to be addressed before it can be finalised. This decision is consistent with advice provided by the Department to Councils in 2020 on NSW Government planning reforms to streamline and simplify the planning system, including accelerating planning decisions. The intention of the reform program is for planning proposals to generally take 1 year and no more than 2 years for complex proposals to complete. This has been shown to be achievable in many cases where applications are supported by enough evidence to justify strategic and site-specific merit, and when proposals are aligned to a strong strategic planning framework. Further guidance on the planning reforms will be provided by way of updated planning proposal guidelines, expected to be released in February 2021. I understand that the planning proposal has been progressing and as such it will remain active but identified as 'overdue'. It is therefore recommended that Council finalises the planning proposal as soon as possible. If the proposal cannot be finalised in its current form, it is suggested that Council formally advises the Department that it wishes to withdraw the planning proposal.

[31]

Council's May 2021 Planning Proposal

On 29 April 2021, Ms Thomson of Council sent an email to Mr Judge at DPE headed "Agency exhibition of Boydtown proposal", stating that she was preparing for the exhibition of the planning proposal as per the Gateway Determination. On 30 April 2021, Mr Judge emailed Ms Thomson with some "comments/advice" on the planning proposal, noting consultation between Council and the BCD, stating that in accordance with condition 1 of the Gateway Determination Council should send a revised planning proposal to DPE for endorsement prior to community consultation, and expressing his willingness to informally review any draft revised planning proposals for Boydtown that satisfied condition 1 of the Gateway Determination. On 30 April 2021, Ms Thomson sent a document to Mr Judge, noting "we did this a few years ago but mustn't have sent it through - please see attached". On 6 May 2021, Mr Judge provided comments to Ms Thomson in relation to that document, which he said he would treat as a working draft planning proposal used to consult with the BCD in 2014. Mr Judge stated that certain aspects of the 2019 planning proposal were outdated and required revision, including a response to comments from the BCD in 2019.
On 7 May 2021, Ms Thomson sent to Mr Judge a "revised planning proposal for review as per the Gateway Determination". She stated that she had "updated the planning proposal as directed, but tried to leave as much original content" as she could.
Following an email from Mr Judge on 7 May 2021 with additional comments on the draft planning proposal, Ms Thomson further revised the draft. On 11 May 2021, Mr Judge sent an email to Ms Thomson querying whether Council or the BCD could access a vegetation map for the site that could be included in the planning proposal in order to provide a more detailed justification for the environmental zones. Ms Thomson responded on the same day in the following terms: … I am very mindful of the time constraints around this project, and the fact that we do not have any resources allocated, and therefore have to be very specific about what we require others to do. Can you please be very specific about exactly what changes Council is required to make to this planning proposal with regard to this and any other matters that we have not addressed so far. My understanding from the previous response from BCD is that they are happy with the justification provided by the Council for the E zones.
Mr Judge responded, stating that he was: …just wondering if council has access to a veg map for the site to add to the planning proposal. Just want to make sure council uses any available information to use in the PP. If not, OK.
Ms Thomson replied that "[i]f it is not necessary I would rather not make any further changes to the planning proposal".
On 11 May 2021, Ms Thomson of Council sent Mr Judge at DPE the May 2021 Planning Proposal for endorsement by the Secretary. The May 2021 Planning Proposal made a number of changes to Part 3 'Justification' of the January 2017 Planning Proposal. A number of additional paragraphs were added, and alterations made in relation to the following: Question 1 - "Is the planning proposal a result of an endorsed local strategic planning statement strategic study or report?"; Question 3 - "Will the planning proposal give effect to the objectives and actions of the applicable regional or district plan or strategy (including any exhibited draft plans or strategies)?"; Question 4 - "Will the planning proposal give effect to a council's endorsed local strategic planning statement or another endorsed local strategy or strategic plan?"; Question 5 - "Is the Planning Proposal consistent with applicable State Environmental Planning Policies"; and Question 6 - "Is the Planning Proposal consistent with applicable Ministerial Directions".
In relation to Question 7 ("Is there any likelihood that critical habitat or threatened species populations or ecological communities or their habitats will be adversely affected as a result of the proposal?"), an additional paragraph provided as follows: Consultation with the NSW Biodiversity Conservation Division was conducted prior to exhibition of this planning proposal as a requirement of the Gateway Determination. Additional information regarding biodiversity values is contained in their response in Attachment 3.
In relation to Question 11 ("What are the views of State and Commonwealth public authorities consulted in accordance with the Gateway Determination?"), there was also additional text, condition 1 of the Gateway Determination being reproduced, followed by the following: Consultation with the NSW Biodiversity Conservation Division was conducted in 2019 to fulfill these requirements of the Gateway Determination. The agency's response stated that "in essence, BCD supports the planning proposal in particular the application of E2 Environmental Conservation and E3 Environment management zones. BCD considers this zoning to be the most appropriate zoning to protect the various environmental and Cultural heritage values across the site." A copy of the agency's full response is contained in Attachment 3.

[32]

Briefing Note to Ms Lees prior to the Endorsement Decision

The document containing the Endorsement Decision dated 19 May 2021 also contained what Ms Thomson described as a Briefing Note signed by Ms Lees, and recommending that the Director note and endorse the revised planning proposal in accordance with condition 1 of the Gateway Determination dated 31 August 2017 (as amended) (the Briefing Note). The Briefing Note provided as follows: Background Revised Planning Proposal May 2021 Bega Valley Shire Council has submitted a formal request dated 11 May 2021 (Attachment B) seeking the Department's endorsement of a revised planning proposal for PP _2017 BE GAV _003_00 (Attachment A) in accordance with the requirement of condition 1 of the Gateway determination dated 31 August 2017 (Attachment C) . Consultation with DPIE Biodiversity and Conservation Council consulted with DPIE Biodiversity and Conservation on a draft revised planning proposal in 2019 to satisfy condition 1 of the Gateway determination. DPIE Biodiversity and Conservation advised Council in July 2019 that that it supported the planning proposal to apply zones to protect environmental and cultural heritage values across the site (Attachment E). The advice is attached with the revised planning proposal. DPIE Biodiversity and Conservation further indicated that the application of an E2 Environmental Conservation Zone was justified because the site provides habitat for a range of threatened species, has several areas of endangered ecological community and most of the site is flood prone. … Assessment Council has prepared a revised planning proposal after consultation with DPIE Biodiversity and Conservation in 2019. The revised planning proposal includes sufficient additional information and updates to satisfy condition 1 of the Gateway determination and the Gateway alteration dated 17 August 2018. … It is recommended that the Director: - note and endorse the revised planning proposal in accordance with condition 1 of the Gateway determination dated 31 August 2017 (as amended) to enable Council to undertake community consultation; - agree that the planning proposal 's inconsistency with Direction 2.3 Heritage Conservation has been justified; and - note that the planning proposal will be consistent with section 9.1 Direction 4.4 Planning for Bushfire Protection when Council consults with the NSW Rural Fire Service as required by the Gateway determination.

[33]

Recommendation to Council prior to its 18 August 2021 meeting

On 16 August 2021, prior to Council's meeting on 18 August 2021, Dr Alice Howe, Director Community, Environment and Planning at Council, sent a memorandum with the subject line "Update on Boydtown Planning Proposal" to the mayor and councillors. Attached was a paper providing background to the May 2021 Planning Proposal and recommending that Council support the amendment to the BVLEP 2013, as exhibited. Under the heading "Community and Stakeholder Engagement", the paper summarised submissions received during the exhibition period, including those made on behalf of the applicants. The summary of the Lyon Group's submissions, and Council staff's response were, relevantly, as follows: 4) Submission on behalf of owner Issue The zoning and minimum lot sizes in the planning proposal are inappropriate, unjustified, based on inaccurate or old information and will sterilize future development opportunity on the site. The public exhibition of the proposed zoning demonstrates that Council have actively misled the proponent, resulting in substantial financial cost and losses. Council has not complied with the conditions of the Gateway Determination. Request that Council withdraw the existing planning proposal with a view to progressing the current Lyon Group planning proposal which has been developed over the last four years. Staff response: The zoning and minimum lot sizes in the planning proposal are in accordance with the recommendations of the JRPP as endorsed by the [then] Minister for Planning and Environment. The public exhibition of the proposed zoning is the result of Council fulfilling the requirements of the Gateway Determination for the site and in line with NSW Government directives. Council complied with the conditions of the Gateway Determination regarding updating the planning proposal, confirming the criteria for applying an environmental zone and consultation with the [then] Office of Environment and Heritage and the [then] Department of Planning. Copies of relevant correspondence was provided to the applicant prior to the exhibition and the exhibited planning proposal was endorsed by DPIE. Council staff have been working with the owner of the land to develop a zoning scheme and planning controls for Boydtown since 2004. Over the past few years, the owner of the site has been preparing a separate planning proposal for the whole Boydtown site, which includes the land that is the subject of this planning proposal. Although the owner has made significant progress towards a planning proposal that Council could endorse, including the lodgement of a new planning proposal in July 2021, the [sic] is no timeframe for completion at this stage. Given the current situation with the planning proposal for the whole site, the significant Council resources that have been involved to date, the current requirements of NSW Government agencies regarding planning proposals and the directions of the Planning Delivery Unit to finalise a planning proposal for part of the site, it is considered prudent for Council to proceed to complete the 2017 planning proposal. … Recommendation: It is recommended that Council proceed with the planning proposal to implement a zoning scheme under BVLEP 2013 for the subject area, and that any subsequent planning proposals submitted for the land be assessed based on Council's adopted strategic land use objectives and in accordance with applicable legislation and DPIE guidelines.

[36]

Mr Van Bracht

As at the date of hearing, Mr Van Bracht had been employed by Council since 1994. He had been the Environment and Sustainability Coordinator since 2017, and prior to that Strategic Planning Coordinator (2014-2018), and Environmental Services Coordinator (2004-2014).
In 2010, Mr Van Bracht was seconded to work on a new comprehensive LEP plan for the Bega Valley Shire LGA. His focus was on determining how to apply the environment and rural zones from the standard instrument. In 2011, a comprehensive local environmental plan was publicly exhibited. It was gazetted in 2013 as the BVLEP 2013. Several sites were deferred from the Land Application Map in the BVLEP 2013, including, as deposed to by Mr Stevens, the applicants' land (see above at [42]). One of Mr Van Bracht's roles was to oversee the preparation of planning proposals, including the January 2017 Planning Proposal. The January 2017 Planning Proposal, as it affected the applicants' land, incorporated recommendations made by the Southern Joint Regional Planning Panel (SJRPP) at its meeting of 15 and 16 February 2015. Those recommendations related to zoning some land E2 Environmental Conservation and E3 Environmental Management.
Following the Minister's Gateway Determination on 31 August 2017, it was Mr Van Bracht's responsibility to prepare the criteria to identify the most appropriate environmental and rural zones for the applicants' land, to confirm how the presence of ecological attributes had been verified, and to prepare an updated planning proposal resulting from those criteria and that confirmation. The results of his work were recorded in the Zoning Report (see above at [74]). Subsequently, Mr Van Bracht updated the January 2017 Planning Proposal to reflect the environmental zones identified in the Zoning Report. The updated planning proposal was the March 2019 Planning Proposal.
Mr Van Bracht recalled attending the meeting on 23 August 2019 referred to by Mr Stevens (see above at [100]). He did not recall precise details, other than that Mr Milliken expressed his opposition to the March 2019 Planning Proposal, and presented an alternative vision on behalf of the Lyon Group.
Under cross-examination, Mr Van Bracht confirmed that the document titled "Application of zonings to the Boydtown property" was the Zoning Report referred to above at [74] and [104], despite it being undated. He confirmed that it was prepared in approximately March 2019. Mr Van Bracht said that March 2019 was not the first time he had put his mind to the criteria for E2 and E3 zones in the LGA: in around 2011, he had produced a natural resource paper to guide the preparation of the BVLEP 2013. The Zoning Report concluded that environmental zones should be in accordance with the methodology applied by Council in the draft Comprehensive LEP, the preparatory work for which had occurred in 2011. The E2 and E3 zonings in the Zoning Report were the same as those identified by Mr Van Bracht in his 2011 study. The Zoning Report also reflected his knowledge of the land in 2019. He had not undertaken any specific ecological assessment or ecological verification of the zones for the purpose of the Zoning Report.
Mr Van Bracht was asked about the meeting on 23 August 2019, in particular whether the opposition expressed by representatives of the Lyon Group was that lands identified to be zoned as environmental zones were, in fact, not environmental areas. Mr Van Bracht responded that this was not the Lyon Group's rationale which was rather a philosophical objection to environmental zones and the impact those zones might have on the development of their land. He agreed that the need for further biodiversity information in relation to the environmental zones was discussed at the 23 August 2019 meeting. He did not accept that he acknowledged at the meeting that there was a need to undertake environmental investigation of the applicants' land for the purpose of establishing environmental zones. He did, however, acknowledge that there was such a need for the purpose of assessing the proposed development of the applicants' land. Mr Van Bracht confirmed that Mr Tull's summary of the outcomes of the meeting in an email of 24 September 2019 (see above at [81]), particularly the outcome that "Boydtown to engage ecologist to address the environmental and site constraints as well as E zoning", was consistent with his understanding of the discussion at the meeting.

[37]

Ms Thomson

As at the date of hearing, Ms Thomson was employed by Council as Strategic Planning Coordinator, having held that position since 14 January 2019. Her role was to prepare and implement land use plans and policy and process planning proposals.
Under cross-examination, Ms Thomson confirmed that when, in her affidavit, she referred to an email she sent to Ms Treweek of OEH on 14 March 2019, she was referring to an email attaching the March 2019 Planning Proposal (see above at [75]). She did not prepare the March 2019 Planning Proposal, although she was familiar with its contents when she sent it to Ms Treweek, but not with the earlier January 2017 Planning Proposal. Ms Thomson could not confirm whether the Gateway Determination she attached to her email to Ms Treweek on 14 March 2019 was the August 2017 Gateway Determination or one of the amended gateway determinations.
When it was put to Ms Thomson that other than the Zoning Report, there was nothing else prepared by Council or sent to OEH that purported to deal with verification of the proposed environmental zones in the planning proposal, Ms Thomson responded that there was nothing else as far as she was aware.
Ms Thomson agreed that OEH recommended that it might be beneficial to rezone some of the areas zoned E3 under the March 2019 Planning Proposal to a more suitable zoning (see above at [78]), and that this was never done. She said that Council did in fact receive a map referred to in the OEH response (Map 1), although this map was not in evidence. She agreed that there was no Map 1 attached to the May 2021 Planning Proposal which she sent to Ms Lees for endorsement. She agreed that there were no changes to the zonings in the May 2021 Planning Proposal. She did not agree that the May 2021 Planning Proposal was identical to the previous version, other than the dates changing and the inclusion of the matters produced by OEH. She said that there were a number of changes apart from the inclusion of the OEH response, including general updates throughout the document, and additional paragraphs in the body of the proposal.
Ms Thomson was asked about correspondence between herself and Mr Judge of DPE in May 2021 (see above at [88]-[92]). Mr Judge had asked Ms Thomson whether Council had access to a vegetation map for the site to add to the planning proposal in order to ensure that Council used any available information. Ms Thomson had responded that if it was not necessary, she would rather make no changes. When it was suggested to her that she responded this way because she was under a time imperative to get the planning proposal out as soon as possible, she responded that she did not want to make any unnecessary changes, and that she would have completed the work within the timeframe regardless of whether she was required to insert extra maps in the planning proposal. She agreed that she was aware that the applicants had prepared some environmental assessment, and that she did not tell Mr Judge about this or send him the BCA Report.

[39]

Ms Lees

As at the date of hearing, Ms Lees had been employed by DPE as Director of Southern Region in the Local and Regional Planning Team commencing in April 2018, but was now employed in Crown Lands. At relevant times, she was a delegate of the Minister in relation to local planning approvals. On 18 May 2021, she received the Briefing Note in relation to the planning proposal concerning Boydtown. The Briefing Note contained the May 2021 Planning Proposal, Council's request for endorsement from the Secretary dated 11 May 2021, the Gateway Determination dated 31 August 2017, and the alteration to the Gateway Determination dated 17 August 2018. A letter from the BCD was also attached to the May 2021 Planning Proposal. The Briefing Note was prepared by town planners within DPE, and Ms Lees relied upon their expertise as was her usual practice.
In considering whether to endorse the May 2021 Planning Proposal, Ms Lees said she considered whether Council had, in accordance with condition 1 of the Gateway Determination, done the following: 1. updated the planning proposal to apply environmental and rural zones and associated development standards to land based on its ecological significance and primary use; 2. confirmed what criteria had been used for applying an environmental zone, and how the presence of ecological attributes had been verified; and 3. consulted with the OEH and DPE regarding the proposed zones and development standards.
In giving consideration to these matters, she had regard to the contents of the Briefing Note and its Attachments A to D and relevant Directions, State Environmental Planning Policies and Local Strategies with which she was familiar in her day-to-day work as Director of the Southern Region in the Local and Regional Planning Team.
In particular, she relied on the letter from the BCD of DPE in considering the matters set out above at [116]. She took this approach because she considered that the BCD had specific expertise in matters relating to ecology.
Under cross-examination, Ms Lees agreed that she was aware that prior to making the Endorsement Decision, there had been a request for an extension of time for the planning proposal, and that the request had been refused. She did not have the emails between Mr Judge of DPE and Ms Thomson of Council, referred to above at [112]. She was aware at the time that Mr Judge had been corresponding with Ms Thomson, but not of the content of that correspondence. She was not aware that Mr Judge had asked Ms Thomson whether there was a vegetation map for the site to add to the planning proposal. It was her usual practice for what she called her planners to liaise with councils to make sure they provided relevant information to update planning proposals.
Ms Lees did not have the Zoning Report prior to making the Endorsement Decision. She had the original January 2017 Planning Proposal before her as she had access to the planning portal, and looked at it prior to making the "decision". She was asked whether, in relation to the criteria used for applying an environmental zone or the verification of the presence of ecological attributes, the total of the material before her was the letter and accompanying Attachment A in response to Ms Thomson from Ms Treweek of the BCD (above at [76]-[77]). She accepted that this was correct, and said that she considered that letter in her decision. She understood from the BCD letter that the BCD had indicated that some areas zoned E3 should be identified for a different zoning. She could not recall whether she had seen a map identified as Map 1, which was mentioned in the BCD letter as identifying those E3 zones suitable for rezoning (see above at [111]). She understood that in respect of some identified cleared zones, the BCD was not supporting the environmental zones nominated by Council.

[41]

Applicable principles

The principles governing the circumstances in which an extension of time will be granted under r 58.10(2) are not controversial. In addition to the factors identified in r 59.10(3), regard should be had to "the length of delay, the reasons for the delay, whether the applicant has a fairly arguable case, and the extent of any prejudice suffered by the respondent". [3] As Campbell AJA observed in Katter v Melhem (Melhem) (emphasis added): [4] 123. Whether to grant an extension of time is also affected by the purpose for which the time limits exist, and the purpose for which courts are given the discretion to extend time limits. The purpose of the time limits for which time limits exist is that there is a benefit, both for the public generally and for the particular litigants involved in a dispute, for courts and tribunals to be able to achieve finality in the decisions they reach, such that after a comparatively limited time a successful litigant can have a measure of assurance that the victory achieved will not be undone. McColl JA (Campbell JA agreeing) identified the purpose of provisions enabling time to be extended in Nanschild v Pratt: "[38] The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. This means that the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459) per McHugh J."
In Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (Moorebank Recyclers LEC), [5] Molesworth AJ granted leave under r 59.10(2) to an applicant to commence proceedings outside the three-month time period stipulated in r 59.10(1). Like the present case, that case involved a challenge to a purported gateway determination under s 56 of the EPA Act. His Honour held at [50]-[51] (emphasis added): 50. … Moorebank's submission that it was appropriate for Moorebank to delay commencing proceedings in these particular circumstances (although not said to be intentional) has considerable force. In circumstances where a Gateway Determination was required to be made with respect to the planning proposal, it is understandable why Moorebank may have awaited the outcome of that determination before challenging the preceding anterior steps in the decision-making process. In fact, considerable costs may have been expended and time may have been lost by all parties to these proceedings (and the Court) if the decisions of Liverpool Council had been challenged only for the Gateway Determination (which has a close nexus to these preliminary decisions) to determine that the matter should not proceed. On the other hand, it could be argued that the commencement of proceedings in accordance with r 59.10(1) may have allowed the Greater Sydney Commission to stall its Gateway Determination until the legality of the anterior decisions was resolved. 51. In a staggered decision-making process which involves sequential decisions of escalating importance, is a person expected to commence proceedings challenging an anterior decision within three months or is he or she entitled to await a subsequent linked decision of greater significance? The preferable answer to that question is that the person is expected to commence proceedings within three months. An "intentional or contumelious" delay, say as a strategy to undermine a competitor, will often be looked upon dimly by a court considering an application for an extension of time: Tomko v Palasty (No. 2) at [56]. However, when the decision or decisions in question are preliminary precursors to a more substantial decision, it may be understandable that a person delays until the decision(s) in question have reached a sufficient degree of maturity, which conceivably may be difficult to firmly ascertain in the circumstances of an anterior decision leading to a subsequent decision (such as is the case for the Gateway Determination). Whether the decision(s) under examination have reached such maturity will be a question to be determined in each case.
In the present case, it was not in dispute that the applicants bear the onus of proving that an extension of time ought be granted. [6]

[42]

Consideration

The applicants submitted that leave should be granted to them pursuant to r 59.10(2) to raise Grounds 1 and 2 against the Minister. No issue concerning leave arises in relation to Grounds 3 to 6 against the Secretary and Council. The Gateway Determination was made on 31 August 2017, and the proceedings were commenced on 19 August 2021, some four years later, and more than three and a half years after the three-month time period stipulated in r 59.10(1) for commencing proceedings for judicial review of a decision.
The applicants submitted that it could not be said that the Gateway Determination had reached the requisite degree of maturity, or that the Gateway Determination was inchoate. They submitted that nothing of substance had been "determined" by the Gateway Determination, that they should not have been expected to challenge an anterior question within three months, and that they were entitled to await a subsequent linked decision of greater importance. They submitted that the delay could not be seen as contumelious, and that up until Council's election to "press on" with, rather than abandon, the planning proposal, it was reasonable to assume that a decision different to Council's 18 August 2021 approval decision was imminent. Council's own correspondence in January 2021 was said to confirm as much.
The first and third respondents submitted that the challenge to the Gateway Determination was time-barred, and that unless the Court granted an extension of time under r 50.10(2), Grounds 1 and 2 must be dismissed. They submitted that applying the relevant principles, in relation to which there was no dispute, no extension of time should be granted.
I decline to grant an extension of time in circumstances where the applicants' delay in bringing the proceedings has been very significant; unlike the position in Moorebank Recyclers LEC, where the period of delay was, at worst, six months. [7] The delay here was not in the order of months, rather some three-and-a-half years.
Further, the applicants provided no explanation for their delay in challenging the Gateway Determination. They led no evidence explaining their decision to delay the commencement of proceedings: Mr Stevens said nothing about the issue. Instead, the applicants simply relied on the authority of Moorebank Recyclers LEC to justify the course taken. In that case, evidence was led explaining the delay. Here, no reason was advanced as to why the applicants could not have challenged the Gateway Determination within the three months imposed by r 59.10(1), given that Grounds 1 and 2 rely on matters that must have been apparent to them at the time the Gateway Determination was made.
In Ground 1, the applicants essentially contend that the January 2017 Planning Proposal was not a planning proposal within the meaning of s 55(1) because it failed to set out the justification for amending the BVLEP 2013, hence the Minister's power under s 56(2) to determine whether the January 2017 Planning Proposal was not enlivened, and the purported Gateway Determination was ultra vires. The particulars of Ground 1 - that the January 2017 Planning Proposal failed to apply environmental and rural zones and associated developments to land based on its ecological significance, to set out the criteria used for applying an environmental zone, and to set out how the presence of ecological attributes were verified - were all matters which were or were not apparent on the face of the proposal, and hence known (or capable of being known) to the applicants at the time the Gateway Determination was made.
In Ground 2, the applicants essentially contend that the Gateway Determination was not capable of constituting a determination under s 56(2)(a) because it required further information such as the application of standards to be obtained, anticipated that further supporting maps and studies would be obtained, and required substantial revision of the January 2017 Planning Proposal. As with Ground 1, these were all matters which were or were not known (or were capable of being known) by the applicants at the time the Gateway Determination was made.
The applicants have not demonstrated that any injustice would be occasioned to them by declining to grant an extension of time. I accept the submission of the first and third respondents that to grant an extension of time would set a problematic precedent, whereby persons affected by administrative decisions are able to delay bringing a challenge until they reach the conclusion, several years later, that processes consequential to the decision have led to an unsatisfactory outcome. I find that the applicants' delay caused prejudice to the Minister, as well as to third parties, including Council and the Secretary, each of whom directed significant efforts since August 2017 to progressing the planning proposal that was the subject of the Gateway Determination. [8] Had it been known by December 2017 that the Gateway Determination was to be challenged, resources devoted to complying with the conditions in the Gateway Determination by Council and the Secretary, as well as by delegates of the Minister who varied the Gateway Determination on several occasions, would most probably not have been expended. The applicants have not proved that a failure to grant an extension of time would work an injustice on them. To the contrary, absent an extension of time, the applicants are still able to bring a challenge to the Endorsement Decision, and Council's approval decision. Nor does the Gateway Determination prevent the submission of a new planning proposal for the land in the future. I accept the submissions of the first and third respondents that the applicants are entitled to pursue a differing planning proposal in respect of their land should they wish to do so.
In the circumstances here, the Gateway Determination was not a mere "anterior decision" to be followed by a "subsequent linked decision of greater significance". [9] Nor was the Gateway Determination a mere "inchoate" decision determining "[n]othing of substance". To the contrary, the Gateway Determination was a decision with statutory significance, being "an essential pre-condition to any making or amendment of a local environmental plan". [10]
Finally, I consider that an order granting an extension of time would fail to give sufficient weight to the policy underlying the temporal limitation imposed by r 59.10, as explained in Melhem by Campbell AJA at [123]. As Molesworth AJ in Moorebank Recyclers LEC observed: "[t]he rule of law is strengthened by provisions such as r 59.10 of the UCPR requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced". [11]
The applicants have not discharged their onus, absent evidence explaining the delay, which evidence was within their capacity to adduce. [12] I find that the summons (as further amended) is time-barred insofar as it seeks judicial review of the Gateway Determination, and should be dismissed as against the Minister. That is sufficient to dispose of Grounds 1 and 2.

[43]

Whether it arises to consider Grounds 1 and 2 against the Minister

In light of my decision not to grant leave to the applicants to commence proceedings challenging the Minister's decision outside the three month time period stipulated by r 59.10, I raised with the parties whether I should deal with the substantive issues raised in Grounds 1 and 2, having regard to the observations of the High Court (French CJ, Kiefel, Bell, Keane and Nettle JJ) in Prince Alfred College Inc v ADC (Prince Alfred College). [13] In that case, the High Court observed as follows at [9], [112], [113] and [119]: 9. The Court generally encourages primary judges to deal with all issues, even if one is dispositive, so that any appeal may be final. However, in this case, it was inappropriate for the primary judge to determine the question of liability due to her Honour's finding that an extension of time should not be granted. … 112. It is not apparent why the primary judge determined the issue of liability prior to the issue of extension of time. The question whether an extension of time is to be granted is one necessarily antecedent to the determination of any issue in the proceedings relating to liability to which the extension is relevant. Moreover, in a case of this kind - where there had been a very long delay in commencing proceedings and the defendant had raised questions of prejudice arising from its inability to obtain evidence - it was essential that those matters, as relevant to the question of extension, be first considered. It is the consideration of those matters which will point to the appropriateness or otherwise of determining any remaining issue in the action where an extension is not to be granted. 113. In some cases it may be possible to deal with an issue such as vicarious liability when the court has refused an extension of time. It is a matter of long-standing practice in most trial courts that, where possible, all issues be the subject of adjudication. The practice is based upon the desirability of avoiding the need for a new trial in the event that an appeal on one issue is successful. However, as has been observed (154), it is no more than a rule of convenience. It is not something which should invariably be done without consideration of the appropriateness of that course of action in the circumstances of the case. … 119. For these reasons the primary judge should not have decided the issue of liability and the Full Court should not have revisited it. Consistently, this Court is not in a position to determine it either.
The first and third respondents submitted that having regard to these passages in Prince Alfred College, it would not be appropriate or necessary for the Court to deal with the substantive issues raised in Grounds 1 and 2.
The applicants relied on [113] of Prince Alfred College, submitting that the Court should have regard to the long-standing practice to adjudicate all issues where possible. They distinguished Prince Alfred College on the basis that in that case there had been an "extraordinary delay of over eleven years", and accordingly "a trial on the merits was no longer possible" (referring to Prince Alfred College at [8]). In this case, the applicants submitted that it would be premature for an application to be made where there were steps not yet taken in the sequential decision-making process. As such, the applicants necessarily had to wait until the sequential steps had been taken "in order to ground the submission that the extension was required because those steps were unfavourable to it".
Further, the applicants submitted that in Prince Alfred College there was an incurable defect in the quality of evidence which had been caused by the deliberate decision of the respondent to not commence proceedings; however, in judicial review of planning decisions, ordinarily confined to documents, there is unlikely to be such a defect in the quality of the evidence.
The applicants also referred to the reasons of Basten AJA in Mangoola Coal Operations v Muswellbrook Shire Council (Mangoola Coal Operations), [14] where his Honour held that it would generally be inefficient to repeat the process of calling and cross-examining witnesses in the event that there was error in the ruling as to the dispositive grounds. There, Basten AJA considered the authorities of the High Court in Kuru v State of New South Wales (Kuru) [15] and Boensch v Pascoe (Boensch). [16] In Kuru (a case concerning intermediate courts of appeal), Gleeson CJ, Gummow, Kirby and Hayne JJ said at [13] (footnotes omitted): 13. …This Court has said on a number of occasions that, although there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground. If the intermediate court has dealt with all grounds argued and an appeal to this Court succeeds, this Court will be able to consider all the issues between the parties and will not have to remit the matter to the intermediate court for consideration of grounds of appeal not dealt with below.
With reference to the above passage in Kuru, the High Court said in Boensch (a case also concerning appellate courts) at [7]-[8] (Kiefel CJ, Gageler and Keane JJ): 7. Though it would have been preferable for the primary judge to have made findings on all of the facts that were in contest before him, we would not criticise the Full Court for not addressing an issue raised before it which it did not consider to be dispositive. The principle that an appellate court should confine itself to determining only those issues which it considers to be dispositive of the justiciable controversy raised by the appeal before it is so much embedded in a common law system of adjudication that we have no name for it. In some other systems, it is known as "judicial economy". Judicial economy promotes judicial efficiency in a common law system not only by narrowing the scope of the issues that need to be determined in the individual case but also by ensuring that such pronouncements as are made by appellate courts on contested issues of law are limited to those that have the status of precedent. 8. … But a non-universal rule making it important for intermediate courts of appeal to consider whether to deal with all grounds of appeal is quite different from a rule that always or even ordinarily requires those courts to deal with all grounds of appeal. It is important to the efficiency of the system as a whole that intermediate courts of appeal should not feel compelled to treat determination of non-dispositive issues in appeals before them as the norm.
I accept that it may be a "long-standing practice", where possible, to adjudicate all issues. At the same time, the authorities are plain that it is a matter for the trial judge to consider whether to deal with all grounds of appeal, [17] that an intermediate court of appeal should not be compelled to treat that practice as a norm, [18] and that it is no more than a rule of convenience to be considered with regard to the appropriateness in the circumstances of the case. [19]
Having regard to the circumstances of this case, having decided that the proceedings against the Minister are time-barred for the reasons given above at [129]-[136], and the applicants having provided no explanation for the delay in commencing the proceedings seeking to set aside the Gateway Determination, I do not feel compelled to deal with the matters raised by the applicants in Grounds 1 and 2 of the amended summons. However, having regard to long-standing practice, and the submissions of the applicants that I do so, I will deal with those grounds briefly.

[44]

Whether the Gateway Determination was ultra vires because there was no planning proposal under s 55 sufficient to enliven the Minister's power under s 56(2) (Ground 1)

In Ground 1, the applicants seek to set aside the Gateway Determination on the basis that the Minister's power to make the determination under s 56 of the EPA Act (as in force as at 31 August 2017) was not enlivened because the planning proposal the subject of the determination (that is, the 2017 Planning Proposal) failed to comply with s 55(2) of the EPA Act.
Section 55 of the EPA Act, as in force as at 31 August 2017, is extracted at [36] above.
As set out above at [27], the particulars to Ground 1 include that the proposal failed to set out the justification for amending the BVLEP 2013.
The applicants submitted that on a fair reading of the January 2017 Planning Proposal, the "objectives", "outcomes" and "provisions" which ss 55(1) and 55(2) require to be justified were: 1. applying E zones E4, E3, E2, RU2 and RE1 to the land with a minimum lot size of 10 Ha for E4, 40 Ha for E3 and 120 Ha for RU2; 2. implementing the Southern Joint Regional Planning Panel's recommendations; 3. retaining exhibited zonings for the majority of the land; 4. zoning land for appropriate uses: 1) Extractive industry - sand/topsoil (RU2 - Rural Landscape and E3 Environmental Management): 2) Agriculture (RU2 Rural Landscape): 3) Environmental Protection and Management (E2 & E3); and 5. amending the BVLEP 2013 to re-zone lands considered a Deferred Matter.
The applicants further submitted that the justification in the January 2017 Planning Proposal was critically deficient for the following reasons: 1. it asserted that the January 2017 Planning Proposal was not the result of a strategic study or report; 2. it cherrypicked one part of the South Coast Regional Strategy by only referring to one of the six action points and only blithely; 3. it asserted that there were no "estimates of rural residential supply" and there was uncertainty as to "rural residential yield"; 4. it referenced the "Agricultural Land Classification Map - Lower South Coast Region"; 5. it relied on "a thorough flora and fauna assessment in mid-2011" conducted by a "consultant Ecobiological"; and 6. it simply stated that the January 2017 Planning Proposal "was consistent" with various directions without providing any analysis.
It followed, having regard to the requirements of s 55, the applicants contended that the January 2017 Planning Proposal "does not appear to justify 'outcomes' and its 'provisions', but simply says, in effect, refer to the surrounding zonings, (noting the references to other planning strategies applicable to the area)".
Further, the applicants submitted that from January to August 2017, the Minister identified "deficiencies" in the proposal, and wrote to Ms Barnes of Council stating that he was not prepared to make a determination that would re-zone the land until Council undertook further analysis, and accordingly placed "conditions" that the January 2017 Planning Proposal be updated. The inescapable inference from the Minister's conditions, the applicants submitted, was that the January 2017 Planning Proposal was devoid of its required justification.
At the hearing, the applicants submitted that, on any view, there was a misalignment on the critical issue of zoning between the justification proffered by Council and the justification required by the Minister. They contended that the misalignment was so fundamental that the January 2017 Planning Proposal was not a s 55(1) "planning proposal", and the Gateway Determination was not a s 56(2) determination. Put another way, Council had not arrived at the gateway and the Minister could not open it.
The first and third respondents accepted that a planning proposal prepared in accordance with s 55 of the EPA Act is a necessary precondition to a valid gateway determination under s 56: citing the Court of Appeal in Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (Moorebank Recyclers CA). [20] However, the January 2017 Planning Proposal satisfied the requirements of s 55, including that in s 55(2)(c) requiring a planning proposal to include the justification for the objectives, outcomes and provisions of the proposed instrument and the process for their implementation.
The first and third respondents submitted that the necessary justification appears in Part 3 of the proposal, titled "Justification", and commencing at p 7. They submitted that there could be no question that the proposed instrument included the matters required by s 55(2)(c), and that the applicants' high-level criticisms failed to grapple with the nuanced reasoning in the proposal. Accordingly, no inference could be drawn as to the satisfaction of s 55(2)(c) from the Minister's decision to condition the Gateway Determination, and the fact that the Minister may not have been satisfied with the merits of some aspect of the justification did not support an inference that the proposal did not offer any justification satisfying the description in s 55(2)(c).
I am satisfied that the January 2017 Planning Proposal, read fairly, includes the justification for Council's "objectives, outcomes and provisions and the process for their implementation", through its engagement with the questions in "Part 3 - Justification", as extracted at [71]. Relevantly: 1. In Questions 3 and 4, it addresses applicable regional and local strategies, determining where the objectives of the planning proposal aligned with the objectives of those strategies, particularly by "limiting a proliferation of rural residential dwellings by way of the RU2 zoning…and the E3 zoning over the more heavily forested lands", and by "minimis[ing] the potential for land use conflict between any future urban uses and the current extractive industry on the site". 2. In Question 5, it engages with applicable State Environmental Planning Policies (SEPPs), determining where the proposed zoning was consistent with such policies, particularly in relation to the current use of the land for grazing livestock, and considering the protection of areas containing Manna Gums for the purpose of a koala habitat assessment. 3. In Question 6, it addresses in detail the various section 117 Ministerial Directions applicable to the Boydtown land, justifying where the proposed zoning is consistent with those directions, and where it is justifiably inconsistent. Contrary to the applicants' submissions, it is clear that this section undertakes analysis of its consistency with the directions. 4. In Question 7, it considers that the rezoning is unlikely to cause harm to threatened species, populations or ecological communities, referring to six fauna species identified on the land which are "listed as significant (Vulnerable) under the NSW TSC Act".
I accept the submission of the first and third respondents that the question of the satisfaction of s 55(2)(c) of the EPA Act and the question of the merits of the justification provided in the proposal are distinct inquiries. The Minister, in the Gateway Determination, was concerned with the latter. This Court, in relation to Ground 1, is concerned with the former. I find that any criticism of the merits of the justification provided in the January 2017 Planning Proposal is not presently relevant to the Court's determination.
Accordingly, I am satisfied that the January 2017 Planning Proposal contained the justification required by s 55(2)(c). In the event that I had granted an extension of time, I would dismiss Ground 1.

[45]

Whether the Minister's Gateway Determination decision was ultra vires because it was incapable of constituting a determination under s 56(2)(a) (Ground 2)

Likewise in relation to Ground 2, notwithstanding I have decided that the further amended summons is time-barred insofar as it seeks relief against the Minister, I will deal briefly with this ground of challenge.
Subsection 56(2) of the EPA Act, as in force as at 31 August 2017, is extracted above at [37]. In relation to subsection 56(2), the applicants submitted that the obligation imposed upon the Minister under s 56(2) is to "determine" the matters listed in (a)-(f) of the subsection. In particular, s 56(2)(a), requires that the Minister determine whether the "matter" (the planning proposal) should proceed, whether in the terms framed in the proposal or in the terms varied by the Minister. The applicants submitted that the language of 56(2)(a), when contrasted with that in para (b), indicates that the determination made under (a), even if variation is required, is a determination as to what the proposal and any variation should be. The determination under 56(2)(b) is not a determination to proceed, but rather calls for 'resubmission' and determination of the resubmitted planning proposal by the Minister, having regard to the matters that he or she identified as founding the need for resubmission.
The applicants submitted that the Minister's determination in the present case that an amended planning proposal "and any supporting maps and studies" be referred to DPE "for endorsement prior to community consultation" did not accord with the requirement that the Minister make the relevant determination. Whether Council's justification for proposing the restrictive E2 or E3 zones is made good was ultimately a determination that the Minister was required to make, not "the Department".
The first and third respondents submitted that the crux of the applicants' submission seemed to be that because the Gateway Determination included conditions requiring steps to be taken by Council, it was not open to the Minister to determine that the January 2017 Planning Proposal should proceed under s 56(2)(a).
I am satisfied, applying orthodox principles of statutory construction, [21] that s 56(2)(a) should be construed as permitting the Minister to determine that a planning proposal should proceed subject to conditions of the kind included in the Gateway Determination. This follows from the ordinary meaning of the words in s 56(2)(a). Specifically, the substantive effect of the Gateway Determination, providing that the January 2017 Planning Proposal proceed subject to conditions, is that "the matter" (being the January 2017 Planning Proposal) "proceed", "with … variation", being variations to be made in accordance with the identified conditions.
The process of making variations was contemplated by s 56(2)(a), having regard to the ordinary meaning of the text of that provision, read in context, which context includes s 58 which expressly contemplates that planning proposals may be subject to variation following a gateway determination. Section 56(2)(a) imposed no limitation on the extent of variation that might be made to a planning proposal in accordance with the Minister's determination under s 56. None of the conditions here took the Gateway Determination outside the bounds of the Ministers powers under s 56(2)(a).
The requirement that the "amended Planning Proposal and any supporting maps and studies are to be referred to the Department for endorsement" does not alter this conclusion. Contrary to the applicants' submissions, this condition did not involve any delegation of the Minister's functions under s 56 to the Secretary. The determination that the January 2017 Planning Proposal proceed, with variation, was made by the Minister (by his delegate) on 31 August 2017. The Endorsement Decision, made several years later, did not vary or alter that decision, let alone constitute a determination under s 56. It simply formed part of the process required by the Gateway Determination, namely for the January 2017 Planning Proposal to proceed with variations, following which community consultation would commence. The applicants' submissions to the contrary should be rejected, and Ground 2 dismissed (in the event that an extension of time had been granted).

[47]

Jurisdiction

The Court's jurisdiction to determine Ground 3 of the further amended summons in relation to the Endorsement Decision is not self-evident. The Court raised with the parties under which statutory provision the Endorsement Decision was said to be made, and what consequences arose for the Court's jurisdiction.
The first and third respondents accepted that the Endorsement Decision was not a decision made under s 56 of the EPA Act, as in force as at 31 August 2017, and that no sub-section of s 56 could be said to impose an obligation to make the Endorsement Decision. That form of decision was neither expressly nor impliedly contemplated by s 56. They submitted that it was made pursuant to a condition in a non-statutory instrument, the Gateway Determination. Specifically, the Endorsement Decision was made by Ms Lees in accordance with the request made by the Minister's delegate in the Gateway Determination that the amended Planning Proposal "be referred to the Department for endorsement".
The first and third respondents accepted that the fact that the source of any obligation to make the Endorsement Decision was non-statutory had implications for the question of the Court's jurisdiction to determine the applicants' challenge to the Endorsement Decision. They accepted that it was unlikely that the Court's jurisdiction under s 20(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) was engaged. Subsection 20(2) of the LEC Act relevantly provides: 20 Class 4 - environmental planning and protection, development contract and strata renewal plan civil enforcement … (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of the following proceedings - (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law, a development contract or a strata renewal plan, (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, (d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract.
The first and third respondents submitted the better view was that Ms Lees, on behalf of the Secretary, was not under an "obligation or duty … imposed by a planning or environmental law" to make the Endorsement Decision, and the Endorsement Decision did not involve the "exercise of a function conferred or imposed by a planning or environment law". I accept that submission as plainly correct.
It is clear that the Endorsement Decision was not made pursuant to any express obligation or duty imposed by a planning or environmental law. Rather, the Endorsement Decision was made in accordance with a condition imposed by the Minister in the Gateway Determination.
Accordingly, the first and third respondents submitted, and I accept, that the Court had jurisdiction to determine Ground 3 within its ancillary jurisdiction under s 16(1A) of the LEC Act. [22] They submitted, and I accept, that it would be a surprising result if the applicants were required to bring their challenge to the Endorsement Decision in the Supreme Court, and their proceedings in respect of Council's approved decision and the Gateway Determination in this Court, when the decisions emerge from overlapping factual circumstances. In enacting s 16(1A) of the LEC Act, Parliament should be understood as having intended for a challenge such as that raised in Ground 3 to be capable of resolution in the ancillary jurisdiction of this Court.

[48]

Relevant considerations

The applicants' contention that the Endorsement Decision was ultra vires on the basis that Ms Lees failed to take into account relevant considerations in making the decision presumes that the matters set out in paragraph (a) of the particulars to Ground 3 were considerations that she was bound to take into account. As the authors of Aronson et al observe, [23] "[t]he High Court has repeatedly stressed that the relevancy grounds apply only if the decision-maker was bound to take the omitted factor into account". The leading authority remains Minister for Aboriginal Affairs v Peko-Wallsend Ltd (Peko-Wallsend), [24] where Mason J observed: "The ground of failure to take into account a relevant consideration can only be made out if a decision-maker is bound to take into account in making that decision". On this point, the applicants simply contended that "the Department was required to do what the Minister directed them to do in the Gateway Determination but failed to do so."
The question of whether a governmental decision-maker is bound to take matters into account is a question of statutory construction, determined by a consideration of the statute imposing a duty on the decision-maker to make the relevant decision. [25] In circumstances where the applicants have challenged a decision that is not sourced in statute, but rather in an instrument (the Gateway Determination), the question of what considerations Ms Lees was required to take into account in making the Endorsement Decision turns on the proper construction of the Gateway Determination. As the authors of Aronson et al observe, identifying the legal limits of non-statutory actions is not straightforward: "it will frequently be difficult to find a basis for further restrictions, beyond those requiring rationality, reasonableness, and natural justice." [26]
The Gateway Determination imposed no express obligation on the decision-maker to give consideration to the three matters identified in paragraph (a) of the particulars to Ground 3. The Gateway Determination simply stated that the "amended Planning Proposal and any supporting maps and studies are to be referred to the Department for endorsement" (see above at [21]). Having regard to the ordinary meaning of those words, read in the wider context of the Gateway Determination, I find that all that was required to be considered by Ms Lees was the "amended Planning Proposal and any supporting maps and studies" referred to in condition 1 extracted at [21] and [54], and included in the Briefing Note. To the extent that the relevant considerations identified in the particulars to Ground 3 were pressed, the applicants have failed to demonstrate the basis for the contention that Ms Lees was bound to consider those matters in making the Endorsement Decision. The contention is not supported by the terms of the Gateway Determination, and should be rejected.

[49]

Matters taken into account

I have decided that all that was required to be taken into account by Ms Lees in making the Endorsement Decision was the "amended Planning Proposal and any supporting maps and studies" referred to the Secretary. Those matters were considered by Ms Lees in making the Endorsement Decision. Those materials were summarised in the Briefing Note (referred to above at [96]), and were provided to Ms Lees as attachments to the Briefing Note (see above at [115]). Ms Lees gave specific consideration to those materials. I do not find that there was any failure to take into account a relevant consideration in making the Endorsement Decision.
It is not clear whether the applicants contended that Ms Lees failed to consider the May 2021 Planning Proposal. Rather, it seems that they contended that the May 2021 Planning Proposal did not, in fact, constitute an "amended and updated proposal", and on that basis Ms Lees failed to consider an "amended Planning Proposal", as required by the Gateway Determination. I do not accept any such contention. It is clear from a comparison of the January 2017 Planning Proposal and the May 2021 Planning Proposal that the latter was amended and updated, including in the respects identified at p 3 of the Briefing Note (see above at [96]). Whether or not the amendments to the January 2017 Planning Proposal were satisfactory (in the sense that they satisfactorily responded to the conditions set out in the Gateway Determination) is a question going to the merits of the May 2021 Planning Proposal. It is not relevant to the question of whether the Endorsement Decision was ultra vires.
I am satisfied that the May 2021 Planning Proposal constituted an "amended proposal", and that that planning proposal was considered by Ms Lees in making the Endorsement Decision.
The first and third respondents submitted that even if the matters identified in the particulars to Ground 3 were "relevant considerations" required to be taken into account by the decision-maker prior to making the Endorsement Decision, Ground 3 should nonetheless be dismissed. I find that these matters were considered by Ms Lees, on behalf of the Secretary, prior to the making of the Endorsement Decision, as she deposed in her affidavit and summarised above at [116]-[120].
Accordingly, Ground 3 is dismissed.

[50]

Whether Council failed to take into account mandatory relevant considerations in making its approval decision (Ground 4)

In relation to Ground 4, the applicants submitted that in making the approval decision, Council was obliged to consider the BCA Report. It is clear that the BCA Report was not before the councillors at Council's meeting on 23 August 2021, and that the material that was before Council was devoid of any consideration of the BCA Report.
The applicants further submitted that in making the approval decision, Council failed to take into account relevant considerations, being the provisions of the Gateway Determination particularised in [4(a)] of the further amended summons, and that Council was required to do the following in accordance with condition 1 of the Gateway Determination: 1. update the January 2017 Planning Proposal to apply environmental and rural zones and associated development standards to land based on its ecological significance and primary use; 2. confirm what criteria had been used for applying an environmental zone, such as the presence of native vegetation communities, and confirm how the presence of these ecological attributes have been verified; and 3. consult with the OEH and DPE regarding the proposed zones and the development standards.
Council, noting that an identical contention in relation to the Endorsement Decision was made in relation to Ground 3 against the third respondent, adopted the third respondent's submissions concerning the applicable principles in relation to mandatory relevant considerations, and the submission regarding a challenge to a decision not sourced in statute, and the legal limits of non-statutory actions. Council submitted that Ground 4 could only be made out if Council was bound to take into account the particulars to Ground 4(a).
Council further submitted that "in place of" the particulars to Ground 4, the applicants had contended that Council was obliged to consider the BCA Report. If this was an amendment to the (further amended) summons, the applicants required the Court's leave to amend. In any event, if leave were granted, the Gateway Determination did not impose any express obligation on Council to give consideration to the BCA Report.
Further, if the amended pleading departed from the requirements of the Gateway Determination, Council opposed any such amendment and contended that the relief should be specifically pleaded. [27] Council submitted that the evidence "closed" on 26 November 2021 when the affidavits of Ms Thomson and Mr Van Bracht were sworn. There was no motion before the Court to amend the (further amended) summons, and the applicants ought not be permitted to amend at the hearing when they had had some 12 months to consider their case and the evidence. This would, they contended, be contrary to ss 56 to 58 of the of the Civil Procedure Act 2005 (NSW).
In any event, Council submitted that it did take those matters into account in making its approval decision in that: 1. the planning proposal was updated after consultation with the BCD in the form of the May 2021 Planning Proposal (see Briefing Note above at [96]); 2. it confirmed the criteria used for applying an environmental zone in the Zoning Report prepared in March 2019, provided to DPE on 14 March 2019 (see above at [75]); and 3. it consulted with OEH and DPE in relation to the proposed zones (see above at [75] and [116]).
Further, Council submitted that the applicants' consultant made a written submission dated 25 June 2021 upon the public exhibition of the May 2021 Planning Proposal, and Ms Thomson reviewed that submission and prepared a report to the elected representatives.
In the alternative, Council relied upon s 56(8) (now s 3.34(8)) of the EPA Act which provides that a failure to comply with a requirement of a gateway determination under s 56 in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once made (other than in relation to a failure to undertake community consultation which is not presently relevant). In relation to this submission, the applicants submitted that once the planning instrument is made, it becomes a local environment plan subject to the time barring provision in s 3.27 of the EPA Act (previously s 35), which provides that an environmental planning instrument should not be challenged in court after three months of the date of its publication. The applicants contended that reading s 56(8) in the way Council invited it to be read would be patently inconsistent with the broad nature of the time bar in s 3.27.
In relation to the construction of s 56(8), the applicants also relied on Tugun Cobaki Alliance Inc v Minister for Planning (Tugun Cobaki Alliance), where Jagot J addressed whether the proposed interpretation of the now repealed subsection 75X(5) of the EPA Act to "cure all" procedural breaches would offend basic principles of construction and set the rule of law aside. [28] The applicants accepted that the former s 75X(5) is in different language to that of s 56(8), but submitted its terms, substantively, are not distinguishable. Subsection 75X(5) (since repealed) provided: (5) The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project.
Jagot J found that there was no breach of any provision, the breach of which would lead to invalidity. [29] Her Honour observed that s 75X(5) was to be "construed as an expression of Parliament's intention that the only provision breach of which will necessarily lead to invalidity is s 75H(3)." The word "only" in s 75X(5) should not imply a consequence to "cure" breaches of any other provision; a far clearer expression of parliamentary intention would be required to effect such a meaning. Rather, the consequences of breach of all other provisions should be determined in the ordinary course consistent with the principles laid down in Project Blue Sky Inc v Australian Broadcasting Authority (Project Blue Sky). [30]
In relation to Ground 4, I find that the Gateway Determination did not impose any obligation on Council, at the level of specificity contended by the applicants, to consider the BCA Report. I also find that Council took the matters particularised in [4(a)] of the further amended summons, referred to at [29(1)-29(3)] above, into account.
In any event, the effect of s 56(8) (now s 3.34(8)) of the EPA Act is that a failure to comply with a requirement of a gateway determination under s 56 does not prevent the instrument from being made, or invalidate the instrument.
Accordingly, Ground 4 is dismissed.

[52]

Whether Council's approval decision was ultra vires for denying the applicants procedural fairness (Ground 6)

In relation to Ground 6, the applicants contended that Council denied them procedural fairness when it represented to them that Council would provide the BCA Report to DPE. The representation was said to be both explicit and implied from the following: Council's attitude to the commissioning of the assessment; Council's undertaking to not proceed to Gateway until the BCA Report was received; Council's collaborative approach to the issues raised in the BCA Report; the terms of the Gateway Determination; the fact that time had expired to comply with the Gateway Determination; and the failure of Council to commission its own ecological surveys.
Council submitted that the applicants had not addressed the antecedent question as to whether there was imposed on Council a duty to afford procedural fairness in the context of its approval decision, citing Spigelman CJ in Minister for Local Government v South Sydney City Council. [31] There his Honour said at [15]: As Kioa v West and Annetts v McCann, as well as many other authorities makes clear, the determination of the existence, scope and content of the duty to afford procedural fairness requires careful consideration of the statutory power.
The principles in relation to procedural fairness in administrative decisions were articulated in Kioa v West (Kioa), [32] and endorsed in Annetts v McCann (Annetts). [33] In Annetts, Mason CJ, Deane and McHugh JJ said at 598: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
The applicants relied on Harvey v Minister Administering the Water Management Act (Harvey), [34] and Calardu Penrith Pty Ltd v Penrith City Council (Calardu). [35] They emphasised the following paragraphs in the reasons of Jagot J in Harvey: [36] 101. The authoritative test for the application of the requirements of procedural fairness is whether the exercise of power may destroy, defeat or prejudice a person's rights, interests and legitimate expectations (Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; 101 LGERA 297 at [53] citing Annetts v McCann (1990) 170 CLR 596 at 598 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576. See also Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 at [56]-[57]). … 114. The fundamental principle if the duty applies is that a party liable to be directly affected be given an opportunity to be heard. This would "ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material"…This involves an entitlement to have the party's mind "directed to the critical issues or factors on which the decision is likely to turn" if those matters are not obvious from the nature of the decision or the terms of the statute under which it is made…
Mr Galasso SC for the applicants submitted that there, the obligation of procedural fairness arose by way of the inter‑parties dialogue between the applicants and Council in the form of an "agreement" that the applicants would commission the BCA report.
The applicants referred to Aronson et al in relation to the representations said to have been made by Council: [37] The fact that the government or a decision-maker has given an undertaking or representation bearing upon a decision can clearly affect both the application and content of the procedural fairness in relation to that decision.
The applicants also relied on the decision of Tobias JA in Lesnewski v Mosman Municipal Council, [38] where his Honour held that a complete denial of procedural fairness is an "inviolable limitation or restraint" which cannot be protected by privative clauses or time bar clauses such as the former s 101 of the EPA Act, which prevented the challenge of a consent or complying development certificate after three months from the date on which public notice was given.

[53]

Consideration of the existence of a duty of procedural fairness on the part of Council

I commence by considering the relevant statutory provisions which bear upon the existence of a duty to afford procedural fairness on the part of Council in relation to the approval decision.
Part 1 of Schedule 1 to the EPA Act contains "mandatory community participation requirements". In particular, item 4 in Division 1, Part 1 provides for community participation in planning proposals as follows: 4 Planning proposals for local environmental plans subject to a gateway determination (Division 3.4) (cf previous s 57) Minimum public exhibition period for planning proposals for local environmental plans subject to a gateway determination - (a) if the gateway determination for the proposal specifies a period of public exhibition - the period so specified, or (b) if the gateway determination for the proposal specifies that no public exhibition is required because of the minor nature of the proposal - no public exhibition, or (c) otherwise - 28 days.
Division 4, Part 1 of Schedule 1 also outlines mandatory notification requirements for applications and decisions. Division 3.4 of Part 3 of the EPA Act concerns local environment plans. Some of the provisions involving community consultation are as follows.
Subsection 3.35(1) of the EPA Act provides: 3.35 Planning proposal authority may vary proposals or not proceed (cf previous s 58) (1) The planning proposal authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason.
Subsection 3.36(2) of the EPA Act provides: 3.36 Making of local environmental plan by local plan-making authority (cf previous s 59) (2) The local plan-making authority may, following completion of community consultation - (a) make a local environmental plan (with or without variation of the proposals submitted by the planning proposal authority) in the terms the local plan-making authority considers appropriate, or (b) decide not to make the proposed local environmental plan.
Section 3.37 of the EPA Act provides: 3.37 Regulations (cf previous s 60) The regulations may make further provision with respect to the making of environmental planning instruments under this Division, including - (a) requirements with respect to consultation about proposed instruments by a planning proposal authority with particular persons or bodies, and (b) requirements with respect to planning proposals and the submission of other related reports and documents, and (c) requirements with respect to advertising in connection with community consultation on proposed instruments, and (d) provisions relating to consultation by the Planning Secretary with relevant planning authorities and others on the drafting of proposed instruments, and (e) requirements for concurrence of public authorities in relation to the reservation of land for a purpose referred to in section 3.14(1)(c).
The applicable regulations at the time of Council's approval decision were the Environmental Planning and Assessment Regulation 2000 (EPA regulations), now repealed and replaced by the Environmental Planning and Assessment Regulation 2021, which commenced on 1 March 2022. Part 2 of the EPA regulations concerned local environment plans. As at the commencement of the EPA regulations on 1 January 2001, Part 2 contained Division 3, "public participation" provisions, however these were no longer included in the EPA Regulations as at 19 August 2020, when the applicants provided to Council the BCA Report. Therefore, the community consultation requirements for the planning proposal are to be found only in the EPA Act.
In Vanmeld Pty Ltd v Fairfield City Council (Vanmeld), [39] the Court of Appeal was required to determine whether Fairfield City Council owed to the applicant an obligation to afford procedural fairness in amending a specific clause of a draft local environmental plan without publicly exhibiting that amendment for community consultation. In dissent, Spigelman CJ held that the amendment to the clause impinged on the right and interests of the small group of impacted landowners in a "direct and immediate way", [40] and that the legislative requirement of a community wide consultation was not the equivalent of, or exhaustive of, obligations to consult by reason of an intrusion upon private rights and interests. [41]
The majority disagreed. Meagher JA found that the EPA Act specified exactly to what extent procedural fairness must be accorded to a ratepayer. [42] Powell JA found that Pt III of Div 4 of the EPA Act (as it then was) indicated a legislative intention that outside those statutory requirements to notify and consult, a council seeking the making of an environmental planning instrument was not to be subject to any duty to accord procedural fairness to any person, or body, who, or which, might be affected by the provisions of the proposed instrument. [43]
In Bailey v Ku-ring-gai Council (Bailey), [44] the applicants sought judicial review of Council's decision to vary a planning proposal to amend Schedule 5 of Ku-ring-gai Local Environmental Plan 2015 (KLEP). The planning proposal sought to remove four properties from the schedule as items of local heritage, including the applicants' property. Council amended the KLEP to remove three properties as local heritage items, but not the applicants' property. The applicants contended that they were denied procedural fairness as they were notified too late of the change in recommendation to retain the heritage listing of their property, and as such did not have sufficient time to obtain expert heritage advice in response to the change in recommendation. Council relied on Vanmeld in contending that there was no common law duty to accord procedural fairness, as the statutory provisions in Div 3.4 of Part 3 of the EPA Act indicated a legislative intent that except to the notification and consultation requirements, Council was not subject to any duty to accord procedural fairness.
In Bailey, Preston CJ held that: [45] 77. …there is force in the Council's contention that the Council's obligation to notify and consult with Mr and Mrs Bailey, as persons affected by the planning proposal, about the planning proposal is limited to the requirements to notify and consult provided for in Div 3.4 of Part 3 of the EPA Act. In particular, the obligation to notify and consult concerning a revised planning proposal is limited to what is required by s 3.35 of the EPA Act. The Council has not been shown to have not complied with these statutory requirements to notify and consult concerning the planning proposal and the revised planning proposal.

[54]

Disposition of Ground 6

In relation to Ground 6, I find that the applicants have not discharged their onus of satisfying the Court that Council failed to comply with the relevant statutory requirements to notify and consult with them in making the approval decision. I do not consider that Council's statutory obligations to notify and consult with the applicants about the planning proposal provided for in Div 3.4 of Part 3 of the EPA Act and Part 1 of Schedule 1 to the EPA Act extended so far as to providing the BCA Report to DPE.
I find that Council complied with its statutory obligation to notify and consult with the applicants as follows. In correspondence to the applicants' Mr Stevens dated 29 March 2021, Mr Tull advised that Council's application to extend the date for the Gateway Determination had been refused on the basis of advice to councils that the Government was committed to accelerating planning decisions in line with updated planning proposal guidelines which were expected to be released shortly (see above at [87]). Mr Tull advised Mr Stevens that it had been "emphasised by DPIE that any future planning proposals for the area need to align with the recommendations and conclusions of the Southern Joint Regional Planning Panel 'Pre-Gateway & Planning Proposal Review' dated 10 March 2015." Mr Tull acknowledged the significant work done, but advised "there are several issues in the current draft that require further consideration".
One month later, by letter dated 28 April 2021 to Mr Stevens, provided by email of the same date, Dr Howe referred to the correspondence of 29 March 2021, and confirmed a change in circumstances beyond Council's control in relation to the need to finalise the planning proposal. Dr Howe also advised that the application to DPE to extend the Gateway Determination had been refused, and that the relevant DPE coordinator had informed Council that plans needed to be put in place to ensure the outstanding planning proposal was completed by the end of 2021. Dr Howe wrote (emphasis added): Council acknowledges that a significant amount of work has recently been commissioned by [sic] towards addressing many of the issues raised by Council and the JRPP relating to this land, and Council remains committed to continue to work with Lyon Group to finalise a zoning scheme and development standards for the whole site. Please note that finalisation of the 2017 planning proposal does not prevent a future planning proposal being lodged to amend the zoning or lot size standards that may be applied through this process.
By email dated 11 August 2021, Council informed the applicants of its report and recommendation in relation to the May 2021 Planning Proposal which was to be considered at Council's meeting on 18 August 2021. The applicants were advised that a copy of the report was available on Council's website, and of the opportunity afforded them "to present to Councillors on this matter on 18 August 2021 outside the usual Public Forum."
Mr Stevens responded on the same day. Ms Thomson's reply by email dated 12 August 2021 attached Council's letter to DPE dated 6 August 2021 in relation to the applicants' concern about a presumption against recently rezoned land in the planning proposal process. Council sought clarification as to whether finalisation of the current planning proposal would "materially affect the owner's prospects of achieving a future planning proposal" should one be endorsed by Council and the Secretary. Council's 6 August 2021 letter to DPE advised: To date the owner of the land has not produced a planning proposal that Council has been able to support. Council acknowledges that the owner has made significant progress towards a planning proposal that Council could endorse, including lodgement of a new planning proposal in this last couple of weeks, the timeframe for completion of that work is unclear. Council has been proceeding with the current planning proposal because the land is deferred from BVLEP 2013 and the proposed zones and lot sizes were endorsed by the Southern Joint Regional Planning Panel.
On 11 August 2021, Ms Lees responded that she "would like to confirm that any decision on this proposal does not prevent the submission of a new planning proposal for the land in the future" (emphasis added). On 17 August 2021, Ms Thomson sent the applicants the memo provided to senior Council officers and elected representatives containing background information on the May 2021 Planning Proposal and the planning proposal submitted by the applicants which said that Council had had "an initial review", but advised that "several more detailed specialist reports or additions to existing reports and plans may be required".
The transcript of Council's meeting on 18 August 2021 records that following a question from Councillor Fitzpatrick seeking clarification about "an environmental study" not provided to the councillors, Dr Howe confirmed that Council had received an ecological study in relation to a new planning proposal by the Lyon Group which Council officers were reviewing, but that the planning proposal before Council sought to address the JRPP's requirements (and DPE's requirements), and to "present a clean slate for the Lyon Group's subsequent planning proposal to be considered by Council and agencies in due course".
The transcript of the meeting also records that Dr Howe said: Dr Howe: … if the Council defers the Council planning proposal, then the Lyon Group planning proposal would need to address the matters that the JRPP determined in 2015. So in that sense it would be a retrograde step for the Lyon Group, because they would have to address those matters which is essentially the planning proposal before you today, before they can progress to the planning proposal that they ultimately wish to see realised for the site. Cr Bain: So the long and short of it is, if we don't operate within the timeframe set out by the New South Wales Government, they'll have to start at the very beginning again. Dr Howe: Through you, Mr Mayor, that's correct.
I am satisfied that the actions referred to above at [216]-[222] establish that Council complied with its statutory obligations to notify and consult with the applicants provided for in Div 3.4 of Part 3 of the EPA Act and Part 1, Schedule 1 to the EPA Act.
To the extent that it is contended that Council was subject to and failed to discharge a common law duty of procedural fairness in the context of its approval decision, I do not consider that, in the present matter, any such duty extended so far as to providing the BCA Report to DPE. The applicants were notified of their opportunity to address the councillors prior to making the approval decision, and advised of the opportunity to submit a new planning proposal in the future.
Accordingly, I dismiss Ground 6.

[58]

Endnotes

[2021] FCAFC 213; (2021) 288 FCR 23 at [2].
[2020] FCA 1022 at [5].
Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 at [122] (Campbell AJA).
Melhem at [123].
[2017] NSWLEC 97.
Moorebank Recyclers LEC at [14].
See at [20], [43].
See UCPR r 59.10(3)(b).
cf Moorebank Recyclers LEC at [51].
Ocean Shores Community Association Inc v Byron Shire Council (No 3) [2015] NSWLEC 171 at [21] (Pain J).
Moorebank Recyclers LEC at [13].
Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969.
(2016) 258 CLR 134; [2016] HCA 37.
[2023] NSWSC 262 at [80]-[81].
(2008) 236 CLR 1; [2008] HCA 26.
(2019) 268 CLR 593; [2019] HCA 49.
Kuru at [12].
Boensch at [8].
Prince Alfred College at [113].
[2018] NSWCA 304 at [138] (Payne JA, Basten JA and Emmett AJA agreeing).
See, e.g., SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] per Kiefel CJ, Nettle and Gordon JJ.
See Rodney Duarte v Waverley Council [2022] NSWLEC 53 at [34]-[35]; see also Anglican Church Property Trust Diocese of Sydney v Camden Council [2021] NSWLEC 118 at [154] and Council of the City of Ryde v Azizi [2021] NSWCA 165; (2021) 248 LGERA 204 at [22]-[36] (Basten JA).
M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2021) at p 281, [6.90] (Aronson et al).
(1986) 162 CLR 24, 39; [1986] HCA 40.
Peko-Wallsend at 39-40.
Aronson et al at [4.80].
Pheeney v Doolan (No 2) [1977] 1 NSWLR 601 at 604.
[2006] NSWLEC 396 at [179]-[184] (Jagot J).
Tugun Cobaki Alliance at [184].
Tugun Cobaki Alliance at [184] citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.
(2002) 55 NSWLR 381; (2002) 123 LGERA 367; [2002] NSWCA 288.
(1985) 159 CLR 550 at 584; [1985] HCA 81 (Mason J).
(1990) 170 CLR 596; [1990] HCA 57 (Mason CJ, Deane and McHugh JJ).
[2008] NSWLEC 165; (2008) 160 LGERA 50 at [98]-[118] (Jagot J).
[2010] NSWLEC 50 at [171]-[177] (Biscoe J).
Harvey at [101], [114].
Aronson et al at p 442, [7.200].
[2005] NSWCA 99; (2005) 138 LGERA at [76]-[79].
(1991) 46 NSWLR 78; [1999] NSWCA 6.
Vanmeld at [80] (Spigelman CJ).
Vanmeld at [92] (Spigelman CJ).
Vanmeld at [182] (Meagher JA).
Vanmeld at [190] (Powell JA).
[2019] NSWLEC 35 (Preston CJ) (Bailey).
Bailey at [77].

Boydtown Pty Ltd v Minister for Planning and Public Spaces

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (59 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (44)

Cited By (2)