El Cheikh v Hurstville City Council &

The purpose of the draft plan is to limit the height of buildings within the 3(a) Zone and certain land within the 3(c) Zone, to two stories. The underlying basis for this restriction is to ensure that future development in affected areas is consistent with the scale and character of existing development. The affected land is either located along busy arterial roads or consists of small neighbourhood shopping areas. They are generally inaccessible by public transport. The larger centres, located around railway stations and accessible by public transport, will not be affected by the draft plan. This draft plan will complement recent amendments to the LEP namely Amendment Nos. 4 and 13, and will further define the hierarchy of commercial centres. (c) Land description The draft plan will apply to all land within the Hurstville City local government area zoned 3 (a) General Business (excluding the centres of Riverwood and Beverley Hills) and 3 (c) Business Centre Zone, except land within that Zone located around a railway station at Penshurst, Mortdale, Narwee and Kingsgrove. (d) Matters covered by the Draft Plan Limiting the height of the development to two storeys for land within the 3(a) Zone and certain land within the 3 (c) Zone. (e) Current planning position A two storey height limit applies to land within the 3 (a) Zone situated in the Peakhurst Ward (excluding the centre of Riverwood), while no height limit applies to any land within the 3(c) Zone. (f) Details of known environment The environment is defined by consolidated local and district retail and commercial centres with nearby built up residential areas. (g) Environmental study Given the subject zones are existing commercial and retail centres and the proposed change to the LEP seeks only to better reflect their use, it is not considered necessary that an environmental study be carried out. Council intends to exercise its delegations pursuant to section 65 and resolved to exhibit the draft LEP in accordance with the Department's Best Practice Guidelines during April 2000. The draft instrument and map will be forwarded to DUAP when finalised. If further information is required, please contact Matt Jericho of Council's Policy, Planning and Environment Division on telephone 9330 6257 or facsimile 9330 6258. 10. The council was also required, pursuant to s 66 of the EP&A Act and the regulations, to publicly exhibit the plan for twenty eight days, and to give the public notice of that exhibition. It therefore put the plan on exhibition at council offices from 20 April 2000 and placed an advertisement, which relevantly reads as follows: [ Sutherland Shire Leader , Thursday, 20 April 2000] EXHIBITION OF DRAFT AMENDMENT TO HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 Council has resolved to prepare and exhibit a draft Local Environmental Plan for certain commercial and retail land, namely within the 3 (a) Zone (excluding the centres of Riverwood and Beverly Hills) and certain land within the 3 (c) Zone (excluding land located around a railway station at Penshurst, Mortdale, Narwee and Kingsgrove). The purpose of the draft Plan is to limit the height of buildings to 2 storeys…. [There then follows details of where and when the plan is to be exhibited and how submissions may be made.] 11. The council also sent a letter of notification in similar terms to 123 individuals and corporations listed in the council file. It appears that these were the owners of land in the immediately affected areas and in areas close to the areas immediately affected by the draft plan. In response to the exhibition and notification of this plan, the council received three submissions: two against and one in favour of the proposed amendments. 12. The council had completed the preliminary steps towards gazetting the first draft as an amendment to the Hurstville LEP 1994. It could have proceeded from here to prepare and forward the necessary documentation to the Minister and request that he make such a plan. On further consideration, however, it decided that a further amendment be made to the Hurstville LEP 1994, namely, to ameliorate the complexities by reducing the number of business sub-zones from six to four, as explained below. 13. On 12 May 1999 the council had resolved to carry out an overall review of council's business zones. This resulted in a report by its Strategic Planner, Mr L O'Dwyer on 26 April 2000, which called for further amendments to the council's local environmental plan. According to Mr O'Dwyer, recent amendments to the local environmental plan, coupled with the amendments proposed in the first draft described above, would create an overly complex planning regime in the Hurstville local government area. Together, the local environmental plan with its amendments would have resulted in six different business zone categories or 'sub' zones, with different planning controls applying to each. Mr O'Dwyer recommended the rezoning of certain areas so as to allow for a uniformity of planning controls in each zone. In addition he recommended that a clause be inserted in the LEP to stress that height was the primary development control and would not be varied. 14. The council adopted Mr O'Dwyer's recommendations. The council could have proceeded to finalise the two-storey height restriction in the plan already exhibited and then gone on to make a new draft plan incorporating the zoning changes. Instead it decided to deal with both proposals in a single plan. It resolved to proceed with a new draft plan (I shall call this "the second draft plan") implementing both sets of changes, and proceeded to notify, advertise and exhibit it as required by the EP&A Act. 15. In respect of the second draft plan, the council's notification to the Director-General pursuant to s 54 of the EP&A Act, dated 15 May 2000, was as follows: Re: Draft Hurstville Local Environmental Plan 1994 (Amendment *) 2 storey limit for 3(a) Zone and certain land within the 3(c) Zone and rezoning Riverwood and Beverly Hills Town Centres 3(c) Further to my letter dated 14 April 2000, advising of a draft Local Environmental Plan 1994, to restrict the height of buildings within the 3(a) Zone and certain lands within the 3(c) Zone to a maximum of 2 storeys, I wish to advise that Council recently resolved to revise this draft LEP to rezone Riverwood and Beverly Hills Town Centres to the 3(c) Zone. Pursuant to the provision of Section 54 (4) of the Environmental Planning and Assessment Act 1979, and in accordance with Clause 6(2) of the Environmental Planning and Assessment Regulation 1994, the following information is supplied: (a) Date of Council's Decision 26 April 2000 (b) Reasons for Council's Decision There is an urgent need to bring together all amendments and resolutions relating to business zones and consolidate Council's position on the matter. Currently, Amendments 4 and 13, along with the most recent draft LEP relating to the business zones, create a complex situation, effectively resulting in six different business zone categories or 'sub zones'. The complexities resulted from Council's desire to establish a hierarchy of business zones. Amendments 4 and 13 have achieved this hierarchy with one exception. This draft LEP will provide one further amendment to Council's LEP, so that the current planning complexities can be ameliorated, reducing the number of business 'sub zones' from six to four. This revised draft LEP brings clarity and consistency to the suite of controls applying to business zones across Hurstville. Such changes will ensure a clear, hierarchical structure of business precincts within the Council area. Specifically, it will provide for: 1. Hurstville Regional Centre 2. Sub-regional and Local Commercial Centres 3. Commercial strips along major roads 4. Neighbourhood centres and corner shops. While Amendments 4 and 13 present no problem to Council, their development over a long period of time, has resulted in some planning complexities that were not originally envisaged. Specifically, these complexities are: · the creation of six sub categories of Business Zones in Hurstville, with almost every subcategory having several excluded areas to which the controls would not apply; · the lack of distinction as to whether the primary development control is the height or floor space control - some may argue that 1.5:1 is a license to build to 3 storeys given it would be difficult to achieve within 2 storeys. · Riverwood and Beverly Hills were retained as 3(a) zones however by their exclusion from any height controls in fact have identical controls to those properties within the 3(c) zone; · The zones do not relate at all to the hierarchy of commercial areas in Hurstville. Consequently, this situation has the potential to unnecessarily complicate the planning process by creating inconsistencies in the way in which planning controls are applied to business zones throughout the Council area as well as confusion as to what controls apply where. This convoluted situation can be simply rectified without diminishing Council's intentions in any way. Therefore, these changes only relate to text within the LEP; they do not alter specific controls. (c) Land description The draft plan will apply to all land within the Hurstville City local government area zoned 3(a) General Business and 3(c) Business Centre Zone. (d) Matters covered by the Draft Plan The streamlining of the business zones sub categories will increase efficiency and further augment Council's policy of a hierarchical structure of business precincts throughout the Council area. It is stressed that the proposed amendments change nothing, they will merely simplify the planning process. Specifically, the following matters are covered by the draft plan: · Rezone Beverly Hills and Riverwood to Zone 3(c) and thereby align them with other centres that are already zoned 3(c); · Remove any exclusions contained in the 3(a) Zones, so that the same controls apply to all 3(a) neighbourhood and corner shops; and · Insert a clause in the LEP to ensure height is noted as the primary development control and shall not be varied. (e) Current planning position · A two storey height limit applies to land within the 3(a) Zone situated at the Peakhurst Ward (excluding the centre of Riverwood). · A two storey height limit applies to land within the 3(a) Zone, (Excluding the centre of Beverly Hills and the 3(c) Zone), excluding the town centres of Penshurst, Mortdale, Narwee and Kingsgrove. · Riverwood and Beverly Hills are zoned 3(a). (f) Details of known environment The environment is defined by consolidated local and district retail and commercial centres with nearby built up residential areas. (g) Environmental study Given the subject zones are existing commercial and retail centres and the proposed change to the LEP seeks only to better reflect their use, it is not considered necessary that an environmental study be carried out. Council intends to exercise its delegations pursuant to section 65 and resolved to exhibit the draft LEP in accordance with the Department's Best Practice Guidelines during June 2000. The draft instrument has been attached. It is anticipated that Council will not proceed with the draft LEP outlined to the Department in the section 54 letter dated 14 April 2000. The draft LEP outlined in this letter effectively supercedes that draft LEP with all relevant considerations incorporated under this draft LEP. 16. The council also publicly exhibited the second draft plan between 1 June and 29 June 2000, and on 1 June 2000 published the following notification: [ Sutherland Shire Leader, Thursday, 1 June 2000] EXHIBITION OF DRAFT AMENDMENT TO HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994 Council is exhibiting a draft Local Environmental Plan for the 3(a) and 3(c) Business Zones. The purpose of the draft plan is to: · Simplify and consolidate all recent changes, and · Recognise the difference between larger shopping centres and small neighbourhood shops. The plan does not alter any of the recent changes made to the business zones…. [Details of where and when the plan is to be exhibited and how submissions could be made are then set out.] 17. There is no record in the council's file of the council sending out letters to affected landowners giving notice of the exhibition of the second draft plan as it did with the first draft plan. 18. The plan was duly exhibited and no submissions were made following this exhibition period. It appears, however, from the report to the council on 27 July 2000, noted below that submissions made in response to the exhibition of the first draft plan were taken into consideration in the determination to proceed with the second draft plan. 19. On 27 July 2000 the council considered a further report and it resolved that "Council not proceed with the draft Local Environmental Plan to amend Hurstville Local Environmental Plan 1994 with respect to business zones as adopted by the Council for public exhibition at its meeting on 12 April 2000". The council further resolved to proceed with the second draft plan. 20. The council wrote to the Department of Urban Affairs and Planning on 9 August 2000, forwarding the following documents necessary for the Minister to make the plan: the section 65 certificate; the section 69 report; the original report to the council outlining the reasons for the preparation of the plan and a copy of a submission by a public authority; the original instrument retyped in accordance with the Parliamentary Counsel's opinion, and a copy of the maps. The report to the Minister which the Director-General was required to make under s 69 of the EP&A Act was signed by the Director-General's delegate, Ms Rhonda Tyne (an officer of the council). That report is as follows: DIRECTOR-GENERAL'S REPORT TO THE MINISTER UNDER SECTION 70 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979, REQUESTING THE MAKING OF THE LOCAL ENVIRONMENTAL PLAN TO BE KNOWN AS HURSTVILLE LOCAL ENVIRONMENTAL PLAN AMENDMENT No. 23 SUMMARY The Hurstville City Council requests that the Minister make a local environmental plan which provides a clear hierarchical structure of business precincts within Council area. The plan simplifies and consolidates recent changes made to the business zones and recognises the difference between larger shopping centres and small neighbourhood shops. The amendment applies a two storey height limit to buildings within the 3 (a) Zone and certain land within the 3 (c) Zone. The underlying basis for this restriction is to ensure that future development in affected areas is consistent with the scale and character of existing development. The affected land is either located along busy arterial roads or consists of small neighbourhood shopping areas. They are generally inaccessible by public transport. The larger 3(c) centres, located around railway stations and accessible by public transport, will not be affected by the draft plan. In addition, the town centres of Riverwood and Beverly Hills will be rezoned from the 3 (a) Zone to the 3 (c) Zone. This in no way alters the existing development standards and controls that apply to these centres, but rather ensures their zoning is consistent with other sub-regional and local centres within Hurstville, such as Penshurst, Mortdale, Narwee and Kingsgrove. This draft plan will complement recent amendments to the Hurstville LEP namely Amendment Nos. 4 and 13, and will further define the hierarchy of commercial centres. The subject land is currently zoned 3 (a) and 3 (c) under the Hurstville Local Environmental Plan 1994. The land is shown either coloured navy blue or edged heavy black on the attached maps marked Hurstville Local Environmental Plan 1994 (Amendment No. 23) - Sheets 1 to 12. A copy of the section 65 certificate allowing the exhibition of the draft plan is attached. An environmental study was not required. Parliamentary Counsel has provided an opinion that the plan may be legally made. It is recommended that the Minister make the plan… PUBLIC PARTICIPATION The draft plan was exhibited for 28 days from 1 June 2000 to 29 June 2000. Three submissions were received from members of the public. The main issues raised in the submissions were: · The Plan does not have an aim to improve any business area; · There is a need to have higher density near and on transport facilities; · No merit for Forest Road, Hurstville (that area adjacent to Hurstville Primary School and the Water Board site - Croydon Street) to be restricted to 2 storeys - located on bus routes, close to railway, can't be characterised as an 'individual commercial precinct'; · Height and density ratios stated will not lead to redevelopment of area but will further allow area to age and decay; · Ratios and limits need to be devised that will provide attractive functional buildings. · Reject proposal. Council considered the submissions made and in its report concluded that, although not area specific, a DCP for Business Zones will eventually apply to the 3 (a) Zone and certain land within the 3 (c) Zone. The DCP will incorporate detailed design principles and controls to ensure appropriate and quality development occurs within these areas. These plans will also promote business centres. Council has identified the larger 3 (c) Zone centres with a railway station (Riverwood, Beverly Hills, Penshurst, Mortdale, Narwee and Kingsgrove) as having potential for increased density. This is being investigated through place-based studies and DCPs for these precincts. The accessibility from these centres is far greater than those 3 (c) Zone areas restricted to a two storey height limit. Those areas within the 3 (c) Zone limited to a height of 2 storeys are within proximity to residential areas where a 2 storey limit applies (Forest Road, Hurstville - as identified above; Forest Road, Penshurst; and the Kingsway). As such, applying the height limit to the commercial/retail areas is considered appropriate. Furthermore, these changes are simply rationalising and simplifying Council's policy direction of the last four years and final implementation is appropriate. VIEWS OF PUBLIC AUTHORITIES One submission was received from a public agencies/ authorities, Sydney Water, who had no objection to the draft plan. CONSIDERATION The LEP is not inconsistent with any SEPPs, REPs or any other relevant environmental planning instruments. The plan is consistent with all relevant directions made under Section 117 of the Act. The plan is consistent with the Minister's Section 71 Determination in terms of its format, structure and subject matter. The provisions of sections 66 and 67 of the Environmental Planning and Assessment Act relating to public involvement in the preparation of the draft plan have been complied with. Council is able to use its section 69 delegation in this instance as the circumstances of the LEP do not fall within any of the exceptions outlined in the 1997 Instrument of Delegation, and Council resolved to comply with all requirements of the 1997 Best Practice Guideline entitled "LEPs and Council Land"… 21. It is alleged by the applicant (among other things), that this report was deficient in that it failed to comply with the Circular No. C30 issued by the Department of Urban Affairs and Planning. In that circular the Department asked councils, when preparing a draft plan, to provide the Department with details of any development applications under appeal which was likely to be affected by the draft plan. That circular issued by the Acting Secretary of the Department is as follows: (Circular No. C30 issued October, 1997) All Councils LOCAL ENVIRONMENTAL PLANS PREPARED FOR DEVELOPMENT APPLICATIONS UNDER APPEAL Introduction The purpose of this circular is to advise councils on the preparation of local environmental plans (LEPs) for land that is subject to a development application (DA) under appeal in the Land and Environment Court. The focus of this circular is on LEPs which primarily aim to reduce the development potential of a site in response to an appeal in the Court on the determination of a DA. Background Under section 97 of the Environmental Planning and Assessment Act 1979 (EP&A Act), an applicant who is dissatisfied with the determination of his or her DA may appeal to the Land and Environment Court. This is a Class One appeal in which the Court assesses the merits of the DA in relation to the planning considerations listed under section 90 of the EP&A Act. The Court considers any LEP in effect and any draft LEP which has been on public exhibition at the time of the Class One appeal hearing. This includes any LEP that takes effect and any draft LEP that is placed on exhibition after the consent authority determines the DA. Role of the Director-General and the Department in LEP Preparation In the process of preparing an LEP, the public exhibition of a draft plan must first be certified by the Director-General of the Department of Urban Affairs and Planning under section 65 of the EP&A Act. The Director-General has delegated this function, subject to conditions, so that certain councils can issue section 65 certificates to enable the exhibition of particular draft LEPs. Under sections 54, 64 & 68 of the EP&A Act, councils must submit information about a draft LEP to the Department. A council may also have delegation from the Director-General to prepare a report on a draft LEP for the Minister for Urban Affairs and Planning under section 69 of the EP&A Act. In preparing these submissions on draft LEPs, councils are requested to include information on any DA which is under appeal in the Court and may be affected by the draft plan. The information should include the dates of lodgement of both the DA and the appeal, and advice on whether the draft LEP includes savings/transitional provisions for the DA. In cases of inappropriate action, the Director-General will consider revoking the delegations. LEP Review The practice of preparing and exhibiting draft LEPs in response to an appeal in the Court against the determination of a DA exemplifies the importance for councils to regularly review policies and plans in light of changing circumstances. The various social, economic and environmental aspects of planning are dynamic and LEPs should be reviewed to account for change. In reviewing LEPs, councils can consider including savings/transitional provisions for DAs which are undetermined or under appeal. 22. The second draft, known as Hurstville Local Environmental Plan 1994 (Amendment No. 23), was made by the Minister on 12 September 2000. 23. On 20 September 2000, the applicant's consultant town planner, Mr B T Goldsmith, sent a letter by facsimile to the Minister informing him of the existence applicant's appeal which was pending in this Court and of the impact which the making of the plan was likely to have upon the appeal. He made the following comments on the draft amendment: A development application for shops and thirty-three (33) residential units (in a part 3, part 4 and part 5 storey building), was lodged with Council on 2 November 1999. In May 2000, we were informed that Council proposed an Amendment to LEP 1994 to limit development in certain areas to 2 storeys including our client's site. Council then determined to refuse our client's application. At that time we indicated to Council that the FSR of 1.5:1 and a two (2) storey limitation was contradictory. In fact, it would be almost impossible to achieve a residential development at anywhere near 1.5:1 and also comply with the two (2) storey limit. Council officers'(sic) assessing our client's application agreed with this. …. The proposed two (2) storey limit is in effect a prohibition on development and is contradictory to the underlying zoning and if gazetted as anticipated by Council, our client's appeal can not succeed. The subject property is in the middle of an area dominated by three (3) to four (4) storey flat development. There is a new four (4) storey flat development under construction about 30 metres from the site and on the same side of Forest Road. We are also aware of other appeals pending for similar sites and that would similarly be affected by gazettal of this amendment. It would appear that the Minister's Office and the Department is not aware of these facts and obviously the Council has not fully informed the Department of Urban Affairs and Planning about the true situation of the land affected by this Amendment. We urge the Minister to refrain from making the Amendment until all the facts are known. 24. Hurstville Local Environmental Plan 1994 (Amendment No. 23) was published in the New South Wales Government Gazette on 13 October 2000. 25. On 13 November 2000, Ms Petula Samios, of the Department, replied to Mr Goldsmith's letter on behalf of the Minister. The letter merely stated: "(t)he concerns you have expressed in your letter have been noted. However, the LEP has now been made and has appeared in the Government Gazette on 13 October 2000". Ground (i): The council failed to comply with the provisions of s 66 of the EP&A Act Legislation 26. Section 66 of the EP&A Act requires that following steps be taken to allow public participation in the plan-making process: s 66 (1) Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall, after complying with any condition subject to which the certificate was granted and subject to the regulations: (a) give public notice, in a form and manner determined by the council, of the place at which, the dates on which, and the times during which, the environmental study prepared by the council under section 57 of the land to which the draft local environmental plan applies and the draft local environmental plan may be inspected by the public. The Applicant's Submissions 27. Mr W R Davison SC, appearing for the applicant, submits that the advertisement placed in the Sutherland Shire Leader on Thursday 1 June 2000 notifying the public exhibition of the plan is misleading and therefore invalid and cannot be treated as fulfilling the requirements of s 66. He points out that, although the draft plan exhibited on 1 June 2000 contained changes affecting both height restrictions in certain areas and the nominal zoning of certain areas, the notification thereof refers only to the zoning changes and does not mention the height restrictions. He submits that by stating that the purpose of the plan is to "[s]implify and consolidate all recent changes" and "[r]ecognise the difference between larger shopping centres and small neighbourhood shops", and especially by asserting that "[t]he plan does not alter any of the recent changes made to the business zones", the advertisement is misleading and therefore fails to satisfy the requirements of s 66. 28. In support of the proposition that a notice under s 66 may be invalid because it is misleading, Mr Davison relies upon the case of Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91. In that case it was said that at notice might be misleading for "failing fully to advise members of the public… or by making a limited statement, lulling them into a false sense of security" (at 102). He submits that members of the public would tend to be lulled into such a false sense of security by the subject advertisement because, by suggesting that there are no changes of substance being made to the local environmental plan, it would lead them to believe that there was nothing in the exhibited plan of interest to them and thus dissuade them from taking the time to inspect it. 29. Mr Davison submits that the Court should not have regard to the advertisement relating to the earlier exhibition period published on 20 April 2000. According to Mr Davison, that advertisement was in respect of a different draft environmental plan with which the council decided not to proceed. 30. Mr Davison claims that the fact that the council itself regarded the earlier plan as a distinct plan is evidenced by council's letter of 15 May 2000 in which it states: "It is anticipated that Council will not proceed with the draft LEP outlined to the Department in the section 54 letter dated 14 April 2000". Moreover, in its report to the Minister under s 69 the council refers to only one exhibition period, being the period from 1 June to 29 June, as fulfilling the requirements of public participation in relation to the plan. 31. It would be contrary to the scheme of the Act, according to Mr Davison's submission, to allow the council to rely upon a notification made of an earlier draft plan which was not proceeded with to support the validity of a later draft plan. The Act envisages that each draft plan should have its own notification and exhibition period, following through all the steps ordained by the legislature. The practical consequence of allowing such reliance in this case would be that members of the public who had observed and objected to the height restrictions in the first draft would be falsely led to believe that the council had abandoned such a proposal and was now putting to the public an alternative draft plan which had nothing in it of concern to them. It was submitted that members of the public who had not seen the first advertisement would also be prevented by the second advertisement from inspecting and responding to the second draft plan because they had received the false impression that only formal changes were to be implemented by the draft plan now being exhibited. The Respondent's Submissions 32. Mr P R Rigg, for the respondent, submits that the draft plan should be seen as comprising two elements, the first of which, the height restrictions, was duly notified by the advertisement of 20 April 2000 and the second of which, the zoning changes, was notified by the advertisement of 1 June 2000. As the final plan represents a consolidation of those two elements, he submits that the notification of both, and the exhibition of each draft as it stood at that time should be taken into consideration in determining whether the requirements of public notice under s 66 had been fulfilled. As it cannot be denied that the first advertisement clearly states that the effect of the draft plan will be to impose height restrictions in certain areas, it is submitted that the notification cannot be found invalid in the Litevale sense for misleading the public as to the impact of the proposed changes. 33. Mr Rigg alternatively submits that if the council is not entitled to rely on the first advertisement, the second advertisement is not itself misleading because the statement of purpose is inclusive of the purpose of imposing a two-storey height limit. The statement in the advertisement, that a purpose of the draft plan is to "recognise the difference between larger shopping centres and small neighbourhood shops", would be reasonably understood as including matters such as height limits, the details of which interested members of the public could ascertain by inspecting the draft plan. 34. Further alternatively, Mr Rigg submits that if the plan is invalid because the notice is misleading in that it fails to specify the two-storey height limit, this should not infect the whole plan. Rather, by virtue of s 32(2) of the Interpretation Act 1987, only the two storey height limit, which is quite severable, would be ineffective, and the rest of the plan, namely the changes to nominal zoning, would remain valid. Conclusions 35. It was held by the Court of Appeal in Litevale Pty Ltd v Lismore City Council that a notice given pursuant to the requirements of s 66 may fail to satisfy those requirements if, although it complies with the express requirements of the Act, it is inaccurate or incomplete and hence misleading: it would thus fail to perform the function of relevantly informing the public of the proposed changes to planning controls (at 102). This may be the case if the notice contains surplus information which would tend to lull prospective objectors into a false sense of security by particularising only some of the ramifications of the proposal and not others, leading them to believe that it goes no further. As Rolfe AJA said at 101-2: Although no explanation is required by s66 it is not suggested that if one is given the notice will be invalidated thereby. Problems will arise, however, if the notice, as it must do, directs members of the public to where and when all the relevant information may be inspected, but by the giving of incomplete or inaccurate information gives rise to the impression that their rights and interests will or may not be affected, so that it is unnecessary for them to accept the notice's invitation to inspect the relevant information. In those circumstances, the obviously beneficial effect of the giving of the public notice would be defeated by the inaccurate or incomplete information in it, which the Act does not require, so that notices under s 66, infected by inaccurate or incomplete information, have been held to be misleading and, hence, invalid. The fact that they comply with the express requirements of the Act does not, in my opinion, save such notices. 36. In Litevale itself, for example, an amendment to a planning instrument was advertised as being for the purpose of allowing extensions to a shopping centre. The Court found that the form of the advertisement was such that a reasonable reader would be led to believe that the only impact of the amendment was to allow such extensions, whereas the amendments in fact changed the planning controls in a certain area in a way which would permit other kinds of development not previously permitted in the area (at 110). On this basis the notice was found to be invalid. 37. Similarly, in the earlier decision of this Court in Canterbury District Residents & Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317, Stein J found that a notice under s 66 was invalid because it advertised a draft local environmental plan as being for the purpose of allowing a restaurant to be established in a park, whereas the draft local environmental plan went further, in fact making permissible other kinds of development in the park and purporting to cancel a restriction contained in a declaration of trust in respect of the park. 38. It is important to note that both of these decisions are based on a purposive interpretation of the public notification provisions. The judgments of Stein J in Canterbury and Rolfe AJA of the majority in Litevale, make clear in each instance that the reason a misleading notification will not fulfil the requirements of s 66 is that by giving potentially interested persons the false impression that there is nothing in the exhibited plan of concern to them, it neutralises the intention of the Act in providing for public participation in the plan-making process. This is explained in Canterbury at 320: While the public notice may be "in a form and manner determined by the Council", it must not relevantly be misleading: see Monaro Acclimatisation Society v The Minister (Land and Environment Court, 2 March 1989, unreported). If it is so misleading, then its purpose (and the purpose of the legislation) will be defeated. This is because it may prejudice the proper consideration of the draft LEP by the Council. The Council, even if it accidentally misleads members of the public as to the contents of a proposed plan, may be deprived of the benefit of the presentation of objectors' views. Put another way, a defective or misleading notice may take away from the public the right to object to a plan and their opportunity to participate in the process. Furthermore, those who do actually respond to the notice may have misconceived their objections or their submissions may be incomplete. 39. In Litevale, similar reasoning is used at 101-102 (cited above at par [35]), and further (at 102): …a real question of the validity of the notice may arise if, on a consideration of what is stated, it appears that on a fair reading of the notice by a member of the public, the notice may not have conveyed that the draft local environmental plan has a wider operation than stated, whether expressly or impliedly, such that if a member of the public had been aware of that operation he or she may have wished to avail himself or herself of the opportunity to consider all the documents exhibited. 40. Applying the abovementioned principles to the facts of this case, I must state firstly that I regard the first draft plan and the second draft plan as two separate plans, the first of which was never gazetted. It was abandoned, while the second draft, incorporating the amendments proposed in the first draft, went on to become Hurstville Local Environmental Plan 1994 (Amendment No. 23). 41. As Mr Davison pointed out, the council, in correspondence with the Department, referred to the first and the second draft plan as if they were distinct entities. It is also evident that, in important respects, the council treated them as distinct plans. As noted above, on 26 July 2000 the council resolved to "not proceed" with the first draft which it had adopted for public exhibition at its meeting on 12 April 2000; and the council further resolved to proceed with the second draft. It obtained separate certificates under s 65 for each; advertised and exhibited each separately; and provided separately the necessary notification to the Director-General under s 54 in respect of each plan. 42. The council's decision to treat the second draft plan as a distinct draft plan, in relation to which all of the statutory criteria had to be complied with afresh, was a prudent one, given the differences between the two drafts. If the council had attempted to rely solely on the public exhibition of the first draft plan to support the validity of the Hurstville Local Environmental Plan 1994 (Amendment No. 23), it would have been strongly arguable, by dint of the significant zoning changes contained in the final plan, that the final plan was in substance a different plan from that which had originally been exhibited, and that s 66 had therefore not been satisfied (see Leichhardt Council v Minister for Planning [No. 2] (1995) 87 LGERA 78 at 84). 43. The fact that the council only proceeded with the second draft plan does not mean, in my opinion, that the earlier public notification must be ignored. It is necessary, in my opinion, to consider the purpose of public notification required by s 66 and to then ask whether that purpose has been fulfilled. The earlier notification forms part of the context in which the later notification must be read. It may be that later notification in that context succeeds in fulfilling the purpose of s 66 whereas taken in isolation it would be found to be misleading. 44. The first advertisement, which appeared on Thursday 20 April 2000 (and was repeated on 4 May 2000) unambiguously declared that the purpose of the draft plan then being exhibited was to limit the height of buildings in certain specified areas to two storeys. The plan was exhibited for the requisite period of time and three submissions were made on the subject, two against and one in favour of the proposed amendment. 45. The explanation of the proposed amendments in the second advertisement was technically incomplete in that it said that the purpose of the draft plan exhibited on that occasion was only to "[s]implify and consolidate" other recent amendments, and to "[r]ecognise the difference between larger shopping centres and small neighbourhood shops". The council did not advertise the fact that it was not proceeding with the first draft plan. Moreover, anyone who had gone to inspect second plan would have discovered that, as much as the first, it embodied the purpose of imposing a height restriction, in addition to the purposes mentioned in the advertisement. 46. The council, having previously exhibited a draft on the subject of the proposed height restrictions, chose to draw attention in its second advertisement to those parts of the second draft plan which were not part of the first draft plan. The council was entitled to believe that anyone who was concerned about height restrictions had already been afforded an opportunity to examine the plan and make submissions; and that what was now necessary was to give an opportunity to people who might be concerned about the proposed zoning changes to inspect the plan and make submissions on that change. The explanation was apt to enhance public participation because, by drawing attention to those amendments in the second draft plan which were additional to those already the subject of inspection and submissions under the earlier plan, it made it more likely that people who had an interest only in the later changes would inspect the plans and make relevant submissions if they saw fit. 47. The public had already availed itself of the opportunity to make submissions on the subject of height restrictions; two submissions were made against, and one in favour of the proposed changes. The s 69 report shows that those submissions were taken into consideration in the decision to make the second plan. Having regard to the proximity in time between the public notification of the two plans - the period for submissions on the first draft had closed exactly two weeks before the second draft was advertised - it is unlikely that the views or circumstances of potential objectors had so altered that it was necessary to elicit fresh submissions upon this change. 48. In my opinion, members of the public, including objectors, who had seen the first advertisement and the first draft plan when it was exhibited, would not have been led by the second advertisement to believe that the first draft was no longer on foot. It is probably more likely that they would have believed that the changes in the first draft plan were being considered, while an entirely distinct proposal was being notified by means of the second advertisement. As noted above, the second notice did not advertise the fact that the council was not proceeding with the first draft plan. There can be no suggestion, however, of a failure to relevantly inform members of the public of the proposed changes to the planning controls. 49. I find that the public notification that took place, which included the notice of 1 June 2000, satisfied both the form and the purpose of s 66. In form it satisfied the technical requirements of the Act. In substance, although the notice of 1 June 2000 contained an explanation which did not itself give a complete picture of the proposed plan, in the circumstances of the case it nevertheless fulfilled the function of relevantly informing the public of the proposed changes and the function of allowing public participation in the making of the plan. In short, I find that the extra material which council included in that advertisement did not defeat "the beneficial effect of the giving of public notice" (Litevale at 102) because the public, only a month earlier, had had proper notice of those changes which that advertisement neglected to mention, and an opportunity to make submission thereon. There can be no suggestion that any member of the public was misled. Ground (ii): The council failed to comply with the provisions of s 54(4) of the EP&A Act and the provisions of cl 6(2) of the Environmental Planning and Assessment Regulation 1994 Legislation 50. The EP&A Act, at s 54(4), provides that the Director-General must be informed of the council's decision to make a plan: 54(4) A council or councils, as the case may be, shall inform the Director-General of the decision to prepare a draft local environmental plan and of the land to which it is intended to apply. 51. Clause 6 of the Environmental Planning and Assessment Regulation 1994 ("the Regulation") further provides that the information must be given in the manner and must include the particulars set out therein: (1) The information required by section 54(4) of the Act to be given to the Director of a decision to prepare a draft local environmental plan: (a) must be in writing; and (b) must be given within 28 days after the decision to prepare the draft plan is made; and (c) must include the particulars listed in subclause (2). (2) The particulars to be included are as follows: (a) the date of the council's decision; (b) the reasons for the council's decision; (c) a description of the land to which the draft plan is intended to apply, which may (but need not) consist of a map of the land; (d) an indication of the range of matters to be dealt with by the draft plan; (e) details of the current planning position of the subject land; (f) details of the known environment (including social and economic factors) of the subject land; and (g) the council's opinion as to whether an environmental study is necessary before the draft plan is prepared, together with the council's reasons for holding that opinion, giving details of any relevant existing environmental studies; (h) if the council is of the opinion that an environmental study is necessary, details of the matters that the council considers should be covered by the study. The Applicant's Submissions 52. The applicant alleges that in its letter to the Director-General of 15 May 2000 which was stated to be a notification under s 54(4), the respondent council did not fulfil the requirements of cl 6(2) in three respects: (1) The letter does not comply with par (d) in that it misdescribes the matters to be dealt with in the draft plan. According to Mr Davison the letter, like the advertisement of 1 June 2000 leaves height out of consideration. It states that the changes in question " only relate to text within the LEP; they do not alter specific controls ", and further on states: " it is stressed that the proposed amendments change nothing. They will merely simplify the planning process ". Mr Davison submits that although the letter refers in its first paragraph to the letter of 14 April 2000 and the height restrictions therein proposed, the council sets that notification from mind when it states: " it is anticipated that council will not proceed with the draft local environmental plan outlined to the department in the section 54 letter dated 14 April 2000 "; and the council thus directs the Department not to consider the information provided in the previous letter. (2) The letter does not did not comply with par (e) in that it does not give details of the current planning position of the subject land, specifically the fact that land not previously subject to height restriction was proposed to be subject to a two-storey limit. (3) The letter does not comply with par (f) in that it fails to describe in social, economic and environmental terms the consequences of the imposition of a height limit on the subject land. Mr Davison submits that Mr Goldsmith's affidavit shows that there were many potential impacts which ought to have been canvassed under this head. The Respondent's Submissions 53. Mr Rigg, for the respondent, submits that both the letter of 15 May 2000 and the previous letter of 14 April 2000 are relevant in considering the completeness of information provided to the Department pursuant to s 54(4). Given this, he responds as following to the applicant's allegations: (1) The two letters read together accurately describe the matters to be dealt with by the draft plan. The statement that the earlier plan is not to be proceeded with is followed by a statement that the draft plan outlined in the letter effectively supercedes the first draft and that " all relevant considerations " have been " incorporated under this draft LEP ", meaning that the later plan incorporates the height restrictions proposed in the earlier plan. (2) The letter of 14 April 2000 accurately describes the existing planning position, including the fact that the lands affected had not previously been subject to a height restriction. Given that the department was aware of the processes which were being followed, was in possession of both drafts and both letters, he argues that the department would not have been mislead as to what the actual planning position was. (3) Although Mr Rigg did not specifically address the par (f) issue in submissions it is clear that this paragraph is satisfied if the letter of 14 April 2000 is taken into account. Conclusions 54. In my opinion the letter of 15 May 2000 should be read together with the letter of 14 April 2000. For the reasons set out above (at par [40]) the respective drafts dealt with by each letter are to be regarded as legally distinct and the two letters as distinct attempts to fulfil requirements of s 54 in respect of each draft, but that does not prevent the council from incorporating by reference information provided in the first letter into the second letter. 55. The letter of 15 May 2000 begins with the words "Further to my letter dated 14 April 2000". This explicitly instructs the reader to consider the information provided in this letter in conjunction with the information already provided. It also bears a subject heading in bold-type the second line of which is: "2 storey limit for 3(a) Zone and certain lands within the 3(c) Zone". It is very clear, in my opinion, that a two-storey height limit is proposed in the amendment. 56. Neither do I accept that the body of the letter contradicts these indications. I refer, in particular, to the statement in the letter relied upon by Mr Davison. That statement is contained in a paragraph which reads: It is anticipated that Council will not proceed with the draft LEP outlined to the Department in the section 54 letter dated 14 April 2000. The draft LEP outlined in this letter effectively supercedes that draft LEP with all relevant considerations incorporated under this draft LEP. 57. While it is true that the statement "will not proceed" could be read as indicating that the previous draft LEP has been for practical purposes abandoned, the word "supercede" on the other hand suggests that some elements of the first draft are carried on and included in the second draft; and the second draft is not a completely unrelated plan. The statement "with all relevant considerations incorporated" is somewhat ambiguous, but in its context would probably be taken to mean that the salient features of the earlier plan have been incorporated in the later plan. Moreover, under the heading "Reasons for Council's decision" the letter states: "There is an urgent need to bring together all amendments and resolution relating to business zones and consolidate council's position on the matter." The letter also states that the draft instrument is attached. A reading of that document would leave one in no doubt as to what was intended by the amendments. 58. The letter of 15 May 2000 could have been more clearly expressed, but in my opinion a reasonable person would have taken from it that the information provided therein was to be read in conjunction with the information provided on 14 April 2000 and that the changes described in the later letter were in addition to those described in the earlier letter. 59. Turning to the letter of 14 April 2000 it can be seen that is has a bold subject heading "2 storey limit for 3(a) Zone and certain land within the 3(c) Zone", followed by a paragraph which describes the effect of the plan as being "to restrict the height of the buildings within the 3(a) Zone and certain lands within the 3(c) Zone". Under the sub-heading "Reasons for Council's Decision" the letter states: "The purpose of the draft plan is to limit the height of buildings within the 3(a) Zone and certain land within the 3(c) Zone, to two storeys." Again, under the sub-heading "Matters covered by the Draft Plan" the letter states: "Limiting the height of development to two storeys for land within the 3(a) Zone and certain land within the 3(c) Zone". 60. As noted above the letter of 15 May 2000 refers to the proposed height restrictions in its subject heading and the first paragraph, but focuses thereafter on the re-zoning changes. Taken together, the letters with the attached draft instruments describe accurately, for the purposes of cl 6(2)(d) the matters to be dealt with in the draft plan, namely the height restrictions and the re-zonings. 61. As to the alleged failure to comply with par (e) Mr Rigg quite rightly conceded that the description under the sub-heading "Current Planning Position" is technically inaccurate, in that it describes the position as follows: · A two storey height limit applies to land within the 3(a) Zone situated in the Peakhurst Ward (excluding the centre of Riverwood). · A two storey height limit applies to land within the 3(a) Zone (excluding the centre of Beverly Hills) and the 3(c) Zone, excluding the town centres of Penshurst, Mortdale, Narwee and Kingsgrove. · Riverwood and Beverly Hills are zoned 3(a). 62. The first and third dot-points are accurate. The second dot-point, however, describes not the then current planning position, but the position which would obtain if the height restrictions proposed in the first draft had been implemented without the additional re-zoning proposed in the second draft. This obviously serves the function of pointing out the kinds of anomalies which the re-zoning is designed to avoid. 63. The letter of 14 April 2000, however, contains an accurate description of the planning position prior both amendments. It clearly states that the height restrictions are to be imposed on land not previously subject to a height limitation. I am of the opinion that a reasonable person reading the two letters and referring the draft instrument attached thereto would have seen that what was intended by the second letter was to make a stage-by-stage comparison highlighting the need for the zoning changes and not to obscure the fact that the height restrictions were novel in the areas to which they were to be applied. Taken together, therefore, the letters accurately describe the planning position which obtained prior to the introduction of the plan. 64. The requirement to provide particulars of the known environment (including social and economic factors) under par (f) is satisfied in the letter of 15 May 2000 as follows: The environment is defined by consolidated local and district retail and commercial centres with nearby built up residential areas. 65. The same paragraph appears in the letter of 14 April 2000, while under the subheading "Reasons for the Council's Decisions" other salient features of the subject land and its environment are mentioned: The affected land is either located along busy arterial roads or consists of small neighbourhood shopping areas. They are generally inaccessible by public transport. The larger centres, located around railway stations and accessible by public transport, will not be affected by the draft plan. 66. This description of the known environment is brief but adequate. The current uses of the land and of surrounding land and its accessibility by public transport are characteristics of that environment which have both an economic and a social dimension. They are clearly relevant to the decision to limit the height of buildings. 67. Mr Davison's contention that the description fails to encompass the identifiable environmental impacts is not supported by the legislation, which calls only for particulars of the 'known' environment, which must be the current environment. I see no requirement under this paragraph for a prediction as to how this environment will be affected in the future by the proposed planning changes. 68. It follows that this ground of challenge to the validity of the plan fails. Ground (iii): The council failed to submit to the Director-General a statement complying with the provisions of s 68(4)(d)(iii) The Legislation 69. Sub-section 68(4) of the EP&A Act provides as follows: (4) The council shall, subject to and except as may be provided by the regulations, submit to the Director-General: (a) details of all submissions, (b) the report of any public hearing, (c) the draft local environmental plan and the reasons for any alterations made to the plan pursuant to subsection (3), and (d) a statement: (i) to the effect that the provisions of sections 66 and 67 and this section relating to public involvement in the preparation of the draft plan have been complied with, (ii) specifying the environmental planning instruments and directions under section 117 that have been taken into consideration, (iii) giving details of any inconsistency between the draft plan and any instrument or direction referred to in subparagraph (ii) and the reasons justifying the inconsistency, and (iv) giving details of the reasons justifying the exclusion of provisions of the draft plan under subsection (5) or the exclusion from the application of the draft plan of any land under that subsection. The Applicant's submissions 70. In Mr Davison's submission, the material provided by the council to the Director-General fails to comply with s 68(4)(d)(iii) in that it does not identify a relevant inconsistency between the draft plan and the existing Hurstville LEP 1994, namely the fact that the draft imposes a two-storey height limit on land not subject to a height limit under the existing plan. The Respondent's submissions 71. Mr Rigg, for the respondent, submits that s 68(4)(d)(iii) is concerned not with these kind of differences, but with inconsistencies between two planning instruments operating simultaneously, such as inconsistencies between a draft local environmental plan and a relevant regional plan or State environmental planning policy, between a draft local environmental plan and a s 117 direction, or between a draft local environmental plan and another local environmental plan operating in an adjoining area. Mr Rigg further submits that there was in any event no inconsistency between the draft plan and the existing Hurstville LEP 1994 but that the draft plan merely purposed an additional provision, which was to apply to development within a particular zone. Conclusions 72. The applicant's submission seems to be based on an assumption that the word 'inconsistency' simply means 'difference'. If this were so, any difference between the draft plan and an existing environmental plan would be an 'inconsistency' and would have to be specified under this section. I do not accept that this is what sub-s 68(4)(d)(iii) requires. 73. The Macquarie dictionary defines the word 'inconsistent' as follows: 1. Lacking in harmony between the different parts or elements; self-contradictory. 2. Lacking agreement, as one thing with another, or two or more things in relation to each other; at variance. 3. Not consistent in principles, conduct etc. 4. Acting at variance with professed principles. 5. Logic. Incompatible. 74. Lack of harmony between parts or elements, or the lack of agreement between one provision and another will normally only be of relevance when those parts purport to have simultaneous operation. In my opinion it is clear that the term 'inconsistency' in s 68 is not intended to refer to mere differences. I am fortified in this conclusion by the fact that provision is made elsewhere in the legislation for these kind of differences to be addressed; in particular in cl 6(2)(e) of the Regulation (discussed above at par [3]). That clause requires the council to provide "details of the current planning position of the subject land" by way of contrast with the planning changes proposed. In my opinion s 68(4)(d)(iii) serves a different function: that of highlighting discrepancies between a draft plan and other planning controls with which it will have to coexist. 75. In the present case there is no relevant inconsistency or discrepancy between the draft plan and the existing Hurstville LEP 1994. In particular, the two-storey height control in the draft plan, of which the applicant complains, is not an inconsistency but is rather an additional provision. This is not a matter to which s 68(4)(d)(iii) refers. This ground of invalidity fails. Ground (iv): The Director-General, by herself or by her delegate the council, failed to comply with the provision of s 69(d) of the EP&A Act The Legislation 76. Section 69(d) of the EP&A Act provides: 69 The Director-General shall furnish a report to the Minister as to - …. (d) the relationship between the draft plan, and other proposed and any existing environmental planning instruments, and any relevant directions under section 117, applying to the land to which the draft plan applies, and …. The Applicant's Submissions 77. Mr Davison, for the applicant, submits that the council's officer (acting as delegate for the Director-General), in her report pursuant to s 69, failed to report on the relationship between the draft plan and an existing planning instrument in that it failed to identify the fact that there would be imposed a two-storey height limit on land not previously subject to height restrictions. Respondent's Submissions 78. Mr Rigg, for the respondent, submits that the express reference to height restrictions in the second paragraph of the report satisfactorily reports on the relationship between the existing plan and proposed amendments. Conclusions 79. The second paragraph of the report furnished to the Minister under s 69 is in the following terms: The amendment applies a two storey height limit to buildings within the 3(a) Zone and certain land within the 3(c) Zone. The underlying basis for this restriction is to ensure that future development in affected areas is consistent with the scale and character of existing development. 80. I am satisfied that the phrase "[t]he amendment applies a two storey height limit" would ordinarily be read as meaning that the height limit was to be implemented where none had previously existed . If the height limit were merely being varied, one would expect the words 'variation' or 'revision' to be used, rather than 'application'; and one would expect to be told whether such revision was downward or upward. In the absence of any such indication, I find that the reasonable reader would take it to mean that the height limit was being imposed where there was none under the existing plan. 81. The applicant's contention that the report fails to comment on this important element of the relationship between the two plans cannot, therefore, be sustained. Ground (v): The Director-General, by herself or by her delegate the council, failed to comply with the provisions of s 69(e) of the Act. The Legislation 82. Section 69(e) of the EP&A Act provides: 69 The Director-General shall furnish a report to the Minister as to: ….. (e) such other matters (if any) relating to the draft plan as the Director-General thinks appropriate. 83. Although the instrument of delegation is not in evidence, the parties agree that the Director-General delegated her functions under s 69 to Rhonda Tyne, Divisional Manager, Policy Planning and Environment, who was an employee of the council. The Director-General's powers of delegation under s 23 of the Act relevantly provide as follows: 23(1) The Minister, corporation or Director-General may, by instrument in writing, under seal (in the case of the corporation), delegate any of the Minister's, the corporation's or the Director's functions conferred or imposed by or under this or any other Act as are specified in the instrument to: (a) any officer of the Department, (b) any officer, employee or servant of whose services the Director-General makes use in pursuance of this or any other Act. (c) any committee or subcommittee established under this Act, (d) a council, (e) an officer or employee of a council, or (f) a Commissioner of Inquiry, and may, by such instrument, revoke wholly or in part any such delegation. …(3) A delegation under this section may be made subject to such conditions or limitations as to the exercise of any of the functions delegated, or as to time or circumstance, as may be specified in the instrument of delegation. (4) Notwithstanding any delegation under this section, the Minister, corporation or Director-General, as the case may be, may continue to exercise all or any of the functions delegated. …The Applicant's Submissions

84. The applicant claims that that by means of Circular No. C30 (cited above at par [21]) the Director-General has specified a matter which she believes ought to be included in reports furnished under s 69, namely information on any development application which is under appeal in the Court and which may be affected by the draft plan. The Circular further requests that this information ought to include the date of lodgement of both the development application and the appeal, and advice on whether the draft local environmental plan includes savings/transitional provisions for the development application.
85. The applicant's development application and one other were subject to appeal in the Court at the time the draft plan was made. There is no mention of them, however, in the s 69 report. Mr Davison submits that the report is as a consequence not a valid report under s 69 of the Act.
86. Mr Davison points to sub-s 23(4) which provides that the Director-General may continue to exercise any function which has been delegated. That provision, in his submission, allows the Director-General to continue to exercise her discretion to determine what matters are to be included in a report although the function of preparing the report has been delegated. He submits that since the Director-General has exercised that discretion by declaring that details of development appeals are appropriate matters, the delegate no longer has any discretion but must include them in the report if such report is to be valid. The Respondent's submissions
87. Mr Rigg submits that s 69(e) merely gives the Director-General a discretion to include in the report additional matters to those specifically described in pars (a) to (d) of the section. If the function of writing s 69 reports has been delegated by the Director-General, then the delegate has the same discretions as the Director-General, including the discretion to determine what additional matters ought to be included in the report. He submits that, notwithstanding Circular No. C30, the delegate could therefore validly exercise her discretion not to include such matters in the report.
88. Mr Rigg submits alternatively that the Minister was, in any event, aware of the fact that an appeal was pending, because he was so notified by Mr Goldsmith's letter of 20 September 2000. Conclusions
89. The report furnished to the Minister under s 69 requesting the making of Hurstville Local Environmental Plan 1994 (Amendment No. 23) does not contain any reference to the applicant's development application nor to any other development application which was then subject to an appeal to the Court. It does not follow, however, that the report is invalid for failure to comply with s 69 (e). I have come to this view for the following reasons.
90. Firstly, Mr Davison's submission that in issuing Circular No. C30 the Director-General thereby exercised a power which she retained under s 23(4) of the Act (to exercise all or any of the functions delegated) is, in my opinion, one that cannot be sustained. If Circular No.C30 were really intended to operate in the way that Mr Davison suggests, imposing an inflexible requirement in respect of a function which the legislature intended to be discretionary, it would in any case be in excess of power. Where a decision-maker's discretionary functions under an Act are delegated, it has been held that the decision-maker may provide guidelines to his or her delegates as to how to fulfil those functions; but if, instead of guidelines, the decision-maker provides inflexible instructions as to how the discretion is to be exercised in every case he or she acts unlawfully, and decisions made in compliance with such instructions may be vitiated (Green v Daniels (1977) 51 ALJR 463 at 467).
91. Secondly, it does not appear from the language of Circular No.C30 that the Director-General intended thereby to exercise her discretion for the purposes of s 69(e) so as to leave no discretion in the hands of delegates exercising her function under that subsection. The first sentence of the Circular states that its purpose "is to advise councils". In its fifth paragraph it states: "councils are requested to include information…"; and: "The information should include". This is the language of counsel rather than command. It shows that the true intention of the Circular is to guide, not abrogate, the delegate's discretion.
92. Moreover, the intended consequence of non-compliance with the policy is made explicit in the last sentence of paragraph five of the circular: In cases of inappropriate action, the Director-General will consider revoking the delegations.
93. It is clear from the foregoing that the Director-General does not purport to bind her delegates so that they cannot validly fulfil their functions except within the terms of the circular. Rather, she recognises that they remain legally capable of complying or not complying with the policy which she has set out, but threatens to revoke their delegations if they do not. There is no evidence that the Director-General's delegate acted outside the terms of the instrument of delegation.
94. For the foregoing reasons, the delegate's failure to include in the s 69 report details of pending appeals which might be affected by the proposed draft plan does not invalidate the report or the local environmental plan which was gazetted as a result of that report. Conclusion
95. None of the claimed grounds of challenging the validity of the local environmental plan have been established. It follows that the application must be dismissed. It would also follow that in the usual exercise of the Court's discretion on costs there should be an order that the applicant pay the respondent's costs. Since costs have not been argued, however, I should reserve that question. Orders
96. I make the following orders: (1) The application is dismissed. (2) The question of costs is reserved. (3) The exhibits may be returned.

I hereby certify that the preceding 96 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd

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