DEXUS Funds Management Limited v Blacktown City Council

APOC facts 1 - 9 4The APOC relevantly state: 1.The applicant, DEXUS Funds Management Limited (DEXUS), is a Company entitled to bring these proceedings in its corporate name. 2.The first respondent, Blacktown City Council (BCC), is the consent authority for the purpose of the Blacktown Local Environmental Plan 1988 (LEP) and the Environmental Planning & Assessment Act (1979) (the Act). 3.On 12 March 2008, the second respondent, Plumpton Park Developments Pty Ltd lodged Development Application DA 08-638, for the erection of a shopping centre on Lot 101 DP 1077484 and part Lots 102 and 103 DP 1077484, Jersey Road, Plumpton with BCC (Development Application). 4.The proposed development comprises of a ground level floor plan with a basement parking area and provides for a total gross floor area of 18,429 sqm of which 13,458 sqm is proposed gross lettable area. The retail component includes 2 major retailers, 3 mini-major retailers and 4,214 sqm of other retailers, and also incorporates a food court area. Parking for 653 cars is proposed. 5.DEXUS owns and manages on behalf of the registered proprietor (SAS Trustee Corporation) Lots 1 and 2 in DP 841205 adjoining the subject land upon which exists a shopping centre (Plumpton Marketplace). 6.Plumpton Marketplace is a sub regional centre approved by the Council in 1993. Plumpton Marketplace is anchored by Woolworths and Big W and features 60 speciality shops and has 978 car parking spaces. In addition, McDonalds, KFC and Woolworths Petrol outlets operate on the Plumpton Marketplace land. 7.Plumpton Marketplace is bound by Jersey Road to the north and Hyatts Road to the west. Ingress and egress to Plumpton Marketplace is via Hyatts Road and Jersey Road. 8.A Right of Way (ROW) burdens the Plumpton Marketplace land and benefits the adjoining subject land. Particulars (a) The ROW benefits land formerly known as Lot 107 in DP 713976 and Lot 17 in DP 747932, being part only of the land to which the subject Development Application relates. 9.The ROW does not benefit, permit access or grant a right of carriageway for vehicles to or from, that part of the land to which the Development Application relates, being the land formerly known as: (i)Lot 16 in DP 747932; (ii)Lot 32 in DP 709050; and (iii)Lot 12 in DP 1024861. 10.The land to which the subject Development Application relates comprises: (i)Lot 101 in DP 1077484 - comprising former Lot 16 in DP 747932 and parts of former Lot 17 in DP 747932 and Lot 107 in DP 713976; (ii)Part of Lot 102 in DP 1077484 - comprising parts of former Lot 32 in DP 709050, and Lot 107 in DP 713976; and (iii)Part of Lot 103 in DP 1077484 - comprising part of former Lot 32 in DP 709050, Lot 12 in DP 1024861, Lot 107 in DP 713976 and Lot 17 in DP 747932; 11.On 8 December 2010, the Council resolved, at its Ordinary Meeting, to approve the Development Application, subject to the following deferred commencement conditions:

1. The Development Application for the construction of a Shopping Centre development at Lot 101 DP 1077484 and Part Lots 102 and 103 DP 1077484 Jersey Road, Plumpton be approved subject to a Deferred Commencement Approval , requiring the following: (a)The applicant is to submit written approval from the Roads and Traffic Authority for the provision of traffic control signals at the eastern most access of the proposed development along Jersey Road. These signals are to be synchronised with the existing traffic control signals at the entrance to the Plumpton Market Place site. (b)The applicant is to submit to Council revised traffic modelling in light of the traffic control signals required by (a) above. The traffic modelling is to include any changes to the trip generation and distribution of traffic generated by the proposed Shopping Centre including its impact on Hyatts Road. This modelling is to be submitted for Council's consideration to determine any impact on the service level of the existing traffic lights servicing Plumpton Market Place.
2. Any further conditions determined by the Development Services Unit as necessary to facilitate this development including the conditions detailed in Attachment 12 within Attachment 2 to this report.
3. That Council's Traffic Management Section urgently investigate the operation of the exit from the existing Plumpton Market Place to Hyatts Road and report the findings of this investigation to the next available Local Traffic Committee.
4. The applicant and objectors be advised of Council's decision. 12.On 13 December 2010, BCC gave notice of its determination of the Development Application. 13.On 9 February 2011, BCC at its Ordinary Meeting, resolved to rescind its resolution of 8 December 2010 and to approve DA 08-638 subject to new deferred commencement conditions. 14.On 16 February 2011, BCC gave a formal Notice of Determination, approving the DA, subject to, inter alia, the following deferred commencement conditions (Deferred Commencement Consent): 1 DEFERRED COMMENCEMENT MATTERS 1.1 This development consent is not to operate until such time as the applicant submits to Council written documentation to verify that items (a) and (b) below have been complied with: (a) The accesses to the site shown on ATP200 C over the existing right of way on Lot 2, DP841205 must be created and made available; and (b) The applicant is to submit written approval from the Roads and Traffic Authority for the provision of traffic control signals at the eastern most access of the proposed development along Jersey Road. These signals are to be synchronised with the existing traffic control signals at the entrance to the Plumpton Market Place site; (c) The applicant is to submit to Council revised traffic modelling in light of the traffic control signals required by (b) above. The traffic modelling is to include any changes to the trip generation and distribution of traffic generated by the proposed Shopping Centre including its impact on Hyatts Road. This modelling is to be submitted for Council's consideration to determine any impact on the service level of the existing traffic lights servicing Plumpton Market Place; and (d) The applicant obtains written confirmation from Council to indicate that it is satisfied that conditions 1.1(a), 1.1(b) and 1.1(c) above have been met. All matters listed above must be completed within the following nominated period from the date of this consent or this consent shall lapse. Nominated Period: 60 months 5I note that the marked up plan in MFI 1 shows that the Lots 101, 102 and 103 the subject of the development consent extend beyond the previous lots which benefitted from the right of way (ROW), in particular all or part of former Lots 16, 32 and 12 do not benefit from the ROW. 6These facts in the APOC were supplemented by the Applicant's written submissions filed in Court which referred at par 1 - 39 to additional matters under the headings: (a)History of Plumpton Marketplace and Subject Land (b)Right of Way Sale of the Subject Land to Plumpton Park Developments (c)Realignment of the Drainage Swale and Rezoning (d)Notification of the Development Application (e)Background to traffic issues (f)Background to contamination issues (g)Development Consent 7The documents referred to in these paragraphs are contained in exhibit A. As already identified in relation to the APOC, this evidence is also uncontradicted and can be accepted. 8Paragraphs 1 - 39 of the Applicant's written submissions are as follows:

APOC par 15 9APOC par 15 provides: BCC granted the Deferred Commencement Consent for a shopping centre on all of the land to which the Development Application relates, but failed to give consideration to the limit of the benefits of the ROW referred to in paragraphs 8, 9 and 10 above or its impact on the proposed distribution of traffic generated by the development to and from the ROW. Particulars (a) The primary vehicular access to and from the whole of the development as approved by BCC is the ROW. (b) BCC assessed the Development Application on the basis that the whole of the land to which the Development Application relates enjoyed an unlimited right to distribute the traffic generated by the development to and from the ROW. (c) The ROW does not grant any right of access for vehicles travelling to or from the land described in paragraph 9 above. (d) There are no rights granted by the ROW to distribute traffic to and from Jersey Road at the newly approved ingress and egress point on the land formerly known as lot 16 in DP 747932. 10This ground of the APOC is considered in the Applicant's written submissions at par 46 - 61 in relation to the issue that the ROW does not benefit the whole of the land the subject of the development consent. Westfield Management Ltd v Perpetual Trustee Co Ltd [2007] HCA 45; (2007) 233 CLR 528 held that the beneficiary of a ROW could not use it to extend so far as to allow access to land other than that identified as the dominant tenement in the grant. In that case Westfield could not use the easement in its favour to access land it acquired next to the property with the benefit of the easement. Access across the dominant tenement to other land was not permitted across the easement. The reasoning in Harris v Flow er (1904) 74 LJ Ch 127 was adopted to the effect that it constitutes excessive user to so burden the servient tenement by using a right of way to obtain access to land to which the right of way was not appurtenant. 11Paragraphs 55 - 59 of the Applicant's written submissions state: 55 The mere fact that Lot 107 and 17 have been consolidated with adjoining land to form the subject land does not mean that the RoW benefits the whole of the consolidated parcel: see cases surveyed in Owners Corp - Strata Plan No 8450 v Owners Corp - Strata Plan No 54547 [2002] NSWSC 780. Although in Owners Corp , Bergin J found that the relevant easement did allow access from the dominant tenement over the servient tenement to other land, the facts are clearly distinguishable to those in the instant proceedings. In Owners Corp , there was an obvious notation on the instrument creating the right of carriageway indicating that it was to provide access from the dominant tenement across to land which was to be later consolidated with the dominant tenement. No such intention is ascertainable on the face of the s 88B instrument creating the RoW burdening the Plumpton Marketplace land and the court is not permitted to refer to extrinsic material in construing this instrument: see Westfield at [35]-[45]; Effeney at [82]. 56 The primary vehicular access to and from the whole of the proposed shopping centre development is proposed to be over the RoW. Whilst a separate access to Jersey Road is proposed for the east of the site ( eastern access ), the existence of a median strip over Jersey Road at this intersection means that vehicles may only turn left into the site from Jersey Road or left into Jersey Road from the eastern access. 57 Thus all vehicles, including all service and delivery vehicles approaching from the West in Jersey Rd must access the site via the RoW. Similarly, all vehicles from the East which intend to return in that direction must exit via the RoW. 58 As was foreseeable, The RTA has confirmed that it does not consent to the installation of traffic signals at this intersection. 59 Accordingly, the vast majority of vehicles, including service and delivery vehicles, will be forced to use the RoW for the purposes of entry to and exit from the proposed shopping centre. 12I accept the submissions at par 55 - 59. Paragraphs 60 and 61 identify the approved distribution of vehicles not on lots having the benefit of the ROW under the development consent. The development on those lots is also identified in par 61. 13Paragraphs 62 - 70 of the Applicant's written submissions state: 62 In the absence of owner's consent from the Applicant, use of the RoW to access parts of the subject land not benefitted thereby constitutes excessive user which is liable to be restrained. 63 In order for the accesses referred to in DCC 1.1(a) to be "created and made available", the Second Respondent must first obtain development consent for the works required within the RoW. The Consent does not authorise the carrying out of works within the RoW on the Plumpton Marketplace land as the Consent relates only to the subject land: Hillpalm v Tweed Shire Council [2002] NSWCA 332; (2002) 119 LGERA 86 at [12]. 64 In Farah v Warringah Council & Others [2006] NSWLEC 191 ( Farah ), Talbot J held at [43]: ... the fact that works or change to the manner of use of other land are foreshadowed in documents lodged in support of a development application or in the conditions of consent does not of itself authorise the carrying out of those works or the change of use. If a separate development consent is required in that respect then it must be made, considered and determined in accordance with the EPA Act and Regulations. 65 Thus, a separate development consent is required for the removal of the existing parking spaces on the RoW and the creation of the required road access to the subject land. 66 In addition, the use of the RoW as the primary mode of access to and from the proposed shopping centre constitutes an intensification of the use of the Plumpton Marketplace land which itself requires development consent: Huntington & Macgillvray v Hurstville City Council [2004] NSWLEC 694 at [26]; North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 at 478. Although works on the RoW have commenced in the absence of the grant by Council of a consent thereto, the Applicant submits that such works and the proposed use of the RoW are unlawful in the absence of development consent. 67 In Sertari v Nirimba Developments [2007] NSWCA 324; (2008) NSW Conv R 56-200, Handley AJA, with whom Tobias and McColl JA agreed, upheld the following principle from Kirkjian v Towers (06/07/1987, NSWSC, Unreported): The owner of a dominant tenement is entitled to construct improvements on the servient tenement where this is necessary or convenient for the exercise of the rights conferred by the easement ... the owner of the servient tenement could be ordered to consent to the lodgement of a development application for construction of improvements which are reasonably necessary for the proper enjoyment of the easement. 68 However, Talbot J confirmed at [11] that the owner of the servient tenement is not bound to grant consent if there is a "lawful reason" for refusing to do so and at [20] that this "must include cases where the proposed user would be excessive and thus not authorised by the easement". 69 In Jeloudev v William Lohman [2010] NSWSC 1229, Brereton J confirmed at [5] that the owner of the dominant tenement may not compel the consent of the owner of the servient tenement to a development application in respect of the land subject of a right of carriageway where the development would constitute excessive user. 70 Use of the RoW to access parts of the land the subject of the DA not benefitted thereby constitute excessive user and would amount to trespass on the Plumpton Marketplace land: Sertari at [20]. Accordingly, such use is not one to which the Applicant could be required to consent. In the absence of such consent, use of the RoW as proposed is impermissible. 14As submitted at par 62 - 70, in the absence of owner's consent, use of the ROW was impermissible in the way it has been used in this consent as particularised in the APOC par 15(c) - (d). 15There is no basis upon which the Second Respondent is presently entitled to utilise the ROW for the benefit of land not within the grant of the ROW. That finding is arguably sufficient to ground the declaration sought by the Applicant. 16The Applicant put forward another ground in relation to APOC par 15 concerning the failure of the Council to consider matters it was required to consider under s 79C(1) of the Environmental Planning and Assessment Act 1979 being the impacts of traffic distribution and access arising from the development given reliance on the ROW. At par 72 the requirement of the Council to consider the limitations on the use of the ROW to access the proposed shopping centre and the traffic impacts of the proposal is identified as that was a central issue before the Council, the subject of a number of submissions, and was fundamental to the evaluation of the proposed development. The need to assess traffic impacts has been recognised in a number of cases as outlined at par 73 - 75 of the written submissions including Huntington & Macgillivray v Hurstville City Council (No 2) [2005] NSWLEC 155; (2005) 139 LGERA 84 and Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349. 17Paragraphs 77 - 82 of the Applicant's written submissions state: 77 The requirement to consider a matter prescribed by s 79C of the EP&A Act has been held to mandate "proper, genuine and realistic consideration": Weal v Bathurst City Council (2000) 111 LGERA 181 ( Weal ); Centro Properties v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 at 266 ( Centro ). 78 However, recent jurisprudence of the New South Wales Court of Appeal has cautioned against applying the "proper, genuine and realistic" formulation so to avoid sliding into an impermissible review of the merits of a decision: see Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [117]-[120]; Kindimindi Investments Pty Ltd v Lane Cove Council ( Kindimindi ) [2006] NSWCA 23; (2006) 143 LGERA 277 at [75]-[79]; Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450 per Basten JA at [76]-[78]; Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 at [54]-[57] ( Anderson ); Swift v SAS Trustee Corporation [2010] NSWCA 182 per Basten JA at [45]. 79 In Anderson , Tobias JA, with whom Spigelman CJ and Macfarlan JA agreed, held at [58] that while "the relevant matter must be more than adverted to or given mere lip service", the process of judging whether a matter has been considered is "not ... assisted to any significant degree by resorting to formulations which purport to qualify what is an ordinary English word." 80 This articulation of principle led Biscoe J in Sharples v Minister for Local Government [2008] NSWLEC 328; (2008) 166 LGERA 302 to observe at [111]: Thus, the point has been reached where (in the context of a mandatory consideration requirement in a statute) it must be accepted that it is preferable not to ask what "consider" means (e.g. "proper, genuine and realistic") but to ask what it does not mean (it does not mean mere advertence or lip service). 81 Nevertheless, in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 85 ALJR 306, the High Court at [26] approved the formulation of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 that the statutory duty to "consider" requires a decision-maker to "give proper, genuine, and realistic consideration to the merits of the case". Although the High Court noted the caution in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] that those words should not be permitted to encourage a slide into impermissible merits review, no reference was made to the view expressed by the Court of Appeal in Anderson that it is preferable to avoid using that formula or similar formulae entirely. 82 Recently, in Alexander v Yass Valley Council [2011] NSWLEC 148, Pain J held that the disjunct between the Court of Appeal and High Court on the point suggests that: applying "proper, genuine and realistic" consideration remains a useful test, whilst [a Court should remain] aware of the cautions expressed by the Court of Appeal of avoiding an impermissible merit exercise. Mere lip-service will not establish adequate consideration. 18The meaning of consider in numerous relevant authorities is outlined at par 77 - 82 which summary and conclusions I accept. 19Paragraphs 83 - 87 of the Applicant's written submissions state: 83 The requirement for a consent authority to consider the matters relevant to the development in light of proposed conditions of consent was established by the decision of the Court of Appeal in Parramatta City Council v Hale (1982) 47 LGRA 319 ( Hale ), considering the former s 90(1) (the substantially equivalent predecessor to s 79C as presently in force) of the EP&A Act. In Hale , Council had received recommendations to approve the development of a sports stadium subject to conditions relating to parking, traffic and access, based on representations from the then constituted Traffic Authority and Department of Main Roads. The development was approved but on conditions substantially different to those that were recommended. Street CJ held R 335 that: the members of the council as a group did not have a reasonable opportunity of understanding the significance of the material changes that were involved in [the] new set of conditions. In approving the development despite failing to understand the effect of discarding the recommended conditions, Council failed to fulfil its statutory obligation to take into account the matters required to be considered under the EP&A Act. 84 Cameron v Nambucca Shire Council (1997) 95 LGERA 268 ( Cameron ) concerned a condition that deferred commencement of the consent until a traffic impact study was completed. Talbot J found that the condition demonstrated that Council had not considered the means of mitigating the effects of the traffic arising from the development prior to granting the consent and the consent was therefore invalid. It was held at 275 that the power to grant a deferred commencement consent does not enable the consent authority to defer consideration of any matter it is required to take into consideration. It is only after [those] matters have been properly considered that the consent authority is in a position to nominate the matters as to which the applicant must satisfy the consent authority before the consent may operate. 85 Cameron was applied in Weal , where a deferred commencement condition required EPA approval of a proposed development in order to resolve the issue of the noise impacts of the proposal. Giles JA, with whom Priestley JA agreed, found at [86] that while Bathurst City Council had adverted to the noise impact of the development, it did not take the issue into consideration as required by the EP&A Act. 86 At 204 [94], his Honour approved the statement of Talbot J in Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (11 December 1996, unreported) that the facility of a deferred commencement consent is not "a panacea to overcome the necessity to consider a requisite matter", and that the deferred commencement provisions of the EP&A Act "did not free the consent authority from the obligation to consider all relevant matters as required". 87 His Honour continued to explain the nature of the defect in the deferred commencement consent before the Court: 96 There would have been nothing wrong, in an appropriate case, in a consent authority including as a condition of a consent that the applicant obtain (in the words of the Council's letter of 19 February 1998, describing its practice) "the necessary licences/approvals from the EPA". But that could only have followed consideration, in accordance with s 90(1), of the matter to which the licence or approval related, with the obtaining of the licence or approval where noise impact was in question a reasoned means of controlling, or contributing to controlling, reasoned understanding of the noise impact. And the condition could, depending on the circumstances as a whole, suggest that the consent authority had failed to discharge its duty under s 90(1), see Jungar Holdings Pty Ltd v Eurobodalla Shire Council. 97 It may be noted that the Council did not include in the consent a condition that the applicant comply with the EPA approval. By following the deferred commencement consent route, the Council granted a consent which would operate upon the approval being obtained (since the Council's satisfaction could only be as to obtaining, not as to content). The consent would continue to operate whether or not the approval was later modified, whether or not the operator of the terminal failed to renew it, and whether or not the operator of the terminal failed to comply with the requirements of the approval. This adds, in my view, to the inference that the Council did not give proper consideration to the noise impact of the development. 20Paragraphs 83 - 87 of the written submissions identify the responsibility of the Council to consider matters relevant to the development it having been approved subject to deferred commencement conditions. Relevantly, in Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at [84] - [85] a deferred commencement condition requiring a traffic study to be completed was struck down. Talbot J held that the condition demonstrated that the Council had not considered the means of mitigating the effects of the traffic arising from the development prior to granting the consent and the consent was therefore invalid, similarly in Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (11 December 1996, unreported) considered at [86] - [87]. 21Paragraphs 88 - 92 of the Applicant's written submissions state: 88 In Hale , Street CJ at 335 said: The absence of a reasonable opportunity for a council to understand the significance of the decision about to be made in relation to the mandated matters, followed by a decision which, in material respects leaves important aspects virtually at large, will go far towards establishing objectively that the council, as a group, did not take those mandated matters into consideration as required by the law. 89 Moffitt P said at 345: A conclusion by a court finding a breach of s. 90 [now s 79C] by way of inference is one to be come to only after anxious consideration, but when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has drawn. 90 In Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321, approvals to development were challenged on the basis that Council failed to consider matters prescribed by the relevant LEP. The Court held that in circumstances where the relevant clause of the LEP was not referred to in the minutes of the Council's relevant meetings nor in the material before Council at those meetings and where no Council witnesses were called to give evidence that the clause was considered, an inference arose that that clause was not considered such that the approvals were invalid. The Court observed at [54] that ..... an inference that a consent authority considered a specific precondition to its power to grant a development consent will not normally be derived from material which demonstrates no more than that the consent authority was aware of the issues which were relevant to its decision whether or not to grant consent if it had power to do so. 91 In Centro , McClellan J accepted at [37] that where there is no direct evidence of a consent authority's consideration of a matter, it may be difficult for a challenger to establish a failure to consider a relevant matter or consideration of an irrelevant matter. Confined to drawing an inference, that inference should only be drawn after anxious consideration: Hale; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 373; 92 Nevertheless, his Honour considered at [65] that in circumstances where Council approved the application before it without an assessment available to it of the noise impacts of the proposal, its consideration miscarried because ... the Council remained ignorant of whether an unacceptable problem would be created. Whatever may have been the knowledge or opinion of the planning officer about the noise impact matter, it did not extend to any formal assessment of noise. In any event, her consideration of the matter was not communicated to the councillors. 66 Although there were many issues which the Council was required to consider, the possible noise impacts from the proposal were of real significance, particularly because of the proximity of residential development. Without the assessment necessary to consider the issue, a fundamental matter was overlooked. Quite simply the possible impact of traffic noise in Hampden Lane on the adjoining residents was not given consideration by the Council. 22At par 88 - 92 authorities identifying the relevant tests of failing to consider merit issues and the need therefore to consider access arrangements are identified correctly. 23Paragraphs 93 - 97 of the Applicant's written submissions state: 93 The absence of any reference by Council in the Assessment Report or its minutes to the adequacy of the accesses to the site for the proposed traffic flow gives rise to an inference, in the absence of contradictory evidence advanced by Council that Council failed to consider this essential matter. 94 Council assessed the DA on the basis that the whole of the land to which the development application relates enjoyed an unlimited right to utilise the RoW. Council failed to consider the extent to which the RoW could be utilised by the land the subject of the DA nor the traffic impacts of reliance upon the RoW. 95 The absence of any reference by Council in the Assessment Report or its minutes to the adequacy of the accesses to the site for the proposed traffic flow gives rise to an inference, in the absence of contradictory evidence advanced by Council that Council failed to consider this essential matter. 96 Christopher Hallam's independent review for Council of the traffic impacts of the development concluded, "the main problem with the development is reliance on rights of way through Plumpton Marketplace for virtually all vehicular access". Notwithstanding this illumination of the problem of access, Council failed to consider prior to the grant of the Consent whether reliance upon the RoW as the primary means for entering and exiting the proposed shopping centre was appropriate. Council did not properly consider whether the Second Respondent was entitled to utilise the RoW for access to and from the whole of the site as proposed nor the traffic impacts which would be caused through utilisation of the RoW as proposed. 97 In imposing DCC (a), Council failed to consider how or whether the accesses over the RoW would be "created or made available". Council failed to properly consider, beyond mere advertence, that fulfilment of this DCC would require the grant of a separate development consent, that any development application for such consent would require the consent of the owner of the Plumpton Marketplace and that in light of the submissions received from the Applicant on the access issues, such consent would be refused. Council thus failed to consider whether in fact DCC (a) could be fulfilled such that the traffic arrangements for access to the proposed shopping centre could be implemented as proposed in the DA. 24The precise manner of the Council's failure to consider the access to the site for the proposed traffic flow gives rise to an inference that the council failed to consider this matter as detailed in par 93 - 97. Numerous authorities which confirm that the failure to consider a relevant matter gives rise to invalidity of a consent are identified in par 98 - 101. 25Paragraph 102 states that the traffic impacts of the development were central to the assessment process and underlay the majority of submissions objecting to the development. The resolution of access arrangements was vital to the traffic distribution generated by the development to be properly understood and considered in light of the factual matters identified in the Council's submissions set out above. These were material considerations and fundamental to the Part 4 assessment process. Council's purported approval of the DA was therefore invalid, as stated in par 102. This is another legal basis on which the development consent can be declared invalid and also void.

APOC par 16 26APOC par 16 provides: BCC granted the Deferred Commencement Consent but failed to give any or any proper consideration to the impacts of traffic control signals proposed by deferred commencement condition 1.1(b) set out. Particulars (a) Whether the development should be approved in the absence of further traffic controls. (b) Whether the RTA was likely to approve additional traffic controls. (c) The likely impact upon existing traffic controls. (d) Likely changes to traffic generation and distribution of traffic generated by the proposed development. (e) Impact on public roads, particularly Hyatts Road. (f) Impact on traffic movement at the Plumpton Marketplace. (g) Whether the proposed development should be rejected if the said traffic controls were not installed or RTA refused approval. (h) The matters referred to in paragraphs 8, 9, 10 and 15 above.

Failure to consider the APOC par 16 traffic control signals DCC conditions 1.1(b) and (c) 27At par 103 - 107 the Applicant's written submissions identify the failure in the evaluation of the DA to consider the impacts of the DCC imposed. In particular DCC condition 1.1(b) concerns the grant of approval by the RTA of traffic control signals at the eastern access road and requires further modelling in light of the traffic controls signals to be approved in DCC condition 1.1(b) and in DCC condition 1.1(c). There is evidence that the RTA has not in fact approved traffic signals at the eastern access road in the facts identified in the written submissions. Paragraphs 107 - 108 identify the principles applicable to the failure to consider a relevant matter by a council identified in Cameron and Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 . 28Paragraph 108 further identifies the principle in Centro Properties v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 that the absence of any assessment by the Council of a fundamental matter of an important aspect of the traffic impacts of the development means that the Council cannot have been aware whether an impact was acceptable . The facts which are in evidence and accepted show that the Council was not aware of the impact of DCC condition 1.1(b) as submitted in the written submissions at par 104, 105 and par 106, as follows: 104 In evaluating the DA, Council was required to consider the impacts of the proposed development in light of the deferred commencement conditions which it sought to impose: see authorities cited in part 2(e) above. Thus, Council was required to consider whether the development should be approved in the absence of the proposed new signalisation, whether or not the signalisation would in fact be approved by the RTA and the impact which the proposed signals would have on traffic distribution and generation in the locality. 105 Although it is true that Council gave consideration to the traffic implications of the development generally, no consideration as required was given to the traffic impacts which would be generated by the traffic control signals contemplated by DCC 1.1(b). 106 None of the reports submitted by Cardno (on behalf of the Second Respondent), Hallam (on behalf of RUP as Council's independent reviewer) or Colston Budd or Halcrow (on behalf of the Applicant) discussed the impact of the provision of signalisation at the eastern Jersey Road access on traffic conditions affecting the subject site, the Plumpton Marketplace site or the surrounding public roads and existing signalised intersections. No proper consideration was given to the strong possibility of the RTA refusing to grant its approval in light of its previous indications in consultation with Council and Salta (see [174] below) that the DCC signalisation would not be approved. Further, no consideration was given in imposing DCC (b) to whether the development should be allowed to proceed in the absence of the approval of the traffic controls. 29The submission at par 110 that the failure to take into account the extent of the traffic impact was a material error in the evaluation process is established, as particularised in APOC par 16. This finding is also a basis for invalidity of the development consent.

APOC par 17 contamination issues 30APOC par 17 provides: BCC granted Deferred Commencement Consent, but failed to give any or any proper consideration to matters it was required to consider pursuant to section 79C(1) of the Act. Particulars (a) Clause 7(1) of SEPP 55. (b) Clause 7(2) of SEPP 55. (c) Clause 7(3) of SEPP 55 and the SEPP 55 Planning Guidelines. 31Clauses 2 and 7 of State Environmental Planning Policy No 55 - Remediation of Land ( SEPP 55) provide: 2 Object of this Policy (1) The object of this Policy is to provide for a Statewide planning approach to the remediation of contaminated land. (2) In particular, this Policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment: (a) by specifying when consent is required, and when it is not required, for a remediation work, and (b) by specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and (c) by requiring that a remediation work meet certain standards and notification requirements. 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is: (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital- land: (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge). 32The relevant conditions of consent relating to site contamination are 5.14.1 - 5.14.3 and environmental management condition 8.1. Conditions 5.14.1 - 5.14.3 provide: 5.14.1 The recommendation provided by Environmental Resources Management Australia in the Environmental Site Assessment report dated February 2006 shall be undertaken, this will involve remediation of identified asbestos containing materials (ACMs) as well as further sampling to be undertaken within the former service station site to confirm that no significant contamination remains. 5.14.2 Council shall be notified in writing of any variation to the proposed remediation works prior to the commencement of these works. After completion of the remedial works, a copy of the Validation Report shall be submitted to Council. This Report shall be prepared with reference to the NSW EPA guidelines Consultants Reporting on Contaminated Sites and shall include: Description and documentation of all works performed 5.14.3 Results of validation testing and monitoring Validation results of any fill on to the site Clear justification as to the suitability of the site for the proposed use and the potential for off-site migration of any residual contaminants.

33The submissions at par 114 and 116 identify the legislative framework in SEPP 55. The State wide requirements of the SEPP in relation to the determination of a DA in connection with contaminated land were confirmed in Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33; (2011) 182 LGERA 370 at [15]. 34Paragraphs 117 - 123 of the Applicant's written submissions state: 117 Council was required by clause 7(1)(a) of SEPP 55 to consider whether the land was contaminated prior to the grant of the Consent. The Applicant submits that Council breached its duty to give any or any proper consideration to whether the subject land was contaminated. 118 The requirement in Condition 5.14.1 of the Consent that further sampling be undertaken to confirm that no significant contamination remains within the former service station site gives rise to an inference, or at the very least, strongly suggests, that Council failed to consider the issue of contamination prior to the grant of the consent. This inference is supported by Conditions 8.1.1 and 8.2.3. 119 In Weal , Giles JA held at [91]-[97] that the imposition of a condition requiring EPA approval of the noise impacts of a development, in the absence of a further condition that the applicant comply with that approval, gave rise to an inference that Council did not properly consider the noise impact of the development or the means which might be employed to mitigate the noise impact. Priestley JA agreed with Giles JA that the development consent was void, but for the additional reason (at [34]) that deferring the question of noise impact until after the consent had been determined without guarding against the possibility that the EPA would change its policies, left open the issue and was "either evidence of ... or was itself a legally deficient response to that duty." 120 As in Weal , the Consent the subject of these proceeding lacks any condition stipulating that Council be notified of and satisfied with the results of the sampling undertaken pursuant to Condition 5.14.1. The conditions of the Consent will be fulfilled once the Second Respondent completes the requisite sampling, whether or not the investigations reveal the presence of significant contamination. Council's deferral of the investigation of the contamination of the subject land in this manner is impermissible, and gives rise to the inference that Council did not properly consider whether the site was contaminated, in breach of clause 7(1)(a). 121 Clause 7(1)(a) requires a consent authority to consider whether the entirety of a parcel of land the subject of a development application is contaminated. The object of SEPP 55, as expounded in Barangaroo , would clearly be defeated if Councils were merely required to consider whether part of the land the subject of a DA was contaminated. As such, Council was required to consider not only whether Lot 101 was affected by contamination, but whether the remainder of the subject land, comprising part of the land presently comprising Lot 102 and 103, was contaminated. 122 Whilst Council had some contamination information before it, including the Handex, Geotechnique and ERM Reports, it should be noted that these reports were not in respect of the whole of the subject land. The Handex Report was prepared in respect of the validation of the land upon which the former Mobil service station site was situated, and was thus confined to the land formerly comprising Lot 16 in DP 747932, now comprising the eastern part of Lot 101. The Geotechnique Report was prepared in respect of the land that presently comprises (prior to the registration of the new linen plan) Lot 101, which formerly comprised Lots 16 and 17 in DP 747932 and Part Lot 107 in DP 713976. The ERM Report specifically describes at 2.1.1 the site to which it relates as being Lot 101 in DP 1077484. Lot 101 is described as being bound by Lot 103, containing the trunk drainage channel, to the south, which reflects that Lot 103 is clearly not the subject of any environmental assessment in the ERM Report. 123 Accordingly, even if the Court does not accept that Condition 5.14.1 gives rise to the inference that Council failed to properly consider the question of contamination due to its deferral of investigations, any consideration by Council of the issue of contamination which was incomplete and was not in respect of the whole of the land the subject of the DA. 35In relation to the particular requirements of cl 7(1)(a) that a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated, the failure of the Council in relation to the subsection is identified at par 117 - 123, referring to Weal. 36The Council imposed condition 5.14.1 based on a report by ERM that was not a report prepared in accordance with SEPP 55 as it was not based on the contamination guidelines required by the SEPP. It is only a strategy document, not a required remediation plan. The failures of condition 5.14.1 in relation to cl 7(1)(a) are identified in par 118 and 120 namely the condition does not require that the Council be notified of the results of any sampling and whether contamination is revealed or not. This results in the deferral of the investigation of the contamination of the subject land which is impermissible and gives rise to the inference the Council did not properly consider whether the site was contaminated in breach of cl 7(1)(a) SEPP 55. That clause also requires that a consent authority consider whether an entire parcel of land is contaminated but the condition of consent (and the reports referred to therein) focus only on former Lot 16 as part of Lot 101. The remainder of the subject lands in Lots 102 and 103 was contaminated, as submitted in par 121 - 123, which submissions I accept. 37Paragraphs 124 - 127 of the Applicant's written submissions state: 124 Clause 7(1)(b) of SEPP 55 restricts a consent authority from approving development unless it is satisfied that the land is suitable in its contaminated state for the purpose for which the development is proposed to be carried out. 125 The inclusion in the Consent of condition 5.14 requiring investigations to confirm that no significant contamination remains on the site and requiring a Validation Report to be submitted to Council after completion of any Remediation works is strong evidence of the fact that Council could not have been satisfied that the land was suitable in its contaminated state for development as a shopping centre. Conditions 8.1.1 and 8.2.3 are in line with this view. 126 As submitted above, as Council did not properly consider the issue of contamination, it could not have achieved the requisite state of satisfaction. Second, Council would not have imposed the conditions of consent requiring confirmation regarding the extent to which the former service station site was contaminated and the provision of a validation report were it satisfied that the whole of the subject land was, as at the date of the grant of the Consent, suitable for the proposed development. 127 Absent this requisite state of satisfaction, Council's consent to the DA was contrary to cl 7(1)(b) of SEPP 55 and therefore invalid. 38The failure to comply with cl 7(1)(b) of SEPP 55 is identified at par 124 - 127 of the written submissions. This requires that the Council must be satisfied that the land is suitable in its contaminated state for the purpose for which development is proposed and the relevant inquiry was not made over the whole of the site. At par 125 the written submissions suggest that consent condition 5.14 requires investigations to confirm no significant contamination remains on the site and requires a validation report to be submitted to the Council after completion of any remediation works. This suggests strongly that the Council was not satisfied that the whole of the land was suitable in its contaminated state for development as a shopping centre. I agree with par 126 of the written submissions to that effect in relation to cl 7(1)(b) of the SEPP given the accepted facts identified earlier. 39Paragraphs 128 - 136 of the Applicant's written submissions state: 128 Pursuant to clause 7(1)(c) of SEPP 55, if land requires remediation to be made suitable for a proposed development, a consent authority may not grant consent to the development unless it is satisfied that the land will be remediated before the land is used for the proposed purpose. 129 Council could not have been satisfied as to whether remediation would be carried out prior to the use of the proposed site for a shopping centre development. 130 No condition of the Consent requires the Second Respondent to carry out remediation works prior to the commencement of the use of the site as a shopping centre development. 131 Whilst the headings of Part 5 and Part 8 of the Consent are respectively "Prior to Construction Certification (Planning)" and "Prior to Construction Certificate (Environmental Health)", there is no express requirement in the conditions which follow relating to contamination/remediation (5.14, 8.1.1, 8.2.3) that the relevant action indeed occur prior to the issue of a construction certificate. This is in marked contrast to other conditions of the Consent, the wording of which specifically provides that the relevant action be taken prior to or in conjunction with the issue of a construction certificate: see e.g., conditions 5.1, 5.2, 5.4.1, 5.5.1, 5.6.1, 5.8.1, 5.9.1, 5.10.1, 5.11.1. Without any constraint as to timing upon the conditions pertaining to investigation of contamination and remediation, Council could not have been satisfied to the standard required by clause 7(1)(c). 132 Indeed, even if conditions 5.14, 8.1.1 and 8.2.3 are interpreted by reference to the headings, so that their fulfilment is required prior to the issue of a construction certificate, this would nevertheless would be insufficient to satisfy Council, in accordance with clause 7(1)(c), that adequate remediation would be carried out. 133 First, although condition 8.2.3 requires that the RAS be followed, that RAS is not a comprehensive Remediation Action Plan. 134 Second, whilst Condition 5.14.2 provides for notification of Council in relation to variation of proposed remediation works, it makes no provision for Council to be satisfied as to the adequacy of such varied remedial works prior to the commencement of development. Moreover, whilst clause 5.14.3 requires that a Validation Report be submitted to Council after completion of the remedial works, it does not require that Council is satisfied with the content of such a report. The conditions of the Consent thus leave Council powerless in the event that the Applicant notifies it of a variation to the proposed remediation works or submits a Validation Report, either of which, in the Council's view, is wholly unsatisfactory. In these circumstances, the Council could not have been satisfied, prior to the grant of the Consent, that appropriate remediation would be carried out. 135 Third, and importantly, to the extent that condition 8.2.3 of the Consent is understood to require remediation to be carried out in accordance with the RAS prior to the issue of a construction certificate, it is nonsensical, such that the condition could not have founded the relevant satisfaction of Council for it to have complied with clause 7(1)(c). This is because the remedial works contemplated by the RAS are clearly intended to be carried out concurrently with development [Tab 12]. In circumstances where condition 8.2.3 requires the implementation of recommendations in a document which is not a comprehensive remediation action plan, and that document specifically contemplates the carrying out of remedial works concurrently with development of the proposed shopping centre, it would be absurd for Council to insist that it was satisfied that appropriate remedial works would be completed prior to the issue of a construction certificate and use of the site as proposed. 136 In light of the above, Council could not have been satisfied prior to granting the Consent that the land would be remediated to be made suitable for use as a shopping centre before such use commenced. The Consent was thus granted in breach of cl 7(1)(c) of SEPP 55. 40The failure to consider cl 7(1)(c) SEPP 55 is identified at par 128 - 136 of the written submissions. These identify the various failures of the conditions imposed in 5.14, 8.1.1 and 8.2.3 in relation to the requirements of subclause (1)(c). As the facts giving rise to these submissions are to be accepted these failures are demonstrated. The Applicant's submissions at par 126 and 127 that the Council did not properly consider the issue of contamination or could not therefore achieve the requisite state of satisfaction are accepted.

APOC par 17 - Failure to consider SEPP 55 cl 7(2), (3) 41The failure to consider the SEPP 55 planning guidelines (entitled " Managing Land Contamination Planning Guidelines SEPP 55 - Remediation of Land" ), cl 7(2)(3) is identified at par 137 - 143 of the Applicant's written submissions: 137 Under cl 7(2) of SEPP 55 and Table 1 of the Planning Guidelines, Council was required to consider, prior to approval of the DA, a report provided by PPD (namely, the ERM Report) specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the Planning Guidelines. 138 Clause 7(3) provides that Council "may" require an applicant to carry out, and provide a report on, a detailed investigation if it considers that the findings of the preliminary investigation warrant such an investigation. However, given that the detailed investigation under cl 7(3) is to be conducted "as referred to in the contaminated planning guidelines", those Planning Guidelines mandate the exercise of the discretion in cl 7(3). 139 The Planning Guidelines relevantly contain the following provisions: 3.3.2 Instances where Further Information is Required After carrying out an initial evaluation, if there are indications that contamination is, or may be, present and the planning authority has insufficient information on which to make a planning decision, the proponent should be asked to provide further information. 3.5.2 Stage 1 - Preliminary Investigation ... Where the results of a preliminary sampling program demonstrate the potential for, or the existence of contamination, a detailed investigation should be undertaken; not necessarily immediately after the preliminary investigation but before the new use commences. 140 Conditions 5.14.1, 5.14.2 and 5.14.3 of the Consent explicitly acknowledge the potential for contamination of the site and leave serious questions open about the nature and extent of contamination and requirements for remediation. These conditions are strong evidence of the fact that Council had insufficient information upon which to make a planning decision and was required under the Planning Guidelines to request further information from the Second Respondent. 141 Given that the Consent was granted prior to the receipt of such further information from the Second Respondent and that the Consent permitted the commencement of development prior to the completion of further investigations, it was granted invalidly in breach of cl 7(3) of SEPP 55. 142 Each of the above breaches of the EP&A Regime with respect to possible contamination of the subject land are material, such that the purported consent to the development is invalid. 143 Indeed, the First Respondent's objection to the conditions of Consent pertaining to contamination and remediation of the subject land in its Class 1 Application reflects the materiality of these issues to the development, and its acceptance at the very least, that the Consent as granted is seriously deficient with respect to contamination matters. 42Paragraph 137 of the Applicant's written submissions (above) identifies that under cl 7(2) of SEPP 55 and Table 1 of the SEPP 55 planning guidelines the Council was required to consider prior to approval of the DA a report of Plumpton Park Developments Pty Ltd (the Environmental Site Assessment Report prepared on its behalf by Environmental Resources Management Australia ) specifying the findings of a preliminary investigation of the land carried out in accordance with the SEPP 55 planning guidelines. The relevant guidelines are set out at par 139 (above). The requirements of cl 7(3) are set out at par 138 (above). The inadequacy of conditions 5.14.1, 5.14.2 and 5.14.3 is identified in par 140 (above). While these conditions acknowledge the potential for contamination of the site, the nature of the conditions is strong evidence that the Council had insufficient information on which to make a planning decision and was required under the Planning Guidelines to request further information from the Second Respondent. In light of the accepted facts identified in relation to the consideration of contamination by the Council at par 27 - 36 of the written submissions (above at par 7) the submission at par 142 (above) that the failure to consider contamination of the subject land was material and gives rise to invalidity on this basis also is accepted. 43The grounds identified in the APOC at par 15,16 and 17, which I have accepted are established by the Applicant, provide a more than sufficient basis to make the declaration of invalidity sought. It is unnecessary to consider the balance of the grounds raised in the APOC.

Relief should be granted 44The Applicant submitted there is utility in making the declaration sought as it will aid in the resolution of all matters in dispute and will resolve the issue raised in related Class 1 proceedings commenced by the Second Respondent and stayed by Court order pending the outcome of these proceedings. Section 22 of the Land and Environment Court Act 1979 states that the Court should grant all remedies to which a party appears entitled for a legal claim before it so that all matters in dispute between the parties can be completely and finally determined, and for the avoidance of a multiplicity of matters. This is achieved by making this declaration. 45In the circumstances, the Deferred Commencement Consent is invalid, void and of no legal effect. The declaration and order sought ought be made. The Applicant seeks an order that costs of the proceedings be reserved and I will so order.

Orders 46The Court: 1.Declares that the determination of Development Application DA 08-638 made by the First Respondent on 16 February 2011 to give approval for a shopping centre at Jersey Road, Plumpton is void and of no effect. 2.Orders that the Second Respondent, its servants and agents, be restrained from taking any action or carrying out any works in pursuance of or in reliance on the purported determination referred to in paragraph 1 above. 3.Reserves the question of costs. 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: 04 February 2012