104 This was not a typical development application due to the waste disposal scheme proposed. That scheme as required under Condition 23 specifies that micro-trenches not be within 6m if up-gradient and 3m down-gradient of any building, driveway and drainage channel without further written approval. These requirements also have implications for adjoining blocks. A minimum roof area is fixed in Condition 21 of 250m2. The Applicant's written submissions identify six matters required by the development consent conditions which have implications for whether there is a practical building precinct in the absence of a lot by lot assessment. These are a rainwater tank of 125,000 (Condition 7(iii) and 21), 5,000 litres must be available for fire-fighting (Condition 7(iv), a fire truck must be able to drive within 10m of the connection to this tank (Condition 7(iv)), there must be clearance around micro-trenches as per Condition 23.12, driving on micro-trenches is not allowed (Condition 20), a private access way must be constructed across Lots 19-21 and it was intended that large trucks must be able to turn around on Lots 20-22 in order to enter onto and exit from the lots in a forward direction. The Applicant argued that these requirements were conflicting.
105 Reliance on the councillors' local knowledge and the fact that the blocks were large was not sufficient to discharge the Council's obligation under cl 16(2)(h).
106 The Applicant argued that it is clear from the answers to interrogatories it relied on that the Council failed to have regard to whether each allotment had a practical building precinct, in breach of cl 16(2)(h) of the YLEP. In its answers the Council stated that it only had regard to the planner's report to Council when considering whether each allotment had a practical building precinct. That report stated in relation to cl 16 that "the applicant has not provided any information on the building precincts, however this can be addressed as a condition of approval". This was a matter that had to be considered before development consent was granted and was not a matter that could be dealt with by development consent conditions.
107 Ms Ketelby's evidence (see par 27(iii) above) is that the Council did not have sufficient information, identified in her affidavit, to determine whether a practical building precinct existed on each lot.
Second Respondents' submissions
108 Pearlman J in Hospital Action Group v Hastings Municipal Council (1993) 80 LGERA 190 at 194, 195 was relied on where her Honour held that the adoption of a council officer's report dealing with s 90 matters is sufficient without evidence to the contrary to give rise to an inference that the council took into account s 90 matters (at 194). Councillors have local and general knowledge which they may consider to inform themselves on issues. In this case the councillors would be aware that the site was generally flat. An inference of failure to consider should only be drawn after anxious consideration, Parramatta City Council & Anor v Hale & Ors (1982) 47 LGRA 319 per Moffitt P at 345, Centro Properties Limited v Hurstville City Council & Anor (2004) 135 LGERA 257 per McClellan J at [37] and Gee v Council of the City of Sydney and Ors [2004] NSWLEC 581 at [19]. The Council is presumed to have knowledge of the relevant provisions of its LEP, see Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor (1999) 110 LGERA 130 at [25]. There was a substantial amount of information made available to the Council concerning the four DAs (summarised below at par 135 in relation to the DCP challenge ground), and as outlined in Mr Hynes's affidavit and the bundle of documents tendered in the proceedings.
109 The evidence of Mr Hynes at par 36 - 38 of his affidavit (see par 27(iii) above) sets out the documentary evidence available to the Council to enable it to consider whether each lot had a practical building precinct. This includes the plan of subdivision showing the location and area of each lot. The Newbold report at page 3 states that the maximum sizes and dimensions of future dwellings can be predicted by reference to the Council's controls and Mr Newbold set out the range of permissible floor space in each lot, indicative footprints for one and two storey dwellings and dimensions of indicative footprints. The Martens report, the Department of Commerce report and Southern Area Health Service letters were also provided to the Council.
110 Mr Hynes also identifies at par 39 and 40 of his affidavit the basis upon which it was readily apparent in his view that there was a substantial area of land within each lot available for a practical building precinct.
111 Dr Martens deposed in his affidavit of 9 June 2006 that he was able to ascertain that each lot had a practical building precinct and that the Council was aware before it assessed the development application that there were no constraints that would have precluded Council from concluding that each lot had a practical building precinct (affidavit par 28-31, 40, 47-50).
112 While the Applicant relies on particular answers to interrogatories (see par 100), the planner's report dated 21 December 2004 at page 6 states that a comprehensive analysis was provided concerning the requirements of cl 22(3) which includes (f), the location of proposed dwellings in relation to proposed waste disposal systems and to each other. In light of the other documents provided to the Council, such as the Martens report and many others, the planner's conclusion in his report dated 21 December 2004 that no information was provided on building precincts, is incorrect.
113 The meetings addressed by Dr Martens on 29 November 2004 are relevant as these provided an opportunity for councillors to ask questions in relation to matters they knew they had to consider under cl 16(2)(h), and cl 22(3), of the YLEP as to likely practical building precincts and location of dwelling houses. It is also clear from the answers to interrogatories relied on by the Second Respondent that in addition to the matters on the Council's file further information available included copies of submissions and a site inspection by some councillors.
114 The Council had regard to cl 16(2)(b) of the YLEP before consenting to the development of the land because:
(a) a practical building precinct is apparent and could be readily ascertained from the plans of subdivision lodged with the development applications when those plans were considered in the context of other documents and information available to the Council
(b) particulars that enabled the Council to determine whether each lot had a practical building precinct were addressed in general terms in Appendix 7 of the SEE and the Martens report; and
(c) by imposing conditions of consent in the terms set out in Conditions 20, 21 and 52 of the development consents, the Council considered inter alia whether each lot had sufficient area for reclaimed water irrigation fields, roof size area of dwellings for the capture of potable water and the capacity of trucks to enter and leave relevant lots in a forward direction. In doing so, Council demonstrated that it had determined that each lot had a very large and generous area of land available for the construction of a dwelling house and that each lot had a practical building precinct. The affidavit of Mr Coady demonstrates that for different truck widths there is adequate room for a turning circle on these lots. It is otherwise clear from a "back of the envelope" exercise that there is adequate room for a dwelling house and irrigation fields on these lots
(d) Condition 23 does not require that the irrigation fields be constructed before the consent for a dwelling house is obtained.
115 The answers to interrogatories relied on by the Second Respondent make clear that information relevant to cl 16(2)(h) of the YLEP was made available to the councillors. Given the twelve matters about which the Council had information (see par 135 below in DCP argument) this enabled the Council to determine from looking at two or more places in the SEE the relationship between the various pieces of information and whether there was likely to be sufficient space for a building(s) on the lot being created in the future.
116 Clause 16 applies to land throughout the local government area the subject of the YLEP, that is, it has general application. "Practical building precinct" is not defined in the YLEP or the EP&A Act or the LG Act 1993. The clause is directed at whether there is likely to be enough room for the type of building proposed.
117 Clause 16 refers to "must also consider" but does not require a particular outcome.
Finding
118 The ground of failing to have regard to a relevant factor requires that the factor must be a mandatory matter for the decision maker to consider: Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1985-6) 162 CLR 24 (Peko-Wallsend) per Mason J at 39. Clause 16(2)(b) of the YLEP is such a matter given the requirement under s 79C(1)(a) of the EP&A Act that an environmental planning instrument must be taken into account by a consent authority when determining a development application.
119 In Woolworths Limited v Wyong Shire Council & Ors I considered a number of relevant cases at [221] - [223] as follows:
(ii) Failure to take into account a relevant consideration in s 79C
Numerous cases in this Court have had to consider the extent of council consideration of development applications. The relevant principles in relation to this issue are contained in Parramatta City Council v Hale (1983) 47 LGRA 319 and Weal v Bathurst City Council (2000) 111 LGERA 181. The decision of the Court of Appeal in Hale established that a failure by a consent authority to give "real" consideration to the provisions in an environmental planning instrument which a consent authority is required to take into account in determining a development application, is an error of law which renders that development consent invalid (per Moffitt P at 344). However, Hale is also authority for the proposition that an inference that a consent authority failed to give real consideration to such a matter can only be drawn after "anxious consideration" (per Moffitt P at 345). In Hale Moffitt P stated at 338 to 339 that:
…section 90(1) requires that the relevant matters set out in pars (a) to (s) of that subsection shall be "taken into consideration" "in determining (the) development application". The "determination" to which s 90(1) refers is made clear by s 91(1). An exercise of the power to determine an application necessarily require [sic] the authority to consider the alternatives referred to in s 91(1). Therefore, if it is to make a determination to grant consent, it will be bound to consider whether the consent should be conditional or unconditional…
It follows that, where a s 90(1) matter is relevant… on the question whether conditions should be imposed on the consent, if given, and, if so, what should be the conditions. Hence where, as in the present case, the development is likely, indeed certain, to cause harm to the environment… an obligation, (and in that instance a very serious one), is imposed on an authority, minded to give its consent, "to take into consideration" "any means that may be employed to protect the environment or to mitigate (the) harm" "in making the determination", as to whether conditions should be imposed and if so the terms of them.
In Weal Giles JA said at 201 [80]:
Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration ( Parramatta City Council v Hale at 335-6, 339; King v Great Lakes Shire Council at 384; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-5).
Recently these authorities were considered in Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 where McClellan J set out at 266 - 267 [37] a distillation of the principles in Hale and Weal including:
· the onus falls upon the challenger to satisfy a court that the relevant discretion has miscarried;
· when exercising its decision-making power, an administrative body must give "proper, genuine and realistic consideration" to the merit of the matter: see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292; Paramanamtham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64. Mere advertence to a matter may not be sufficient. Zhang at NSWLR 601;
· legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment from the development;
· generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it;
…
120 A recent consideration of these cases in judicial review proceedings concerning a challenge to a decision of a local council to grant development consent is found in Kindimindi v Lane Cove Council (2006) 143 LGERA 277 per Basten JA (Handley JA and Hunt AJA concurring) at [74] - [79]. The ground alleged was the failure to form a "collegiate view" and the argument made was that the Council was required to give "proper, genuine and realistic consideration to the merits of the case". At [79] his Honour states that adoption of the principles of McClellan J in Centro should be applied with caution to ensure there is no impermissible merit review. These principles need to be considered in the circumstances of this case.
121 Clause 16(2)(h) states the consent authority "must also consider" whether each allotment in a subdivision has a practical building precinct before consenting to development of land. There is no definition of the term "practical building precinct" in the YLEP and according to the affidavit of Ms Ketelby the term is not used in other LEPs in NSW and is not a term commonly used by planners. According to the Second Respondent's submissions it is not defined in the EP&A Act or Model Provisions, the LG Act 1993 or the previous Local Government Act 1919. In the absence of any definition, I agree with the Second Respondent's submissions that the expression requires that there be consideration of whether there is likely to be "enough room" for the type(s) of building that might be the subject of a future development application for the land. That may well include structures such as a garage as referred to by Ms Ketelby (see par 27(iii)).
122 The answers to interrogatories relied on by the Applicant if considered in isolation confirm there was a failure to consider cl 16(2)(h) in the Council planner's report dated 21 December 2004 because, while it refers to that clause, it states that no information was provided in relation to building precincts. It is clear that the Council did not have before it a plan or description of each lot showing a proposed building precinct. The Court is entitled to consider the answers to interrogatories as part of the evidence, and not as a formal admission preventing other evidence from being considered. It is therefore part of the material which I can consider in this matter, not the entirety. If the answers to interrogatories relied on by the Applicant did not exist, the planner's report raises the application of cl 16(2)(h) squarely in any event as it states that building precincts were not considered.
123 The lengthy evidence relied on by the Second Respondent suggests that the Council was provided with a large amount of material about the development applications as detailed in the Second Respondent's submissions and identified in the interrogatories relied on by the Second Respondent. The Second Respondent through its experts argued that this was more than sufficient to enable the Council planner and the Council to determine for themselves that there was a practical building precinct. That information enabled the Council to consider generally how the proposed waste management system would operate on the proposed subdivision lots. In order to overcome the statement in the town planner's report, the material before the Council would have to be self-evident in demonstrating that there was sufficient information that a dwelling and related buildings were able to be built on the lots in the future in the circumstances of these particular subdivisions. Both parties relied on (opposing) expert evidence on that question.
124 I have set out above at par 87 the limited role that expert evidence can play in judicial review proceedings such as this matter. In terms of the categories identified there, category 5 (to explain what was before the Council where there is a challenge to the reasonableness of the Council's decision) is possibly applicable. Ms Ketelby has given her evidence as an expert that more information had to be available in order for the Council to determine whether there was a practical building precinct. Mr Hynes' evidence was that the matter was self-evident. Dr Martens' evidence that he, an expert, was able to easily undertake an exercise to work out the practical building precinct for a single lot does not assist in this exercise because it is the Council's consideration that is relevant. This evidence is inconclusive at best.
125 There is no evidence that the Council or its planners did address directly whether there was a practical building precinct on each lot. The Council planner's report suggests the planner did not. I have already held at par 79 - 82 that Conditions 16, 20 and 23 have the effect the Applicant contends for as set out in its argument at par 102(i) and (ii) in relation to Conditions 16, 20 and 23. I agree with the Applicant that these conditions left the determination of whether there was a practical building precinct to a later stage, after the development consents were granted. Clause 16(2)(h) requires consideration of this issue before consent for development is issued by the Council.
126 The Second Respondent has relied on the extensive information available to the Council to argue there was clearly sufficient material available to the Council for it to have determined there was a practical building precinct. That material and submissions about it can be presented to the Court in relation to the exercise of discretion by the Court as to the legal effect of the failure to comply with cl 16(2)(h) but it is not an answer to the mandatory requirement to consider cl 16(2)(h) in the YLEP. I consider there is a failure to consider cl 16(2)(h) as identified by Giles JA in Weal at 201. The Applicant has discharged the onus of proof it bears to prove there was a failure. It is successful on this ground.
F. Failure to have regard to cl 10.1(2)(iii) of Village DCP
127 Clause 10.1 of the Village DCP relevantly provided that:
The following matters must be addressed when seeking development consent to subdivide land …
2. A site plan 1:1000 scale (three copies) of the land to which the application relates must accompany the application, including the following: