Cobden-Jones & Anor v Woollahra Municipal Council & Ors

In this case the development will affect the whole of one "block" of a key street in Double Bay, the proponent being in a position to aggregate the three properties affected for the purpose of one major project, which is permissible under the 1995 LEP, but would apparently not be worthwhile for the proponent if the various statutory controls on the site were to be strictly enforced.

Faced with that situation the legal avenues open to the proponent were to seek a rezoning of the subject site or to seek some dispensation from the controls by way of SEPP 1 (see T249). Discussions commenced with Council officers and the latter alternative was chosen. Gradually, understandings were reached with those officers as to what could be achieved on the aggregated site if "different" controls applied.

At the appropriate stages in 1998, a DA consistent with "different" controls was submitted, then varied, and, in due course, the officers reported the discussions, understandings, and the DA (as it then stood), to the elected Council, to gauge its attitude to the possible redevelopment of the subject site.

The Council then made the first of its five challenged decisions - it resolved to adopt some "urban design guidelines" in respect of the proposed development of the subject site.

This judgment will now proceed to consider the applicants' challenges to those five decisions in some detail, but, in the interests of brevity, not every "particular" in the above section will be canvassed individually, and/or in great detail.

The underpinning issue before the court is the legal nature and validity of the first decision, the UDG resolution, and that issue will be addressed first. If that challenge fails, several of the others fall away (T166).

Secondly, the court will address the operation and use of SEPP 1, as it bears upon the Council's consideration of the proposed development over time.

Thirdly, the court will consider those elements of the challenges which assert a lack of "finality" in the two consents, i.e. the challenges based on the principles of Mison, as pleaded in pars 25 and 41 of the FAPC.

Finally, the court will deal with the rest of the issues raised, as many of the "subsidiary" challenges depend substantially on the three major ones and some general principles.

On the last hearing day (Friday 14 December 2001), as part of his submissions on behalf of the Council, Mr Preston handed up a schedule entitled "matters considered by Council", cross referenced to the particulars of the applicants' challenges as set out in the FAPC.

Mr Larkin sought the court's leave to make a written submission on the contents of that schedule, after he had an opportunity to check it for accuracy, and he was given until close of business on Wednesday 19 December 2001 to do so.

As no such submission has been received, the court accepts the schedule as a factual record of, or guide to, relevant elements of the evidence regarding the challenges, but not as probative in itself of the Council's defences.

The nature and validity of the UDG resolution 6 October 1998

What did the Council resolve and what did it mean? Did the resolution repeal or amend, or purport to repeal or amend, the LEP or DCP? Is it either of those entities? Could it legally "displace" or "supersede" their provisions, or "suspend" them in some way?

Central to the applicants' challenges is the allegation that the UDG resolution is ultra vires the Council, because it purports to exercise plan-making powers without satisfying the requirements of Part 3 of the EP&A Act, notably those involving the participation of the public and, in the case of an LEP, the Minister. That part of the EP&A Act provides processes by which LEPs and DCPs are both made and amended, and gives them their "statutory" nature or basis - Lainson v Sutherland Shire Council (1998) 108 LGERA 1 - but environmental planning instruments (like LEPs) have fundamentally different functions and legal effects c.f. DCPs, or Council resolutions (see EP&A Act s 122).

The technical requirements of Part 3 apply equally to LEPs and DCPs, but there is no doubt the Part 3 processes, as such, played no part in the evolution and making of the Council's UDG decision. See Leichhardt Council v Minister for Planning [No.2] (1995) 87 LGERA 78 and Taperell & Anor v Randwick Council (2000) 108 LGERA 309 at par 20.

The court has to characterise the UDG resolution without regard to what other players or observers may call it, or how they may characterise it, given that the UDG are "inconsistent" with both LEP and DCP applicable to this development.

The applicants concede (FAPC par 9) that the UDG are neither an environmental planning instrument nor a DCP, but contend that they purport to do the job of an LEP or DCP, and supplant the statutory controls presumed to have been duly made in the 1995 LEP and the relevant DCP. The UDG resolution purported to prescribe a maximum FSR greater than that allowable under cl 11 of the LEP, which Mr Larkin regards as a binding prescriptive (or prohibitive) control. Such a provision of a LEP cannot be amended in this way and may be amended only by the making of a new LEP. Mr Larkin's submissions contend that there is no statutory basis for the Council to formulate such guidelines as a "method for the interpretation of its planning controls". He asserts that there is no statutory basis for the carrying of such a resolution, and the mere mention of s 91 in its formulation does not mean that that section authorises such a resolution.

The applicants' case depends upon the UDG resolution being more than a "policy" to guide Council's decision making under Part 4 of the EP&A Act. Its provisions are "inconsistent" with both the LEP and the DCP, and Mr Larkin submits that any substantial "inconsistency" cannot be characterised merely as some "interpretation" of the binding planning controls (T72 L46-52).

As Mr Preston points out (submissions par 24), "inconsistency" or "repugnancy" arises only where a policy deals with a matter in a manner that attempts to override the Act under which the policy is made. He says that the applicants' argument equates mere "difference" with "inconsistency" or "repugnancy" (T177 L26-28, T228f and Preston par 18), but in the respondent Council's submission, the UDG do not attempt in any way to override the provisions of the LEP or the DCP. Mr Preston submits that the applicants have to elevate the status of the UDG beyond that to which they are entitled, in order to make the case that they equate to an exercise of a statutory power, and go on to show that that power was not properly exercised (see Mr Larkin at T54 L51-2).

As part of his submissions, Mr Larkin adopted the following summary analysis by Michael Ball of the differences between specifications in the UDG and DCP (affidavit 21 October 2001 par 12(d); see also FAPC par 10, and Table 5.1 at fol 122 of Exhibit A1):

Building alignment Nil setback to Bay, Cross Setbacks of 1.5 metres and Guilfoyle Streets - required to all street except at corners. frontages.

Colonnades To be provided at all To be provided in other three street frontages, parts of Double Bay; if and built to street provided for the subject boundaries. land - setback of 1.5 m.

Envelope control Wall height of 12 metres Wall height of 2 storeys to cornice line, then a (about 7 metres) then a 45 degree building height 45 degree building height plane - except at corners. plane - including corners.

Corner heights Absolute height limit of Wall height of 2 storeys 15 metres to corners of (about 7 metres) then a Bay and Cross, and Bay 45 degree building height and Guilfoyle Streets. plane - including corners.

Height 17 metres "generally", with 15 metres "absolute higher rooftops to have overall height" above minimal visual impacts. footpath.

I accept the Council's submission that, as admitted by the applicants, the UDG are neither an environmental planning instrument nor a development control plan. Accordingly, they do not depend in any way on the operation of Part 3 of the EP&A Act, and, accordingly, cannot be controlled by it.

I also accept the "backup" submission by Mr Preston that they are also not a "policy", such as would attract the administrative law principles of "inconsistency", or "fettering of discretion". Corkhill v Hope (1991) 74 LGRA 33.

The term "policy" is usually not applied to a resolution in regard to only one site or one DA. Policies can deal with a wide range of subject matters, but they also do not purport to be LEPs or DCPs, and cannot include consideration of the particular circumstances of a case. See Re Drake and the Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 640-1.

The UDG are not of general application - they were developed from a specific planning analysis, with one particular site and one particular project in mind. If the court were satisfied that the UDG are a policy, the relevant statutory base for the making of such a policy would be found in the Local Government Act and not in the EP&A Act, and no offence to the Local Government Act, or any other Act including the EP&A Act, can be found. See Warringah v Pittwater, Re Drake (No.2) and T176.

Put in the vernacular, Mr Larkin's case is that by "winning" the UDG resolution from the Council "the developer rewrote the rules and then complied with them" (T33 L15-16). The "rules" can be changed, or Council's discretion enlarged, but only by "invocation of the rule making power provided for in Part 3. If one wishes to operate under SEPP 1 one must operate strictly in accordance with SEPP 1. There is no place for a process which is a little of both and in fact validly none of either …" (T58 L44-57. See also T161 L48-56). In this case "SEPP 1 was used as a means to authorise a development which could only be authorised in consequence of a change in the planning instruments" (T161 L26-28). The UDG resolution does not "interpret" the relevant controls, it "misconstrues" them (T60 L48-50).

Mr Preston's case is that the developer, realising that the best result from the aggregated site required some relaxation of the relevant controls, chose to seek dispensations available under SEPP 1, rather than a rezoning. In expressing its (preliminary) views, a Council can act either through delegated officers, or as a collegiate body carrying resolutions, and not all resolutions need be in purported exercise of some specific statutory power (T167 L29-54). The UDG resolution came as the logical conclusion to a pre-DA consultation, through which developer and consent authority reached an "understanding" on some "fundamentals", before costly design work was undertaken to prepare the DA itself (see T230). Expressing acceptance of such an "understanding" does not fetter the elected Council's discretion when it comes to decide on the DA itself. In this case, it does not matter what the document/resolution/record of understanding is called. As the mention of "s 91" in the heading suggests, the UDG resolution was part of the process of Council's considering a DA for a specific site (T174 L32-57), and it in no way "dispenses' with fundamental compliance with the LEP and DCP. Effectively, by the same resolution, the Council deferred the DA unless and until the proposal was revised on the basis of the principles agreed upon by the Council (T175).

In reply, Mr Larkin contended that the UDG established new development standards, but the EP&A Act "covers the field" and requires the Part 3 process to be followed to achieve such an end. He equated the UDG's dispensations as to setback, height and FSR to redefining "mining" as "forestry" (T247 L57) - the resolution "in terms", he submitted, "says we will interpret X to mean not X" (T248 L7-8), and that is "legally impermissible" (T248 L47-48), because it is inconsistent with the requirements of the statutory scheme (T247).

In the court's view, the UDG is a simple resolution of a collegiate body consolidating in one document the outcomes of a detailed and protracted series of pre-DA discussions between the proponents of the development and the relevant consent authority. Reacting to that document from time to time as it evolved, including by expressing collegiate views in resolution by Council, is a relevant and legal part of the Council's discharge of its ongoing duty to control development - see s 91 of the EP&A Act. In that sense, the UDG are merely the product of the Council having accepted, in general terms, a site specific design analysis, prepared basically by the proponent's architect and detailing the site's constraints and opportunities.

There is nothing illegal in a proponent or its advisors setting out to obtain some dispensation from the statutory controls by the use of a well-founded SEPP 1 objection to the Council, in the case of controls in a LEP, arguing that the underlying objects and purposes of the development standards affected are satisfied, even if the proposed development does not strictly comply with them. That type of exercise is the essence and the purpose of SEPP 1, and obviously must occur on occasion during pre-DA consultations. A Council can dispense a proposal from the requirements of a DCP by carrying a simple resolution, and has the right and power to adopt some policy to guide or structure a particular exercise of its discretionary powers under the Act (T176 and Norsmith Nominees). That is what Council did here.

The mind of the Council is as validly expressed in such a resolution, as it is in resolutions passed during the processing of a draft LEP, which may, as in Legal & General Life of Australia ltd v North Sydney Municipal Council & Anor (1989) 68 LGRA 192, be properly considered in the assessment of development decisions before the plan is made.

The court can find no grounds upon which to declare the UDG resolution invalid.

SEPP 1 permits ad hoc departures from development standards in LEPs - it does not facilitate their amendment or repeal. Fast Buck$ v Byron Shire Council (1999) 103 LGERA 94 at 101.

The court prefers the submissions of Mr Preston in regard to the use of SEPP 1 (see pars 35ff of his written submissions). As he summarised it (par 35): SEPP1 permits a consent authority to grant consent to a development application for a development which does not comply with a development standard where: (a) the consent authority 'is satisfied' that a written objection made under SEPP1 is well founded (cl 7 of SEPP1); (b) the consent authority 'is of the opinion' that granting of consent to that development application is consistent with the aims of SEPP1 as set out in cl. 3, namely to provide flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case: (i) be unreasonable, or (ii) be unnecessary, or (iii) tend to hinder the attainment of the objects specified in s.5(a)(i) and (ii) of the Act. (cl. 7 of SEPP1). (c) a consideration of the matters in cl.8(a) and (b) of SEPP1 supports the upholding of the SEPP1 objection. (d) the consent authority is satisfied, as a matter of discretion taking into account such of the considerations under the former s.90 and current s.79C of the Environmental Planning and Assessment Act 1979 ('the Act') as are relevant to the development standard, that the dispensational power ought to be exercised in the circumstances of the case.

In determining a SEPP 1 objection, a Council is not bound only to the matters raised in the objection itself. Norsmith Nominees.

Mr Larkin relies very heavily on the decision of Lloyd J in Winten Property Group Ltd v North Sydney Council [2001] NSWLEC 46. Mr Preston does not argue against the correctness of that decision, but rejects the suggestion that it limits the grounds upon which a consent authority can be satisfied that a SEPP 1 objection is well-founded to only the ground that the underlying object or purpose of the development standard has been satisfied. Mr Preston argues that Lloyd J's citation of Hooker Corporation Pty Ltd v Hornsby Shire Council (Cripps J, 10601 of 1985, 2 June 1986) "speaks against any such limitation" of his own decision, as Cripps J acknowledged that satisfaction of the underlying object or purpose of the development standard was generally a way in which an objection may be well-founded, but not the only way. Hence, Lloyd J's suggested approach (in par 26 of his judgment) cannot be held to be an exhaustive statement of the approach which a consent authority must always take in exercising its discretionary power under cl 7 of SEPP 1. See also North Sydney Municipal Council v Parlby (10613 of 1985, Stein J, 13 November 1986, at pp 4-8).

The following extract from Hooker Corporation was quoted also by Talbot J in Memel Holdings v Pittwater Council [2000] NSWLEC 206 at par 10, as "the classic summary of the approach to be taken when considering a SEPP 1 objection": It has been established by a series of decisions in this Court that generally in order to maintain an objection that compliance with a standard is unreasonable or unnecessary, it is first necessary to discern the underlying object or purpose of the standard. To found an objection it is then necessary to satisfy the Court that compliance with the standard is unnecessary or unreasonable in the circumstances of the case. Although the Court has urged a generous application of SEPP No.1 and has repeatedly declined to attempt exhaustively to define the limits of the dispensing power and, in particular, what is embraced by the expression circumstances of the case, it is now established that it is not sufficient merely to point to what is described as an absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose. …Furthermore it is now established that although the discretion conferred by SEPP No.1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.

As Cripps J also observed in Legal & General Life, at 203-4, in circumstances in which his comments were expressly approved on appeal - see (1990) 69 LGRA 201, at 203 and 210:

The discretion vested in councils under SEPP No 1 is wide and, subject to limitations to be found in the instrument itself and in its relation to the Environmental Planning and Assessment Act, is unconfined. The express limitation is that the council must be of the opinion that the objection is well founded and the grant of consent is consistent with the aims set out in cl 3 of the policy. The implied limitation is that the discretion must be exercised by reference to planning considerations the width and generality of which is to be found in s 5 and s 90 of the Environmental Planning and Assessment Act. The above interpretation of the width of the discretion derives essentially from SEPP No 1 itself, the validity of which was not challenged. Moreover, I can see no reason in principle why the discretion should not be wide. The purpose of SEPP No 1 is to provide flexibility in the decision making process. Parliament has entrusted to councils the function of administering some of the planning laws of the State. SEPP No 1 is simply a planning tool designed to improve the decision making process. Furthermore, it should be remembered by those who, apparently, believe that councils should not be entrusted with such a wide discretion that the effectiveness of the exercise of the council's discretion is itself subject to limitation. For a consent under SEPP No 1 to be valid, it requires the concurrence of the Director of Planning. In the present case, concurrence was given under delegated authority and neither the delegation nor the exercise of the power has been challenged.

The interaction of Hooker Corporation, Memel, and Winten was recently discussed by Bignold J in Hewitt v Hurstville Council [2001] NSWLEC 294, and I am fortified in the views I have reached by His Honour's analysis in that case.

The other grounds or tests that might be applied, beyond that found most relevant in Winten, include (Preston par 43, and T184-5): (a) the underlying objective or purpose is not relevant to the particular development proposed (which would be another way in which strict compliance with the development standard would be unnecessary),(see SCMP Properties Pty Ltd v North Sydney Municipal Council unreported, 10398 of 1982, 15 April 1983, Bignold J, p34). (b) the underlying objective or purpose would be defeated or thwarted if compliance was required (which would be another way in which strict compliance with the development standard would be unreasonable) (see Hooker-Rex Estates v Hornsby Shire Council, unreported, 10506 of 1982, 27 July 1983, Bignold J, p 18). (c) the development standard has been virtually abandoned or destroyed by Council's own action, making strict compliance quite pointless (which would be another way in which strict compliance with the development standard would be unreasonable) (see North Shore Gas Company v North Sydney Municipal Council, unreported, 15 September 1986, Stein J). (d) the development standard itself is unreasonable or unnecessary. (see Fast Buck$ at 97).

The consent authority's SEPP 1 discretion is very wide. It is expressed in subjective terms suggesting that the consent authority must be satisfied or of the opinion that the matters specified in cl 7 exist. Reasonable minds might differ on the most appropriate course of action, but unsound opinions may not be so unreasonable as to be upset, and the court must not usurp the discretion of councils which were statutorily appointed by Parliament to make the relevant decision. Attorney General for the State of NSW v Quin (1990) 170 CLR 1, at 37; Parramatta City Council v Pestell (1972) 128 CLR 305, at 323. The discretion is confined only by the limitations found in its own terms and in its relation to the EP&A Act. Legal & General Life.

Furthermore, as Mr Preston pointed out (in pars 50ff), the applicants cannot discharge the onus of proving that the collegiate mind of the Council was affected by legal error merely by proving that a document lodged with the Council, such as even the SEPP 1 objection, may contain an error, including an erroneous approach to SEPP 1. The applicants must find an error in the collegiate mind of the Council, not in the author of the material the Council considered, unless that material was specifically and erroneously adopted. A Council may go beyond the grounds stated in a SEPP 1 objection in considering whether or not to uphold it. The Council has to address itself to the conditions of the relevant clause and to form the opinions required by SEPP 1.

There is no evidence to satisfy the court that on either occasion the Council did other than make the appropriate assessment required by SEPP 1, rather than a general merits assessment of the development. There is ample evidence that the Council considered all the relevant issues on a number of occasions over a long period of time, and the court is not satisfied that Council either misdirected itself or took into account irrelevant matters in either 1998 or 2000.

The challenges to the two SEPP 1 decisions have not been made out.

The applicants allege that certain conditions of consent (see pars 25 and 41 of FAPC) infringe the principles in Mison.

The consent in Mison was held not to be a valid consent, or a consent to the particular application, because significant matters, notably the height of the building, were delegated for later determination, with the result that it was possible that such further determination would significantly alter the development for which the DA had been made.

Mison must be read and applied in accordance with the decisions of the Court of Appeal in a series of cases, culminating lately in the decision in Winn v Director General of National Parks & Wildlife and Ors [2001] NSWCA 17 (see pars 15-19 per Spigelman CJ). See also Scott & Ors v Wollongong City Council & Anor (1992) 75 LGRA 112 at 118), and Transport Action Group Against Motorways Inc v Roads & Traffic Authority & Anor (1999) 46 NSWLR 598, at 628-34 per Mason P.

Mison is not authority for the proposition that the leaving of any issue at all for further determination, or the leaving open of the possibility that a further determination may alter the development in some respect, renders the purported consent invalid. The possibility of alteration is sufficient, but it must occur in a significant respect (see T215-216).

The courts have consistently upheld as valid any conditions which maintain a certain degree of flexibility to assist in making the consent operate practically, effectively and efficiently (see Preston par 123, and the cases cited in his footnote 126, e.g. Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 at 228-231 per Stein J, and Hortis v Manly at 74-77).

As held by Stein J, and upheld by the Court of Appeal, in Rosemount Estates Pty Ltd & Anor v Minister for Urban Affairs and Planning & Anor (1996) 90 LGERA 1 at 38, and Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd & Ors (1996) 91 LGERA 31 at 94-6 per Cole JA, one must look to the core purpose of the development and the consent to test if that core development may be altered in any fundamental respect by addressing the requirements of the condition. In this case the core purpose is erection of a building of certain dimensions. Attention to various hydrological matters (even installing re-injection wells next door) will not alter that building (at least not in any significant or fundamental respect).

The nature, extent and fundamental characteristics of the project in this case will be unchanged by the carrying out of the conditions, which in both the 1998 and 2000 consents - but in more detail in the latter - require submission to, and approval by, Council of : (a) " plans " for such things as on-site detention, pipe systems, dewatering arrangements, connections to sewer and water systems, stormwater management and sediment/erosion control; and/or (b) " reports ", or certificates by experts, on hydrology, dilapidation, and geotechnical issues at various stages of the project; and/or (c) DAs for some of the works in (a).

The relevant conditions are too extensive to reproduce in this judgment, but copies have been taken from the voluminous exhibits, and will remain in the court file.

The court has come to the view that none of the conditions challenged in this case leave for later determination any issues of real significance to the approved development. Such issues as may be the subject of further consideration and determination are truly ancillary to the core purpose of the consent, and any further determination is not likely to cause the development to be altered in any fundamental respect or to become a significantly different development.

The Mison challenges to both consents must fail.

Having decided to dismiss the major challenges, many of the others automatically fail, but the court should make some comments about them.

Council is the author of its DCPs - they are not delegated legislation like environmental planning instruments - and it may depart from their controls, but only after it gives close attention to their provisions (Ligon v North Sydney Council (1996) 93 LGERA 23 and Zhang v Canterbury City Council (2001) 115 LGERA 373). It has no duty to give reasons, nor provide a complete and accurate documentary record of its consideration, as does the court. It does not operate "in a vacuum", considering each individual item of business in isolation from all other events, issues and knowledge (see T198-199, Preston par 86, and cases in footnote 82). The court assumes the undocumented local and general knowledge and relevant expertise of the Council and its officers (see Parramatta v Hale at 346; Sommerville v Dalby & Ors (1990) 69 LGRA 422 at 429; and Hortis v Manly at 63).

The critical factor in the decisions in Zhang was that the Commissioner reformulated the issues in the appeal before him, and deleted one altogether from his consideration. In this case the DCP was a relevant matter, but was not the only one, and significant weight need not necessarily have been given to it. Attribution of weight is a question of fact for the decision maker, and not reviewable (in the absence of a manifest unreasonableness claim). Randwick Municipal Council v Manousaki (1988) 66 LGRA 330. There is no authority for the proposition that more weight must be given to the DCP than the UDG in this case.

The DCP was covered comprehensively in material placed before Council on both occasions, and I can find no evidence of any failure by Council to consider it, nor of any misattribution of weight to relevant matters on either occasion.

It is true that the DCP did not envisage colonnading at this location, and hence did not allow for any FSR bonus for providing any (T253 L27-38), but that does not create any enforceable "prohibitions" on providing colonnading or allowing a bonus. A proposal being in breach of the numerical requirements of the DCP is but one relevant matter for the consent authority to consider. Such matters were within the Council's discretion, and it determined its preliminary thinking on such matters when it adopted the UDG.

Clause 18 provides that Council have regard to the impacts of excavation and then consider if specialist advice were necessary. It is a facultative power and not a requirement.

At the time of the 1998 consent, Hansen was not at the Council, but Council had before it specialist hydrological advice (J&K, Arup, etc), was entitled to rely on such expert material, and imposed relevant conditions on its consent.

Regarding the 2000 decisions, in which Hansen participated, Mr Larkin says of the report which went to Council (T97 L25-48 ): … the report which goes to the council quite wrongly states that there are no hydrological stormwater objections raised by council staff. So the report which goes to the elected councillors simply fails to draw to their attention that the relevant officer has in the clearest terms said that the plans are unsatisfactory and don't comply with the council's requirements and that gives rise to a Parramatta Park v Hale type problem for the consent.

But the second point is the council having been misled into thinking that there were no concerns about these matters then it directly lifts the conditions that we see here and puts them into the consent …

Hansen, according to Larkin, "plainly thought that there should be such a report and … it should be submitted ordinarily before approval …. The Council is told there is no objection, and it then just imposes the conditions" (T98 L6-12). He submits that she thought she had no choice but to propose conditions, and Council adopted her error. Council did not turn its mind to the question cl 18 requires it to answer, namely whether or not to exercise the power to require the provision of the plan; it simply imposed the conditions without considering whether or not to exercise the power in cl 18.

Mr Larkin's further (Parramatta v Hale) point is that the officers preparing the documents for the Council or the DCC should have accurately recounted what, in fact, the specialist officer had said, and not just accurately recounted the conditions that she wanted included if the matter were to be approved (see T105 L43-59).

Mr Preston points out that cl 18(2) of the LEP was, in fact, addressed by the report (at fol 226A-18), which said "the issues relating to excavation, as contained in Woollahra Local Environmental Plan 1995, Clause 18(2), appear to have been satisfactorily addressed". In fact, Hansen did seek external advice in relation to the very matter at issue (see fol 163, the PCDS memo). That advice suggested that the missing information be obtained before further consideration (see T110), but the officers were happy to proceed by way of the comprehensive conditions Hansen had suggested.

The court attaches no concern to evidence of Hansen's expectation that the DA was to be approved - the 2000 DA was generally seen to be an improvement on the 1998 DA, which the Council had approved, and any technical reservations she had were covered by the suggested conditions. Council did not adopt the recommendations blindly, as the notes of the debate show.

Clause 25 is a pre condition to the exercise of the approval power (see again Hortis v Manly, and Manly v Hortis).

The applicants submit that it is not sufficient for Council to refer to the clause; Council is obliged to explore the relevance and application of cl 25 to the relevant subject development before granting consent (see Currey v Sutherland Shire Council & Ors (1998) 100 LGERA 365 and Weal v Bathurst City Council & Anor (2000) 111 LGERA 181 at 201ff per Giles JA), and that Council did not turn its mind to the mandatory requirement of cl 25, that the Council must not consent unless it is satisfied that adequate provision has been made regarding the stormwater.

Council's report certainly did not completely explore, to a conclusion, the hydrological issues in this case, but merely recommended the conditions - an approach Mr Larkin says is not open to the Council in terms of cl 25 (T254 L33-38) - and the Council's collegiate decision adopted that error by incorporating the conditions into the 2000 consent.

The Council knows this site - it has been developed and serviced since the 1930's. It imposed its apparently routine conditions to ensure appropriate servicing outcomes from the grant of consent; those conditions do not offend Mison, and the court is satisfied that the relevant issues were squarely before the Council on the occasion of each grant of DC.

Did Council consider irrelevant matters? 218. The principal submission of the applicants on this point is that the UDG, being invalid, were an irrelevant consideration for the Council when granting consent in either or both of 1998 and 2000. Having found the UDG not to be invalid, this challenge fails. They could not be irrelevant. Carstens v Pittwater.

The applicants also challenged the Council's having taken into account possible amendments to the LEP and the DCP, as well as the 1998 DC, when it came to consider the 2000 DA. The decisions of the Court of Appeal in Legal & General Life and Fast Buck$ not only held that documents of lower status than environmental planning instruments - a draft LEP and its background papers in Legal & General Life, and a "pending rural residential study" in Fast Buck$ - were not only "not irrelevant' but were, indeed, "relevant" considerations for Council. Mr Larkin appeared to concede most of this issue (see par 133 above), and the earlier grant of a DC must be a relevant "circumstance of the case".

This challenge was based also on the challenged UDG, and they having been held to be valid, it must fail.

The material before the court shows that Council had before it all potentially relevant matters, and there is no evidence of any failure to consider them. It is not necessary for the Council to recite all it did in performing its task. Norsmith Nominees.

The applicants' contention that the development is prohibited by reason of cl 11 of the LEP, could succeed only if the challenge to the Council's SEPP 1 decisions was upheld, Healesville Holdings Pty Ltd v Pittwater Council (1997) 97 LGERA 95, at 102. The court has rejected those challenges and, accordingly, this challenge also fails.

Is the consent invalid because it may impact on additional land?

It was suggested during argument that neither consent could be implemented and carried out because access is required to, and work needs to be carried out on, adjoining land, including that of the applicants. The contention is that as that adjoining land was not the subject of the development application and a relevant owner's consent, the DCs are invalid.

There is some evidence to suggest that work may be required on other land, but the evidence admitted on the question of discretion (and see Exhibit A7) would seem to indicate that it is not necessary for access to be obtained to, or work to be carried out on, adjoining land. All the work now envisaged can be accommodated on the subject site with a very minor setback of 0.25m for the new basement walls. A modification to the DC to accommodate any such setback would not fail on the grounds that the consequent development was substantially different from existing consent (see Lavender View Regency Pty Ltd v North Sydney Council (1999) 104 LGERA 255).

In addition, King v Great Lakes Shire Council & Anor (1986) 58 LGRA 366 is authority for the proposition that the requirement for ancillary development to take place on other land does not invalidate the consent for the project outlined in the primary DA. Also, in Rosemount on appeal (91 LGERA 31 at 36), Cole JA specifically held: The fact that a condition is imposed upon a developer to do work on the property of another does not mean that the condition is invalid; it may not be able to be performed but that and any consequences flowing from non performance are different matters.

It is clear, from what I have said, that the court is not satisfied that any of the applicants' challenges should be upheld, except that to the s 101 defence.

The proponents of the subject development conceived of the prospects and potential of aggregating the three existing projects facing Bay Street, and achieving a desirable development for that area of Double Bay. The result of the consideration of those prospects and opportunities in liaison with Council's officers was an agreement by the Council to a set of parameters, which came to be referred to in rather grandiose terms as "Urban Design Guidelines".

For the court to hold that a resolution, such as that carried by the Council in this case on 6 October 1998, amounted to a usurpation of, or subversion of, the plan-making powers in Part 3 of the EP&A Act would seem to invalidate any decision by Council or the court to approach a major project by requiring/enforcing something in the nature of a strategy or masterplan (falling short of an environmental planning instrument). I do not think the EP&A Act or the cases on it contemplate that outcome, and I also do not think that it would be in the public interest to deter such pre-DA negotiations.

Putting Winten in context, the court can see no error of law in the way in which the Council approached the assessment of the SEPP 1 objections made on each occasion. Those objections having been validly upheld by the Council, it does not appear from the evidence that in allowing itself to conclude that consent should be granted on both occasions, the Council was guilty of any misdirection. Nor is there evidence that it either failed to consider a relevant matter, or considered an irrelevant matter.

The UDG, having been agreed upon in principle by the Council, were not legally irrelevant, but were permissible considerations. They can properly be taken into account, but did not necessarily have to be taken into account. The UDG being both valid and not irrelevant, no misdirection can result from their being taken into account.

The Council on several occasions demonstrated an independence of its collegiate mind, and did not "blindly" adopt the recommendations of its officers. Nor did it breach in any way the EP&A Act, the Regulation or the LEP.

I have concluded that the class 4 application must be dismissed.

Having concluded that the applicants' challenges should be dismissed, no question of discretion arises. The question was argued to some extent (see Preston pars 142-144, T233 and T258), but the court has reached no concluded view on the exercise of discretion in the event that my decision on the challenges is incorrect.

In class 4 proceedings, costs generally follow the event, and, as the applicants have been almost completely unsuccessful, the Council is prima facie entitled to an order for costs. However, as the question was not fully argued, and the absent respondents were active in the proceedings until just prior to the hearing, and submitted only to orders other than costs, the court will formally reserve the question.

The formal orders of the court will, therefore, be:

(1) Application dismissed. (2) Costs reserved. (3) All exhibits are returned, except Exhibit A7, and subject to the court retaining on file copies of Exhibit A2 fols 743-750 and Exhibit A4 fols 257-285 (the conditions attached to the two consents).

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