City of Botany Bay v New South Wales Land and Housing Corporation

CITATION : City of Botany Bay v New South Wales Land and Housing Corporation [2010] NSWLEC 160

Bass v Permanent Trustee (1999) 198 CLR 334 Bushell v Secretary of State for the Environment [1981] AC 75 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 F. Hannan Pty Ltd v Electricity Commission of New South Wales (1983) 51 LGRA 353 GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116 Guthega Developments Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (1986) 7 NSWLR 353, 61 LGRA 401 Hamman v Lake Macquarie City Council [1999] NSWCA 82 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 CASES CITED: Klefend Pty Ltd v Santom Pty Ltd & Anor [1994] NSWLEC 201 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381 Parramatta City Council v Hale (1982) 47 LGRA 319 Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 Re an application by Tooth & Co Ltd (1978) 19 ALR 91 re Golden Chemical Products Ltd [1976] Ch 300 Tickner v Chapman (1995) 57 FCR 451 Transport Action Group Against Motorways Inc v RTA (1999) 46 NSWLR 598 Trindall & Ors v Minister for Aboriginal Affairs & Anor [2004] NSWLEC 121 Tugun Cobaki Alliance Inc v Minister for Planning and Anor [2006] NSWLEC 396

The approval 79 As earlier noted ([45]), Ms Hicks' signed approval (followed by the conditions imposed) appears at fol 578 of Exhibit R2. Discussion 80 The court is left in some doubt as to what Council is actually seeking to achieve in these proceedings. Courts do not engage in hypotheticals, nor give advisory opinions. There must be some utility in granting relief. In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425, at [22], the Federal Court discussed the utility of merely marking its disapproval of conduct. See also Commonwealth v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297, per Barwick CJ at 305; Re an application by Tooth & Co Ltd (1978) 19 ALR 191, per Brennan J; Klefend Pty Ltd v Santom Pty Ltd & Anor [1994] NSWLEC 201, per Pearlman ChJ; Bass v Permanent Trustee (1999) 198 CLR 334. 81 The summons (even as amended) seeks only declarations and an order stopping the project, but the building work is almost complete, and questions of utility and discretion must arise. Counsel for the Council says that State government agencies should "do the right thing" without needing any injunctive orders to be made against them. The respondent should have stopped the project when the Council's challenge was launched. He seemed to accept that the court would hesitate to order demolition, but said the court should "fashion appropriate relief" - he appeared to ask for a demolition order, to be stayed while an EIS is prepared, and/or the project is reconfigured in some "acceptable" way. 82 The matters argued to underpin the relief sought would appear to be - the project is not appropriate for the AHSEPP; it should be in an area zoned 2(b) rather than 2(a); it lacks merit in any event; it will have an unacceptable impact, not only on the "environment" as widely defined, but on "planning in the area"; the assessment process was inadequate, but should not, anyway, have been carried out by an organisation outside the respondent; because the project will cause self evident environmental harm, an EIS was required, but not done; Ms Hicks lacked the necessary delegation, and did not fulfil its obligations if she had it; failure to consider, specifically at the time of approval, the Day Design report and the need for mechanical ventilation is fatal to the approval; while internal noise may be addressed by the added mechanical ventilation, external noise impacts mandate that the project not be approved. 83 This project serves an important public interest, but that does not absolve the proponent from the need to comply strictly with the law, nor the court's duty to enforce it. Obviously in these proceedings the court is not concerned with Council's merit issues. 84 Under s 111 the respondent in this case was obliged to "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment", widely defined, by reason of the project. The courts have made clear that compliance with these terms is mandatory, but must be viewed in the light of what is "practicable" and/or "reasonable". See Prineas, F. Hannan Pty Ltd v Electricity Commission of New South Wales (1983) 51 LGRA 353, and Guthega Developments Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (1986) 7 NSWLR 353, 61 LGRA 401. 85 That Ms Hicks enjoyed the necessary delegated authority to act in the name of the Corporation is beyond any reasonable doubt. (See the delegations at Exhibit R2, fols 590ff). She is a "category 1" officer (see fol 606), and her delegation (in the schedule at fol 607) refers to cl 40 of the AHSEPP, Part 5 of the EPA Act, and a relevant provision of the Housing Act. The power or function is described as "approval of residential development following assessment under Part 5 … and after taking into account any response to the notice … and taking into account the seniors living urban design guidelines for infill development March 2004". Section 49(4) of the Interpretation Act allows the sub-delegation of any function incidental to the approval process. Sub-delegations are clearly provided for in the delegations. 86 Accordingly, there is nothing to forbid or preclude the Corporation or its delegate, using expert external advisors, such as SMEC, to prepare such material for its consideration, nor someone such as Bushby to review it. Indeed, there is some merit in Mr Tomasetti's submission that when a government agency is empowered to grant itself an approval, this practice adds appropriate transparency to the process. The materials also make clear that the "collective knowledge experience and expertise" available to it within Housing NSW was also drawn upon. See Carltona Ltd v Commissioners of Works [1943] 2 All ER 560; In re Golden Chemical Products Ltd [1976] Ch 300; Bushell v Secretary of State for the Environment [1981] AC 75, at 95G; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Trindall & Ors v Minister for Aboriginal Affairs & Anor [2004] NSWLEC 121; but c.f. Tickner v Chapman ('Tickner') (1995) 57 FCR 451, Hamman v Lake Macquarie City Council [1999] NSWCA 82, and GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116 where there were specific strictures on how the decision-maker must personally act. Even so, Tickner does not totally exclude the decision-maker's capacity to consider a matter, relying on another person's description or summary of it - see discussion in cases such as Tugun Cobaki Alliance Inc v Minister for Planning and Anor [2006] NSWLEC 396, at [168]ff, and Minister for Local Government v South Sydney Council (2002) 55 NSWLR 381, at 426 [211]. 87 All the material prepared as I have described was checklisted, and then collated by Shanahan to be placed before Hicks. She was entitled to rely upon it. There is no evidence that she did other than give it her close attention "to the fullest extent possible". There is no evidence that she "abdicated" her precise responsibilities. No adverse interference can or should be drawn from the dates on the various documents involved - suspicion is not enough (see Parramatta City Council v Hale (1982) 47 LGRA 319, at 345) - and there is a presumption of regularity. 88 The standard Housing NSW conditions were tailored - by SMEC, and again by Bushby - to meet the actual circumstances of the case. There is no evidence at all that they infringe the principles laid down in Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186. 89 There are no grounds to invalidate the approval on the basis that the Tonin recommendations were not incorporated in the actual consent, and did not spell out the Day Design recommendation, taking up the AS2021 stipulation, regarding mechanical ventilation. The Corporation in the course of managing and supervising the project "on the ground" realised the oversight and rectified it by adding mechanical ventilation of the construction contract. Transport Action Group Against Motorways Inc v RTA (1999) 46 NSWLR 598. 90 I am satisfied that the s 111 process was appropriately carried out; its clear findings were that (1) the environmental impacts of the project were not so "significant" as to trigger s 112, and (2) all of them were completely addressed by the imposition of appropriate conditions. 91 The submissions that the project fails to qualify for consideration under the AHSEPP, either because it cannot be appropriately characterised, and/or because of the access arrangements for the living areas of the two upstairs units, have no substance or merit and are rejected. Clearly this is "multi dwelling housing" as defined in the Standard Instrument (see [21] above), and clearly there is "ground floor access" to the upstairs units, and it does not matter that one does not walk through the front door immediately into a living space on ground level. 92 So far as it is submitted that there is "environmental harm" caused to "planning in the area", the AHSEPP prevails where it is properly engaged, and an approval granted under it will not set a precedent for high density housing beyond the coverage of that instrument. Conclusion 93 The court has concluded that the Council's challenges must fail. The question of discretion was argued but, in view of my conclusion, it does not need to be determined. 94 Having been unsuccessful in its challenges the Council should expect to be ordered to pay the respondent's costs. However, as I have not yet heard the parties on that question I will formally reserve it. It should be capable of agreement, subject to the right to have costs assessed. 95 The exhibits may all be returned. Orders 96 The orders of the court are:

(1999) 198 CLR 334

(1972) 126 CLR 297

(2006) 151 LGERA 116

(1986) 7 NSWLR 353

(2006) 154 FCR 425

(1986) 162 CLR 24

(2002) 55 NSWLR 381

(1978) 19 ALR 91

(1995) 57 FCR 451

(1999) 46 NSWLR 598

(1978) 19 ALR 191

[1999] NSWCA 82

[2004] NSWLEC 121

[2006] NSWLEC 396