Applicant's arguments
25. The Applicant's argument is based on two principal grounds:
(1) The Council wrongly assumed to itself jurisdiction to grant development consent to the development application in circumstances where the condition precedent to the existence of that jurisdiction namely,
(i) the reaching of the relevant state of satisfaction of consistency with the DFC of the locality as specified in the Locality Statement for locality C9 required by operation of cl 12(3)(a) and (b) and
(ii) the fact of consistency with that DFC required by cl 20(1) and cl 12(3)(b))
had not been fulfilled. Accordingly, absent the fulfilment of the mandatory condition precedent, the Council had no power to grant the development consent.
(2) In granting the development consent, the Council failed to take into consideration the economic impacts of the development in the locality in breach of the obligation imposed by s 79C of the EP&A Act.
Accordingly, the consent was granted in breach of the EP&A Act, which breach was material, and is invalid.
26. The first argument above has three subsidiary arguments which arise only if the primary contention is rejected:
(i) that cl 20(1) (the fact of consistency) gives rise to a jurisdictional fact proper about which the decision of the Council, if lawfully made because the right question was posed, can never be conclusive and the Court on review should conclude that the proposed development is not so consistent.
(ii) that if not a jurisdictional fact proper, the satisfaction of the Council was a state not reasonably open on the material before the Council (the Council's decision was manifestly unreasonable).
(iii) that there was (for the same factual reasons) a failure to consider within jurisdiction.
Applicant's submissions argument 1 - wrongful assumption of jurisdiction
27. In this case, the LEP contains two conditions precedent which must be satisfied before the Council is able to consider the merits of the matter:
(1) For the Category Two development (shops and restaurants) the Council could only obtain jurisdiction to determine the development application by the grant of development consent after it had satisfied itself that the development was consistent with the DFC described in the relevant Locality Statement: cl 12(3)(b).
(2) Because the proposed development breached certain of the development standards which applies to the development, the Council could only obtain jurisdiction to determine the development application by the grant of development consent for the Category One development (the bulky goods shops) if:
(a) the Council considered the DFC described in the relevant Locality Statement; and
(b) by operation of cl 20(1), provided that the resulting development was consistent with the general principles of development control, the DFC of the locality and any relevant state environmental planning policy.
28. For Category Two development, the LEP expressly provides that the relevant state of satisfaction which operates as the condition precedent is that of the consent authority. This also applies to Category One development absent cl 20. Clause 12 establishes a jurisdictional fact in the broad sense (that is a condition precedent) by reference to a state of satisfaction by the Council. Minister for Immigration and Ethnic Affairs v Eshetu (1999) 162 ALR 577 considered that jurisdictional fact could include an opinion, in other words, a matter of satisfaction can be a jurisdictional fact.
29. Clause 20, in contrast, does not require the consent authority to reach a relevant state of satisfaction, that is, form an opinion. The test in cl 20(1) is a wholly objective test. If development does not comply with one or more development standards then notwithstanding cl 12(2)(b) consent may be granted:
provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy
30. In Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Spigelman J refers to jurisdictional facts as those facts which can be characterised by "objectivity" and "essentiality" (at 64), although his Honour was not asked to deal with other classes of jurisdictional fact.
31. Jurisdictional error will arise from misconstruction of an instrument which results in a wrongful assumption of jurisdiction: see ex parte Hebburn; re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420, Craig v South Australia (1995) 184 CLR 163 at 177 - 8, Re McJannet; ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620 at 644. Here the Council had no jurisdiction to grant development consent to the development application unless and until the conditions precedent had been fulfilled. Without the fulfilment of the condition precedent under cl 20 or cl 12 any grant of development consent was necessarily beyond power.
32. Particular reliance is placed by the Applicant on the decision of Bignold J in Dem Gillespies v Warringah Council [2002] NSWLEC 224. Firstly, because his Honour concluded in relation to the meaning of "consistent with" in cl 12(3)(b) of the LEP was "consistent" assumed its ordinary and natural meaning which is not confined to the notion of the proposed development "not being antipathetic" to the DFC. Secondly, because his Honour concluded that cl 12(3)(b) operates as a condition precedent to the grant of development consent for a Category Two development (par 84). Other cases relied on to support the submission that the concept of "condition precedent" is commonplace in planning law included Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [2001] NSWCA 74, in which the Court of Appeal relied on Franklins Limited v Penrith City Council [1999] NSWCA 134 in holding that a failure to form an opinion which is a condition precedent results in a grant being invalid (at [7]). See also Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 372 - 5, Clifford v Wyong Shire Council (1996) 89 LGERA 240 at 372, 374, and Manly Council v Hortis (2001) 113 LGERA 321 at 329 - 330, 332, 333 which also considered the issue of condition precedent.
33. The conditions precedent under cl 12 and cl 20 concern consistency with that part of the C9 Locality Statement dealing with "desired future character". In order to lawfully obtain jurisdiction the Council was required to properly construe the DFC of the C9 Locality.
34. It is appropriate to consider the material placed before the Council in order to draw inferences about the actions of Council; see Currey, Hortis and Telstra Corporation Ltd v Hurstville City Council [2002] FCA 385. The material placed before the Council (essentially the statement of environmental effects and the report to Council of 19 March 2002) did refer to the task required by cl 12 and 20, but there was a fundamental misconception about the relevant test of consistency with the DFC.
35. The Applicant referred at length to the material before the Council in support of this submission. In summary, the submission was made that in the Statement of Environmental Effects there were:
(a) bare assertions of consistency between the proposed development and the DFC of the locality (for example, p 32);
(b) assertions of consistency because the proposed development comprises Category One and Category Two uses (for example, p 36); and
(c) assertions of consistency based on the building form being "articulated", the provision of landscaped areas, minimisation of visual impact, absence of Aboriginal artefacts or sites and the absence of proposed vehicular access to either Forest Way or Mona Vale Road (for example, p 36).
36. In the report to Council there were:
(a) bare assertions of consistency (for example, B204, second paragraph);
(b) assertions that Council, through its LEP, had "endorsed" the Austlink Business park as a desirable location for bulky goods retailing so that Austlink could be considered to be a "regional cluster" as discussed in SEPP 66 (at B217);
(c) assertions that the Austlink Business Park had been "identified by the LEP" for development as a "mixed used cluster of bulky goods, general retailing, warehouse and light industrial uses" so that the proposed development would "reinforce the planned and evolving role of the Austlink Business Park as a 'cluster'" (at B217) (emphasis added);
(d) assertions that the proposed development would reinforce the "emerging cluster of bulky goods retailing and employment generating development at the Austlink Business Park" (at B218);
(e) assertions that the development had the potential to add to the "locality objective of developing a mixed use cluster" (at B218) - which, given the above, can only be construed as meaning the mixed use cluster of bulky goods retail and retail development;
(f) assertions that, given the size of the proposed shops, the shops (not the bulky goods shops) were not considered to be inconsistent with the DFC of the locality (at B223).
37. It was argued both documents disclose a fundamental misconstruction of the C9 Locality Statement. Both the Statement of Environmental Effects and the report to the Council identified the relevant categories applicable to the proposed development but fail to consider the DFC at all, particularly the issue of the purposes of development in the first paragraph of the DFC in the C9 Locality Statement that "the Austlink Business Park will integrate modern forms of industry, manufacturing, research, warehouses, office and related services." The only part of the C9 Locality Statement dealt with in these documents is the built form and restrictions on development and integration with the National Park.
38. Both documents treat the inclusion of bulky goods shops as a Category One use and shops and restaurants as Category Two uses as evidence of consistency with the DFC of the locality. This, it was argued, was not the approach taken by Bignold J in Dem Gillespies. In par 92 of that judgment an argument to the same effect was rejected on the basis that it:
…fails to have regard to the fundamental distinction between the provisions of the LEP which so classify the development as being one that may be carried out in the locality (with development consent) and the provisions of cl 12(3)(b) which require, as a condition precedent to the grant of any such development consent, the satisfaction on the part of the consent authority that the proposed development "is consistent" with the relevant desired future character of the locality.
39. Bignold J stated at [93] that such an assertion would be:
undermined by the manner in which the Courts have interpreted clauses of local environment plans requiring the consent authority to be satisfied that a proposed development be consistent with a zone objective, as not being provisions that declare prohibited development, but as provisions which limit the power of a consent authority to grant development consent.
40. The report to Council repeatedly misstates in a real and material manner the purpose of the development identified in the DFC section of the Locality Statement (see (a) - (f) at par 36).
41. These statements in the report to Council are said by the Applicant to be a fundamental misdirection to the Council because they assert that bulky goods retail and general retail development are uses which the LEP prescribes are planned for the C9 Locality (that is, its DFC). Further, the Council was directed by its own report that the relevant purposes forming part of the DFC was a mixed use cluster of bulky goods and general retailing within the Austlink Business Park having a "planned role" as a "regional cluster" for those purposes. As no other evidence has been presented the only available inference is that the Council relied on the report to Council to determine to grant development consent.
42. Currey and Hortis establish that an inference of failure to form the relevant opinion or state of satisfaction may more readily be inferred in the absence of evidence, specifically that the precondition (correctly construed) was addressed. In those cases the Court of Appeal rejected arguments that consideration might be inferred from an assessment of the whole of the material before the council based on matters such as the council's general knowledge of the site or general awareness of the LEP provisions.
43. In Hortis the Court discussed whether, in considering satisfaction of a precondition, the Court should take into account a Council's reliance on general or local knowledge when the planning instruments were not complex, or at least not of the complexity of those in Currey and Franklins. The Court of Appeal held general or local knowledge was insufficient (see [39] - [40]). The principle that councillors may be assumed to have at least some knowledge of the local government area and of their environmental planning instrument cannot apply in the case of this LEP (it is over 500 pages with 73 different localities specified).
44. The Applicant submitted that for the above reasons the condition precedent to jurisdiction under cl 12 and cl 20 were not satisfied and the development consent is invalid.
Applicant's submissions on alternative argument 1(a) - "narrow" jurisdictional fact - Court would not find consistency in fact
45. In the alternative to the first primary argument above, the Applicant argued that the condition precedent in cl 20 (arising from cl 12(2)(b)) is a jurisdictional fact in the narrow sense of that term having the character of "objectivity" and "essentiality" identified by Spigelman CJ in Timbarra. That is, even if the Council did pose the correct question of law its conclusion on the cl 20 jurisdictional fact was not conclusive so that the Court may determine that fact for itself. The Court can determine the existence of the fact on different evidence to that before the Council. The planning evidence adduced by Mr Ingham is relevant on this issue. There is conflicting planning evidence from Ms Bindon and Mr Fleming for the Second Respondent.
46. The Applicant submitted that Mr Ingham's evidence should be accepted. He states that the development will operate and function as a retail shopping complex and is not consistent with the DFC of the Austlink Business park as it does not "integrate modern forms of industry, manufacturing, research, warehouses, offices and related services with the natural qualities of the locality and the adjacent National Park".
47. The town planning evidence of the Second Respondent repeats the errors in the material that was before the Council.
48. What is the meaning of "consistent with" as used in cl 12 and cl 20 of the LEP? The Applicant submitted that the Court would accept that the ordinary and natural meaning of the word is not confined to the notion of the proposed development "not being antipathetic" to the DFC of the locality; see Dem Gillespies at par 70, 71, 77 and 79 where Bignold J held that it can also mean "1. agreeing or accordant; compatible; not self-opposed or self-contradictory; 2. consistently adhering to the same principles" (see par 77). The proposed development for the purpose of a bulky goods retail centre, shops and restaurants in terms of the relevant purposes of development identified in the DFC does not agree with, is not accordant with, is not compatible with, and does not adhere to the specified uses of industry, manufacturing, research, warehouses, offices and related services.