(iii) the Council failed to satisfy itself of the requirements in cl 15 of the Hurstville Local Environment Plan 1994 ("LEP") before granting development consent. Clause 15 of the LEP provides that, before granting development consent, the Council must be satisfied that the facilities for the supply of water and for the removal or disposal of sewage and drainage are available.
Some relevant facts
12 The site of the proposed development is located within a generally busy area. Along King Georges Road there are a number of restaurants and other facilities which attract many people, including significant numbers during the evening. King Georges Road is heavily trafficked, generating noise both during the day and at night time.
13 The proposed development will replace an existing modest cinema complex on the site. Although pedestrian access will, of course, be available from King Georges Road, vehicular access will be confined to Hampden Lane. That laneway presently services a number of shops and restaurants and an hotel fronting King Georges Road, as well as giving access to the residential flats on the other side of the lane. Because of the prospective volume of traffic to the proposed cinema car park, when approving the development, the Council decided to confine the traffic in the laneway to a one way movement and required a variable message parking sign at the intersection of Edgbaston Road and Hampden Lane that electronically indicates the number of car spaces available in the cinema car park.
14 The configuration of the lane, the development along King Georges Road and the residential flat buildings to the rear suggest that noise generated from cars in Hampden Lane would be unlikely to readily dissipate and could, directly or by reflection from existing buildings, impact upon the neighbouring residential apartments. This was appreciated by Scott Carver, who in its November 2002 report on the Original Development Application said in relation to noise:
"It is envisaged that the major noise sources which may potentially impact upon the proposal are from traffic entering and leaving the proposed basement car park, traffic on King Georges Road and from cinema patrons entering and exiting the cinemas. The most significant noise impact which may result from the proposed development is on the adjoining residential units to the west of Hampden Lane.
Although it is proposed to only provide sixty on site parking spaces, this figure may realistically increase if suitable parking arrangements are not secured for the proposal elsewhere. Should an increase in parking be proposed for the subject site, a noise impact study would be required to be prepared to the satisfaction of Council.
The Acoustic and Vibration Impact Assessment Report prepared by Vipac Engineers and Scientists made specific recommendations in terms of noise minimisation, which are addressed as conditions of development consent."
15 As I have indicated, the Original Development Application provided for 62 cars. It was not pursued and the Amended Development Application sought approval for 212 car spaces in the car park. Although the Scott Carver Report was again placed before the Council, no investigation was undertaken of the potential noise impact of the additional motor vehicles. However, the comment is made by the reporting Council officer, Ms Christy, that:
"to reacquaint councillors the previous report prepared by the planning consultants has been reproduced further in this report. The issues discussed in that previous report are still valid for this proposal."
16 The Original Development Application was publicly notified. There were 380 submissions in opposition to it and 682 submissions in favour of it.
17 There were 17 separate objections to the Amended Development Application. When reporting on the Amended Development Application, Ms Christy noted each objection and briefly commented upon it. One matter noted was "concerns in relation to the noise levels on nearby residents." The officer's comment was:
" Comment: this is a valid concern. The building will need to be constructed such that the cinema noise has no impact on those nearby residents. Also, the loading hours will need to be limited and this will be a condition of consent. These hours will be restricted to between 7 am and 7 pm Monday to Saturdays only."
18 Both the Original Development Application and the Amended Development Application were accompanied by a Statement of Environmental Effects. With respect to noise from cars, the following comment was made in both Statements:
"Car noise from parking is likely to decline due to all proposed parking on the site being contained in a basement. Existing parking on the site is all at grade directly off the laneway. Noise from the arterial road may also reduce due to the more significant building buffer proposed that will shield some of the residential development to the west of the site from the arterial road noise.
The control of noise from people leaving from and arriving at the cinemas is more difficult to control, however the operators propose to advise patrons of their responsibilities regarding noise at regular intervals and this will also be signposted at relevant locations, including the car parks."
19 Elsewhere in the later Statement of Environmental Effects, the following statement was made:
"The only impact of any consequence is the additional traffic in Hampden Land resulting from the provision of parking on the site. This however is considered sustainable in the traffic assessment."
20 This, of course, says nothing about the impact of noise from the increased vehicle movements in Hampden Lane.
21 The inevitable conclusion from an examination of the material before the Council is that, although the Scott Carver Report recognised that noise from cars in Hampden Lane could be a problem, if the number of off street car spaces was increased above the original 62, it was not analysed in any report to the Council. Indeed, although concerns about noise are noted in the second report, they were not expressed in terms of car noise from increased traffic in the laneway.
22 The need to consider the impact of noise from cars was also identified by the present applicant which was an objector to the Amended Development application. Ricky Steinkay, an urban planner with Urbis Keys Young, was retained to make a submission which included the following:
"Further acoustic assessment is required, to accurately detail the proposed impacts of the car park operations, particularly late at night. The acoustic study should demonstrate that the proposed basement car park will not produce a negative amenity impact on the surrounding residential area."
The planning officer's evidence
23 In the course of these proceedings, the Council sought to tender evidence from Ms Christy, the Council's planning officer, who, as I have already indicated, prepared the report to the council in relation to the Amended Development Application.
24 In her affidavit dated 11 May 2004, Ms Christy deposes to having been aware of the issue of noise impact from vehicles entering and exiting the proposed car park and of having had regard to the Scott Carver Report. In relation to the Scott Carver Report, Ms Christy stated:
"The report noted potential noise impacts which may result from the development would impact on the adjoining residential units to the west of Hampden Lane. The report suggested that should there be an increase in parking for the subject site then a noise impact study would be required to the satisfaction of Council."
25 Ms Christy also noted that she had recourse to the later July 2003 Statement of Environmental Effects prepared by Aberline Associates and the objection to the Amended Development Application dated 21 July 2003 submitted by Ricky Stainkey.
26 Ms Christy further commented in her affidavit of 11 May 2004:
"I was also aware that the proposed ramp grade into and out of the car park would be unlikely to create excessive noise by cars revving their engines in order to negotiate the gradient. In giving consideration to the fact that this proposed development will have an open plaza area on the north side of the property, that the lane to which the car parking will be accessed is narrow and as a consequence cars are unlikely to drive at excessive speeds, there is also a stop sign approximately 30 metres along the lane from the exit ramp. Most pedestrians are unlikely to walk along the laneway at night and would prefer to walk along King Georges Road which is open, safer and has a proper footpath and that the noise of car doors and noisy farewells are to be contained within the basement carpark, I formed the view that the noise created by vehicles entering and exiting the car park would not cause excessive noise disturbance to the residents of Hampden Street.
. . . I consider that Condition 14 and Condition 15 of the consent are suitable conditions to impose to limit the opportunity of noise disturbance to residents in Hampden Street, particularly at night."
27 The Council submits that this evidence can be accepted and relied upon to demonstrate that although not considered by the councillors, the responsible officer did nevertheless consider possible noise impacts from traffic and recommended approval. It is submitted that the Council is entitled to accept the Council officer's recommendation to discharge the Council's duty to consider the matter of noise impact. It was submitted that this follows from the principle commonly referred to as the "Carltona principle": see Carltona Ltd v Commissioner of Works [1943] 2 All ER 560. I deal with this submission later.
The Council's decision and the basis for challenge
28 Section 79C(1) of the EP&A Act provides that 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) any environmental planning instrument, and
(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, and
(iii) any development control plan, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest."
29 The section came into force following amendments made to the Act in 1997. The obligations in relation to the consideration of a development application were formerly provided in s 90 of the Act, which provided a more extensive but no less comprehensive statement of matters which councils were required to consider.
30 A council is a collegiate body which may act by delegating its powers to a committee or an officer of the council. A challenge to a decision made by a delegate will involve consideration of the delegate's processes to determine if the decision is valid. However, when the decision under challenge is that of the council, it is necessary to examine the process of the council in order to determine whether the statutory obligation has been discharged.
31 The decision-making process of councils was comprehensively considered by the Court of Appeal in Parramatta City Council v Hale (1982) 47 LGRA 319. Although that case involved consideration of the decision-making process pursuant to s 90, the principles are the same with respect to a decision made pursuant to s 79C(1).
32 The issue in Hale's case was whether the council had considered matters of traffic and parking. Although the matter was raised and relevant conditions had been suggested by the council's planner, the council decided to delete the conditions and approve the application without determining whether car parking would be provided by any off street facilities. In effect, although the problem of parking was identified it was not resolved.
33 The Court of Appeal upheld the decision of the trial judge and found (by majority) that the council had failed to take into account the matters required to be considered under s 90. Street CJ said that the matter did not require consideration of authority. The Chief Justice said (at LGRA 335):
"It is not necessary, in the resolution of the present appeal, to delve deeply into authority. The law is clear that a provision such as s 90(1) necessitates, as a precondition to the validity of a council's decision, consideration being given to such of the matters listed therein as objectively are of relevance to the application. Secondly, if a council takes into account irrelevant considerations, that will vitiate the decision. Thirdly, if a council misdirects itself in law as to the scope or content of its statutory powers or duties, that, too, will vitiate the decision.
All of these three grounds of invalidity have three points in common. In the first place, in each of them proof of the invalidity rests upon the challenger. In the second place, none will lead to invalidity unless it was a material error such as to justify the intervention of the court: it need not be shown to be of critical or decisive significance in the council's decision; on the other hand de minimis non curat lex. In the third place the reference in each to 'the council' is to the council as a group; it is the council's collective state of mind, as found by the court, which will be of critical significance."
34 By removing the catalogue of matters provided by s 90, the Parliament has not confined the matters required to be considered by a council. However, identification of the relevant impacts is a task which must be conducted without the assistance of a statutory "check list." The obligation of a consent authority is to give "real consideration" to relevant matters.
35 When a challenge to a decision is made, the task of a court is to determine whether the challenger has discharged the onus of proving that the council has failed to consider a relevant matter of such significance that it justifies the court's intervention, taking care to ensure that the review proceedings do not become a review of the merits of the relevant decision: see the discussion by Spigelman CJ in Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601.
36 In Weal v Bathurst City Council (2000) 111 LGERA 181, the Court of Appeal divided over a challenge to a development consent granted with respect to a proposed rail freight terminal. At issue was whether the council had considered the impacts of noise from the proposal.
37 Giles and Priestley JJA came to the view that the council's discretion had miscarried. Mason P came to the contrary view. However, as Priestley JA makes plain, the principles which govern the approach that a court should take in the event of a challenge were the subject of substantial agreement. A summary of those principles is useful and would include the following:
· 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; Paramanantham 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;
· a failure to take matters into consideration may be demonstrated where it can be shown that the decision-maker had inadequate personal acquaintance with the facts and issues: Hale at LGRA 319;
· 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;
· when a challenge is based upon Wednesbury unreasonableness a stringent test is applied. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. The decision must be devoid of plausible justification: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31;
· when it comes to a consideration of whether the decision-maker has properly weighed up relevant considerations which it has itself identified, a court must proceed with caution "lest it exceed its supervisory role by reviewing the decision on its merits": Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42;
· where there is no direct evidence of a consent authority's consideration of a matter, it may be difficult for a challenger to establish a failure to consider a relevant matter or consideration of an irrelevant matter. Confined to drawing an inference, that inference should only be drawn after anxious consideration: Hale; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373;
· although the decision-maker "can take account of a relevant consideration by reference to a previous decision … this does not mean that it does not have to address the issue itself" and the previous decision must "be enlivened in the consideration of the application before it for decision": Currey at LGERA 374 per Stein JA (with whom Mason P and Handley JA agreed).
Car parking noise and the parties' submissions
38 The report from Scott Carver with respect to the Original Development Application recommended that a noise impact study be prepared in the event of on-site parking spaces increasing beyond the 62 spaces contemplated in the Original Development Application.
39 When assessing the Amended Development Application which envisaged 212 car parking spaces, the Council did not obtain the suggested study and there was no material before it which could inform it of the noise impacts of cars in Hampden Lane on the nearby residences.
40 In its written submissions, the Council points to various documents of which it was aware and which canvassed the noise impact issue. Emphasis was placed on the fact that the Scott Carver Report drew attention to the car park noise issue. The submission was in the following terms:
"Scott Carver was retained to provide an independent assessment of the original development application for eight cinemas and a mixed use development in Edgbaston Road (including a rezoning proposal). That report noted the potential noise impacts which may result from the development by way of cars entering or exiting the underground car park which would have an affect on adjoining residential units to the west of Hampton Lane. Additionally, the Statement of Environmental Effects prepared by Aberline Associates dated June 2003 . . . also referred to this impact. Furthermore, a letter of objection was submitted by Urbis dated 21 July 2003 which also canvassed this issue. All these references regarding this issue were known by the Council Officer Tina Christy when she prepared her report on the amended development application." (references to exhibits omitted)"
41 Reliance was also placed on the "presumption of regularity", the following submission being made:
"The absence of reasons or an absence of reference to a relevant matter in the decision of a Council or in any report before the Council is not proof that the Council failed to consider the relevant matter.
. . .
A presumption of regularity also operates in favour of Council having considered the relevant matters to form the requisite opinion (see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154)."
42 Accordingly, the Council submits that it had available to it, and gave the requisite consideration to, documentary evidence in relation to the noise impact issue.
43 As I have indicated, Ms Christy was responsible for preparing the report in relation to the Amended Development Application for Council's consideration.
44 The first and second respondents submit that Ms Christy's consideration of the noise impact issue from increased on-site parking was sufficient to satisfy the Council's statutory obligation under s 79C of the EP&A Act to consider that matter. To support this proposition, the first and second respondents rely largely on the Carltona principle.