Elimatta Pty Ltd v Read and Anor

y Council [2014] NSWCA 379 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 Western Sydney Conservation Alliance v Penrith City Council (2011) 83 NSWLR 402; [2011] NSWLEC 244 Category: Principal judgment Parties: Elimatta Pty Ltd ACN 008 580 167 (Applicant) Warren Eric Read (First Respondent) Yass Valley Council (Second Respondent) Representation: Counsel: S J Free SC with T J Boyle (Applicant) R White (First Respondent) J R Palmer, solicitor (Submitting Appearance) (Second Respondent)

Solicitors: Kamy Saeedi Law (Applicant) Bradley Allen Love Lawyers (First Respondent) Pikes & Verekers Lawyers (Second Respondent) File Number(s): 2020/00168050 Publication restriction: Nil

Judgment

1. In these judicial review proceedings commenced by summons filed on 5 June 2020, Elimatta Pty Ltd ('Elimatta') challenges the validity of a development consent (DA190020) dated 10 March 2020 ('Consent') granted by Yass Valley Council ('Council') to Warren Eric Read ('Mr Read') for the subdivision of land at 354 Majura Lane, Sutton.
2. Elimatta raises four grounds of review. The first and second grounds relate to Council's construction, and application, of certain provisions in the Yass Valley Local Environmental Plan 2013 ('YLEP') concerning lot size during the assessment of the Mr Read's development application ('Application'). In the remaining grounds, Elimatta contends that Council did not form the required states of satisfaction to grant the Consent, and that Council did not properly consider Elimatta's objection to the Application.
3. Mr S Free of senior counsel, with Mr T Boyle of counsel, appeared for Elimatta. Mr R White of counsel appeared for Mr Read. Council, being the second respondent in these proceedings, filed a submitting appearance save as to costs.
4. The Court received extensive documentary evidence and detailed written and oral submissions.
5. For the reasons that follow, I find that Elimatta is entitled to a declaration that the Consent is invalid and of no effect.

Evidence

1. As Elimatta's claims primarily arise out of the application of certain clauses in the YLEP, the factual background is largely uncontentious. Elimatta reads the affidavit of its solicitor, Michael Mascitti, sworn 28 August 2020 exhibiting 562 pages of documents extracted from Council's records in relation to Council's receipt and assessment of the Application.
2. The Court also received a statement of agreed facts.

Salient facts

1. Mr Read's land, the subject of the Application, comprises Lots 11, 32, 33, 67, 90, 112, 142, 197, 198, 287, 288, 300, 337 and 346 in DP 754882 and Lot 4 in DP 854668 and known as 354 Majura Lane, Sutton ('Land'), covers an area of approximately 391ha. At all relevant times the Land was zoned "RU1 Primary Production" under the YLEP.
2. Elimatta owns land adjacent to the Land.
3. On 11 February 2019, Mr Read lodged the Application with Council, seeking to subdivide the Land into 10 new lots in two stages, the first stage being five lots each of 20ha; and the second stage being five lots of 21.67ha, 59.69ha, 70ha, 70ha and 70ha respectively.
4. For clarity, a copy of the layout of the Land showing the proposed subdivision lots numbered 1-10 (and the areas thereof) is Annexure 'A' to this judgment.
5. As the average size of the proposed subdivision lots is 39.14ha, the Application included a written request titled "Application to vary a development standard" dated 11 January 2019 ('Variation Request'). The Variation Request was proffered by Mr Read (and considered by Council) as a written request made pursuant to cl 4.6 of the YLEP seeking a departure from the purported development standard in cl 4.1B(3) (which, as detailed below, required an average lot size of 40ha for the subdivision of land in the RU1 Primary Production zone). As will be seen, Elimatta does not accept that cl 4.1B(3) is a development standard which can be varied pursuant to cl 4.6.
6. The Variation Request suggested that compliance with the purported development standard in cl 4.1B(3) of the YLEP was "unnecessary" as the proposed subdivision met the objectives of both the RU1 Primary Production zone and the development standard, and was not against the public interest. It concluded that cl 4.6 should be utilised to allow the "minor" variation.
7. Having been notified of the Application, Elimatta lodged an objection to the Application dated 3 April 2019, which raised a number of issues, including, relevantly for the present proceedings, that the "staged" nature of the proposed subdivision creates a risk that, if the second stage is not proceeded with, the resulting subdivision would be "totally inconsistent with the objectives of the [YLEP]…" Elimatta agitated for confirmation that both stages of the proposed subdivision would occur to avoid rendering the provisions of the YLEP "otiose", and proposed conditions that would require the lots to be created in each stage of the proposed subdivision to meet the lot size requirements of cl 4.1B(3) of the YLEP (rather than just the proposed subdivision as a whole).

Legislative framework

1. Subdivision of land constitutes development under the EPA Act. The YLEP permits the subdivision of RU1 Primary Production zoned land with development consent, and contains a number of provisions that apply to the subdivision of land.
2. As considered later in this judgment, relevant to one of Elimatta's claims, "development standards" is defined in s 1.4 of the EPA Act (and the YLEP pursuant to s 11 of the Interpretation Act 1987 (NSW) ('Interpretation Act')) as follows: … development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of - (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, …
3. Certain provisions relating to lot size of subdivided land are contained in cll 4.1(3) and 4.1B of the YLEP. Clause 4.1 relevantly provides: 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows - (a) to minimise the likely impact of subdivision on the amenity of neighbouring properties, (b) to ensure that lot sizes and dimensions have appropriate regard to the characteristics of the land, the rural environment, the protection of biodiversity, significant geological and natural resources, the heritage and the built form of Yass Valley, (c) to ensure that subdivision reflects and reinforces the predominant subdivision patterns of neighbouring properties and surrounds, (d) to maintain the character of Yass Valley, (e) to ensure subdivision occurs in a planned and sustainable way, (f) to ensure subdivision does not create unreasonable or uneconomic demands for the provision or extension of services, (g) to prevent the subdivision of land on the fringe of urban areas into small lots that may negatively influence the layout of future urban areas. … (3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. …
4. It is uncontroversial that cl 4.1 of the YLEP applies to the Land, and that the effect of cl 4.1(3) and the "Lot Size Map" referred to in that clause is that the minimum lot size for any lot resulting from a subdivision of the Land is 40ha. The parties agree that cl 4.1(3) constitutes a development standard.

Issues and consideration

1. A summary of the pleaded grounds, the parties' submissions and my consideration for each of the four grounds of review follows.

Ground 1 - development consent is precluded by cl 4.6(6) of the YLEP

1. It is clear that the proposed subdivision contravened cl 4.1(3) of the YLEP because six of the lots to be created are less than the minimum size of 40ha. Further, because the average area of all the lots to be created is less than 40ha, one of the conditions of using cl 4.1B(3) is also not complied with.
2. Mr Read and Council sought to utilise cl 4.6 of the YLEP to depart from the purported development standard in cl 4.1B(3)(a) and grant the Consent. There are a number of preconditions to the operation of cl 4.6, including, relevantly, the requirement in cl 4.6(6)(a) that development consent not be granted if "the subdivision will result in 2 or more lots of less than the minimum area specified for such lots by a development standard".

Submissions

1. Elimatta submits that the wording "a development standard" in cl 4.6(6)(a) of the YLEP should be interpreted to refer to cl 4.1(3). On this basis, the granting of the Consent utilising cl 4.6 is precluded under cl 4.6(6) because while cl 4.1(3) specifies a minimum lot size of 40ha, six of the lots in the proposed subdivision of the Land have lot sizes of less than 40ha. Therefore, Council committed an error in granting the Consent because the minimum lot size arising from cl 4.1(3) was not satisfied.
2. In support of this position, Elimatta contends that cl 4.1(3) of the YLEP "plainly" creates a development standard which specifies a minimum area for lots resulting from subdivisions. As cl 4.1(3) is a development standard which applies to the proposed subdivision, cl 4.6(6) operates "to pick up the minimum area specified in cl 4.1(3)".
3. Elimatta rejects Mr Read's contention, considered below, that cl 4.1(3) of the YLEP is not relevant because Council utilised the "alternative pathway" of cl 4.1B(3) to grant the Consent. Elimatta submits that the language of cl 4.6(6), which uses the indefinite article "a" when referring to development standard, means that the phrase should be interpreted to also refer to cl 4.1(3).
4. Elimatta also casts doubt on whether cl 4.1B(3) of YLEP can be construed as a "development standard" for the purpose of cl 4.6(6), as a result of the structure and terminology of cl 4.1B(3). Elimatta notes that cl 4.6(2) provides for development which "contravenes a development standard". Elimatta characterises the wording of cl 4.1(3) as "prohibitive" as it provides that development consent must not be granted in certain circumstances, and submits that cl 4.1(3) is therefore a development standard that can be "contravened" for the purposes of cl 4.6(2). In contrast, Elimatta characterises the wording of cl 4.1B(3) as "permissive" and "facilitative", as cl 4.1B(3) allows development consent to be granted despite the prohibition in cl 4.1(3) when certain requirements are met. Elimatta's position is that where those requirements are met and cl 4.1B(3) is engaged, there is no "contravention" of a development standard for the purposes of cl 4.6(2) because cl 4.1 is read subject to cl 4.1B(3). Elimatta submits that where those requirements are not met, such as in the present circumstances where the average lot size does not meet the requirement in cl 4.1B(3)(a), the permissive exception in cl 4.1B(3) is simply not engaged and does not apply.

Consideration

1. This ground raises questions of statutory construction of the YLEP. While the applicable legal principles when undertaking the task of statutory construction in relation to environmental planning instruments are well known, some brief comment can be made at the outset.
2. The object of statutory construction is to construe the relevant statutory provision, so it is consistent with the language and purpose of the statue when considered as a whole. As a result, the statutory provision may, in certain (limited) circumstances, not be read in a way that reflects the literal or grammatical meaning of the statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], [78]. As stated by the High Court in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]: "The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (citations omitted)
3. These general principles are applicable to the interpretation of environmental planning instruments: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]. In this respect, while environmental planning instruments should be interpreted in a practical manner (such that meticulous examination of language is avoided), it is clear that this does not override general principles of statutory interpretation nor require "laxity or flexibility" when construing environmental planning instruments: Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]; Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45].

Ground 2 - failure to take into account and properly construe cl 4.6 of the YLEP

1. Elimatta contends that as a result of Council's erroneous reliance on cl 4.6 of the YLEP, the Consent is invalid. Specifically, Council's delegate (being the relevant decision-maker under the EPA Act) first, made a decision granting the Consent that was infected by a material error of law by misconstruing provisions of the YLEP during the assessment of the Application under s 4.15(1) of the EPA Act; and second, failed to discharge the duty imposed by s 4.15(1).
2. Section 4.15 of the EPA Act provides as follows: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and … that apply to the land to which the development application relates, …
3. The parties properly acknowledged in oral submissions that this ground was a variation on the issues ventilated in relation to Ground 1, and that if Elimatta was successful on Ground 1, then Ground 2 would fall away: Tcpt, 3 February 2021, pp 16(20-27), 39(17-22).

Submissions

1. Elimatta submits that where Council was required by s 4.15(1) of the EPA Act to consider the provisions of relevant environmental planning instruments, and Council proceeded on a "legally wrong understanding" of cl 4.6 of the YLEP, this means Council's delegate's decision to grant the Consent was infected by a material error of law: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118. Further, Elimatta submits that this legally wrong understanding also means that Council's delegate failed to discharge the duty imposed by s 4.15(1) of the EPA Act.
2. Elimatta contends that there is "no indication" in the material before Council's delegate that consideration was given to the restriction in cl 4.6(6) of the YLEP. Elimatta submits that Council's delegate ignored this limitation.
3. Mr Read, relying to some extent on the position adopted in relation to Ground 1, refutes Elimatta's contention that there was a misunderstanding of the YLEP, and as a result submits that there was no infection of the Consent, nor failure to discharge the duty imposed by s 4.15(1) of the EPA Act.
4. Mr Read submits that the material that accompanied the Application and the Assessment Report generated by Council correctly identified that the Application was submitted pursuant to the development standard in cl 4.1B(3) of the YLEP and required a variation to the development standard utilising cl 4.6. As such, Mr Read submits that there is no need for the Assessment Report to "explicitly" engage with cl 4.6(6) because "as a whole" the Assessment Report considered whether development consent could be granted under cl 4.6. In the circumstances, cl 4.6(6) was simply not engaged with because, on Mr Read's view, it did not preclude the granting of the Consent utilising cl 4.6.
5. Given this, Mr Read submits that there was no misunderstanding of the YLEP by Council's delegate, and no failure to discharge the duty imposed by s 4.15(1) of the EPA Act when granting the Consent.

Consideration

1. The issues raised by Ground 2 can be dispensed with shortly on the basis of my finding in relation to Ground 1.
2. I accept that, as posited by Elimatta, Council was required by s 4.15(1) of the EPA Act to consider the provisions of relevant environmental planning instruments which included the YLEP: s 4.15(1)(a)(i) of the EPA Act.
3. I find that Council's assessment of the Application, and Council's delegate's decision to grant the Consent was undertaken on the basis that cl 4.1B(3) of the YLEP was a development standard which could be varied pursuant to cl 4.6. In coming to this conclusion, I have had regard to the material before the Court referring to Council's assessment of the Application. I note the following: 1. The Variation Request made to Council purportedly in compliance with cl 4.6 of the YLEP, made it clear that Mr Read was seeking to "vary" cl 4.1B as the relevant development standard. It was prepared on the basis that the proposed subdivision generally complies with planning controls "other than the average lot size standard of the [YLEP]", and that "the variation is minor" as it only constitutes a small deviation from that development standard. 2. There is little, if any, reference in the material provided by Mr Read (in particular, the Variation Request) to cl 4.1 of YLEP. 3. Council considered the Application and dealt with the Variation Request as a variation from cl 4.1B(3) of the YLEP. This is clear from the Assessment Report which stated: "The proposal is presented to the Development Control Manager for approval as it involves a variation to the average lot size development standard in clause 4.1B(3) of the Yass Valley Local Environmental Plan 2013 (YVLEP). The proposed development contravenes the average lot size development standard by 2.2%..." 1. The Internal Memorandum also conceptualised the Application as being made with reliance on cl 4.1B(3) of the YLEP. This is clear from the description of the Application which noted: "The Development Application proposes a 10 lot subdivision of 354 Majura Lane, Sutton under the provisions of clause 4.1B(3) of the Yass Valley Local Environmental Plan 2013 (YVLEP). The proposed lots range in size from 20ha to 70ha, with the average lot size being 39ha. The average lot size is 1ha less than the average lot size permitted, which equates to a 2.2% variation to the development standard." 1. The Knox Memorandum noted that "[t]he subdivision is proposed under clause 4.1B (averaging) utilising clause 4.6 (variation to development standard)". Further, Council supported the variation on the basis that cl 4.1B(3) of the YLEP was the development standard being varied, as follows: "The requested variation to the development standards prescribed under clause 4.1B(3) of the Yass Valley Local Environment Plan 2013 is supported as: • The applicant's written request has adequately addressed the matters required to be addressed by Clause 4.6 [of the YLEP]. • The proposed development would be in the public interest because it is consistent with the objectives of the development standard and the UR1 Primary Production zone. The variation to the development standard has been detailed further in the Clause 4.6 Variation Report presented to the Development Control Manager and/or Acting Director of Planning."

Ground 3 - failure to form state of satisfaction required under cl 4.6 of the YLEP

1. Ground 3 raises the issue of whether Council's delegate had formed the required states of satisfaction in relation to the matters in cll 4.6(4)(a)(i) and (ii) of the YLEP prior to exercising the power to grant the Consent utilising cl 4.6(2).
2. The required states of satisfaction in cl 4.6(4)(a) are that: 1. Mr Read's written request adequately addressed the requirements of cl 4.6(3) of the YLEP - that is, demonstrated that compliance with the development standard is unreasonable or unnecessary in the circumstances, and demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard; and 2. The proposed subdivision will be "in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out".

Submissions

1. Elimatta submits that on the evidence before the Court, Council's delegate was not "properly directed" to consider the matters necessary to form the required states of satisfaction under cl 4.6(4)(a) of the YLEP, and that the Court should infer that Council's delegate therefore did not form the states of satisfaction. Elimatta relies on the matters recorded in the Assessment Report and the Knox Memorandum as evidence of Council's states of satisfaction, on the basis that Council is required under cl 4.6(7) to keep a record of its assessment of the matters required to be demonstrated in the Variation Request.
2. Elimatta took the position that where, properly understood, cl 4.1(3) of the YLEP is the relevant development standard which regulates the proposed subdivision, it is clear that Council's delegate did not and could not reach the required states of satisfaction under cl 4.6(4)(a) as the Application and Council's assessment of the Application was based solely on cl 4.1B(3) being the relevant development standard and did not engage with cl 4.1(3). Thus, if Elimatta is successful in making out Ground 1, then success on Ground 3 should follow as a matter of course.
3. In the alternative, Elimatta submits that even if cl 4.1B(3) of the YLEP was the relevant development standard, Council's delegate did not reach the required states of satisfaction as a result of deficiencies in the Variation Request and the consideration and reasoning in Council's assessment of the Application.
4. In this respect, Elimatta submits that the Variation Request was not properly directed at the matters to be considered by Council's delegate because: first, certain objectives of the development standards in cll 4.1(1) and 4.1B(1) are not addressed; second, that non-compliance with cl 4.1 is not addressed at all as the Variation Request was solely directed to non-compliance with cl 4.1B; third, that assertions about the relevance of objectives or purpose of standards are made, but not supported; fourth, that flawed arithmetic arguments about compliance with development standards are made; and fifth, that references to earlier development applications did not appear to be cross-checked by Council. As a result, Elimatta contends that the content of the Variation Request "falls short" of what was needed to form the required state of satisfaction under cl 4.6(4)(a)(i).

Consideration

1. Clause 4.6(4) of the YLEP is phrased in mandatory terms, such that Council "must not" grant development consent unless the required states of satisfaction have been met. If Council's delegate does not form the required states of satisfaction in cl 4.6(4)(a) of the YLEP, then the power to grant the Consent utilising cl 4.6(2) is not enlivened. In this way, the requirement that Council is "satisfied" as to the existence of particular matters was a precondition to the power to grant the Consent in circumstances where the proposed subdivision would contravene a development standard: Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [10].
2. Elimatta bears the onus of proving that Council's delegate did not form the required states of satisfaction: Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 2) [2010] NSWLEC 1; (2010) 172 LGERA 25 ('Caroona Coal Action Group') at [58]-[60], [69]; Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353; (2010) 178 LGERA 411 at [58], and must establish the absence of the necessary mental state on the balance of probabilities: 4nature Incorporated v Centennial Springvale Pty Ltd [2016] NSWLEC 121; (2016) 218 LGERA 289 at [155]. It is well accepted that the Court will not lightly infer that a consent authority such as Council has overlooked or failed to reach the required state of satisfaction, but rather this is a conclusion that would be reached after "anxious consideration": Parramatta City Council v Hale (1982) 47 LGRA 319 at 345.
3. The parties differ in relation to the extent to which the internal documents before Council, including the Assessment Report and the Knox Memorandum, can be used to ascertain Council's states of satisfaction - where Elimatta submitted that the content of the Assessment Report and the Knox Memorandum can be relied on as evidence of Council's states of satisfaction, while Mr Read submitted that these documents were not exhaustive. As noted by Preston J in Caroona Coal Action Group at [69], the onus to establish the absence of the required state of satisfaction can be discharged by reference to documentary material recording the decision-making process "if that material is sufficient to allow the Court to draw the inference" that the required state of satisfaction was not formed.
4. It is an agreed fact that Council's delegate "…agreed with the reasoning and conclusions in the Assessment Report and Knox Memorandum…". Where Council is required by the YLEP to keep a record of its assessment of the factors required to be addressed in the Variation Request, the Assessment Report, the Internal Memorandum and the Knox Memorandum (as the relevant parts of Council's records in relation to the assessment of the Application) provide important insights into this assessment, but are not exhaustive. Similarly, these documents also provide valuable insight into Council's assessment of whether the proposed subdivision is in the public interest as a result of consistency with certain objectives, but again are not exhaustive.

Ground 4 - procedural fairness issues in relation to Elimatta's objection

1. This ground relates to Council's consideration of Elimatta's objection to the proposed subdivision when assessing the Application. Section 4.15 of the EPA Act provides that in determining the Application, Council was required to consider "any submissions made in accordance with this Act or the regulations". In addition, Elimatta submitted that as a matter of procedural fairness Council's delegate must consider the substance of objections made, as "[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord… natural justice": Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 ('Dranichnikov') at [24]; DWN042 v Republic of Nauru [2017] HCA 56; (2017) 350 ALR 582 at [17].
2. As outlined above at [14], Elimatta made an objection in response to the notification of the Application which, inter alia, raised the risk that the second stage of the proposed subdivision may be discontinued, with the practical effect that any development consent granted for the proposed subdivision authorises the creation of five lots with sizes of 20ha in the first stage and a larger residue lot.

Submissions

1. Elimatta submits that while Council's delegate alluded to and acknowledged the objection made by Elimatta in relation to the proposed staging of the subdivision, there was "no engagement with the substance of the submission". Elimatta suggests that instead, Council appeared to consider a "straw man argument" (that was not raised by Elimatta) about further subdivision of the larger residue lot and how this could be mitigated, rather than a failure to complete the proposed subdivision. Elimatta submits that this demonstrates a "misunderstanding" of Elimatta's objection.
2. Mr Read submits that Elimatta's objection to the Application itself demonstrates a "misunderstanding of the [Application] and the [Consent] granted by Council". In particular, Mr Read notes that the Application clearly contemplated that the proposed subdivision was to occur in two stages for cost and practicality reasons, and there was no suggestion in the Application, or permission granted in the Consent, for only five of the lots in the proposed subdivision to be progressed.
3. Mr Read characterises the issue outlined in Elimatta's objection as a "hypothetical concern", and contends that this was addressed in the Assessment Report by reference to provisions of the EPA Act which allow Council to refuse the surrender of a development consent and give an order requiring the completion of a development. Further, Mr Read submits that the conditions of the Consent granted also deal with the issue raised by Elimatta, by clearly providing for all 10 lots in two stages to be developed.

Consideration

1. Having considered the competing submissions advanced by the parties, I do not find Elimatta to have made out this ground. I consider that on the evidence before the Court, Council engaged with the substance of Elimatta's objection based on the risk that the second stage of the proposed subdivision may be discontinued when assessing the Application and granting the Consent. This is illustrated by Council's reference to provisions in the EPA Act and associated regulations that allow Council to refuse the surrender of the Consent and to require completion of the proposed subdivision in the Assessment Report.
2. While I accept that Council turned its mind to an issue that was not raised by Elimatta, being the hypothetical further subdivision of the larger residue lot and how this could be mitigated, I do not consider that this undermines Council's consideration of the issue that was raised by Elimatta. Rather, I consider that two discrete issues were considered and assessed by Council, and that the consideration of the second issue does not undermine the consideration of the issue that was raised by Elimatta.
3. I consider that the references to the regime for "the surrender of a Development Consent" and the provisions which allow Council to "order a developer to complete a development" were directed to the risk that the development may be discontinued or not competed, being the issue raised by Elimatta. This focused on risks arising after the grant of development consent for the proposed subdivision, in the manner raised by Elimatta. In this respect, Council did not "fail to respond" to an argument that was raised by Elimatta: Dranichnikov at [24].
4. In contrast, I consider that the comments from Council in relation to a hypothetical further subdivision of the larger residue lot were premised on the assumption that a further development application in addition to the development consent for the proposed subdivision would need to be lodged, and dealt with the issues arising from that possibility.
5. In coming to this conclusion I note the comments of Kirby J in Wu Shan Liang at 291, when his Honour noted "[i]t is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law": Walsh v Parramatta City at [67]. In this respect, I do not consider some ambiguity in Council's expression of their consideration of Elimatta's objection in the Assessment Report to indicate that a denial of procedural fairness has occurred. Rather, read as a whole and in context, Council properly considered Elimatta's objection.

Relief

1. In light of my findings above, I consider that Elimatta is entitled to relief substantially in accordance with that relief sought in the summons, being first, an order that the Consent is quashed; and second, a declaration that the Consent is invalid and of no effect.
2. I note the submission of Mr Read in relation to the utilisation of s 25B of the Land and Environment Court Act 1979 (NSW) ('LEC Act'), and the power of the Court to make an order suspending the operation of the Consent and specifying terms that will validate the Consent. As s 25E of the LEC Act provides, I have a duty to consider making such an order instead of declaring the Consent invalid in whole or in part. Mr Read submits that making an order suspending the operation of the Consent and specifying terms for its validation would be a more beneficial outcome, where Council has determined that the proposed subdivision is in accordance with the objectives of the relevant zone and the public interest generally.
3. Mr Read directs my attention to previous cases in which the provisions of s 25B of the LEC Act were utilised to "cure" invalidity, suggesting that the Court's power is not limited to preliminary steps or technical breach but is "capable of greater width". Mr Read suggests that on the facts of these proceedings, the objects of the EPA Act and the obligations of the Civil Procedure Act 2005 (NSW) would support the Court exercising its power first, to require the Variation Request to be revised; and second, to require the Assessment Report to be revised to address the requisite states of satisfaction, or to engage more directly with the substance of Elimatta's submission on the Application. However, in oral submissions, Mr Read accepted that if Elimatta was successful on its first ground of challenge, the error causing invalidity of the Consent went back too far in the decision-making process to be cured by s 25B of the LEC Act.
4. Elimatta submits, and I accept, that the appropriateness of making of an order under s 25B of the LEC Act depends on the grounds which are made out - in particular, if the first or second grounds are made out, then it would not be appropriate to make an order under s 25B of the LEC Act, but if the third or fourth grounds are made out, it may be "viable" given Council's scope to reconsider the relevant matters. Elimatta rejects Mr Read's assertion that the Court can make orders to alter the Variation Request.

Costs

1. As Elimatta has been successful in these Class 4 proceedings, the usual order is that costs follow the event. However, as Mr Read sought to be heard on costs if Elimatta was successful, including possible apportionment of costs, and noting that Council submitted to the orders of the Court save as to costs, Mr Read and Council should be given an opportunity to be heard as to why they should not be ordered to pay Elimatta's costs, if they oppose such an order. The proceedings should be listed initially for a directions hearing to determine whether the respondents wish to oppose an order for costs in favour of Elimatta, and, if appropriate, to set a date for any hearing on costs.

Orders

1. The Court: 1. Declares that development consent granted by Yass Valley Council in respect of Development Application 190020 for development at 354 Majura Lane, Sutton ('Purported Consent for DA 190020') is invalid and of no effect. 2. Sets aside the Purported Consent for DA 190020. 3. Lists the proceedings at 9.30am on 20 July 2021 for directions concerning the question of costs of the proceedings (unless, in the interim, the parties reach agreement in relation to costs).

Annexure A (1447258, pdf) 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: 13 July 2021