Byron Bay Everglades Resort Pty Ltd & Anor v Byron Shire Council & Anor

56. Clause 42(1)(c) as amended by Amendment 75 would operate to affect Mr Bennette's land. His land is zoned 2(a) which is `referred to in paragraph (a)' and the adjoining land (following the amendment) would be zoned 7(b) which is also `referred to in paragraph (b)'. As a consequence a 20 m wide buffer zone between land in zone 7(b) and land in the 2(a) zone would be created. Such buffer would not prevent development. Rather, pursuant to cl 42(3) of the LEP it would require Mr Bennette to apply for development approval for the carrying out of development on land within the buffer zone.

57. In the making of Amendment 75 council was required to afford procedural fairness to landowners affected by such Amendment by adopting the measures provided in Part 3 of the Act. Such procedures include the opportunity to make submissions pursuant s 67 of the Act. Mr Bennette claims that he was deprived of the opportunity to make such submissions and that he would have made very different submissions had he been correctly advised by council of the affect of cl 42. However Mr Bennette admitted in cross-examination that he received legal advice from his solicitor which was contrary to that provided by Ms Walker. With this knowledge he made his second submission to council on 12 May 1999. His understanding of the operation of cl 42 following his solicitor's advice is recorded in the transcript as follows:-

Q. So it's trying to show is it you were concerned that within your - in any development on your land you would be required to set back from the common boundary by 20 metres and not do any development up to the boundary, was that a concern?

It is apparent that Mr Bennette placed no reliance on the information provided by Ms Walker. Mr Bennette's second submission was made to council in the belief that the advice provided by council was erroneous. In view of the facts, Mr Bennette's complaint that the misinformation of council subverted the submissions process and thereby denied him procedural fairness cannot be sustained.

Sixth challenge: alleged non compliance with s 68(4) of the Act

58. The applicants submit that the council, when reporting on 29 July 1999 to the North Coast Regional Office of DUAP pursuant to the provisions of s 68(4) of the Act, failed to draw the Minister's attention to a non-compliance with s 68(4)(d)(i) of the Act which requires a council to submit to the Secretary (not Minister) of DUAP:-

(i) to the effect that the provisions of sections 66 and 67 and this section relating to public involvement in the preparation of the draft plan have been complied with;

Annexed to the report of 29 July 1999 ("the report") was a document prepared by Mr Kanaley for council's policy and planning committee meeting of the 22 June 1999. Such document ("the annexed document") contains detailed statements in relation to council's compliance with s 66 and s 67 of the Act. As to the requirements of s 68 referable to public hearing, the annexed document refers to the fact that the Geolink submission made on behalf of Everglades which called for council to hold a public hearing did not raise issues of significance and that a public hearing pursuant to s 68 was not required. Also contained in the annexed document are extracts of the submissions in relation to Amendment 75 received by council pursuant to s 67 of the Act. Lastly the report itself refers to the exhibition of Amendment 75 together with the development consent (granted by the Court) and a map referable thereto. It follows that there is no substance to the submission that council failed to provide a statement pursuant to s 68(4)(d)(i) of the Act.

59. The applicants also claim that the report did not inform the Secretary of DUAP of council's consideration of cl 29 of the North Coast Regional Environmental Plan ("the REP") as required by s 68(4)(d)(ii) of the Act and the inconsistency of Amendment 75 with both cl 29 of the REP and Direction S 26 as required by s 68(4)(d)(iii).

60. Clause 29 of the REP provides that a draft local environmental plan should inter alia:-

(b) not alter or remove existing environmental protection, scenic protection or escarpment preservation zonings or controls within them, without undertaking a detailed analysis to determine whether there will be adverse environmental effects resulting form such action;

61. Direction S 26 requires council in the making of a local environmental plan to give effect to the requirements of the Coastal Policy and to prepare an environmental study where a draft local environmental plan proposes to alter, create or remove existing zonings_._

A Local Environmental study has not been prepared as it was not deemed necessary because the draft plan implements the intent of the Coastal Policy

63. The annexed document drew attention to the requirement of cl 29 of the REP and of Direction S 26 and clearly identified the inconsistency between such instruments and Amendment 75. Such document also noted that DUAP had not required the council to undertake an environmental study in relation to Amendment 75. Accordingly the council has satisfied the requirements of s 68(4)(d)(ii) and s 68(4)(d)(iii) of the Act.

Seventh challenge: inconsistency with Direction S 26

64. The applicants submit that the council failed to conduct an environmental study pursuant to s 117 Direction S 26, and that the process of making Amendment 75 was thereby flawed.

65. In a letter to DUAP dated 12 October 1998 council stated that the intent of Amendment 75; was to "ensure the protection of high coastal conservation value coastal lands" and that therefore an environmental study was unnecessary. DUAP responded by letter dated 26 October 1998 and expressly confirmed that it was not necessary for council to undertaken an environmental study in relation to Amendment 75. In the report prepared by council pursuant to s 68(4) of the Act council again informed DUAP that it had not undertaken an environmental study in relation to Amendment 75.

66. The principle of statutory interpretation formulated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 390 establishes that non-compliance with a statutory requirement does not necessarily result in the invalidity of the relevant statutory process. For the reasons considered by this Court in Belongil Progress Association Inc v Byron Shire Council & Anor [1999] NSWLEC 271 unreported the failure to provide an environmental study contrary to a Direction made pursuant to s 117 does not necessarily lead to the invalidity of a proposed local environmental plan. The Act specifically contemplates that a draft local environmental plan may be inconsistent with a Direction (see s 69(a) and s 69(b) of the Act). Provided the report to the Minister pursuant to s 69 of the Act draws to the Minister's attention any inconsistency between a Direction and a draft local environmental plan, such plan will not necessarily be invalid. In relation to Amendment 75 it will be a matter for the Minister to determine whether such plan may proceed to gazettal without an environmental study.

Final challenge: alleged non compliance with s 69 of the Act

67. The applicants submit that the draft report prepared by DUAP for the Minister pursuant to s 69 of the Act fails to comply with s 69(a), s 69(b), s 69(c) and s 69(d) of the Act. The report that has not been forwarded to the Minister. As a result of the matters raised in these proceedings such report may be changed into an entirely different document. This challenge is premature and in these circumstances the Court declines to make any findings in relation to this challenge.

2. Costs reserved for determination upon application by any party.