DeBattista v Minister for Planning and Environment

Statutory Framework

1. The provisions for the making of a local environmental plan to effect an amendment to SLEP2014 were contained in Div 4 of Pt 3 of, the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act), which consisted of ss 53 to 60, as relevantly in force. [4] Under s 53, the Minister was empowered to make environmental planning instruments for the purpose of environmental planning in each local government area. Under s 55(1), before an environmental planning instrument was made, the relevant planning authority was required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (a Planning Proposal). Under s 54(1), the relevant planning authority in respect of a proposed instrument is the council for the local government area to which the proposed instrument is to apply. Thus, in relation to a proposed instrument in relation to the Council's area, the relevant planning authority is the Council.
2. Under s 55, a Planning Proposal must include:

• a statement of the objectives or intended outcomes of the proposed instrument;
• an explanation of the provisions that are to be included in the proposed instrument;
• the justification for those objectives, outcomes and provisions and the process for their implementation, including whether the proposed instrument will comply with directions under s 117;
• a version of any maps to be adopted by the proposed instrument; and
• details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument.

1. Under s 56, after preparing the Planning Proposal, the relevant planning authority may forward it to the Minister. After a review of the Planning Proposal, the Minister is required to determine:

• whether the matter should proceed;
• whether the matter should be resubmitted for any reason;
• the community consultation required before consideration is given to the making of the proposed instrument;
• any consultation required with public authorities that will or may be adversely affected by the proposed instrument;
• whether a public hearing is to be held into the matter; and
• the times within which the various stages of the procedure for the making of the proposed instrument are to be completed. The relevant planning authority may, at any time, forward a revised Planning Proposal to the Minister and the Minister may, at any time, alter a determination made under s 56.

1. Section 56(8) provides that a failure to comply with a requirement of a determination under s 56 in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under s 57, the instrument must not be made unless the community has been given an opportunity to make submissions and the submissions have been considered under s 57.
2. Section 57(1) provides that, before consideration is given to the making of a local environmental plan, the relevant planning authority must consult the community in accordance with the community consultation requirements for the proposed instrument. The Planning Proposal, as revised to comply with the determination made under s 56, is to be made publicly available during the period of community consultation.
3. During the period of community consultation, any person may make a written submission to the relevant planning authority concerning the matter. The relevant planning authority may, but need not, make publicly available, in accordance with the community consultation requirements, the submissions made concerning a matter. The consultation required by s 57 is completed when the relevant planning authority has considered any submissions made concerning the proposed instrument and the report of any public hearing that may be arranged by the relevant planning authority.
4. Under s 58, the relevant planning authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason. If it does so, the relevant planning authority is to forward a revised Planning Proposal to the Minister. The relevant planning authority may also, at any time, request the Minister to determine that the matter not proceed.
5. Under s 59, the Secretary of the Department then known as the Department of Planning and Environment (the Department) is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority. The Minister may, following completion of community consultation, make a local environmental plan in the terms the Minister considers appropriate or decide not to make the proposed local environmental plan. The Minister may defer the inclusion of the matter in a proposed local environmental plan.
6. Under s 23(1)(d) of the Planning Act, the Minister may delegate any of the Minister's functions conferred or imposed by or under the Planning Act to a local council.
7. Under s 117 of the Planning Act, the Minister may direct a public authority or person having functions under the Planning Act or under an environmental planning instrument to exercise those functions at or within such times as are specified in the direction. In addition, the Minister may direct a local council to exercise certain functions in relation to the preparation of a local environmental plan in accordance with such principles as are specified in the direction. A public authority or person to whom a direction is given must comply, and is empowered to comply, with the direction in accordance with the terms of the direction. Direction 1.1(5) [5] and direction 3.1(6) [6] given under s 117(2) require the preparation of strategies or studies to justify reduction in potential floor area available for employment uses and permissible residential densities. [7]

Factual and Procedural Background

1. Prior to the preparation of SLEP2014, building height controls were generally controlled by development control plans and a provision in the previous Illawarra Regional Environmental Plan, which enabled the Council to consider development up to 11 m. Any development above 11 m required the concurrence of the Minister.
2. A draft of a proposed local environmental plan for the area of the Council was exhibited in 2011. Two submissions were received that commented on the proposed height controls. One submission supported the proposed height limit of 8 m for the St Georges Basin Village Centre, where the Land is located. That limit was consistent with the former development control plan that covered the area. The second submission requested a 13 m building height for the Land to ensure that a realistic development opportunity for the Land was economically feasible, arguing that higher density residential development was only economically viable if the height of buildings for the Land was increased to 13 m. The submission acknowledged that this was not likely to be popular with the community.
3. The report to the Council following the exhibition of the draft local environmental plan in 2011 noted that changing the height of buildings for the Land to 13 m would be inconsistent with the development control plan and may be inconsistent with the existing and desired future character of the area. The report also noted that, should a future development proposal warrant heights that are inconsistent with the development control plan, a future planning proposal could be considered for the site, which would enable specific dialogue with the community on the proposal. The report recommended that the height of buildings in the location remain unchanged. However, on 30 May 2012, the Council resolved to change the maximum height of buildings for the Land to facilitate the feasibility of higher density development on the site.
4. During exhibition of a draft local environmental plan in 2013, five submissions were received in relation to the changes that were proposed to the maximum height of buildings for the Land, indicating that the change should not be supported. However, a submission on behalf of Mr DeBattista requested that the height for Lot 1 be increased from 13 m to 14 m to enable buildings up to four stories and to enable a commercial component consistent with the zoning provisions. Ultimately, on 17 July 2013, the Council resolved to retain the exhibited maximum 8 m height for the western portion of Lot 1 and 13 m for the balance of Lot 1 and for Lot 6.
5. SLEP2014 was notified on 8 April 2014 and commenced on 22 April 2014. Under SLEP2014, the Land is partly zoned R1 general residential and partly zoned B4 mixed use. The whole of Lot 6 and the eastern part of Lot 1 has a maximum building height of 13 m. The western part of Lot 1 has a maximum building height of 8 m.
6. On 8 July 2016, a development application was lodged on behalf of Mr DeBattista with the Council (the 2016 DA). The 2016 DA proposed the construction of a four storey residential flat building comprising 58 residential units and two levels of basement parking on part of Lot 6. Following public notification of the 2016 DA, significant community opposition was generated. On 13 October 2016, Mr DeBattista lodged an appeal to the L&E Court from the Council's deemed refusal of the 2016 DA. On 27 October 2017, the L&E Court approved the 2016 DA over the Council's objection.
7. During campaigning for the 2016 election for the Council, the permitted building height on the Land was a matter of some controversy. Several candidates for election campaigned in opposition to the permitted maximum building height for the Land under SLEP2014, indicating that they had a policy of seeking to have the permitted height lowered if elected. Included amongst those who opposed the current limit and proposed to support its lowering and who were successful in election to the Council were Mr Robert Proudfoot, Ms Kaye Gartner and Ms Amanda Findley. Councillor Findley is presently the mayor of the Council.
8. At the meeting of the Council held on 25 October 2016, the Council received a recommendation from the mayor that the general manager of the Council prepare a report "in respect to options that consider reducing the height limits" on the Land. The Council resolved that the general manager prepare such a report.
9. At the meeting of the Council on 6 December 2016, the Council considered a report prepared in response to the resolution of 25 October 2016. The Council resolved that the current 8 m height control over the western part of Lot 1 be retained and that the Council prepare a planning proposal to amend the height over the remainder of Lot 1 and the whole of Lot 6 and remove the current 13 m height and replace it with an 8.5 m height.
10. On 24 January 2017, Planning Law Solutions Pty Ltd (PLS), who was acting for Mr DeBattista, sent an email to the Director, South Region, of the Department referring to the Council's "resolution of 9 (sic) December 2016". [8] PLS said that it was understood that the Council was yet to request a Gateway Determination on the proposed amendment and requested the Department to defer consideration of any Gateway Determination until after the L&E Court had determined the 2016 DA. The letter said that the appeal from the Council's deemed refusal of the 2016 DA was in the conciliation phase. PLS asserted that the Council's proposed amendment would be contrary to the directions given under s 117 of the Planning Act.
11. PLS also asserted in its email of 24 January 2017 that reducing building height over the Land would be inconsistent with the principle of urban consolidation and increasing densities within proximity of commercial and service centres. The letter claimed that the Land was considered suitable for higher density residential development given its location and proximity to existing commercial, retail and transport infrastructure.
12. On 8 March 2017, PLS wrote to the Council requesting the Council to defer progressing the proposal to amend the height of buildings on the Land. There is no evidence of a response from the Council.
13. On 23 March 2017, Mr DeBattista lodged with the Council a development application for the staged development of a "concept master plan" for the Land (the 2017 DA). In June 2017, Mr DeBattista appealed to the L&E Court against the Council's deemed refusal of the 2017 DA. That appeal has not yet been resolved.
14. As the result of the Council's resolution of 6 December 2016, a Planning Proposal for the amendment of SLEP2014 was prepared on behalf of the Council and dated 28 March 2017 (PP023). PP023 sought the amendment of the maximum building height in respect of the Land. The proposed amendment would have the effect of reducing the permissible residential density of development on the Land and reducing the total potential floor space for employment uses and related public services in business zones. PP023 proposed a timeline as follows:

• Gateway Determination - April 2017;
• completion of Gateway Determination requirements - May 2017;
• public exhibition - June 2017;
• consideration of submissions - August 2017;
• post-exhibition consideration of planning proposal - October 2017; and
• finalisation and notification of plan - December 2017. PP023 was submitted to the Department on 28 March 2017.

1. On 18 April 2017, the Director, South Region, of the Department wrote to the Council, saying that the Department had identified concerns with PP023 as follows:

• The proposal appeared to be inconsistent with directions 1.1 and 3.1 under s 117 because it proposed to reduce the total potential floor area available for employment uses and also reduce the permissible residential density of the Land; and
• The proposal did not adequately justify the reduction in building height or the 8.5 m building height control proposed for the Land. The letter said that any inconsistency with the directions under s 117 needed to be justified by the Council and requested the Council to provide further information to justify the proposed height controls in relation to urban design considerations.

1. By email sent on 2 May 2017, Ms Lauren Turner, team co-ordinator, City Strategy Planning, of the Council, requested valuers, Walsh & Monaghan Pty Limited (Walsh & Monaghan), to provide a quotation for a feasibility assessment to be undertaken in order to determine the economic feasibility for residential development of the Land. The purpose of the feasibility assessment was to support PP023 and the request to reduce the building heights in relation to the Land. The email said that the Department had recently requested additional justification to address inconsistencies with directions under s 117, specifically the reduction in total floor area available for employment uses and the possible residential density for the land. The email requested a detailed feasibility study of the Land with varying scenarios (height limits of 8.5 m, 11 m and 13 m) in order to determine whether an increase in height restriction would achieve a viable development, with clear and supported recommendations. Walsh & Monaghan provided a quotation which was accepted by the Council.
2. On 19 May 2017, Mr Gordon Clark, the Council's Strategic Planning Manager, wrote to Atlas Urban Design and Strategy Pty Ltd (Atlas Urban) seeking a quotation to undertake a character assessment and urban design review of the current and proposed controls, considering the existing urban form of the adjoining areas, to support the proposal in PP023 for reduction of building heights for the Land. Mr Clark's responsibilities included the supervision of and control over processes for preparation of PP023. The letter of 19 May 2017 said that the Council had lodged PP023 for Gateway Determination by the Department, which had since requested additional justification to address potential inconsistencies with directions given under s 117 of the Planning Act and to justify the proposed height controls in relation to urban design considerations. A quotation from Atlas Urban was accepted by the Council on 27 June 2017.
3. On 16 June 2017 Walsh & Monaghan completed a report (the Walsh & Monaghan Report) stating that the Council had requested detailed feasibility assessment of the Land, with height restrictions of 13 m, 11 m and 8.5 m, which would inform the Council of a height that would most likely achieve a feasible development outcome. The Walsh & Monaghan Report concluded as follows:

• Development in accordance with the proposed master plan to the existing height limit of 13 m would produce a development profit of 2.35%, which was insufficient to render the development viable;
• Development in accordance with the proposed concept master plan to an amended height of 11 m would produce a development profit of 0.85%, which was insufficient to render the development viable, the profit being diminished by the reduced unit yield;
• Development in accordance with the proposed concept master plan to an amended height of 8.5 m would produce no development profit and the return was insufficient to render the development viable; and
• Development consistent with low density zonings (single level villa) produced a development profit of 20% which was sufficient to render the development viable.

1. At some time in August, the Council received a report from Atlas Urban dated "August 2017". The August 2017 report began by saying that Atlas Urban had been commissioned by the Council to undertake a character assessment and urban design review to support a current planning proposal for reduction of building heights for the Land.
2. On 29 August 2017, Ms Peta Brooks, strategic planner of the Council, sent an email to Mr Mark Gazy, Paul Walter and Tahnee Ironside of Atlas Urban. Ms Brooks said: "We are disappointed with the report and consider that the decision to base the recommendation on zoning alone is a poor outcome …. Whilst we are not necessarily concerned about the 11m outcome, the argument behind this needs to be rigorous and justifiable. Currently the report lacks any analysis of character, which was the purpose of the brief…. The study negates preliminary information, both verbal and written, provided at the initial inception meeting and later on in the project, making the recommendation almost appear predetermined. … a draft should have been provided for Council to review and provide comments on. Whilst you did provide a document on the 11/8/2017, which was entitled "draft" this largely contained a "place holder text" and could certainly not be considered a draft by Council standards, nor was it described as a draft in an earlier phone conversation." Attached to the email was a copy of the August 2017 report on which hand written comments had been made by Mr Clark. The primary judge characterised Mr Clark's hand written comments on the August 2017 report as "extensive", saying that, in a number of instances, the comments requested changes of some significance. Exchanges of emails then ensued between Atlas Urban and those of Mr Clark's subordinates who had direct carriage of the matter. The emails concerned a range of further issues of some specificity and dealt with how the issues should be addressed in Atlas Urban's report.
3. On 7 September 2017, Mr Walter on behalf of Atlas Urban sent an email to Ms Brooks concerning a proposed meeting that afternoon. Mr Walter pointed out the terms of the brief and said that the project methodology had been geared towards the assessment and review of the impacts of the current and proposed height limits to formulate primary arguments for the proposed building height limit. Mr Walter said that the result of that analysis through that methodology was supportive of a greater height than proposed. He said that Atlas Urban had then been asked, moving forward, to disregard any existing or proposed height controls and the zone and consider what height or heights would be appropriate, based on a character assessment of the site and surrounding areas. He said that disregarding the primary directive of the initial brief required a different methodology and potentially a different scope of work than had been proposed.
4. Mr Walter then said that the planning advice that had been received was that, although the 11 m height limit was a "generic provision", in most cases the 11 m height limit must be taken as if it were marked on the local environment plan height of buildings map. He requested a formal statement directing Atlas Urban to disregard the surrounding 11 m heights in the context of their report, which could be inserted directly into the report. He said that Atlas Urban could then adopt that as an assumption and amend their report to reflect that assumption. He also said that, if the intention was to reduce the height limit from 11 m to 8.5 m in the wider area, that would set up a different context for the Land. After the meeting on 7 September 2017, Atlas Urban sent an email to Ms Brooks thanking her for providing clarity and saying that Atlas Urban would be working "to refocus the report as discussed and will make the amendments for next week".

The Reasons of the Primary Judge

1. The primary judge identified two bases upon which Mr DeBattista contended the L&E Court should intervene as follows:

• There was a reasonable apprehension of bias concerning the way the Council would approach consideration of whether or not to give effect to PP023 and that should preclude the Council proceeding with the PP023; and
• The Council's processes had operated in a fashion that denied Mr DeBattista natural justice and that denial of natural justice warranted precluding the Council from further progression of PP023. It is convenient to say something about the second matter first, since that is the basis upon which his Honour made the declaration mentioned above.

Public Consultation

1. The primary judge considered that the critical public concern about the planning provisions applying to the Land related to the potential for the construction of a significant number of four-storey apartment blocks on the Land, bearing in mind that such development is only permissible as a consequence of the current height control. His Honour said that the intensity of the residential development potential was a critical element in the public debate about what planning controls should apply to the Land. His Honour referred to direction 3.1 under s 117 as being of significance in the public consultation process that was mandated to take place concerning any planning proposal to alter the development height limit for the Land.
2. The primary judge noted that PP023, when commenting on the question of consistency with direction 3.1, asserted that the proposal was consistent with that direction. His Honour considered that that assertion was entirely inconsistent with the basis upon which the Gateway Determination was made. His Honour considered that the contradictory position adopted by the Council in the Planning Proposal, as put on display, when considered against the terms of the decision of the Minister's delegate in making the Gateway Determination, was significantly materially misleading. His Honour considered therefore that it could not be said that a proper public consultation process had taken place by the exhibition of the Planning Proposal in the terms put out for consultation. His Honour concluded that the s 57 process had miscarried in a material respect. Hence, his Honour made the declaration mentioned above. [10]
3. There is no challenge in this Court to the making of the declaration. The effect of the declaration is that there has not yet been any public consultation that would satisfy s 57 of the Planning Act. There must be a further period of public consultation in which the inconsistency between PP023 and the relevant direction under s 117 is made clear.

Apprehended Bias

1. The primary judge observed that PP023 is of quite narrow compass, being confined to whether or not the development height permitted on the Land should be altered. However, despite that narrow compass, his Honour considered that the exercise of amending SLEP2014 that is being undertaken is nonetheless strategic planning in the same fashion as it would be if zoning or other planning changes were being undertaken on a local government area wide basis. His Honour considered that the fact that microcosmic planning was involved did not, in itself, remove the process from being within the general purview of the political activities of a local council in "developing policy in a strategic context" . [11]
2. The primary judge observed that, when undertaking a policy decision-making process, a political one for a council, the test is not such as might be the case with a development application, which is not invested with the freedom that attaches to a political policy-making decision. His Honour considered that the role being performed by the Council in assessing whether or not an amendment should be made to SLEP2014 is the exercise of a policy-making function and not a purely administrative decision-making one. Thus, his Honour referred to the fact that the process of preparing PP023 was delegated to those persons charged with strategic planning, under the supervision of Mr Clark. His Honour observed that, although the functions were confined to setting potential planning policy for a comparatively minor portion of the Council's local government area, being limited to the Land, the functions are nonetheless as much policy ones as would be the functions of undertaking a strategic planning review of development controls across the entirety of the Council's local government area.
3. The primary judge considered the proposal to amend SLEP2014 to be a fundamental step in the formulation of policy itself, and that the appropriate position in relation to such formulation of policy is that the Council's role is "simply at large and unfettered", provided that it is not carried out in any corrupt fashion and subject to compliance with mandated statutory processes for doing so. His Honour concluded that the processes in which the Council is engaged, in determining whether or not to amend SLEP2014, are of a political and policy nature and are not sufficiently equivalent to curial or quasi-judicial processes as to permit intervention on the basis of apprehension of bias.
4. In any event, the primary judge did not consider that the past actions of councillors provided a sufficient basis to conclude that there was a reasonable apprehension of bias in deciding whether to adopt PP023 following the public consultation process. His Honour concluded that, even if apprehended bias could play a role in such a decision-making process, there was no basis upon which he could conclude that the Council, when presented with a report in the aftermath of a new public consultation process, would not give genuine consideration to whatever is contained in that report. His Honour considered that, although the Council may have a predisposition to the making of the proposed amendment to SLEP2014, there is nothing that would cause his Honour to conclude that the minds of the councillors are so closed on that point that they will not give genuine consideration to whatever may be raised in the report following a new community consultation process based on an amended planning proposal that is not materially misleading.

Grounds of Appeal

1. The Minister filed a submitting appearance in this Court and the Council has not raised any question as to the competence of the appeal. However, it is arguable that the proceedings in the L&E Court have not yet been finally disposed of, in so far as the prayer for relief in the further amended summons has not formally been disposed of. The relief sought by Mr DeBattista in his further amended summons filed on 15 May 2018 was an order that the Council withdraw PP023. The primary judge did not make an order to that effect. However, nor did his Honour order that the summons be otherwise dismissed, although that appears to have been his Honour's intention, subject to the reservation of the question of costs, which still has not been resolved. On one view, therefore, leave to appeal is required. The parties should be requested to approach the L&E Court to ensure that all outstanding questions have been resolved. In the meantime, the Court will proceed on the basis that the orders made by the primary judge finally disposed of the proceedings in the L&E Court, save for the question of costs.
2. Mr DeBattista complains that the Gateway Determination was made in circumstances where the Council did not inform the Minister of his appeals to the L&E Court in relation to the deemed refusal of the 2016 DA and the deemed refusal of the 2017 DA or the steps taken by the Council to have Atlas Urban amend their report. Mr DeBattista's notice of appeal of 13 March 2019 relies, relevantly for present purposes, upon three grounds as follows: 1. the primary judge erred in concluding that the processes that the Council was undertaking, in determining whether or not to amend SLEP2014, were of a political and policy nature only and were unfettered so as to preclude the L&E Court from intervening, even if it could be shown that there was an apprehension of bias and denial of procedural fairness on the part of the Council, its officers or some councillors; 2. The primary judge erred in failing to find that there was a reasonable apprehension of bias in the employees and some of the elected councillors of the Council in the preparation of PP023 such as to disqualify it from proceeding any further with the proposal to amend SLEP2014 as it applied to the Land; and 3. the primary judge erred in determining whether there was an apprehension of bias on the part of the Council by repeatedly posing and then answering the wrong question.

Ground 1

1. The Council contends that the process in which it is engaged in propounding PP023 is not subject to judicial review because it is a process of legislation. That is to say, the Council is exercising delegated power to make legislation. While the power is a statutory power and the procedural requirements of the exercise of the power must be observed, it is nevertheless the exercise of legislative power.
2. Thus, while the proposed amendment of SLEP2014 by PP023 is subject to a Gateway Determination on behalf of the Minister, the Council plays a significant part in the process by formulating a proposal, which the Minister either accepts, with or without modification, or rejects. In that sense, the Council is responsible for formulating the policy that informs a particular instrument. The Council is then responsible, as the delegate of the Minister, for making an amendment after considering a report of public consultation. The question is whether the process in which the Council is engaged in formulating and then enacting delegated legislation is justiciable.
3. The jurisprudence in relation to judicial or quasi-judicial decision-making is not the appropriate starting point when considering the application of principles of apprehended bias and procedural fairness in the context of legislation. Rather, the legislation is part of the consideration from the outset and is not merely a kind of qualification of the approach that is to be adopted when considering judicial or quasi-judicial decision-making. [12]
4. The content of the test for apprehended bias, if applicable, will vary from one context to another. Moreover, the statutory functions that are being performed and the identity and nature of the person or persons who are obliged by statute to perform those functions determine whether a question of apprehended bias can arise at all. The elements relevant to apprehension of bias in the context of legislation differ from the elements that are appropriate for the process of judicial or quasi-judicial decision-making. Thus, it is necessary to have regard to the process involved in resolving the question that the person or persons performing a particular function are required to decide. [13]
5. For example, there will normally be a significant difference between a discretion given to a minister and a discretion given to a departmental head. When a policy is reposed in a minister, a statute conferring a power on the minister would be taken to contemplate that the minister would be entitled, within the limits of any other constraints that may be found in the statute, to act in accordance with such policy. Thus, the conduct of a minister would normally need to be evaluated in the light of the minister's political role, responsibility and accountability. [14]
6. In the present case, the person in whom the function of amending a planning instrument is vested is the democratically elected Council, exercising a discretionary legislative power. The range of permissible opinion that might be formed by the Council is extraordinarily wide and includes issues of policy, taste and philosophy and the public interest. Thus, under s 24 of the Planning Act, an environmental planning instrument may be made, in accordance with Pt 3, for the purposes of achieving any of the objects of the Planning Act. Under s 5, those objects include encouraging:

• the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
• the promotion and co-ordination of the orderly and economic use and development of land;
• the provision of land for public purposes;
• the provision and co-ordination of community services and facilities; and
• the provision and maintenance of affordable housing. The objects also include promoting the sharing of the responsibility for environmental planning between the different levels of government in the State and providing increased opportunity for public involvement and participation in environmental planning and assessment.

1. In addition, under s 26, an environmental planning instrument may make provision for, or with respect to, various matters, including:

• protecting, improving or utilising to the best advantage, the environment;
• controlling, whether by the imposing of development standards or otherwise, development; and
• providing, maintaining and retaining, and regulating any matter relating to affordable housing.

1. PP023 has not yet been adopted and the L&E Court has declared that the consultation process thus far undertaken in relation to PP023 is void and of no effect. There is no challenge by the Council to that conclusion. Accordingly, it will be necessary, before PP023 becomes effective, if at all, for the community consultation process required by s 57 of the Planning Act to be undertaken according to law. During the period of community consultation, it will be open to Mr DeBattista to make written submissions to the Council concerning the matter, as contemplated by s 57(3). If Mr DeBattista makes a submission, he may request the Council to arrange a public hearing on the issues raised in any submission made by him. The consultation required by s 57 will not be completed until the Council has considered any submissions made concerning PP023 and the report of any public hearing that might be directed.
2. It must be a matter of conjecture, at present, as to whether the Council will give appropriate consideration to any submissions that might be made during the period when PP023 is made publicly available, in a manner that satisfies s 57 of the Planning Act, or its subsequent re-enactment. [15] Even so, that consideration is part of the process of legislating in which the Council plays a part as indicated above.
3. It is not insignificant that the height restrictions applicable to the Land are unique in the Council's area. That is to say, it is only in respect of the Land that the height limit restrictions are as high. The height restrictions in respect of all other land in the Council's area are lower than those applicable under SLEP2014. The policy considerations that are relevant to that matter are questions for the Council and the Minister in propounding and, if necessary, accepting PP023 as legislation.
4. If, following the public availability during the period of community consultation, the Council were shown not to have genuinely considered in good faith any submissions made on behalf of Mr DeBattista, there may be a remedy available. That question is not presently before this Court. It is premature to require the Council to exercise the power conferred by s 58(4) to request the Minister to determine that the matter not proceed. I do not consider that Mr DeBattista has demonstrated any error on the part of the primary judge in failing to make an order requiring the Council to withdraw PP023. It follows that the other grounds raised by Mr DeBattista must fail.

Grounds 2 and 3

1. Having regard to the conclusion reached in relation to Ground 1, it is not necessary to consider whether there is a basis for a reasonable apprehension of bias on the part of the Council or its officers in considering whether to adopt PP023 following a proper public consultation. In the circumstances, it would be undesirable to do so.

Conclusion

1. Subject to the question of whether or not the orders of the L&E Court are final orders, the appeal should be dismissed. If leave is required, leave should be granted. Nevertheless, the result would be the same. Mr DeBattista must pay the Council's costs of the proceedings in this Court.

Endnotes

1. Specifically, the Environmental Planning and Assessment Act 1979 (NSW) (Planning Act) ss 57-59.
2. See DeBattista v Minister for Planning and Environment [2018] NSWLEC 202 (primary decision) at [193].
3. See primary decision at [127].
4. Unless otherwise stated, all references to the Planning Act will be to the Act as relevantly in force.
5. Minister for Planning, Local Planning Direction 1.1 "Employment and Resources", issued 1 May 2017 (direction 1.1).
6. Minister for Planning, Local Planning Direction 3.1 "Residential Zones", issued 14 April 2016 (direction 3.1).
7. See directions 1.1(4) and 3.1(5)(b).
8. This appears to have been a mistake for 6 December 2016.
9. Being The Department of Planning and Environment, "A guide to preparing local environmental plans" (2016), s 5.5.2.
10. See paragraph [20] of these reasons, and primary decision at [160].
11. See primary decision at [112].
12. See McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; 161 LGERA 170 at [6].
13. See McGovern at [8] and [9].
14. See Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [63].
15. See current version of the Planning Act, ss 2.22-2.24 and Schedule 1, Div 1 of Part 1, cl 4. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 October 2019