Currey v Sutherland Shire Council

19 The council notified the second respondents of its resolution by letter dated 28 February 2001 informing them that this will require amendments to the plans, which may have to be renotified and readvertised. Thus subsequently, on 4 April 2001, the second respondents lodged further amended plans but which continue to show access to the rear dwelling by the right of way. 20 A report "EHC 306-01" dated 7 May 2001 to the Environment and Health Committee of the council states that the amended plans lodged on 4 April 2001 do not comply with council's resolution of 5 February 2001 which requires in part in that "the entry and exit for the vehicles be directly by Woolooware Road". While the front dwelling (unit 1) has direct access from Woolooware Road, the rear dwelling (unit 2) does not and proposes an alternative driveway arrangement being access via the right of carriageway adjoining the site. The report concludes that: "[t]he applicant's proposal to amend the access and parking arrangement is considered acceptable subject to the driveway area being modified in accordance with the sketch marked 'A' 26.04.01 attached to this report". The reports further recommends as follows: 1. That after preliminary consideration of Development Application No. 003108 for an attached dual occupancy and strata subdivision at Lot 2 DP 205947 (No. 405) Woolooware Road, Cronulla, it is Council's view that it would be prepared to favourably consider the proposal, subject to: - The western 'in' access point being deleted, the eastern 'out' access being widened and made two-way in accordance with Sketch A dated 26.04.01; - The driveway area being extended by 1.5m into the area identified on the plans as 'patio' in accordance with Sketch 'A' dated 26.04.01; - Additional landscape area being provided in the locations identified by a 'L' on Sketch 'A' dated 26.04.01; and - The existing fence along the northern boundary of the site shall be removed for a distance of 8.5m west of the access point with no new fence shall be provided in this location. 2. The Development Application No. 003108 for an attached dual occupancy and strata subdivision at Lot 2 DP 205947 (No. 405) Woolooware Road, Cronulla be referred to the Director - Environmental Services for assessment and determination in accordance with the authorities delegated by the General Manager dated 30 August 2000 pursuant to Section 378 of the Local Government Act, 1993. 21 At its meeting on 7 May 2001, the council's Environment and Health Committee considered the report ("EHC 306-01") and made a recommendation to the council that the development application be approved with conditions. The recommendation is in the following terms: 1. That the above report on Development Application No. 003108 for an attached dual occupancy and strata subdivision at Lot 2 DP 205947 (No. 405) Woolooware Road, Cronulla be received and noted. 2. That Development Application No. 003108 for Alterations to a Dwelling House to develop an Attached Dual Occupancy and Strata Subdivision at Lot 2 DP205947 (No.405) Woolooware Road, Cronulla be approved subject to conditions, including the following: (a) No carport shall be constructed over the proposed car space to the south of Unit 1. (b) The carport proposed for Unit 2 shall be relocated to the adjoining car stand area. (c) The existing fence along the northern boundary of the site shall be removed for a distance of 8.5 metres west of the access point and no new fence shall be provided in this location. 3. That Development Application No. 003108 for Alterations to a Dwelling House to develop an Attached Dual Occupancy and Strata Subdivision at Lot 2 DP 205947 (No.405) Woolooware Road, Cronulla be referred to the Director - Environmental Services for assessment and determination in accordance with the authorities delegated by the General Manager, dated 30 August 2000, pursuant to Section 378 of the Local Government Act, 1993. 22 The minutes of the council's meeting of 21 May 2001 show that the council made the following resolution: 1. That the above report on Development Application No. 003108 [report "EHC306-01" ] for an attached dual occupancy and strata subdivision at Lot 2 DP 205947 (No. 405) Woolooware Road, Cronulla be received and noted. 2. That Development Application No. 003108 for Alterations to a Dwelling House to develop an Attached Dual occupancy and Strata Subdivision at Lot 2 DP205947 (No. 405) Woolooware Road, Cronulla be approved subject to conditions, including the following: a) No carport shall be constructed over the proposed car space to the south of unit 1; b) The existing fence along the northern boundary of the site shall be removed for a distance of 8.5m west of the access point and no new fence shall be provided in this location. c) That the entry and exit for the vehicles be directly by Woolooware Road, as per the current dwelling. 3. That Development Application No. 003108 for Alterations to a Dwelling House to develop an Attached Dual Occupancy and Strata Subdivision at Lot 2 DP205947 (No. 405) Woolooware Road, Cronulla be referred to the Director - Environmental Services for assessment and determination in accordance with the authorities delegated by the General Manager, dated 30 August 2000, pursuant to Section 378 of the Local Government Act, 1993.' 23 The council notified the second respondents by letter dated 23 May 2001 that it resolved on 21 May 2001 to not change its previous resolution of 5 February 2001 with respect to their development application. The letter relevantly states: I refer to your development application referred to above. I wish to advise that Council resolved on 21 May, 2001 not to change its previous resolution dated 5 February, 2001 to give favourable consideration to the application subject to the following matters being resolved: · "No carport shall be constructed over the proposed car space to the south of unit 1"; · "The existing fence along the northern boundary of the site shall be removed for a distance of 8.5m west of the access point and no new fence shall be provided in this location"; and · "That the entry and exit for the vehicles be directly by Woolooware Road, as per the current dwelling". The matters above require amendments to the plans prior to the issue of development consent. It is anticipated that the required access change will result in a substantial redesign of the proposal. Amended plans satisfying this requirement may therefore be required to be re-notified and advertised. 24 The second respondents replied to the council by letter dated 1 August 2001 stating that they do not wish to amend the plans any further and requesting the council to determine their development application. 25 The minutes of the Environment and Health Committee's meeting of 20 August 2001 show that the development application was considered by it in a closed session. The council's internal e-mail dated 23 August 2001 refers to the Environment and Health Committee's meeting of 20 August 2001 and bearing the stamp "decision by E.H.C. under delegation 20/8/01" notes the decision and recommendation of the committee as follows: DECISION: 1. That the report concerning Dual Occupancy Dwelling and Strata Subdivision at 405 Woolooware Road, Cronulla be received and noted. 2. That a Notice of Determination be issued in respect of Development Application No. 003108 in line with the previous resolution of Council to favourably consider the proposal subject to conditions as outlined in Report EHC306-01 (Minute No. 1291, 21/05/01). 3. That Development Application No.003108 for Alterations to a Dwelling House to Develop an Attached Dual Occupancy and Strata Subdivision at Lot 2 DP205947 (No. 405) Woolooware Road, Cronulla be referred to the Director - Environmental Services for assessment and determination in accordance with the authorities delegated by the General Manager dated 30 August 2000, pursuant to Section 378 of the Local Government Act, 1993. RECOMMENDATION: That the above decision made under Delegated Authority by the Environment and Health Committee be received and noted. Action: EHC Decision under delegation - 20/8/01 26 At the council's meeting on 3 September 2001, the council resolved: "That the above decision [noted in par [25] above] made under Delegated Authority by the Environment and Health Committee be received and noted". 27 The application was again considered in a closed meeting session by both the Environment and Health Committee on 17 September 2001 and the council on 2 October 2001 when, on each occasion, a confidential report on the development application was received and noted. 28 The council's internal e-mail dated 11 October 2001 refers to the Environment and Health Committee's meeting of 17 September 2001 and notes a resolution of that committee as follows: Resolution: 1. The report concerning proposed dual occupancy and strata subdivision at 405 Woolooware Road, Cronulla be received and noted. 2. That after preliminary consideration of Development Application No. 003108 for an attached dual occupancy and strata subdivision at Lot 2 DP 205947 (No. 405) Woolooware Road, Cronulla, it is Council's view that it would be prepared to favourably consider the proposal, subject to: - The western 'in' access point being deleted, the eastern 'out' access being widened and made two-way in accordance with Sketch A dated 26.04.01; - The driveway area being extended by 1.5m into the area identified on the plans as 'patio' in accordance with Sketch 'A' dated 26.04.01; - Additional landscape area being provided in the locations identified by a 'L' on Sketch 'A' dated 26.04.01; and - The existing fence along the northern boundary of the site being removed for a distance of 8.5m west of the access point and no new fence shall be provided in this location. 3. That Development Application No.003108 for Alterations to a Dwelling House to Develop an Attached Dual Occupancy and Strata Subdivision at Lot 2 DP205947 (No.405) Woolooware Road, Cronulla be referred to the Director - Environmental Services for assessment and determination in accordance with the authorities delegated by the General Manager dated 30 August 2000, pursuant to Section 378 of the Local Government Act, 1993. 29 On 31 October 2001 the notice of determination was issued by the council to the second respondents' development application subject to a number of conditions, including those described under item 2 (in par [28]) above. 30 The council notified the objectors by letter dated 1 November 2001 that at its meeting on 8 October 2001 the council resolved in terms of the above mentioned resolution. The reference in the letter to a council's meeting on 8 October 2001 appears to be a misnomer. There are no minutes of a council's meeting on 8 October 2001 in existence. Ground (1): Strata Subdivision 31 The relevant environmental planning instrument at the time the development application was made was Sutherland Shire Local Environmental Plan 1993 ("the 1993 LEP"), cl 25(1) of which stated as follows: (1) On and after the day on which Sutherland Shire Local Environmental Plan 1993 (Amendment No. 37) commences, consent must not be granted for a subdivision which creates separate allotments for each of the two dwellings comprising dual occupancy housing. (The reference to "the day on which Sutherland Shire Local Environmental Plan 1993 (Amendment No. 37) commences" is 1 September 1995.) 32 On 23 June 2000, however, Sutherland Shire Local Environmental Plan 1993 - Amendment No. 106 commenced. It introduced an additional sub-clause in cl 25 of the 1993 LEP, as follows: (3) This clause does not apply to dual occupancy housing created in accordance with a granted development consent where the application for that consent was made on or before 28 February, 2000. 33 As noted above, the application for development consent in the present case was made before 28 February 2000. Mr B J Preston SC, appearing with Miss J Jagot for the applicant, submits that a bare development application for dual occupancy housing made before 28 February 2000 nevertheless is not sufficient to obtain the benefit of sub-cl (3). Mr Preston advances three principal arguments in support of his submission. 34 Firstly, Mr Preston submits that the development application was made on 25 February 2000, that is, on a date which was after 1 September 1995 (referred to in cl 25(1)) and before 23 June 2000 (when cl 25(3) was introduced). According to the submission the question whether a development application may be lodged must be answered at the date of lodgement. A development application made pursuant to s 77 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") may only be for a development that is permissible with consent. When the development application was made, a subdivision of dual occupancy housing was prohibited. Accordingly, it is submitted that the development application for the subdivision of dual occupancy housing could not have been made for the purposes of s 77 of the EP&A Act and the present development application was not, in law, a development application. (Reference was made to Parramatta City Council v Precision Rubber Service Pty Ltd, NSWLEC, Pearlman J, 10 March 1995, unreported.) 35 Secondly, sub-cl (3) of cl 25 requires that the dual occupancy housing be created in accordance with a granted development consent before the exception in that sub-clause is triggered. If not triggered, no development application for strata subdivision of dual occupancy housing could be lodged. In the present case the dual occupancy housing was neither created, nor was it subject of a development consent, when the council purported to grant consent for the subdivision on 31 October 2001. Neither trigger had occurred. 36 Thirdly, the development application and the development consent for both the dual occupancy housing and the strata subdivision are inseverable. If there could be no development application for the subdivision then there was no development application at all within the meaning of ss 77 and 78 of the EP&A Act. Without an effective development application the council's power under s 80 of the EP&A Act to determine a development application was not enlivened. (Reference was made to El Cheikh v Hurstville City Council [2002] NSWCA 173 and Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13.) 37 The respondents submit that there is no reason why a development application cannot be made and a development consent cannot be granted simultaneously for both the dual occupancy housing and for the strata subdivision thereof; and that sub-cl (3) of cl 25 merely requires that the application for consent be made on or before 28 February 2000, not that the dual occupancy housing and the development consent necessarily must exist on or before that date. 38 I turn, firstly, to the cases relied upon by Mr Preston. In Parramatta City Council v Precision Rubber Service Pty Ltd, Pearlman J held that the action which triggers the process of obtaining consent is the making of a development application. That much is self-evident. Pearlman J went on to hold that where Parramatta City Council purported to grant development consent for a development for which no consent was required then the consent was superfluous and had no legal effect. I do not think that this case advances Mr Preston's arguments. In El Cheikh v Hurstville City Council the question was whether an invalid provision in a local environmental plan could be severed and the remainder be declared valid. The Court of Appeal accepted the following statement of principle, expressed by Cussen J in Olsen v City of Camberwell [1926] VLR 58 (at 68): If the enactment, with the invalid portion omitted, is so radically or substantially different a law as to the subject-matter dealt with by what remains from what it would be with the omitted portions forming part of it as to warrant a belief that the legislative body intended it as a whole only, or, in other words, to warrant a belief that if all could not be carried into effect the legislative body would not have enacted the remainder independently, then the whole must fail. 39 In Randwick Municipal Council v Pacific-Seven Pty Ltd the question was whether a condition of a development consent which was void for lack of finality was severable from the rest of the consent. Stein J reviewed the authorities on this question and concluded on the facts of that case that a condition of consent which reserved to the council the right to restrict the hours of operation of a business should any nuisance occur, was not only void but was also inseverable and the whole development consent was void. The authorities referred to by Stein J suggest that the test of severability is whether the invalid condition or portion of the consent is seen to be a fundamental element of the approval or relates to a matter going to the root of the planning consent itself. One of the tests of severability given in one of the authorities referred to by Stein J (Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72) is whether the planning permission, severed of the invalid condition, might be held to enure just as a tree might survive with one or two of its branches pruned or lopped off. 40 The answer to the question of whether a consent can be severable depends, however, on the particular facts in each case. The question in the present case, it seems to me, is whether the council would have granted its consent for dual occupancy housing alone, without the subdivision component. There is nothing to suggest that the application for dual occupancy housing and the consent therefor were dependent upon the subdivision thereof. Clearly, the dual occupancy housing could be carried into effect without the subdivision. This, I think, is the crucial fact which renders the subdivision component severable from the erection of the dual occupancy housing. It does not appear to me to be a fundamental element of the development of the dual occupancy housing that there must be a subsequent strata subdivision thereof. The consent for dual occupancy housing can enure just as readily without a subdivision as it can with a subdivision. 41 This conclusion disposes of Mr Preston's third submission noted above (par [36]). I am not persuaded, however, that the strata subdivision was prohibited in any event. 42 I turn now to Mr Preston's first submission. As noted above, it is submitted that when the development application was made on 25 February 2000, the subdivision component was prohibited by cl 25(1) of the 1993 LEP and did not become permissible until 23 June 2000. The position may be compared with the statutory requirement for a development application to be made by the owner of the land to which the development application relates or by any other person with the consent in writing of the owner of that land (cl 46 of the Environmental Planning and Assessment Regulation 1994, now cl 49 of the Environmental Planning and Assessment Regulation 2000). It has been held that this provision or its equivalent is a mandatory provision (Jeblon Pty Ltd v North Sydney Municipal Council (1982) 48 LGRA 113 at 120, North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435). Nevertheless, the consent of the owner may be provided at any time before determination of the development application (Botany Bay City Council v Remath Investments No. 6 Pty Ltd (2000) 111 LGERA 446, Harris Farm Markets Pty Ltd v Ashfield Fresh Pty Ltd [2002] NSWLEC 106). This suggests that whilst the requirement is mandatory, it is nevertheless procedural. Applying, by analogy, the same reasoning to the present case, there is nothing to suggest that the development application is not valid if, during the course of its consideration by the council, the suggested invalidity is cured before it is determined. It seems to me that ss 77 and 78 of the EP&A Act are procedural. Moreover, in Hornsby Shire Council v Devery (1965) 12 LGRA 34 it was held (at 40) that a council may waive any condition precedent for the exercise of its powers. In the present case the council effectively waived the requirement for part of the development to which the application relates to be permissible development at the time the development application was lodged. The evidence shows that the addition of cl 25(3) into the 1993 LEP was then anticipated. The council not only accepted the development application, but also accepted the development application fee. Finally, it seems to me that if the provisions of the EP&A Act upon which Mr Preston relies are procedural, any defect or irregularity may be cured by regarding the development application as having been made nunc pro tunc (see Emanuele v Australian Securities Commission (1997) 188 CLR 114). This would have the effect that when cl 25(3) of the 1993 LEP was made, the development application, if not originally valid, is to be then regarded as valid so as to have the same legal force and effect as if it had been validly made on 25 February 2000. 43 The approach that I have adopted is entirely consistent with the intent of cl 25(3) of the 1993 LEP itself. It allows consent to be granted for a subdivision of dual occupancy housing "where the application for that consent was made on or before 28 February 2000". That is precisely what has happened here. 44 I now turn to Mr Preston's second submission under this heading. In my opinion, there is nothing in the language of cl 25(3) which compels the adoption of the construction which is contended. In other words, there is nothing in the language of the provision which requires that the dual occupancy housing must be already in existence ("created") and that the development consent therefor must have been "granted" before a development application can be made for the subdivision thereof. This much is clear: the application for the dual occupancy housing must have been made on or before 28 February 2000. Provided the dual occupancy housing is thereafter created in accordance with a granted development consent, then the requirements of cl 25(3) are satisfied. Issue (2): Development application inadequate or incomplete 45 Mr Preston submits that the power of the council to consider and determine the development application is not enlivened insofar as it relates to the application for strata subdivision. According to the submission, none of the documents lodged with the council in support of the development application delineate the proposed subdivision or describe the proposed subdivision. There is no "location plan", no "floor plan" and no "schedule of unit entitlement", all as defined in s 5 of the Strata Schemes (Freehold Development) Act 1973 and as required by s 8(1) of that Act. The plans do not identify whether any common property is to be created, the absence of which ensures that the subdivision is incapable of registration unless part of one lot is superimposed on another, which is not the case here (s 8(3) of the Strata Schemes (Freehold Development) Act). The plans do not identify whether the line of the subdivision is to be through the common wall of the proposed dual occupancy, neither do they identify any easements for services, access, support or drainage. The development could not have founded an application for registration of a strata plan under the Strata Schemes (Freehold Development) Act. It is further submitted that the absence of any information adequately or clearly describing the nature of the proposed development by way of subdivision inevitably gives rise to the inference that the council failed to give consideration or proper, genuine and real consideration to the development to which it was purporting to grant consent. 46 The respondents submit that insofar as the development application relates to the subdivision, it was not in a form which would be competent to enable the making of an application for registration of a strata plan; the Strata Schemes (Freehold Development) Act prescribes the form of plans intended to be registered as a strata plan; the development application was nevertheless adequate to enable the council to determine it; in particular, the council understood where the line of subdivision was intended to be; and no further information could reasonably be required. 47 In my opinion the submissions of the respondents are to be preferred. This was not an application for registration of the strata plan. The requirements of the Strata Schemes (Freehold Development) Act for a location plan, a floor plan and a schedule of unit entitlement do not apply to a development application. An examination of the site plan submitted to the council with the development application clearly shows a division of the property into two lots along the line of the common wall and extending to the property boundary (although not assigning a lot number to each). It is self-evident that this is how the physical subdivision was understood by the council. The provision of any easement for service, or access, or support, or drainage would, if required, appear on the plan intended to be lodged for registration of the strata plan and which must be certified by either the council or an accredited certifier under ss 37 or 37A of the Strata Schemes (Freehold Development) Act. It is thus apparent that the process of certification will require the consideration of such conditions of development consent as drainage and other services and any necessary easements therefor. It also follows that there can be no inference that the council failed to give consideration or proper, genuine and real consideration to the development application to which it granted consent. Ground (3): Dual occupancy housing on an internal lot 48 As noted above, Sutherland Shire Local Environmental Plan 2000 ("the 2000 LEP") commenced on 15 December 2000. Although it repeals all local environmental plans (including the 1993 LEP) that were in place immediately before that date, cl 6(2) provides the local environmental plans (including the 1993 LEP) as in force immediately before that date apply to a development application that was made but had not been finally determined before then. 49 The relevant zoning of No. 405 Woolooware Road under the 1993 LEP was zone 2(e2) Residential. The zoning table describes the following developments as being allowed with development consent (inter alia): "dual occupancy housing, except on internal lots". "Dual occupancy housing" is defined in the 1993 LEP as: "two dwellings on land that is or was one allotment at the time of granting of development consent for those two dwellings". "Internal lot" is defined as: " a lot the only means of access to which is an access corridor (a hatchet shaped lot) or a right-of-carriageway over another lot". 50 Mr Preston submits that as a consequence of the development consent one of the two dwellings will be on an internal lot, being the rear lot which has its only means of access to Woolooware Road via the right of way over the adjoining land, No. 399 Woolooware Road. According to the submission, the development is thus not permissible under the zoning table; and the council purported to grant development consent to a prohibited development. 51 I am unable to agree with the submission, for the following reasons. The zoning table effectively prohibits dual occupancy housing on an internal allotment. Dual occupancy housing is defined as meaning two dwellings on land that is or was one allotment at the time of granting of development consent. The focus of the definition is the words "at the time of granting of development consent". At the time of granting of the development consent in this case the whole of the property known as No. 405 Woolooware Road was one allotment. That allotment was not and is not an "internal lot" as defined. It was and is an allotment having a direct means of access to Woolooware Road. If the subdivision proceeds in due course then the rear lot will, of course, become an internal lot, having its only means of access by a right of carriageway over another lot. The rear lot will not have dual occupancy housing upon it. The purpose of the prohibition against dual occupancy housing on an internal lot is to ensure that two dwellings on a single lot do not have, as the only means of access, an access corridor or a right of carriageway over another lot. Such purpose is not infringed by the present proposal. Alternatively, if the attached dwelling, although on separate lots, remains "dual occupancy housing" as defined, it is on land that is or was one allotment, such allotment having access to Woolooware Road. Accordingly, the development consent is not unlawful on this ground. Ground (4): Breach of development standard relating to landscaped area 52 The 1993 LEP provides that dual occupancy housing in the 2(e2) Residential zone must have a minimum landscaped area of 55 per cent. The parties accept that this requirement is a development standard. However, no objection was made against this development standard pursuant to State Environmental Planning Policy No. 1 ("SEPP No. 1"). According to Mr H M Sanders, a town planning consultant who gave evidence for the applicant, the development as approved by the council has a landscaped area of 52.6 per cent. That is a shortfall of 2.4 per cent. ("Landscaped area" is defined in the 1993 LEP as that part of a site which is not occupied by any building and is available for use and enjoyment by the occupants of the building erected on the site, but does not include dwellings, parking areas and the like). 53 Mr Preston submits that the 55 per cent landscaped area provision was an essential precondition to the existence of jurisdiction to determine the development application; as the development did not comply with the 55 per cent minimum landscaped area requirement, the development was prohibited; the council did not have the power to grant consent; and in purporting to grant consent to a prohibited development the council purported to also grant consent to a subdivision which, if carried out, would result in a contravention of an environmental planning instrument, in breach of s 80(2) of the EP&A Act. 54 Mr J A Ayling SC appearing for the council does not accept that the landscaped area of the development is below the required minimum of 55 per cent. The evidence of Mr Sanders upon which the applicant relies is based upon a hand-drawn sketch, which is not drawn to scale and which can lead to marginal error. Mr Ayling also relies upon condition 8 of the development consent, which requires the preparation of a detailed landscape plan to be certified by either the council or an accredited certifier and to be submitted with the construction certificate. This will ensure that the 55 per cent development standard would be satisfied. 55 It is clear, in my opinion, that if the landscaped area is 52.6 per cent as calculated by Mr Sanders, then the shortfall is so marginal that it would not be noticeable to anyone. The Court retains a general discretion to grant or withhold the relief sought by the applicant. In view of the insignificant difference between the development standard and the calculated area of landscaping, together with the absence of evidence of any adverse consequence as a result of any such shortfall, I would not be prepared to grant the relief sought by the applicant solely on this ground. If there had been any adverse consequence as a result of the marginal shortfall in the landscaped area then I would have expected the applicant's expert witness, Mr Sanders, to have said so. It is self-evident, however, that the difference is both insignificant and inconsequential. This ground is not a sufficient basis upon which to disturb the council's decision. Ground (5): Lack of power and other errors 56 It is submitted on behalf of the applicant that the council purported to determine the development application on a number of occasions each of which lacked finality and deferred the consideration of essential matters. It is further submitted that the development consent which was issued by the council on 31 October 2001 was not authorised by any resolution or operative determination of the council or by any officer of the council. 57 I shall attempt to briefly summarise the applicant's submissions, as I understood them. (a) It is submitted that the council's resolution of 21 May 2001 purported to be a final determination of the development application. That resolution purported to determine the development application by the grant of development consent subject only to the three matters identified in the resolution. It follows that other essential matters were not considered so that the resolution is void and of no effect. (b) Since the resolution of 21 May 2001 purported to be a final determination of the development application, the council thereafter had no further power to exercise in respect of the development application and all subsequent resolutions thereon are void and of no effect. (c) For the same reason, the conditions imposed on the consent by the council's officers after the determination of the council on 21 May 2001 are void and of no effect. (d) Further or alternatively, the conditions imposed on the consent were inconsistent with and not authorised by any operative resolution of the council. (e) Further or alternatively, the development consent, which was ultimately issued on 31 October 2001, was not one which was granted pursuant to any resolution of the council but by the Director of Environmental Services of the council; yet the Director of Environmental Services did not have delegated authority to do so. 58 In my opinion the evidence does not support any of Mr Preston's submissions under this heading. I have set out above (pars [5] to [30]) the relevant facts. It is clear that the council's resolution of 21 May 2001 was not a final determination of the development application. It was open to the council to further consider the development application, which it did. The decision would only be a final decision if it was communicated to the applicant for development consent: in that event (and only in that event) the decision would be final and beyond recall (Ex parte Renouf; In re Waverley Municipal Council (1924) 24 SR (NSW) 463, (1924-26) 7 LGR (NSW) 37; Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740, Townsend v Evans Shire Council (2000) 109 LGERA 336). 59 Mr Preston submits that there is no evidence that the council's resolution of 21 May 2001 was rescinded. He relies in making this submission on s 372 of the Local Government Act 1993, which regulates the rescission or alteration of resolutions. The procedure prescribed in that section was not followed. It has been held, however, that provisions such as s 372 of the Local Government Act 1993 dealt solely with procedural matters and did not prevent a council from passing a later resolution on the same subject matter which had the effect of amending or rescinding a previous resolution on that subject matter (Willoughby Municipal Council v Patterson (1960) 6 LGRA 80, Everall v Ku-ring-gai Municipal Council (1991) 72 LGRA 369). By not giving final notice of its resolution of 21 May 2001 such resolution was without legal effect and the development application remained as one that had not been finally determined. Since the resolution of 21 May 2001 was without legal effect it is not necessary to determine whether it involved a failure to consider essential matters. 60 The only determination of the council with any legal effect, and the only determination which is relevant, is the notice of determination of the development application which was issued on 31 October 2001. As appears from the first page of the notice of determination, it was issued by authority of the Director of Environmental Services, who had been duly delegated that function. At the relevant time the General Manager had, pursuant to s 378 of the Local Government Act, delegated to the Director of Environmental Services certain powers, authorities, duties and functions and which had been delegated by the council to the General Manager under s 377 of the Act. The delegations to the Director of Environmental Services included the processing, evaluation and determination of development applications, except where the development relied upon existing use rights, or where "the council, the Mayor or any councillor requests that the development application be referred to the Environment and Health Committee or the council for evaluation and determination". As noted in the summary of the relevant facts, a councillor, Councillor Smith, had requested that the development application be referred to the council "for consideration" - not, it is to be noted, for evaluation and determination. The Director of Environmental Services thus continued to have delegated authority to determine the development application. It appears, however, that Councillor Smith subsequently withdrew his request: on 29 January 2001 he moved a motion at the Environment and Health Committee recommending that, inter alia, the development application "be referred to the Director - Environmental Services for assessment and determination in accordance with the authorities delegated by the General Manager dated 30 August 2000 pursuant to section 378 of the Local Government Act 1993". Councillor Smith moved a similar motion at the council's meeting of 5 February 2001. Councillor Smith moved a motion at the Environment and Health Committee on 7 May 2001, again recommending that the development application be referred to the Director of Environmental Services for assessment and determination in accordance with the authorities delegated to him. 61 I am unable to accept Mr Preston's submission that the consent which was issued on 31 October 2001 was inconsistent with and not authorised by any operative resolution of the council. The notice of determination was issued pursuant to an authority duly delegated to the Director of Environmental Services. Both the Environment and Health Committee and the council appear to have accepted that the Director had such delegated authority. All of the relevant recommendations of the Environment and Health Committee and the relevant resolutions of the council include either a recommendation or a resolution that the development application "be referred to the Director of Environmental Services for assessment and determination in accordance with the authorities delegated by the General Manager dated 30 August 2000 pursuant to s 378 of the Local Government Act 1993". Preliminary operative resolutions do not give rise to rights and obligations between the council and the applicants for consent. Only upon assessment and determination by the Director of Environmental Services under the delegated authority and only upon the communication of that decision to the applicants for consent would such determination be a final and irrevocable (R(Burkett) v Hammersmith LBC [2002] 1 WLR 1593 at 1601 per Lord Steyn). Ground (6): Failure to consider the Sutherland Shire Local Environmental Plan 2000 62 As noted above (in par [6]), the 2000 LEP commenced on 15 December 2000. The subject development application had been made but had not been finally determined when the 2000 LEP commenced. Accordingly, cl 6(2) of the 2000 LEP applied: (2) Despite clause 4(1), local environmental plans (including Sutherland Shire Local Environmental Plan 1993 ) and deemed environmental planning instruments, as in force immediately before the commencement of this plan, apply to a development application that was made but had not been finally determined before that commencement as if this plan had been exhibited but had not been made. 63 The matters the consent authority is required to take into consideration in determining a development application include the provisions of 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 (s 79C(1)(a)(ii) of the EP&A Act). 64 I thus accept the submission of Mr Preston that the provisions of the 2000 LEP should have been considered as if that instrument had been exhibited but had yet not commenced. I also accept the submission that the making of the 2000 LEP should have been regarded as certain and imminent, so that its provisions would have carried significant weight (Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 at par [33]; Edward Listin Properties Pty Ltd v North Sydney Council (No. 2) [2000] NSWLEC 181 at par [5]; and Detita Pty Ltd v North Sydney Council [2001] NSWLEC 209 at par [6]). 65 Mr Preston submits that there is an absence of documentation in the council's file which contains any reference to several particularised provisions of the 2000 LEP. In the absence of documentary evidence to show that the provisions of the 2000 LEP were considered, it is submitted that the inference may be drawn that there was a failure to take them into consideration. 66 I do not agree with Mr Preston's submission. In Parramatta City Council & Anor v Hale & Ors (1982) 47 LGRA 319 it was held (per Street CJ, at 337 and per Moffitt P, at 345) that proof of the invalidity of a development consent rests on the challenger. It was also held (per Moffitt P, at 346) that the simple adoption of a recommendation made by the council's officers in a report which refers to the relevant matters for consideration would, without more, leave no room for an inference that such matters had not been taken into consideration. The converse, however, does not necessarily lead to the opposite conclusion. The applicant in the present case in seeking to strike down the development consent must establish facts from which an appropriate inference can be safely drawn (Schroders Australia Property Management Ltd v Shoalhaven City Council [1999] NSWLEC 251 at par [27]). Those facts are not established and the necessary inference is not drawn in the absence of proper evidence. Moffitt P in Hale recognised (at 345) the difficulty of discharging the onus of proof and warned that the onus, however difficult, must be discharged in accordance with proper legal requirement and by inference not suspicion. In Jang Investments Pty Ltd v Sutherland Shire Council, NSWLEC, 8 September 1989, unreported and in Somerville v Dalby (1990) 69 LGRA 422, Hemmings J held that a failure to refer to relevant matters in reports was not sufficient to allow the inference to be drawn that such relevant matters had not been taken into consideration. Moreover, neither the council nor the Director of Environmental Services was under a duty to set out in writing all the matters that were taken into account (Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135 at 139). 67 In the present case the notice of determination was issued by the Director of Environmental Services pursuant to an authority to do so which had been delegated to him. All of the recommendations of the Environment and Health Committee and the resolutions of the council confirm this fact. The various recommendations and resolutions confirm that the development application in the present case "be referred to the Director - Environmental Services for assessment and determination in accordance with the authorities delegated by the General Manager dated 30 August 2000, pursuant to section 378 of the Local Government Act 1993". There is no evidence to suggest that the Director of Environmental Services did not take the provisions of the 2000 LEP into consideration in his assessment and determination of the development application. I am unable to draw an inference adverse to the council in the absence of such evidence. The applicant in the present case has not discharged the onus which she bears. Moreover, the presumption of regularity (omnia praesumuntur rite et solemniter esse acta), in the absence of any evidence to the contrary, suggests that the Court should not draw the inference which the applicant says should be drawn. 68 In any event, before the development application was referred to the Director of Environmental Services for assessment and determination in accordance with the authorities delegated to him by the General Manager, a report had been prepared for the meeting of the Environment and Health Committee on 9 October 2000. A copy of this report was annexed to subsequent reports to the Environment and Health Committee's meetings on 22 January 2001 and 7 May 2001. Most of the provisions of the 2000 LEP which, as alleged by the applicant, have not been taken into consideration are discussed in this report. 69 I turn to each of the provisions of the then draft 2000 LEP which Mr Preston says were not considered by the council in determining the development application. 70 The first is the general objectives in cl 2 of the 2000 LEP which are not referred to in the report to Environment and Health Committee dated 9 October 2000. The general objectives would be called up for consideration each time a development application is considered. It must be assumed that a development application is not considered in a vacuum. Each member of the council, as well as the Director of Environmental Services, may be assumed to bring their own individual knowledge and expertise to the consideration of any development application being considered by them (Somerville v Dalby, at 429; Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135; Springer v Woollahra Municipal Council (2000) 108 LGERA 392 at 407). The general objectives in cl 2 of the 2000 LEP would be common knowledge. Every time the council considers any development application it would require consideration of the general objectives of the local environmental plan, so that the councillors and the Director of the Environmental Services would not need to be reminded of them on every occasion. This is unlike the somewhat unique and unusual clause that was considered by the Court of Appeal in Currey v Sutherland Shire Council (1998) 100 LGERA 365. Moreover, as Mr Ayling SC for the council points out, dual occupancy development is expressly permissible in the relevant zone and where one is dealing with the expected form of development in the zone, the question of compliance with the objectives is not something which needs to be directly referred to unless for some particular reason. None of the general objectives have been identified by the applicant to be of particular relevance to the proposed dual occupancy development in this case. 71 The next clause identified by Mr Preston as not having been considered is cl 10, which requires the consent authority to be satisfied that any requirement made by Sydney Water Corporation Limited for the provision of water and sewerage services to the site of the proposed development would be met. It is submitted by Mr Ayling, however, that it must be borne in mind that this was a development application to construct dual occupancy housing within an established residential area on an existing allotment upon which a dwelling house already exists. In this circumstance it is submitted that the council would be entitled to assume, unless there was something to suggest to the contrary, that there would be provision of water and sewerage services to the proposed development. In my opinion, the submission of Mr Ayling has merit. Even if Sydney Water Corporation Ltd had not been consulted by the council, I would regard the omission (if there is an omission) to consider cl 10 to be so insignificant an error that, in the exercise of the Court's discretion, I would not have been prepared to strike down the consent on this ground. 72 The next clause of the then draft 2000 LEP which is said to have not been considered by the council is cl 19. The applicant's particulars refer to cl 20, but in submissions reference was made only to cl 19. Clause 20 refers to a foreshore building line, which is nowhere near this development. Clause 19 refers to a foreshore scenic protection area. The whole peninsula on which the subject land is situated is within a foreshore scenic protection area. This is an area that contains several hundred allotments. Every development application for a site within that area would be subject to the general requirements of cl 19. Again, this is not the kind of unique and unusual clause which led to the decision of the Court of Appeal in Currey v Sutherland Shire Council. It would be common knowledge amongst both the councillors and the Director of Environmental Services. In any event the only operative provision of cl 19 is to place a different emphasis on the landscape area, a matter which was expressly considered. 73 Clause 30 is the next clause which, the applicant complains, was not considered by the council. That clause sets out the matters that must be taken into consideration for development in residential zones. The report to the Environment and Health Committee dated 9 October 2000 to which I have referred expressly deals with such of those matters as are of relevance to the subject development. 74 Other clauses which it is said were not considered are cll 34, 35, 36, 37 and 38. These clauses set out various numerical controls. All of those matters were expressly considered in the report to which I have referred and which were put before the Environment and Health Committee and the council. 75 It should be emphasised, however, that none of the allegations of a failure to consider particular clauses of the (draft) 2000 LEP and none of the suggested omissions from the report to which I have referred matter. After the Environment and Health Committee and the council considered the various reports which were placed before them, the decision was made to refer the development application to the Director of Environmental Services for assessment and determination in accordance with the authorities delegated to him by the General Manager. Thereafter the Director of Environmental Services assessed and determined the development application in accordance with his delegated authority to do so. As I have noted, the applicant has not established any fact from which an inference can be safely drawn that the Director of Environmental Services failed to give consideration to the relevant provisions of the 2000 LEP. Ground (7): Denial of Procedural Fairness 76 It is common ground that the council was under a duty to accord with the rules of procedural fairness, as explained in Kioa v West (1985) 159 CLR 550 at 184 (per Mason J): The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. 77 In the present case there was a statutory requirement to a similar effect. Clause 14 of the 1993 LEP provided as follows: All development applications in all zones (excluding strata subdivision applications) must be advertised by the council in a local newspaper and adjoining neighbours notified of the development application. 78 The alleged denial of procedural fairness is said to arise in the following way. The development application was advertised and notified to the adjoining neighbours in accordance with cl 14 of the 1993 LEP on 24 March 2000. By letter dated 11 April 2000 Mr J C Dobson, solicitor, objected to the development application on behalf of the owners of Nos. 401 and 403 Woolooware Road, Cronulla. On 16 August 2000 the council notified adjoining neighbours of amended plans that had been submitted on or about 27 July 2000. By letter dated 5 September 2000 Mr Dobson again objected. On 9 October 2000 Mr Dobson addressed the Environment and Health Committee of the council in relation to the development application. On 17 November 2000 Mr Dobson sent a further letter of objection to the council (addressed to Councillor K Schreiber), on behalf of the owners of No. 401 and 403 Woolooware Road. Subsequently Mr Dobson became aware of the council's resolutions of 5 February 2001 and 21 May 2001. It is submitted that although the development application was subsequently amended, the adjoining neighbours were given no notice thereof. Mr Dobson states in his affidavit that he was not aware of the proposal to not require access from Woolooware Road but to require direct access for the existing dwelling (the rear dual occupancy dwelling) over the right of way. He further states that, had he been so aware, he would have made further representations to the council to the effect that the use of the right of way was not appropriate. He states that, in addition, he would have looked at retaining a traffic expert and sought senior counsel's opinion. 79 I do not think it can be said that these facts disclose a denial of procedural fairness. Each of Mr Dobson's letters of objection was in relation to plans which showed the rear dwelling having access to the right of way. When Mr Dobson addressed the Environment and Health Committee it was in relation to plans which showed the rear dwelling having access to the right of way. The amended plans which were the subject of the development consent continued to show the rear dwelling as having access to the right of way. At all relevant times the applicants for development consent have insisted on the provision of access to the rear dwelling via the right of way. In his letters of objection of 11 April 2000 and 5 September 2000 Mr Dobson expressly objected to the provision of access via the right of way. Presumably he also raised the same objection when he addressed the Environment and Health Committee of the council. 80 Mr Dobson was thus heard repeatedly on the only merit issue which he raised, namely the question of access via the right of way. These facts raise the question: how many times should a person be given the opportunity to raise the same objection to a development application? The council was well aware of Mr Dobson's consistent objection to the use of the right of way. As Mr Ayling put it in his submissions: "It is patent that anyone having access to the papers in the matter and the council itself couldn't be more aware of the precise nature and extent of Mr Dobson's objection to this proposal in the relevant respect." Mr Dobson did not seek to retain a traffic expert or obtain the opinion of senior counsel in relation to the objections which he previously made. Mr Dobson cannot complain of a lack of procedural fairness when his specific objections to the use of the right of way were received on a number of occasions, although such objections did not ultimately prevail. 81 This conclusion is confirmed by the authorities relied upon by Mr Ayling. In Valley Watch Inc v The Minister for Planning (1994) 82 LGERA 209 the applicant was represented at and made submissions before a Commission of Inquiry. The report of the Commission was then submitted to the Minister of Planning. Before determining the application the Minister received and took into account further material which was not made available to the applicant. The Minister determined the development application which had been the subject of the inquiry by granting consent. The applicant contended that the Minister was under a duty to disclose the further material to it and to afford it an opportunity of making further submissions thereon. As to the duty to give to an objector who opposes an application the right to be heard and have his or her views considered, Talbot J said (at 220-221): That duty did not create an obligation to give objectors a further opportunity to comment on the additional material. To do so would create an interminable administrative system that could not operate efficiently having regard to the exigencies of the process involved in the referral of any additional information to every person who had seen fit to make a submission or to give evidence and possibly then again any responses to that reference. … In acting as he did the Minister was not bound to give the objectors any further opportunity for correcting or contradicting any statements which were adverse to their interests because those interests had already been taken into account. 82 In Thompson & Anor v Liverpool City Council (NSWLEC, Pearlman J, 7 July 1994, unreported), the council had notified the applicants of an application for a duplex dwelling on adjoining land. The applicants by letter objected to the grant of approval. The council then scheduled a mediation which duly took place but was unsuccessful in achieving any agreement. One of the council's officers told the applicants that the application would go to a council's meeting and that they would be notified of the meeting. The applicants then made a further written submission to the council. No notification of the council's meeting was given to the applicants. The council then met, at which the applicant for consent was invited to address the meeting. The applicants claimed that they had been denied procedural fairness, relying upon Kioa v West (inter alia). Pearlman J noted that there was no evidence to suggest that the council was unaware of the objections raised by the applicants. Her Honour held that the council was not obliged in the interests of fairness to give the applicants an opportunity to make additional submissions at the council's meeting; and it could not be said that the applicants were denied natural justice or procedural fairness. 83 In Hornibrook v Willoughby City Council (NSWLEC, Stein J, 27 August 1996, unreported) the applicant sought a declaration that a development consent and subsequent subdivision approval for a dual occupancy was invalid. The applicant, an adjoining property owner, had been notified of the development application. His consultant made a detailed written submission in opposition. He subsequently made a further written submission. There was then a site inspection by the council's committee at which the applicant and his consultant attended and addressed the committee. Following this the applicant made a further written submission. The applicant for the development consent then lodged amended plans with the council. The amended plans were not notified to the applicant. The matter was then determined at a council's meeting and the development consent was issued. The applicant had not been notified of the meeting. Stein J approached the case by asking what the common law duty to act fairly required in the particular circumstances, referring to Kioa v West. According to Stein J, the critical question was whether the applicant had been given an adequate opportunity of presenting his submissions so as to ensure procedural fairness. Stein J held that the council was aware of the objections of the applicant and in all the circumstances the applicant could not have a legitimate and reasonable expectation to be notified to a greater extent than he already was. The applicant was not denied procedural fairness. 84 In applying the above mentioned authorities I come to the same conclusion. The council and its officers in the present case were fully aware of the nature of the objections to the development application. There was no obligation as result of the principles of procedural fairness or otherwise for the applicant to be given a further opportunity to comment on the amended plans, which continued to include access to the rear dwelling via the right of way. The objections of Mr Dobson on behalf of his clients to the use of the right of way had been made on at least three occasions. There was no denial of procedural fairness in this case. Ground (8): Lack of finality 85 It is alleged that certain conditions of the development consent deferred the consideration of essential matters so that the development consent that was granted was uncertain and lacked finality. Reliance was placed on Mison v Randwick Municipal Council (1991) 73 LGRA 349. The conditions which the applicant particularised as having this effect are conditions 4, 8, 14 and 15 of the consent. 86 In submissions the applicant also attacked condition 2 as having the effect of rendering the consent to be both uncertain and lacking in finality. The respondents, however, ignored the applicant's allegations regarding condition 2 since only conditions 4, 8, 14 and 15 have been particularised and leave to amend the particulars has been neither sought nor granted. 87 In Mison v Randwick Municipal Council, Priestley JA (Meagher JA agreeing) held (at 351) that if a condition imposed upon a development consent has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application. Priestley JA further held that if the effect of an imposed condition is to leave open the possibility that the development carried out in accordance therewith will be significantly different from the development for which the application was made, then again the council has not validly granted consent to the application which was made. Clarke JA (Meagher JA again agreeing) held (at 354) that where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as being final. 88 It is necessary to consider each of the conditions which are alleged to be uncertain and which are said to result in a lack of finality. The first is condition 4, which is as follows: 4. Design Changes Required To reduce the environmental impact of the development proposal the following design changes are required: * The western 'in' access point being deleted, the eastern 'out' access being widened and made two-way in accordance with Sketch A dated 26.04.01; * The driveway area being extended by 1.5m into the area identified on the plans as 'patio' in accordance with Sketch 'A' dated 26.04.01; * Additional landscape area being provided in the locations identified by a 'L' on Sketch 'A' dated 26.04.01; and * The existing fence along the northern boundary of the site shall be removed for a distance of 8.5m west of the access point and no new fence shall be provided in this location. 89 This condition requires the applicant for consent to incorporate Sketch "A" dated 26 April 2001 into the approved plans. It amounts to a precise and detailed consideration of the access to the rear dwelling. It defers nothing for further consideration. It does not lack finality. It does not significantly alter the development for which consent was sought. It certainly does not alter it in a fundamental respect. 90 Condition 8 requires the preparation of a detailed landscape plan, to accord with the landscape concept plan, the council's development control plan as in force and the relevant conditions of the development consent, to be certified by the council or by an accredited certifier to the effect that it has been prepared having regard to these requirements and submitted with the construction certificate. 91 A landscape concept plan had been submitted with the development application. The requirement of the condition that the detailed landscape plan to be provided must accord with the landscape concept plan leaves no room for an argument that the condition has the effect of significantly altering the development. Neither can it be said that the condition leaves for later decision an important aspect of the development. Matters of detail which would not significantly alter the development may be legitimately dealt with by conditions such as condition 8. 92 Conditions 14 and 15 may be conveniently considered together. These conditions relate to Sydney Water's certification. It is submitted that pursuant to cl 10 of the 2000 LEP this issue ought to have been considered prior to the development consent being granted. It seems to me that there are two answers to this submission. Firstly, it must be remembered that cl 6 of the 2000 LEP provides that local environmental plans (including the 1993 LEP) as in force immediately before the commencement of the 2000 LEP apply to a development application that was made but had not been finally determined before that commencement as if the 2000 LEP had been exhibited but had not been made. It follows that the requirements of cl 10 of the 2000 LEP were not mandatory, but were a matter to be considered as if the 2000 LEP had been exhibited but had not been made. Conditions 14 and 15 clearly give consideration to the requirements of cl 10 of the 2000 LEP. Secondly, as pointed out by Mr C Gough, appearing for the second respondents, the provisions of ss 71 to 73 of the Sydney Water Act 1994 clearly contemplate the obtaining of a compliance certificate under that Act following the grant of the development consent: s 71 of that Act states: "It may be a condition of an approval … that a compliance certificate be obtained…". Conditions 14 and 15 do not leave an important aspect of the development for later consideration. Rather, they follow the procedure for obtaining a compliance certificate from Sydney Water which is set out in the Act administered by that corporation. Neither can it be said that conditions 14 and 15 are capable of significantly altering the development in a fundamental respect. 93 Even condition 2, which was not particularised by the applicant, could not result in significantly altering the development in a fundamental respect. That condition requires the development to be implemented substantially in accordance with specified plans and drawings. It is submitted by the applicant that nothing in the plans or drawings discloses the proposed subdivision; that the drainage concept plan does not form part of the approved plans; and neither do the approved plans show how the drainage concept plan is to be implemented. It is also submitted that the resolution of the access arrangements to the rear dwelling and how it would affect the right of way remain unclear. I do not agree. I have discussed under ground (2) above the question of the strata subdivision. As to drainage, there are detailed conditions of the consent which address the whole question of drainage. The access arrangements are detailed in a drawing (Sketch "A" dated 26 April 2001) which is one of the specified drawings referred to in condition 2, and which sketch deals specifically with the access from the rear dwelling to the right of way. 94 It cannot be said, in my opinion, that the development consent deferred consideration of any essential matters or was otherwise uncertain or lacked finality. Conclusions 95 During the course of submissions a question was raised as to whether, if the Director of Environmental Services did not have the delegated authority to evaluate and determine the development application, the consent would nevertheless not be set aside in view of such authorities as Ex parte Forsberg: Re Warringah Shire Council (1927) 8 LGR (NSW) 74; Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 569, Everall v Ku-ring-gai Municipal Council (1991) 72 LGRA 369 and Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206. In view of my findings under ground (5) above it does not become necessary to determine this question. The Director of Environmental Services not only had the delegated authority from the General Manager under s 378 of the Local Government Act, but such delegated authority was expressly accepted and confirmed by both the Environment and Health Committee and the council in relation to the assessment and determination of the development application in this case. I note that in Lyons v Sutherland Shire Council (2001) 117 LGERA 334, the Court of Appeal, in obiter remarks, doubted that Pearson was correctly decided. Since this question is no longer in issue then I should not decide it, since any decision on the question would in any event only be obiter. 96 I conclude by observing that the applicant has scrutinised the council's somewhat voluminous file on the development application with a view to finding a misplaced word or a missing sentence on which to found a claim for invalidity of the consent. It is almost inevitable that such an examination will expose some inadequacies. The seriousness of the breach may be considered by the Court in determining whether to grant the relief sought (Boulton v Burwood Municipal Council (1988) 66 LGRA 131). It must be remembered that reports prepared by officers of the council are merely tools to enable a proper assessment of the development application; it is not appropriate to apply a test of perfection (Guthega Development Pty Ltd v The Minister Administering National Parks and Wildlife Act 1974 (1987) 7 NSWLR 353; 61 LGRA 401; Fuller v Bellingen Shire Council, NSWLEC, Hemmings J, 16 June 1988, unreported). It seems to me, however, that the development application in the present case has undergone an unusually rigorous and thorough examination by the council and its officers. I am satisfied that, with one exception, none of the applicant's claims has been established. Ground (4) is arguably established, but may well be satisfied when the construction certificate is issued. Any such breach, however, is so marginal and insignificant that it is inconsequential and would not be noticeable by anyone. It therefore does not justify an exercise of the Court's discretion in the applicant's favour. 97 It follows that the application should be dismissed. It would also normally follow that there should be an order that the applicant pay the respondents' costs. Since the question of costs was not argued, however, I should reserve costs.

98 The orders of the Court are: (1) The application is dismissed. (2) The question of costs is reserved. (3) The exhibits may be returned.

I hereby certify that the preceding 98 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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