Centro Properties Limited v Hurstville City Council and Others

Development Application :- advertised development - requirement in relation to notification - whether sufficient. KEY ISSUES: Development Application:- specified development - requirement in relation to notification - whether sufficient. Development Application:- whether draft SEPP must be considered. Development Consent:- invalid by reason of failure to consider draft SEPP.

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979

Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1983) 53 LGERA 322 ; Johnson v City of Lake Macquarie Council (1996) 91 LGERA 331 ; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; CASES CITED: Noble and Anor v Cowra Shire Council (2001) 114 LGERA 440; Pulver Cooper v Blackley Pty Ltd (1998) 108 LGERA 76 ; Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; Weal v Bathurst City Council (2000) 111 LGERA 181 ; Winn v Director-General of National Parks and Wildlife Service (2001) 130 LGERA 508 ; Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 8/12/2005, 13/12/2005 (written submissions)

APPLICANT Mr J Ayling SC with Mr M S Henry (Barrister) SOLICITORS Mallesons Stephen Jaques

FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr T F Robertson SC SOLICITORS Deacons

SECOND AND THIRD RESPONDENTS submitting appearance SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40609 of 2005 Centro Properties Limited v Hurstville City Council and Others

JUDGMENT 1 Talbot J: On 2 February 2005 Hurstville City Council ("the first respondent") resolved to grant development consent to a development application lodged with it by Richard Aberline ("the second respondent") on 14 July 2004 in respect of the construction of a mixed ten cinema and retail complex with an open air plaza on property known as 443-453 King Georges Road, Beverly Hills. The property is owned by Dimitrios Tsagias and Giannoula Tsagias ("the third respondents"). 2 Centro Properties Limited ("the applicant") is seeking a declaration that Development Consent No 462-2004 is invalid and of no effect on the following grounds:- (a) that notice of the Development Application was not given in accordance with the requirements of the Environmental Planning and Assessment Act 1979 ("the Act"). (b) that, notwithstanding that the Consent was purportedly granted subject to a deferred commencement condition in accordance with s 80(3) of the Act, it does not comply with that subsection; and (c) that, in determining to grant the Consent, the Council failed to take into consideration Draft State Environmental Planning Policy (Application of Development Standards) 2004 ("the draft SEPP") in breach of s 79C(1)(a)(ii) of the Act. 3 The council represented by Mr Robertson SC opposes the application. The second and third respondents submit to the orders of the Court save as to costs. Advertised development 4 Section 79A(1) of the Environmental Planning and Assessment Act 1979 ("the EPA Act") requires that notice of a development application for consent to carry out advertised development is to be given in accordance with the Act, the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulation"), any relevant environmental planning instrument and any relevant development control plan. Furthermore under s 79A(2) a development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of any development control plan that provides for the notification or advertising of that application. The applicant submits that the development application is either "advertised development" (s 79A(1)) or "specified development" (s 79A(2)). According to Mr Ayling SC, who appears for the applicant, if the development application was for "advertised development" it had to be notified in accordance with Division 7 of Part 6 of the EPA Regulation as well as DCP 17. If it was for "specified development" it had to be notified in accordance with DCP 17. 5 Advertised development is defined in s 4 of the EPA Act as follows:- advertised development means development, other than designated development, that is identified as advertised development by the regulations, an environmental planning instrument or a development control plan. 6 The EPA Regulation contains provisions for notification in Division 7 of Part 6.

7 Clause 5 of the Regulation provides as follows: (1) For the purposes of the definition of advertised development in section 4 (1) of the Act, the following types of development (not being designated development) are identified as advertised development: (a) State significant development referred to in section 76A (7) (b) or (d) of the Act (not being Class 1 aquaculture development), referred to in this Regulation as State significant advertised development ,

(b) integrated development (not being State significant advertised development, threatened species development or Class 1 aquaculture development) that requires an approval (within the meaning of section 90A of the Act) under: (i) a provision of the Heritage Act 1977 specified in section 91 (1) of the Act, or

(ii) a provision of the Water Management Act 2000 specified in section 91 (1) of the Act, or

(iii) a provision of the Protection of the Environment Operations Act 1997 specified in section 91 (1) of the Act, referred to in this Regulation as nominated integrated development ,

(c) development referred to in section 78A (8) (b) of the Act (not being State significant advertised development), referred to in this Regulation as threatened species development ,

(d) development that, pursuant to State Environmental Planning Policy No 62 - Sustainable Aquaculture, is Class 1 aquaculture development, referred to in this Regulation as Class 1 aquaculture development . (2) For the purposes of this Regulation, each of the following kinds of development, namely:

(c) Class 1 aquaculture development, (d) any development that is identified as advertised development by an environmental planning instrument or a development control plan, is referred to in this Regulation as other advertised development .

(3) A reference in subclause (1) to State significant development is a reference to development which, before the repeal of section 76A (7) of the Act, was State significant development and which (under transitional provisions of or made under the Act) continues to be subject to the former provisions of the Act relating to State significant development.

8 The applicant relies upon cl 5(2)(d). 9 There is no environmental planning instrument that identifies the subject development as "advertised development." 10 The only relevant development control plan for present purposes is Development Control No. 17 - Neighbourhood Notification and Advertising of Development Applications ("DCP 17"). The applicant contends that the development falls within Category D identified in DCP 17 as new buildings in a Business or Light Industrial Zone. Mr Ayling says that clause 2.1 of DCP 17 identifies the subject development as "other advertised development" within the meaning of clause 5(2)(d) of the EPA Regulation. 11 Specified development is not defined, yet the term appears in various provisions of the EPA Act (see ss 76(1), 76A(1) and 76B(a)). The applicant's argument is that the use of the term "specified development" where used in the EPA Act is consistent with a reference or references to a type or types of development of which Category D is one. The first respondent disputes that the development is advertised development but concedes that it falls within the category of specified development 12 The structure of the legislation is that advertised development is defined by the EPA Act in a way that requires it to be identified separately by the Regulations, an environmental planning instrument or a development control plan. In this respect cl 5 is framed in two parts. Subclause 1 identifies four types of development (none of which include the subject development) "for the purposes of the definition of advertised development in section 4". Subclause 2 in terms does no more than specify the "kinds of development" that are included in the term "other advertised development" in the Regulation. Subclause 2 does not of itself create a type of advertised development contemplated by the definition in s 4. It is no more than an interpretation clause in respect of the parts of the Regulation that refer to "other advertised development". The development referred to in cl 5(2)(a), (b) and (c) are respectively defined in cl 5(1)(b), (c) and (d). Development that was classified as state significant development before the repeal of s 76A(7) of the Act is not included within any reference to "other advertised development". Therefore upon a proper construction of cl 5 of the Regulation the subject development is not identified as advertised development by the Regulations.

13 It is noteworthy that there are separate regimes for affording public participation in the development application process in respect of designated development (Division 5), state significant advertised development (Division 6) and other advertised development (Division 7) in Part 6 of the Regulation. The Regulation does not provide for a separate or distinct regime in respect of advertised development identified by a DCP.

14 The omission of the subject development from the types of development identified by cl 5(1) of the Regulation means that the subject development has not been identified as advertised development by the Regulations and accordingly it does not fall within the definition in s 4 on that account.

15 I have already noted and it does not appear to be in contention that the subject development is not advertised development as a consequence of being identified in the environmental planning instrument. That omission is clearly overt as Hurstville Local Environmental Plan 1994 ("LEP 1994"), which applies to the subject land, identifies in cl 29 two classes of development as advertised development, namely, the demolition of a heritage item and the carrying out of any development allowed by cl 34. Clause 34 also deals with the use of a building that is a heritage item.

16 It therefore remains to be considered whether the subject development is identified as advertised development in a development control plan. DCP 17 provides control and guidelines for neighbour notification and advertising of development applications. Clause 1.7, in effect, repeats the definition of advertised development contained in s 4 of the Act. 17 The chapeau to cl 2.1, upon which the applicant relies, is as follows: 2.1 NOTIFICATION AND ADVERTISING REQUIREMENTS The category listings below aim to differentiate between minor and significant development, where Category A is minor development and Category C and D are more significant development. Upon Council receiving an application detailed below, the specific notification requirements will be met. 18 Even a broad reading of cl 2.1 in the way that a development control plan should be read does not accommodate an identification contemplated by s 4 of the Act. Nevertheless cl 1.2 of DCP 17 purports to apply its provisions to all land within the City of Hurstville to which LEP 1994 applies where a development application is lodged with council (with certain irrelevant exceptions). However, relevantly to the applicant's argument, cl 2.1 merely defines the notification requirements in respect of each individual category of development listed in cl 2.1 having regard to whether the development proposed is regarded as minor or significant. I reject the argument that the inclusion of a description of the subject development as a category in cl 2.1 is an identification of the subject development for the purposes of s 4 of the Act. If that was so, then all development applications lodged with council would be advertised development. Clause 2.1 of DCP 17 obviously imposes requirements for the advertising of certain categories of development but does not within itself identify those categories of development as advertised development. 19 I conclude therefore that the proposed development has not been identified as advertised development by the Regulations, LEP 1994 or DCP 17 in the manner contemplated by the definition of advertised development in s 4 of the EPA Act. The proposed development does not fall within any type of development identified in LEP 1994 or cl 5(1) of the Regulation as advertised development. DCP 17 does not, in terms, identify any category of development as "advertised development" but contains provisions that are of general application to all development applications irrespective of whether the application is in respect of advertised development. 20 The applicant's claim is based upon a breach of the EPA Act as it relates to advertised development. It is contended that the applicant for development consent and the council did not comply with s 79A(1) of the Act. As a consequence of my finding that the development was not in respect of advertised development as defined in s 4, there cannot be a breach of s 79A(1).

Whether the Development Application has been notified in accordance with DCP 17 21 The parties agree that the development is specified development. Presumably that is as a consequence of its inclusion in cl 2.1 of DCP 17. I have no reason to disagree with that view notwithstanding the equivocal and unclear way that specified development is dealt with in the Regulation. Accordingly, compliance with the requirements of DCP 17 in respect of advertisement and notification of the subject development application is required by s79A(2) of the EPA Act.

22 Clause 2.1 of DCP 17 specifies notification requirements in respect of Category D as follows: (a) A notice will be placed in the local newspaper (The St George and Sutherland Leader) advertising the development application.

(b) A written notice will be forwarded to the owners and occupiers of land located three (3) properties on either side of the proposal, the property at the rear and opposite the proposal, and three (3) properties on either side of the rear and three (3) properties generally opposite (across any road). …. (d) [sic] The owners and occupiers of other neighbouring land, may be notified who, in the opinion of Council, may have the amenity or enjoyment of their land affected. 23 Under cl 2.2 where public concern is raised to any application the council may consider a wider notification of an application or extension in the time available for comment should the case warrant such action. Clause 5.1 specifies the information to be contained in a written notice to be forwarded by council to the "owners and occupiers of adjoining land".

24 The applicant alleges in its Points of Claim that in breach of cl 5.1 of DCP 17 the written notification did not contain the following:

1. The lodgement date of the development application (5.1(a)).
2. An invitation to inspect the development application and the documents supporting it (5.1(f)).
3. A statement that the substance of written submissions would be included in reports in relation to the development application (5.1(j)).
4. A statement that the first respondent is subject to Freedom of Information laws and that the substance of written submissions might be made available to any person entitled to lodge an application under those laws (5.1(k)).
5. A statement that the recipient of the letters might by request and upon payment of a fee as determined by the first respondent obtain a copy of the full-scale plans of the proposal showing the height and external configuration of the buildings subject to the provision that this will not be construed as providing any extension to the period for the making of a submission to council (5.1(m)).
6. A statement that compliance with the quantitative standards and objectives of council's policies and Codes and/or support by Council's professional staff does not necessarily guarantee approval (5.1(n)). 25 It follows, according to the applicant's argument, that by reason of the failure to notify the development application in accordance with the provisions of DCP 17 in respect of specified development, notice of the development application was not given in accordance with the requirements of s 79A(2) of the EPA Act and that accordingly the development consent should be declared invalid, null and void.

26 It is the applicant's claim that the breaches of cl 5.1(f) and (m) are the most serious and lead to the invalidity of the notification.

27 I cannot comprehend how a breach of cl 5.1(a) alone could lead to invalidity as the lodgement date of the development application is likely to bear little or no relevance for an objector or person interested in making a submission in respect of the proposed development. The provisions or requirements of cl 5.1(j), (k) and (n) are in the nature of information provided to prospective respondents about administrative procedures in relation to the process of evaluation and consideration of the application and cannot therefore be regarded as essential ingredients of the notice having regard to its stated primary purposes to enable public participation in the process and the facilitation of the making of submissions. The failure to provide a warning about the possible effect of Freedom of Information laws was clearly subsumed in the following warning contained in the notification letter: Submissions of the proposal are to be considered in the public domain. A person may request to have their personal details suppressed. For more information about the Council's Privacy Management Plan, telephone the Privacy Contact Officer on…

28 The statement specified in cl 5.1(n) is no more than a clarifying or explanatory note about the extent of the discretion that the council has as consent authority. At its highest it may be regarded as a warning against complacency in circumstances where a potential respondent is aware that the quantitative standards and objectives of council's policies and codes are complied with or even that professional staff have expressed support for the proposal. It is nevertheless not, in my view, an essential part of the notification process or critical to the achievement of the objective of making interested persons aware that a development application has been received and that submissions are invited.

29 The letter of notification stated "(t)he application and plans are available for viewing" between specified dates and particular times at nominated venues. It also contains an observation that "(t)he development application is the same as the application previously submitted to Council with the addition of an acoustic report."

30 The development application form includes a reference to the following attachments: · Integrated Development schedule… · Commercial or retail use details… · 10 copies of plans/drawings of proposed development including plan of land… · 1 copy of plan for purpose of clause 48B Environmental Planning and Assessment Regulation 1994… · a statement of environmental effects…

31 Strictly speaking therefore the documents accompanying the application were incorporated in the development application itself and therefore formed part of it. Accordingly the invitation to view the application and plans is in my opinion a substantial and meaningful compliance with the objective of the notice. I do not think reference to the additional acoustic report takes the matter a great deal further except as an indication that there could be reports which comprise part of the application. It is such a fine point that I am doubtful that it would impact upon the understanding of the recipient in any meaningful way for present purposes.

32 Paragraph (m) of cl 5.1 required that the notice advise the recipient that upon request and upon payment of a fee, a copy of the full-scale plan of the proposal showing the height and external configuration of the building may be obtained. The proposed development is within category D of cl 2.1. Clause 5.1(l) requires a notification plan for categories A, B and C developments only. A notification plan is identified by cl 5.2 as being a plan on an A4-size sheet with various particulars required of the site and the improvements proposed. I do not agree with the applicant that the lack of a requirement to provide a notification plan for category D means that the requirement of subclause (m) is irrelevant. The confinement of the requirement of a notification plan to categories A, B and C is a reflection of the nature of development within those categories which are generally of a more minor nature than the type of development included within category D. It is therefore, in my opinion, more relevant to category D that access to a full-scale set of plans be granted. However the failure to make specific reference to the availability of full-scale plans in the notice is not necessarily fatal in terms of the notice itself.

33 Some assistance can be gained by reference to the decision of Stein J in Johnson v City of Lake Macquarie Council (1996) 91 LGERA 331 confirmed in Pulver Cooper v Blackley Pty Ltd (1998) 108 LGERA 76 at 94. In Johnson Stein J said at 341: It seems to me that having regard to the objective of the Act to promote public participation and the legislative scheme, the provisions relating to public notice must be seen as an important part in the process. In order to attain the object [s 5(c)], strict or substantial compliance is required as a pre-condition to consideration of an application.

34 The primary aims of DCP No. 17 are set out in clause 1.6 as follows: (a) enable public participation in the consideration of development applications; (b) provide a process for property owners and residents to make submissions; (c) provide a process when notification is required; (d) set out the matters Council will consider when forming its opinion as to whether or not the enjoyment of adjoining and neighbouring land may be detrimentally affected by a development after its completion; (e) ensure notification of landholders who may be affected by a development application even though they do not own adjoining land; and (f) define the circumstances when notification is not required. 35 In my opinion the letter of notification made the recipient aware that the proposal involved a major project at an readily identifiable location and that the details of the application including the plans could be readily inspected at two apparently prominent locations during usual business hours for 14 days. The omission of the particular details that are fastened upon by the applicant do not, in my view, detract from the effectiveness of the notice for the purposes and objectives outlined in cl 1.6. The failure to provide some of the information in accordance with the strict particularity mentioned in cl 5.1 did not, in my opinion, detract from the substantial effectiveness of the notice or have the consequence that any potential objector would not have come forward, at least to inspect the material exhibited.

Deferred Commencement Condition 36 The development application was determined on 2 February 2005 by granting of deferred commencement consent subject to the following conditions: 1. The Developer shall enter into an Agreement with the various owners of neighbouring residential dwelling units having bedrooms within 22m of the driveway entrance to the cinema basement to mitigate possible noise nuisance to bedrooms within those units, arising from vehicles entering or departing from the basement after 10.00pm at night. 2. The mitigation measures addressing Condition 1 are to include the provision of laminated glass to windows of affected bedrooms or alternatively, double glazed windows to achieve internal noise levels to comply with AS/NZS 2107. In addition to this window treatment the internal room comfort conditions are to be maintained by the installation of air-conditioners. Such work is to be carried out at the entire cost of the Developer and at times agreeable to the occupants of the units.

An Agreement is to be prepared and signed by the Developer for the signature of Proprietors of Lots 1, 2, 4, 5, 7 and 8 of SP 57062 (property 26-28 Hampden Street, Beverly Hills) and is to require the noise mitigation works as specified in (b) above, to be carried out prior to the completion of the cinema complex.

The Developer shall enter into an Agreement with the owners of 30 Hampden Street to mitigate possible noise nuisance, arising from vehicles entering or departing form the basement.

Mitigation measures addressing Condition 4, are to include the removal of the entire existing fence fronting Hampden Land and replace it with a colourbond steel or a capped timber lap panel fence 1.8 metres in height above the crown of Hampden Lane. Such work is to be carried out at the entire cost of the Developer and at times agreeable to the occupants on the units.

An Agreement is to be prepared and signed by the Developer for the signature of Proprietors of Lots 89 and 90 of DP 3315 (property 30 Hampden Street, Beverly Hills) and is to require the noise mitigation works as specified in Condition 5 above, to be carried out prior to the completion of the Cinema Complex.

Draft Agreements requiring the developer to carry out the above mitigation works as specified in Condition 2 and Condition 5 above shall be submitted to Council for approval by Council's Director - Policy, Planning and Environment. Duplicate copies of the approved Agreements, signed by the Developer, and each nominated Proprietor of SP 57062 together with the consent of the Owner's Corporation and Proprietor of Lots 89 and 90 of DP 3315 shall then be submitted to Council to satisfy the requirements for the Consent to commence to operate as a Development Consent. 37 The notice of determination contained the following endorsement: Deferred Comencement - This development application is a Deferred Commencement Consent under Section 80(3) of the Environmental Planning and Assessment Act (as amended) 1979. Strict compliance is required with all conditions appearing in Schedule 1 attached within twelve (12) months from the determination date of this consent. Upon confirmation to that effect in writing from Council, the consent shall commence to operate as a Development Consent for a period of two (2) years from the date of written confirmation from Council, and inclusive of all conditions appearing in Schedule 2 attached , pursuant to Section 80 of the Act. 38 There is no justification for changing the approach taken by the majority in the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181 under the regime currently applied by s 80(3) of the EPA Act and cl 95 of the EPA Regulation. That approach to deferred commencement consent equates to the consideration and degree of determination that is demanded for a decision to grant a final development consent.

39 The complaint raised by the present applicant in respect of the subject deferred commencement consent is that it lacks sufficient finality or certainty to properly constitute "a consent" or "a consent to the relevant development application": Winn v Director-General of National Parks and Wildlife Service (2001) 130 LGERA 508 at 514 and Mison v Randwick Municipal Council (1991) 23 NSWLR 734.

40 The applicant identifies an apparent inconsistency between the abovementioned endorsement and the preamble to Schedule 1. The endorsement required "strict compliance" within 12 months whereas the preamble to the conditions requires documents and drawings to be submitted within 3 months. The consequence of the inconsistency, according to the applicant, is that the deferred commencement condition is uncertain in relation to the period in which the conditions in Schedule 1 are to be complied with as it is impossible for the applicant to satisfy the council "in accordance with the Regulation" which requires the consent authority to specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to the matters as to which the consent authority must be satisfied before the consent can operate.

41 The construction of the effect of the deferred commencement conditions by the applicant is not correct. Reading the deferred commencement consent in a reasonable and practical way (Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1983) 53 LGRA 322 at 323) it is clearly apparent to me that the developer is advised that it is required to comply with all conditions in schedule 1 within 12 months but that as a matter of process the documentation and drawings in the form submitted for consideration and approval are to be submitted to the council within 3 months. Adopting this construction the developer is required to submit a draft of the agreements referred to in conditions 1, 3, 4, 6 and 7 incorporating the respective mitigation measures referred to in the other conditions within 3 months. It is logical that as the council is the ultimate arbiter of satisfaction in respect of the noise mitigation measures that the documentation and drawings should be in a form that it will ultimately accept before negotiations are finalised with the respective landowners. The submission of draft documentation within a period of 3 months will allow for consideration, negotiation and amendment not only with the council but with the adjacent owners with the object of completing the whole process within a period of 12 months.

42 If the applicant's interpretation were accepted then the provisions would make no sense. Condition 7 expressly anticipates that draft agreements will be submitted in respect of the mitigation measures to be addressed in conditions 1, 3 and 4. I accept that the reference to "(b)" in condition 3 as a matter of practical construction is intended to be a reference to condition 2.

43 Although the deferred commencement condition provisions could have benefited from better drafting nevertheless the issues raised by the applicant in respect thereof are not sustainable and the argument that the conditions are invalid for lack of certainty is rejected. In the circumstances questions of severance do not arise.

Failure to take into consideration draft State Environmental Planning Policy 44 Section 79C(1)(a)(ii) of the EPA Act provides: In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) … (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), … 45 The council relies upon Zhang v Canterbury City Council (2001) 51 NSWLR 589 for its contention that the obligation imposed by the subsection is to give "proper, genuine and realistic consideration" to any draft environmental planning instrument.

46 A draft of State Environmental Planning Policy (application of development standards) 2004 ("the draft SEPP") was made available for public exhibition in May 2004. It provides for the repeal of State Environmental Planning Policy No 1 - Development Standards. Accordingly, it was a draft environmental planning instrument that had already been placed on public exhibition on 2 February 2005 when the council resolved to grant deferred commencement development consent to the second respondent.

47 It is imperative for a draft environmental planning instrument to have been placed on public exhibition and it must also be relevant to the development the subject of the development application as the introduction to subsection 1 of s 79C dictates. The subject development application was supported by an objection made pursuant to SEPP 1.

48 Clause 5 of the draft SEPP provides that with certain irrelevant exceptions the policy applies to the State and to development that, but for the provision of a development standard, is permissible under an environmental planning instrument, with development consent, except where the development is complying development. Prima facie therefore the draft SEPP, if made, will apply to the subject land and any proposal for development of it.

49 Mr Ayling says that by reason of the fact the development application included an objection under SEPP 1 and the terms of s 79C(1)(a)(ii) of the Act, the draft SEPP was necessarily relevant to the council's assessment of the development application. There is no dispute that the council failed to have regard to the draft SEPP when determining to grant consent to the development application. Hence the failure to consider the draft SEPP was a breach of the Act.

50 The council's defence is based upon an assertion that it was not obliged to have regard to the draft SEPP because it was irrelevant to the development application. Moreover cl 14(2)(a) of the draft SEPP provides that an objection made under cl 6 of SEPP 1 before the date of commencement of the new policy is to be determined under SEPP 1. According to Mr Ayling the argument of the council relying upon cl 14(2)(a) is misplaced having regard to what was said by the Court of Appeal in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195.

51 In Terrace Tower the equivalent provision to cl 14(2)(a) provided for a development application already lodged to be determined as if the new plan "had been exhibited but had not been made." In the present case cl 14 directs that the development application is to be determined in accordance with the former policy (SEPP 1) "as if the former policy had not been repealed…"

52 Mason P who delivered the leading judgment in Terrace Tower found that s 79C(1)(a)(ii) required the consent authority to pay proper regard to the relevant provisions in a draft instrument and further there was no legal error in the finding of Cowdroy J at first instance that the provisions of the draft LEP should be taken into account and that the "transitional clause in the draft SEPP did not bring about the effect that none of its substantive provisions could be examined as sources of information about the public interest touching a proposal lodged at a time when the SEPP was still in draft form."

53 In the present case the transitional provision will have the effect of preserving the effect of SEPP 1. It does not have any application to the status of the draft instrument for the purposes s79C or any other provision. As it has been placed on public exhibition, the provisions of the draft policy remained as a consideration, where relevant, as required by s 79C(1)(a)(ii). The provisions of the section are mandatory although the attribution of weight is a matter for the consent authority and does not involve a question of law so long as irrelevant matters are not taken into account (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).

54 The respondent argues that as cl 14 requires that the development application "is to be determined in accordance with the former policy" (SEPP 1) then any inconsistent provisions of the draft policy cannot be relevant. This submission overlooks the distinction between a determination "in accordance with" specified provisions and a determination "taking into account" certain other provisions as required by s 79C. The new draft policy is merely a further matter to be taken into account where relevant. Its provisions are not irrelevant as a consequence of inconsistency. The existence of any inconsistencies between the two sets of provisions itself raises the issue of consideration of the inconsistent provisions in the draft instrument and the weighting of that factor in the exercise of the discretion being undertaken in accordance with SEPP 1. The provisions of SEPP 1 do not exclude consideration of matters not prescribed by that policy.

55 The new draft policy will encourage councils to adopt a strategic approach to flexible planning and requires them to record specific details on how the policy is used. It is intended to improve consistency and transparency of application of the policy and restricts the use of the policy in certain sensitive environmental locations. The criteria for determining appropriate use of the policy to dispense with or vary development standards will provide a more stringent regime to those that presently apply.

56 It is not appropriate for the Court in these proceedings to conject what weight could have been given to the provisions of the draft SEPP that proposes to introduce stricter state policy guidelines for the consideration of the application of development standards.

57 The absence of any consideration leads to the inescapable conclusion that the council failed to carry out its mandated duty under s 79C. I am unable to accept in the circumstances that the provisions of the draft SEPP were such that no weight could be attributed to them or that they were wholly irrelevant to the consideration of the subject development application.

s25B Order 58 If an order were made pursuant to s 25B of the Land and Environment Court Act 1979, as suggested by the council, the consequent steps to be undertaken involve the weighing of the provisions of the draft SEPP as part of the total consideration required pursuant to s79C and generally. The matters that are found to be relevant, if any, must be balanced and weighed against all of the other matters that are relevant to the council's consideration. This step necessitates a re-opening of the whole process. It is not the intention of s 25B to allow the consent authority to re-open the whole of its consideration (see Noble and Anor v Cowra Shire Council (2001) 114 LGERA 440 at [30]). The failure by the council to consider the provisions of the draft SEPP does not invalidate the development application so that the council may decide to exercise its discretion and to grant a fresh consent after taking into account all of the relevant matters dictated by s 79C, and generally.

Conclusion and Orders 59 It is appropriate for the Court to declare that the grant of development consent is invalid as a consequence of the council's failure to consider the draft SEPP and to make appropriate consequential orders to prevent the second respondent from carrying out any part of the development without a valid consent. Accordingly, I make the following declaration and orders:

1. That the Development Consent No. 462-2004 granted by the first respondent to the second respondent on 2 February 2005 in respect of the property known as 443-453 King Georges Road, Beverly Hills is invalid.
2. That the third respondents and its successors be restrained from relying or acting upon the Development Consent No. 462-2004 granted by the first respondent to the second respondent on 2 February 2005 in respect of the property known as 443-453 King Georges Road, Beverly Hills.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.