Davis v Gosford City Council [2013] NSWLEC 49 | Case summary

Davis v Gosford City Council [2013] NSWLEC 49 | Case summary | Zoe

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The Applicants Lodge a Development Application for the Establishment of a Tip 1The applicants, Raymond Davis and Susanne Davis, are the owners of land known as 168 Somersby Falls Road, Somersby, which is in an area known as Somersby Industrial Park ("SIP"). The land has an area of 11.097ha and is described as Lot 9 in DP787857 ("the site"). The site is vacant and contains native vegetation. The site is located in the north-western part of the SIP. The site is zoned 4(a1) General Industrial in the Gosford Local Environmental Plan No 22 ("the Gosford LEP"), as amended by the Gosford Local Environmental Plan No 457 ("the Gosford LEP 457"). Within that zone, industry is a use that is permissible with consent. The site includes areas identified as being located within Management Zones 1 and 2 in figures 4.1 and 4.3 of the Plan of Management Somersby Industrial Park (2005) ("POM") prepared by Gosford City Council. 2On 26 July 2011, the applicants lodged a development application with Gosford City Council ("the council") for "an integrated resource recovery facility" for use in the construction and building industry or, as the applicants described during the course of the hearing, as "a tip", on the land. The proposed development covered an area of 4.05ha. The proposed development is partly on land identified as Management Zone 1(d) Hibbertia procumbens habitat. 3The proposed development is an integrated and designated development and was accompanied by an environmental impact statement, which included a flora and fauna assessment report. That report concluded that the development was on land that is not, nor is it part of, critical habitat, nor was it likely to significantly affect threatened species, populations or ecological communities or their habitats. 4Nevertheless, on 28 July 2011 the council rejected the development application as being invalid on the ground that a species impact statement was required pursuant to s 78A(8)(b) of the Environmental Planning and Assessment Act 1979 ("the EPAA") and cl 51(2)(b) of the Environmental Planning and Assessment Regulation 2000 ("the Regulations"). 5The applicants subsequently requested a review of the council's decision on 22 August 2011 under s 82B of the EPAA, which was rejected on 31 August 2011 by an Independent Development and Environmental Panel, and the decision was confirmed. The basis for the rejection was the absence of a species impact statement. 6Accordingly, on 9 September 2011 Class 4 proceedings were commenced by the applicants seeking declaratory relief stating that the development application was not required to be accompanied by a species impact statement because the application was not in respect of development on land that was "likely to significantly affect" threatened species, populations or ecological communities or their habitats. 7On 21 December 2011 a Class 1 appeal was also filed in the Court pursuant to s 97 of the EPAA against the council's deemed refusal of the development application. The Class 1 proceedings were adjourned pending the determination of the Class 4 matter. 8The Class 4 matter was heard before Lloyd AJ. On 27 March 2012 his Honour held that on the evidence before him at that time a species impact statement was not required because the proposed development was not likely to significantly affect either of two threatened species the subject of the proceedings before him, namely Hibbertia procumbens and the Eastern Pygmy possum (Davis v Gosford City Council [2012] NSWLEC 62 at [38]). 9Accordingly, Lloyd AJ held that the council's rejection of the development application was null and void and that the application made on 26 July 2011 remained to be considered on its merits (at [38]). 10The Class 1 proceedings therefore resumed and were heard before Brown and Fakes CC (Davis v Gosford City Council [2012] NSWLEC 1329). 11This appeal, pursuant to s 56A of the Land and Environment Court Act 1979, is a challenge to the dismissal by the Commissioners of the appeal before them and their refusal of the development application.

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The Commissioners' Decision 12The Commissioners described the contentions raised by the council in the Amended Statement of Facts and Contentions that, according to the council's submissions, demanded the refusal of the application, as follows (Davis v Gosford City Council [2012] NSWLEC 1329 at [3]): 3 The council raises the following contentions in the Amended Statement of Facts and Contentions that warrant the refusal of the application: (1) abuse of process as the development application is almost identical to and materially the same as the appeal dismissed by the Land and Environment Court in 2007 (Contention 1). (2) unacceptable impact on threatened fauna, specifically the Eastern Pygmy Possum (Contentions 2 and 4). (3) unacceptable impact on threatened fauna, specifically the Hibbertia procumbens. The council modified its position on the incursion into the Hibbertia procumbens management zone by accepting that the proposed incursion would be acceptable if the applicant provided a suitable offset area. The applicant advised that no offset was required and none was offered (Contentions 2 and 3). 13It was principally the Commissioners' treatment of the unacceptable impact on the Eastern Pygmy possum that was at issue in this appeal. 14The Commissioners then went on to describe the site and its locality and the procedural background to the appeal before them. Next, they outlined the planning framework relevant to the appeal (at [11]-[14]): 11 The site is zoned 4(a1) Industrial (General) under Gosford Local Environmental Plan 22 (GLEP 22) as amended by Gosford Local Environmental Plan 457 (GLEP 457). Industry is a use that is permissible with consent. The land surrounding the site is a mixture of 4(a1) Industrial (General) and 1(a) Rural (Agriculture). The latter is zoned under IDO No 122 and generally contains dwelling houses, rural activities and poultry sheds. 12 Division 4 was included in GLEP 22 by GLEP 457 and applies to land at SIP. The relevant clauses are: 24 Aims of Division This Division aims: (a) to maximise the opportunity for industrial development in the Industrial Park so as to provide employment opportunities in the Gosford local government area, and (b) to protect ecologically significant land and land with Aboriginal heritage characteristics within the Industrial Park (as identified as Management Zones 1 and 2 in POM Somersby Industrial Park (2005), as prepared for the Council), and (c) to ensure that the function and appearance of future subdivision or other development of the Industrial Park: (i) is of a high standard (in terms of both the built form and landscaping), and (ii) protects ecologically significant land and land with Aboriginal heritage characteristics within the Industrial Park, and (d) to provide that subdivision of land occurs in a flexible manner to take account of ecologically significant land and land with Aboriginal heritage characteristics within the Industrial Park, and (e) to ensure that development on land within Zone No 3 (a2) (Business) is of comparable bulk and scale to industrial development within the Industrial Park, and (f) to facilitate the provision of retail or commercial services to support the workforce of the Industrial Park in a single, central location so as to enable the full range of the workforce's needs to be met efficiently. 25 Development applications In determining a development application relating to land to which this Division applies, the consent authority must have regard to: (a) Plan of Management Somersby Industrial Park (2005), as prepared for the Council, and (b) the aims of this Division (as referred to in clause 24). 13 The Plan of Management Somersby Industrial Park (2005) (POM) applies. The site (excluding the access handle) is shown on Figure 3.1 as being partly affected by "Combined Significant Habitat" and partly affected by "Aboriginal Management Zone". The northern part of the site is designated "Habitat Corridors and Linkages". Figure 4.1 and 4.3 (See Attachment 1) identify the following management zones within the site:

Management Zone 1(a) - Aboriginal Heritage Sites,
Management Zone 1(d) - Hibbertia procumbens Habitat,
Management Zone 1(e) - Riparian and Habitat Protection Zone
Management Zone No 2 - Habitat Links, and
Road closure. 14 The effect of the proposed development on the zones and sub-zones is summarised in the following table. Management Zone/ Sub-zone Description Location on site Proposed incursion Zone 1: Aboriginal heritage South-eastern corner No Sub-zone 1(a) Zone 1: Hibbertia procumbens Central northern portion Yes - by 1.4ha Sub-zone 1(d) Zone 1: Riparian zones and habitat protection North-eastern boundary No Sub-zone 1(e) Zone 2 Habitat links Northern boundary No

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15According to the Commissioners the only management zone in dispute was the Hibbertia procumbens Habitat Management Zone although they noted that "the remainder of the south-western corner of the site, not affected by any management zones (the developable area), was subject to disagreement over the impact on the Eastern Pygmy possum" (at [15]). 16Turning to the impact of the development on the Eastern Pygmy possum the Commissioners summarised the evidence of the ecological experts, Mr Fanning for the applicants and Ms Ashby for the council. They noted that much of the discussion between the ecological experts focused on the impact of the development on the local population of the Eastern Pygmy possum and the efficacy of the relocation and habitat mitigation measures proposed by the applicants (at [26]). The ecologists had agreed that the possum had been recorded in the southern parts of the proposed development site and in nearby bushland (at [26]). It was Mr Fanning's opinion that suitable amelioration and mitigation measures could be implemented, whereas Ms Ashby maintained the contrary position. 17The Commissioners noted the submissions of the parties, and in particular the submission of the applicants that, because Ms Ashby had not undertaken a formal seven-part test of significance pursuant to s 5A of the EPAA, her opinion as to the risks to the local Eastern Pygmy possum population occasioned by the development should be given less weight (at [34]). By contrast, counsel for the council had submitted that even though Ms Ashby did not undertake a s 5A assessment of significant impact, the evidence nevertheless suggested that in considering s 79C(1)(b) of the EPAA there would be likely to be an unacceptable impact on the possum, and therefore, the appeal should be dismissed (at [37]). 18The Commissioners found that they were satisfied that the impact of the development on the Eastern Pygmy possum was "unacceptable". They said (at [39]): 39 We accept that with the benefit of the site inspection, the expert evidence and considering s 79C(1)(b) of the EPA Act as to "the likely impacts of that development, including environmental impacts on..the natural..environment(s)....in the locality" ,we are satisfied that the impact of the proposal on the Eastern Pygmy-possum is unacceptable for a number of reasons. 19Their reasons were six-fold: (a) first, it did not matter, for the purposes of the consideration required by s 79C(1)(b) of the EPAA that the habitat area for the Eastern Pygmy possum was within an area of the site that was not affected by a relevant management zone in the SIP (at [40]); (b) second, the management zones, although determined on the best information available at the time, "ultimately were not particularly accurate" for reasons that included the difficulty of trapping of animals, the nature of traps, the relatively limited extent of surveys of possums in the relevant area and the fact that the surveys were conducted before a fire (at [42]); (c) third, more recent surveys supported Ms Ashby's evidence that there was a resident breeding population, most likely located in or near the prime banksia thicket in the area of the proposed development (at [43]); (d) fourth, (at [47]): 47 Fourth, we are not satisfied that the question in s 5A(1) of the EPA Act as to "whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats" has been satisfactorily addressed. The earlier comments on the Eastern Pygmy-possum in the 1997 Australian Museum Business Services' survey and the 2003 Connell Wagner Flora and Fauna Report, the 2005 Andrews Neal Species Impact Statement have been overtaken by the most recent survey results from Ms Ashby. While we accept that Lloyd J in Davis v Gosford City Council [2012] NSWLEC 62 found, on the evidence before him, that an SIS was not required, this conclusion also pre-dates Ms Ashby's survey results. Moreover, although the Commissioners accepted that Ms Ashby was not required to undertake a seven-part assessment in accordance with s 5A of the EPAA, they were nevertheless satisfied that her oral evidence and the substance of her report "legitimately raise the question of whether there is likely to be a significant effect on a threatened species, population, ecological community or their habitats" (at [49]); (e) fifth, the Commissioners preferred Ms Ashby's evidence in relation to the proposed amelioration measures, as it appeared to be supported by the scientific literature. In particular, the Commissioners were concerned that the trapping and relocation, while superficially attractive, could have unintended and detrimental consequences and that the opportunities for the enhancement of the nearby vegetation, as proposed by Mr Fanning, were limited (at [50]); and (f) sixth, they did not agree that the applicants' suggestion should be adopted, that a flexible approach should be taken to the application of the POM in regards to the Hibbertia procumbens management zone, to compensate for the retention of part of the habitat for the Eastern Pygmy possum on part of the site that had been set aside for development. The Commissioners accepted that the designation of management and/or development zones in the POM was based on the best available information at the time, and that the underlying reason for the preparation of the POM was to try and achieve a balance between areas where development can proceed and areas of biodiversity value that should be protected. However, it was their view that a more considered strategic approach was required before adjusting any of the existing management zones (at [51]). 20The Commissioners therefore concluded (at [52]-[53]): 52 For these reasons, we find that the proposal, pursuant to s 79C(1)(b) of the EPA Act, will likely unacceptably impact on the Eastern Pygmy-possum in the locality. We also find that the proposal is inconsistent with cl 24(b) in that the proposal does not "protect ecologically significant land" 53 In our view, the likely impact on the Eastern Pygmy-possum warrants the refusal of the application.

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Grounds of Appeal 21An amended summons was filed at the commencement of the hearing. After some discussion between the parties, grounds 1A and 3 in the amended summons were not pressed by the applicants. This left appeal grounds 1, 2, 4, 5 and 6, as follows: 1. The Commissioners erred on a question of law in their interpretation and application of s79C(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) ("the Act") at paras [39], [47], [48] and [49] of their judgment by: a. Disregarding and failing to follow, the findings and decision of Lloyd AJ in Davis v Gosford City Council [2012] NSWLEC 62; b. Asking themselves the wrong question. The Commissioners enquired into, and made positive findings of fact concerning, an alleged "significant effect" on the Eastern Pygmy possum contrary to the decision of Lloyd AJ and the enquiry mandated by s79C(1)(b); c. Taking into account an irrelevant consideration in determining to refuse development consent, namely, whether there was an alleged "significant effect" on the Eastern Pygmy possum; d. Making findings of fact concerning an alleged "significant effect" on the Eastern Pygmy possum without evidence and in a manner contrary to both parties' position on the appeal. 2. In the alternative to 1, if the Commissioners were permitted by law to enquire into and make positive findings of fact concerning an alleged "significant impact" on the Eastern Pygmy possum, the Commissioners erred on a question of law by failing to take into account a mandatory relevant consideration, namely the concurrence issued by the Director General of the Department of Environment and Conservation under cl 64 of the Environmental Planning and Assessment Regulation 2000 ("the Concurrence"), when determining the matter. 4. The Commissioners erred on a question of law in finding, at paragraph [42], that the Somersby Industrial Park Plan of Management ("the POM") was based on information (management zones) that was "not particularly accurate" when: a. there was no evidence before the Commissioner upon which such a finding could be made; and b. the Commissioners accepted there was no relationship between the management zones and the Eastern Pygmy possum, and thus they took into account an irrelevant consideration in determining to refuse development consent. 5. The Commissioners erred on a question of law in their interpretation and application of cl24(b) of the Gosford Local Environmental Plan 22 ("the LEP") by finding, at paragraph [52] of the Judgment, that the proposal affect land to which cl24(b) of the LEP applied when there was no evidence to make that finding. The Commissioners thus took into account an irrelevant consideration in determining to refuse development consent. 6. The Commissioners erred on a question of law by failing to take into account a mandatory relevant consideration, namely the aim identified in cl24(a) of the LEP, when determining the matter.

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Principles to be Applied in Determining the Appeal 22The principles according to which this appeal falls to be determined were not in dispute and may be summarised as follows: (a) first, the appeal is only concerned with errors of law and not errors of fact (Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; (2010) 176 LGERA 119 at [25]; Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 230; (2010) 177 LGERA 296 at [28]-[30] and Hurstville City Council v Goreski [2011] NSWLEC 188 at [50]-[52]); (b) second, the Commissioners must give adequate reasons for their decision refusing consent. This means that they must refer to evidence that is important or critical to the determination of the issues in the case (Village McEvoy at [26] and the authorities referred to thereat). However, as was cautioned in Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 (at [93]): 93 In my opinion, it follows that the statements in the authorities to which I have referred above to the effect that the judge must enter into the issues canvassed before him or her and explain why he or she prefers one case over the other (Flannery), or that for a judge to ignore evidence critical to an issue in a case contrary to an assertion of fact made by one party may promote a sense of grievance in the adversary (Mifsud), or that it is the duty of a judge to expose his or her reasons for his or her decision where a point is vital and where its resolution is crucial to the contest between the parties (North Sydney Council v Ligon), need to be read in context and are not, in my opinion, authority for the proposition that every argument or issue advanced by a party in support of the principal issues must be considered by the judge and reasons given for accepting or rejecting it. A judge's duty to give reasons is, in my opinion, confined to the essential ground or grounds upon which the decision rests (Soulemezis) and does not include a requirement to deal with a submission or argument that is otherwise unnecessary to the decision arrived at provided that, in respect of that decision, the judge's reasoning process is articulated and relevant findings made (Housing Commission (NSW) v Tatmar). (c) third, an overly critical examination of the Commissioners' decision for errors of law should not be employed (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291; Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [76]; Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12 at [7]; Village McEvoy at [28]-[31] and Goreski at [53]). It must be borne in mind that "it would be quite wrong ... for this Court to examine their decisions as if they were written by a lawyer" (per Kirby J in Brimbella at 368); and (d) fourth, if the decision of the Commissioners reveals an error of law, the decision is only vitiated if the error is material to the decision made (Design Power Associates Pty Ltd v Willoughby City Council [2006] NSWLEC 470; (2006) 148 LGERA 233 at [34]; Goreski at [53]-[56] and Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [133]-[136]). An error will not be material to the decision made if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioners below in a way that called for a reasoned consideration of that matter (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; (1983) 53 LGRA 325 at 386-387 and at 332 respectively).

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The Commissioners Were Not Bound by the Findings and Decision of Lloyd AJ 25Put simply, the applicants argued that the Commissioners were bound by the declaration made by Lloyd AJ in the earlier Class 4 proceedings that the proposed development was not likely to have a "significant effect" on the Eastern Pygmy possum. 26In this regard the applicants relied on the principle of the finality of litigation to submit that because the Class 1 proceedings had been stood over pending the outcome of the Class 4 proceedings, in which the question of "significant effect" would be resolved, the Commissioners could not come to a different view as to the effect of the proposal on the Eastern Pygmy possum. The applicants also relied on various authorities to the effect that statements made by higher courts are binding on lower courts within the judicial hierarchy (Hepburn v TCN Channel Nine Pty Ltd (1984) 1 NSWLR 386 at 391F and Edwards v Sutherland Shire Council [2006] NSWLEC 128; (2006) 146 LGERA 199 at [43]). 27The applicants submitted that Lloyd AJ had authoritatively and decisively resolved the competing positions of the applicants and the council on the question of the alleged "significant effect" of the development on the Eastern Pygmy possum and that by finding, as the Commissioners did, that there was a significant effect on the Eastern Pygmy possum, or that there should be further inquiry into that matter, the Commissioners had repudiated the judgment and orders of Lloyd AJ, contrary to law. 28This submission cannot be accepted. First, and as explained further below, no such finding was made by the Commissioners and the applicants mischaracterise the finding made by the Commissioners in this regard. Second, the two inquiries, namely, that of his Honour and that of the Commissioners, were wholly distinct from each other. The former concerned the determination of a jurisdictional fact pursuant to the statutory formulation contained in s 78A(8)(b) of the EPAA (of whether the application was in respect of development on land that was likely to significantly affect threatened species); whereas the latter concerned a merits assessment in a de novo hearing to determine whether or not to grant development consent in respect of the development application and in so doing, to consider, pursuant to s 79C(1)(b) of the EPAA, "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality". 29In short, the statutory formulations to be applied were different. The assessment required to be undertaken by each decision-maker in each case was different. The proceedings were different. The only commonality was that the proposed development was the same in each proceedings and in the circumstances this was not enough. 30The decision made by Lloyd AJ, after a consideration of the evidence before him, could, in no way bind or fetter the decision to be made by the Commissioners, who were undertaking an entirely different assessment on the totality of the evidence before them. Indeed, had the Commissioners, for example, ignored the survey evidence of Ms Ashby when assessing the development application under s 79C(1)(b) and simply applied, absent any further consideration, the findings made by Lloyd AJ in the Class 4 proceedings, they plainly would have been in error. 31A not dissimilar submission was put to Craig J in Kerford Developments Pty Ltd v Albury City Council [2011] NSWLEC 154; (2011) 185 LGERA 350. It was rejected. In that case, Kerford sought a direction that the impact of a proposed development on the Speckled Warbler and its habitat should not be the subject of consideration when determining its development application (the Speckled Warbler being a threatened species under the Threatened Species Conservation Act 1995). If such a direction were given, then, Kerford submitted, it would be relieved of the cost of expert evidence addressing the issue and the hearing time for the appeal would have been reduced. 32It was accepted by his Honour in Kerford that, by reason of the operation of cl 26(1) of Sch 7 to the Threatened Species Conservation Act 1995, the obligation on the part of Kerford to prepare a species impact statement pursuant to s 78A of the EPAA, or to seek concurrence of the Director-General under s 79B of the EPAA, was removed. But his Honour went on to note (at [16] emphasis added): However, the matters to be considered when determining a development application, as they are identified in s 79C(1) of the EPA Act, are expressed in more general terms. Relevantly, consideration of "the likely impacts of that development, including environmental impacts on both the natural and built environments" (s 79C(1)(b)) does not contain the verbal formula found in cl 26(1). That clause would not, in terms, preclude consideration of an impact associated with the use of land by the Speckled Warbler by reference to s 79C(1)(b). 33The only way in which the decision in Lloyd AJ bound the Commissioners was with respect to the issue of concurrence. This is discussed in further detail below in ground two.

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The Commissioners Did Not Err in their Application of s 79C(1)(b) 34The second aspect of the applicants' challenge to the Commissioners' decision under this ground of appeal must also be rejected. First, the challenge is misconceived insofar as nowhere have the Commissioners made positive findings of fact concerning any alleged "significant effect" on the Eastern Pygmy possum contrary to the decision of Lloyd AJ or the inquiry mandated by s 79C(1)(b). At all times the Commissioners asked themselves, in my view, the correct question, namely, what were the likely impacts of the proposed development including environmental impacts on the natural environments in the locality (s 79C(1)(b) of the EPAA). This is the precise question they asked at [39] of their decision. It is reinforced by their reference to s 79C(1)(b) at [40] and was correctly articulated and applied at [52] and [53] of their decision. 35It is true that the Commissioners had regard to s 5A(1) of the EPAA in the context of the earlier assessment of whether there was likely to be a significant effect on threatened species by Lloyd AJ (at [47] and [49]). But these references, when read fairly and in context, in no way amount to a finding that the proposed development was likely to have a "significant effect" on the Eastern Pygmy possum. Rather, it appears that this reasoning is directed, first, to the fact, of which the Commissioners were cognisant and concerned, that Lloyd AJ had earlier found that there was not likely to be a "significant effect" on the Eastern Pygmy possum by reason of the proposed development. The Commissioners were not seeking to reagitate or redetermine this question, but were seeking to explain a possible factual inconsistency between their findings with respect to the assessed impact of the proposed development on the Eastern Pygmy possum and the findings by his Honour that there was not likely to be a significant effect on that threatened species. Although not necessary for the purposes of the exercise of their discretion to reconcile the two potentially conflicting findings, the Commissioners nevertheless sought to explain the apparent difference of opinion on the basis that more recent evidence had been placed before them, in particular, Ms Ashby's survey results. 36Second, the reasoning was germane to the criticism directed at Ms Ashby's evidence, that her evidence ought not to be accorded any, or any determinative, weight because she did not undertake a seven-part assessment in accordance with s 5A of the EPAA. In stating that they were "satisfied that her oral evidence and the substance of her report legitimately raise the question of whether there is likely to be a significant effect on a threatened species, population, ecological community or their habitats", it appears that the Commissioners were stating that Ms Ashby's evidence nevertheless achieved the same practical effect as conducting a seven-part assessment under s 5A. 37Just as I do not accept that the Commissioners made a positive finding that the proposed development would be likely to have a "significant effect" on the Eastern Pygmy possum, I likewise do not accept that the Commissioners introduced into s 79C(1)(b) any impermissible consideration of the concept of "significant effect", as submitted by the applicants, and therefore, took into account an irrelevant consideration. For the reasons discussed above, the Commissioners correctly framed the issue at [39] (and see also at [40]) which leads to the conclusion that "pursuant to s 79C(1)(b) of the EPA Act" the proposal "will likely unacceptably impact on the Eastern Pygmy-possum in the locality" (at [52]). The applicants' argument cannot be maintained. 38Lastly, in a submission developed orally (it is not found in the particulars to ground one in the amended summons) the applicants complained that the assessment exercise by the Commissioners miscarried because they had failed to, as a matter of fact, make an assessment of the impact of the proposed development as required by s 79C(1)(b) of the EPAA. That is to say, they failed to state what the impact actually was. This was to be contrasted with the impact of the development on the Hibbertia procumbens Habitat Management Zone which the Commissioners concluded would have a "moderate impact" on the distribution of that species (at [66]). 39It is correct that the Commissioners did not use adjectives such as "moderate" or "severe" to describe the impact that the proposed development would, in their assessment, have on the Eastern Pygmy possum. But, the Commissioners used the term "unacceptable" (at [39] and [52]) and in my view this was more than sufficient for the purposes of the statutory assessment required by that provision. This ground of appeal therefore fails.

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Ground Two: Failure to Take into Account the Concurrence Issued by the Director-General 40This ground of appeal may be disposed of expeditiously on the basis of my finding above, namely, that the Commissioners neither inquired into, nor made positive findings of fact concerning, an alleged "significant effect" on the Eastern Pygmy possum. 41In any event, even if I am wrong and they did, counsel for the applicants in the hearing before the Commissioners expressly and repeatedly told the Commissioners that the concurrence was irrelevant. The submission was, in my opinion, correct in light of the finding made by Lloyd AJ that a species impact statement was not required pursuant to s 78A(8)(b) because the proposed development was not likely to significantly affect the two threatened species the subject of the proceeding before him. 42Accordingly, although a concurrence had been issued by the Director-General of the Department of Environment and Conservation pursuant to cl 64 of the Regulations, it was unnecessary for the Commissioners to have regard to the concurrence (cf Michel Projects Pty Ltd v Randwick Municipal Council (1982) 46 LGRA 410). It is for this reason that there is, quite properly, no reference whatsoever to the concurrence in the judgment delivered by the Commissioners. 43A single illustration of the submission put to the Commissioners by the applicants will suffice (30/10/12 T29.34-29.50, see also 29/10/12 T12.26-13.01 and T15.10): The second thing is this, in respect of the pygmy possum there is already a conclusion based upon Mr Fanning's s 5A assessment that the development is not likely to significantly affect the pygmy possum under the 5A test. There is also a conclusion of Justice Lloyd to that effect. Added to that, not only that, even if one were to set aside Justice Lloyd's findings on that question and using Mr Ashby's more recent ecological surveys one was to say there is likely to be significant effect, I might add that Ms Ashby hasn't done a 7-part test so one can't get there anyway but assume for the moment that there evidence rose as high as to say there's unlikely to be a significant effect upon the eastern pygmy possum, the answer is that still no concurrence is required, and why, because pursuant to cl 64 of regulation , I will hand up a copy of that to the Court, in certain circumstances under this division of the regulation, div 2, "A concurrence or .. in the notice." ... the area of the development that is proposed to affect the pygmy possum habitat is confined to an area in respect of which the department has given it's concurrence.

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Ground Four: the Commissioners Erred by Finding that the POM was Based on Information that was "Not Particularly Accurate" 44Under this ground of appeal the applicants argued that the Commissioners' finding that the POM was "not particularly accurate" was a finding that was adverse to them and which lead in part to the refusal of the development consent, but which was based on no evidence (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 149). 45A finding of fact made on no evidence whatsoever, as opposed to a finding of fact that is incorrect but is founded on some evidence, can and does amount to an error of law, particularly for the purposes of a s 56A appeal (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-356; Bruce v Cole (1998) 45 NSWLR 163 at 188; Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 at [75]-[76] and Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390 at [90]-[91]). 46Alternatively, the applicants submitted that the Commissioners' opinion as to whether the content of the POM was accurate was irrelevant and ought not to have been taken into account. 47Connell Wagner prepared the POM in June 2005 for the SIP. It was commissioned to do so by the council and the New South Wales Premier's Department. Clause 25 of the Gosford LEP provides that the POM is a mandatory consideration in respect of development applications lodged in relation to "land" in the SIP. The "land" is identified in cl 23 of the Gosford LEP by reference to a map marked in the Gosford LEP 457 incorporated into the Gosford LEP. 48The POM provides management strategies to maintain and enhance the SIP values. One mechanism to achieve the implementation of the stated values in the POM is the creation of Management Zones based on key constraints identified in the SIP. Three management Zones are identified. Management Zone 1 in turn contains five sub-zones. 49The Commissioners stated the following in relation to the Management Zones in the POM (at [42]): 42 We accept that, for the reasons stated in the 2003 Connell Wagner Flora and Fauna Report, including the difficulty of trapping the animals, the nature of the traps (Elliot traps), the relatively limited extent of the surveys, and the fact that the surveys were conducted before the 2005 fire, the management zones in the POM were determined on the best information available at the time but ultimately were not particularly accurate. 50Earlier in the judgment, the Commissioners acknowledged that the habitat area for the Eastern Pygmy possum was within an area of the SIP that was not affected by a relevant Management Zone (at [40]). 51Accordingly, the applicants contended that the taking into account of the accuracy of the Management Zones by the Commissioners was "a complete distraction" and in doing so they had erred in law. 52There are several responses to the applicants' argument. First, it is not correct to state that the Commissioners accepted that there was no relationship between the Management Zones in the POM and the Eastern Pygmy possum. This is not what was said by the Commissioners at [40]. On the contrary, the Commissioners, after having found that the habitat of the possum was not affected by a Management Zone, stated that this nevertheless did not preclude a consideration by them of the Management Zones pursuant to s 79C(1)(b) of the EPAA. 53Second, the finding that the Management Zones "ultimately were not particularly accurate" was based on the matters set out in [41] and [42]. That is to say, surveys finding no evidence of the Eastern Pygmy possums and potential habitat mapping on the eastern portion of the applicants' lot, rather than on the south-western part of the site, where prime possum habitat was located and where the majority of the Eastern Pygmy possums were subsequently found in later surveys. This was evidence upon which the Commissioners were entitled to conclude that the identification of the Management Zones and the POM were "ultimately not particularly accurate". The material included: (a) the more recent survey information available from Ms Ashby as to the presence of the possum on the site; and (b) the current knowledge of the extent of the Hibbertia procumbens on the site, nearby in the SIP and elsewhere. 54Third, the POM was required to be taken into account in the assessment of the development application (cl 25 of the Gosford LEP). Understanding the relationship between the Management Zones in the POM and the presence of the Eastern Pygmy possums on the site was therefore a relevant mandatory part of the overall merit assessment of the application. 55Fourth, ultimately it was the evidence of the ecologists that was determinative of the Commissioners' assessment of the impact of the proposed development on the Eastern Pygmy possums. Put another way, even if the Commissioners' finding as to the accuracy of the POM constituted an error of law, it was not one that materially affected the exercise of their discretion thereby vitiating the decision. 56Therefore this ground of appeal must be rejected.

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Ground Five: the Interpretation and Application of cl 24(b) of the Gosford LEP 57At [52] of their decision, the Commissioners found that "the proposal is inconsistent with cl 24(b) [of the Gosford LEP] in that the proposal does not 'protect ecologically significant land'". The applicants submit that this finding, viz, that the development proposal affected land to which cl 24(b) of the Gosford LEP applied, was made in the absence of any evidence supporting it. 58An examination of the materials before the Commissioners reveals that this submission cannot be accepted. The material before the Commissioners included the development application, the POM, the map of the ecologically significant lands included in the Gosford LEP 457 and the Gosford LEP. A comparison of the plans attached to the development application and figures 4.1, 4.2 and 4.3 in the POM with the map of ecologically significant land contained in the Gosford LEP 457 incorporated into the Gosford LEP, indicate that, at least in part, the proposed development site fell within land designated as "ecologically significant land" for the purpose of cl 24(b) of the Gosford LEP. Accordingly, there was evidence before the Commissioners to make the finding notwithstanding the acknowledgement by them (at [40]) that the habitat area of the Eastern Pygmy possum was within an area of the site not affected by a Management Zone. Moreover, even if this finding was incorrect, this is not a matter that can be challenged in these proceedings. 59As Preston J in Ekermawi v Bennett (No 2) [2010] NSWLEC 40 saliently stated (at [29]): 29 ...No error of law is involved in finding or inferring facts where there is some evidence capable of supporting the finding or inference. Mr Ekermawi's submission that there was also evidence to support making a different finding of fact is not to the point. There is also no error of law involved in making a wrong finding or inference of fact on the evidence: McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9; Australian Gas Light Company v The Valuer General (1940) 40 SR (NSW) 126 at 138; Tesoriero v Leichhardt Municipal Council (1983) 51 LGRA 46 at 48-49; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-157; Randwick Municipal Councill v Crawley (1986) 60 LGRA 277 at 282-283; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355; Seaforth Services Pty Ltd v Byron Shire Council (No 2) (1991) 72 LGRA 44 at 47; Sydney Water Corporation v Caruso at [96]; Bruce v Cole (1998) 45 NSWLR 163 at 188. No error of law is also revealed by the commissioner referring to the prior decision of the Court in Barker v Kyriakides. 60In their written submissions, the applicants alternatively argued that cl 24(b) of the Gosford LEP was not applicable to the development proposal because it refers to Management Zones 1 and 2 and because, according to the applicants, "Management Zone 1 is the Aboriginal Management Zone. Hence the reference in cl 24(b) to 'land with Aboriginal heritage characteristics within the Industrial Park' must be a reference to Management Zone 1", which was not relevant. By a process of logical deduction, the reference to "ecologically significant land" in cl 24(b) must therefore be a reference to Management Zone 2. However, none of the land where the Eastern Pygmy possum had been located was within any of the land identified as a relevant Management Zone in the POM (at [40]). Thus cl 24(b) of the Gosford LEP was not engaged and in having regard to it, the Commissioners took into account an irrelevant consideration. 61This contention was, on its face, somewhat opaque. There is no apparent reason why the reference to "ecologically significant land" in cl 24(b) is restricted to Management Zone 2. Presumably land within sub-zones 1(b) to (e) could also be characterised as "ecologically significant land". 62But leaving this observation to one side, this ground of appeal must be rejected for three reasons. First, at its highest, the submission amounts to the making by the Commissioners of an error of fact, not law, namely, that the site of the proposed development was "ecologically significant land" thereby engaging the operation of cl 24(b). 63Second, whether or not the proposed development was contrary to, or consistent with, the aim set out in cl 24(b) of the Gosford LEP was a mandatory relevant consideration insofar as the Commissioners were required to "have regard to" the aims of "Division 4 Development of land at Somersby Industrial Park" pursuant to cl 25(b) of the Gosford LEP. Clause 25 provides as follows: 25 Development applications In determining a development application relating to land to which this Division applies, the consent authority must have regard to: (a) Plan of Management Somersby Industrial Park (2005), as prepared for the Council, and (b) the aims of this Division (as referred to in clause 24). 64This is reflected in the joinder between the parties of the issue contained in the applicants' Statement of Facts and Contentions in Reply which stated as follows: 2. The consent authority is not required to be satisfied that the development is consistent with any particular aim of clause 24 before granting consent. All of the aims in clause 24 need to be considered. The proposal satisfies aim (a) of clause 24. The proposal protects land with Aboriginal heritage characteristics in accordance with aim (b). Though the proposal does not protect some land identified as ecologically significant in aim (b), it does not unreasonably and detrimentally affect that land. 65Third, the Commissioners' reasoning at [40] and [52] is not wholly irreconcilable. The Commissioners concluded at [52] that the unacceptable impact on the Eastern Pygmy possum in the locality meant that the proposal did not "protect ecologically significant land". While the location of "ecologically significant land" at the SIP is identified by reference to the map attached to the Gosford LEP 457, incorporated into the Gosford LEP, the term is not defined. On any view, land upon which a threatened species was found, that is, the Eastern Pygmy possum, could properly be characterised as "ecologically significant". It was in this sense that the proposal was inconsistent with the aim stated in cl 24(b) of the Gosford LEP, irrespective of whether or not the habitat area for the possum was within an area of the site not affected by a Management Zone in the POM. 66Fourth, even if the Commissioners, in considering cl 24(b), took into account an irrelevant consideration, it was not, as is evident from [52], a matter that was material to their ultimate decision. As stated at [52] it was "for these reasons [above]" (at [38]-[51]) that the Commissioners assessed, pursuant to s 79C(1)(b) of the EPAA, that the proposed development would constitute an unacceptable impact on the Eastern Pygmy possum. It was this impact that warranted the refusal of the application, and not any inconsistency with cl 24(b) (at [53]). 67This ground of appeal must therefore be dismissed.

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Ground Six: Failure to Take into Account the Aim in cl 24(a) of the Gosford LEP 68Superficially at least, more troubling is the applicants' submission that cl 24(a) of the Gosford LEP was a mandatory relevant consideration which the Commissioners failed to have regard to. With the exception of the reference to cl 24 at [19], the only other reference to cl 24, and the only reference to cl 24(a), of the Gosford LEP is at [12], where the Commissioners reproduce cl 24 in its entirety. Otherwise, the reasons are silent with respect to the sub-clause. 69There can be no doubt that consideration of cl 24(a) was mandatory. Clause 25 of the Gosford LEP states that in determining a development application the Commissioners (as the consent authority) "must have regard to ... (b) the aims of this Division (as referred to in clause 24)". The Commissioners were aware of the requirement to consider cl 24 (at [19]): 19 As we understand from the evidence, it was expected that the POM would lead to a new LEP and DCP for the SIP however the reference to the POM was ultimately incorporated into GLEP 22 by way of GLEP 457. Nonetheless, cl 25 of GLEP 22 requires "that in determination of a development application the consent authority must have regard to the Plan of Management Somersby Industrial Park (2005) (cl 25(a)) and the aims of Division 4 (cl 25(b)). 70In the applicants' Statement of Facts and Contentions in Reply, it was stated that, "all of the aims in clause 24 need to be considered. The proposal satisfies aim (a) of clause 24." This was in response to the council's contention at B1 2 of its Amended Statement of Facts and Contentions that "the proposed development would be contrary to aim (b) of Clause 24 of Gosford LEP 22". 71In addition, the applicants made the following closing submissions (30/10/12 T89.25-90.02): Yes, I might just respond after he does, that way I - I'm puzzled as to how to address it without his submissions as to why. Yes, now the objectives, the aims of the division of cl 24, we see instantly that there are two fundamentally, potentially conflicting aims of the controls. The first thing to maximise the opportunity for industrial development in the industrial park so as to provide employment opportunities in the Gosford Local Government area. That objective has to be balanced against the objective of protecting ecologically significant land and land with Aboriginal heritage characteristics within the industrial park, as identified in the plan of management. It is not enough to simply say that a development application would be contrary to A and B without focusing carefully upon the extent to which the proposal achieves objective A or does not achieve objective A or the extent to which compliance with objective B would hinder compliance with objective A. The two work hand-in-hand and so one can't say, look this application, because it intrudes into a management zone, it is instantly failing to protect ecologically significant land within the management zones identified under the plan of management. This has to be balanced in every case, and it's not a case that the plan of management prevails in cl 24(b) over objective A. The two provisions have to be read hand-in-hand. So that's the first thing. The second thing about cl 24 is - 24(d), although this is not an application for subdivision, it's contemplated by these provisions that there will be something of some flexibility to ecologically significant land and land with Aboriginal heritage characteristics within the industrial park. It cannot be the intent of cl 24 and 25 working together to have the effect that any development whatsoever that occurs in a management zone under the plan of management is to be refused on the basis that it won't protect ecologically significant land. That's not the effect of the management plan and it's not the effect of the LEP. 72There are three observations that must be noted about this closing submission given the understandable reliance placed upon it by the applicants for the purpose of this ground of appeal. First, it was the only reference to cl 24(a) of the Gosford LEP, other than that in the Statement of Facts and Contentions in Reply, made by either party during the proceeding. Second, it appears to be premised on an erroneous assumption that "the council say that the proposal would be contrary to A and B of cl 24 of the Gosford LEP" (30/10/12 T89.13). This is incorrect. The council only ever contended that the proposal would be contrary to cl 24(b) of that LEP. And third, it discusses cl 24(d), which was never a contention between the parties and about which there is no complaint from the applicants that the Commissioners failed to consider that sub-clause. 73The applicants submitted that the substance of cl 24(a) was referred to again in closing when, citing the reasoning in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 (at [117]), they submitted (30/10/12 T114.02-114.14): ... so far as the ecology is concerned at least the fact of the matter is that Ms Ashby concedes that the hibbertia, in further intrusion into the hibbertia area, would be acceptable and for those reasons and given also Mr Fraser's concession, proper concession, that the council accepts that some development must occur on this land, to which I refer back to BGP Properties v Lake Macquarie Council, it has to be acknowledged, given its industrial zoning, that some development has to occur, then it's a question of identifying if it be the case that some impact upon the possums in the south western part of the site is unacceptable then it must be the case the some area elsewhere has to be identified that is acceptable. That, in my submission, are the ideal circumstances of the amber light approach. Those are my submissions save for the written reply on the other question. 74But this contention, namely, that planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning should be permitted, cannot be equated with the objective set out in cl 24(a). Properly construed, cl 24(a) concerns local job creation ("to maximise the opportunity for industrial development in the Industrial Park so as to provide employment opportunities in the Gosford local government area", emphasis added). 75Unarguably the Commissioners were obliged to consider, determine and give reasons for the principal contested issues before them (Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [44]-[45], [62], [92] and [99]). A corollary of this principle is the proposition that, if by their conduct the parties did not make regard to cl 24(a) of the Gosford LEP an issue necessitating a positive statement by the Commissioners of demonstrated consideration of the aim set out in that sub-clause in their reasons, then the Commissioners cannot be criticised for failing to refer to it in detail, or at all, in their reasons for refusing development consent (Bankstown City Council v El Dana [2009] NSWLEC 68 at [16]-[18] and Manly Council v BSDI Pty Ltd [2010] NSWLEC 31 at [37]). This is precisely what occurred in the proceedings below. 76Having initially raised cl 24(a) in the Statement of Facts and Contentions in Reply, apart from the brief reference to it in closing submissions, the sub-clause was not referred to again at the hearing. It was not referred to in the parties' oral opening submissions and no evidence was adduced to demonstrate that the proposed development fulfilled the aim set out in that sub-clause (at least, none was brought to my attention). A reading of the transcript of the proceedings before the Commissioners makes it tolerably clear that the contest between the parties was not whether the proposed development would "maximise the opportunity for industrial development in the Industrial Park so as to provide employment opportunities in the Gosford local government area", but was instead what was the impact of the proposed tip on "ecologically significant land", characterised as such by reason of the presence of the Eastern Pygmy possum and Hibbertia procubens. This was overwhelmingly what the contentions, submissions, evidence and discussion was directed to. 77This was no doubt because it appeared to be common ground that the proposed development "maximised the opportunity for industrial development in the Industrial Park so as to provide employment opportunities in the Gosford local government area" pursuant to cl 24(a) of the Gosford LEP. At no point did the council suggest otherwise, as was reflected in their Amended Statement of Facts and Contentions (which noted that six permanent staff were to be employed), and as was mirrored in the Commissioners' summary of the council's contentions at [3] of their judgment. The absence of any express discussion of the sub-clause or the substance of the sub-clause in the Commissioners' reasons was because it was never, in truth, an issue in the proceedings. The applicants' course of conduct before the Commissioners clearly indicated, in my view, that if they could not demonstrate that the impact of the proposed development on the Eastern Pygmy possum and Hibbertia procubens could not be adequately dealt with by suitable ameliorative and mitigatory measures, then consent was not likely to be forthcoming. The applicants were bound by this conduct (El Dana at [46]-[53] and BSDI at [39]). 78In any event, in my opinion, it may be inferred, notwithstanding the absence of any express discussion of the aim contained in cl 24(a), that the Commissioners were nevertheless cognisant of the sub-clause. The Commissioners quoted the clause in full in their judgment and noted the need to have regard to the aims stated therein (at [12] and [19]). Given the conduct of the parties during the hearing, including the reference to cl 24(a) in the applicants' closing submissions, it may be presumed that the Commissioners had regard to the aim stated in cl 24(a) but did not consider the fact that the development was consistent with the sub-clause was sufficient, in light of its ecological impact, to grant consent. The Commissioners, who were not legally qualified, were not bound to state every step in their reasoning process in refusing consent (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273; Segal at [93] and Svedas v Council of the City of Sydney [2011] NSWLEC 215 at [83]) particularly where one of those steps was self-evident from the absence of any controversy concerning the proposed development's consistency with the aim in cl 24(a). The Commissioners were bound to state the reasons for refusing consent, which they did, and, in my opinion, did correctly. 79Finally, even if I am wrong, it cannot be said, for the reasons discussed above, that if the Commissioners were in error in failing to have regard to cl 24(a) of the Gosford LEP that the error was sufficiently material that it vitiated the operative determination made by the Commissioners. On the contrary, the parties' conduct of the hearing before the Commissioners demonstrates, in my view, the trivial nature of any error committed by the Commissioners in this regard.

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Remitter 80The applicants submitted that if the appeal were successful, the matter should be remitted to new Commissioners for determination because the Commissioners had made findings of fact compromising their ability to assess additional merits considerations impartially, or at least giving rise to an apprehension to this effect. This submission cannot be accepted. 81An exclusionary remitter will always depend on the facts and circumstances of the case in which it is ordered (Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 at [70]-[86] and Goreski at [112]). In general a Court will be slow to order an exclusionary remitter, particularly absent any adverse finding of credibility or an indicated preference for one witness over another (Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [13] and Castle at [76]). Thus it has been stated that "something more than error" must be established (Castle at [83]-[85] and Svedas at [115]). 82In the present case there can be no cogent basis for submitting that if remitted to the Commissioners, a reasonable apprehension would arise that they would decide the appeal partially or with prejudice (British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [32]-[48 ] and [139]), rather than merely adversely to the applicants. It is a curious contention by the applicants that having failed to consider cl 24(a), the Commissioners are now said to have prejudged its application. Logically this cannot be correct (Svedas at [116]). 83As Tobias JA stated in Baulkham Hills Shire Council v Basemount Pty Ltd [2003] NSWCA 189; (2003) 126 LGERA 339 (at 23]): 23 Before concluding, I should make it clear that the present case is being decided on its own facts. It should not be assumed that merely because a Commissioner's decision is set aside on a s 56A appeal on the ground of error of law that it necessarily follows that any re-hearing and re-determination of the appeal should be by a Commissioner other than the Commissioner from whose decision the appeal was brought. There are many errors of law which would not require an exclusionary order under s 56A(2)(b). Thus if a Commissioner has mistaken the law and asked himself or herself the wrong question, there may be no reason why the appeal should not be remitted to that Commissioner to be determined by him or her in accordance with law. Again, where the error only involves the misconstruction of a statutory provision or the like there may be no reason why the Court as originally constituted cannot apply the facts as found by it to the law as declared on the appeal. In such cases the Commissioner's earlier decision may have been based on a false issue or be otherwise severable so that there will have been no pre-judgment on the real issue. 84In the present case, the applicants have not demonstrated that "something more than error" can be found warranting remitter to Commissioners other than Brown and Fakes CC.

Davis v Gosford City Council

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