[2016] FCA 1042
Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594
(2006) 149 LGERA 41
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226
(2009) 172 LGERA 338
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 Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353
Source
Original judgment source is linked above.
Catchwords
[2016] FCA 1042
Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594(2006) 149 LGERA 41
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226(2009) 172 LGERA 338
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 Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353(2010) 178 LGERA 411
City of Ryde Council v State of New South Wales [2019] NSWLEC 47(2013) 211 LGERA 196
Manly Council v Hortis [2001] NSWCA 81(2001) 113 LGERA 321
Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186(2013) 199 LGERA 147
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248[2010] FCAFC 145
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594[2011] HCA 1
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304(2018) 236 LGERA 176
Notaras v Waverley Council [2007] NSWCA 333(2007) 161 LGERA 230
Parramatta City Council v Hale (1982) 47 LGRA 319
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[1998] HCA 28
Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191
(2008) 166 LGERA 342
South East Forest Rescue Inc v Bega Valley Shire Council [2011] NSWLEC 250
(2011) 211 LGERA 1
Springer v Woollahra Municipal Council [2000] NSWLEC 135
(2000) 108 LGERA 392
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
[1976] HCA 36
Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390
(2009) 171 LGERA 112
Weal v Bathurst City Council [2000] NSWCA 88
[2004] NSWCA 422
Zhang v Canterbury City Council (2001) 51 NSWLR 589
Judgment (23 paragraphs)
[1]
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191; (2015) 213 LGERA 103
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342
South East Forest Rescue Inc v Bega Valley Shire Council [2011] NSWLEC 250; (2011) 211 LGERA 1
Springer v Woollahra Municipal Council [2000] NSWLEC 135; (2000) 108 LGERA 392
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 59
Taylor v Public Service Board of New South Wales (1976) 137 CLR 208; [1976] HCA 36
Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390; (2009) 171 LGERA 112
Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181
Wollongong Coal Pty Ltd v Minister for Planning and Environment [2016] NSWLEC 154
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Category: Principal judgment
Parties: Feldkirchen Pty Ltd (Applicant)
Development Implementation Pty Ltd (First Respondent)
Wingecarribee Shire Council (Second Respondent)
Representation: Counsel:
J Lazarus SC with J Farrell (Applicant)
A Galasso SC with N Hammond (First Respondent)
Submitting appearance (Second Respondent)
[2]
Solicitors:
B Bilinsky and Co (Applicant)
Wilshire Webb Staunton Beattie (First Respondent)
Marsdens Law Group (Second Respondent)
File Number(s): 2020/00248514
Publication restriction: Nil
[3]
Judgment
In these judicial review proceedings commenced by summons filed on 26 August 2020, Feldkirchen Pty Ltd ('applicant') challenges the validity of the approval granted by Wingecarribee Shire Council ('Council') on 27 May 2020 of modification application DA11/0767.01 ('Approval'), which modified development consent DA11/0767 ('Consent'), pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act').
The Consent provides for a 131-lot subdivision of land comprising Lot 1 in DP 1232714, at 61 Old Hume Highway, Mittagong ('Land'), and was granted to the owner of the Land, Development Implementation Pty Ltd, the first respondent in these proceedings ('respondent'), on 26 June 2019. The Approval deletes deferred commencement conditions from the Consent, amends other conditions of the Consent, and modifies the access arrangements to the Land (collectively, 'Modifications').
In its summons, the applicant raises two grounds of review. First, that Council failed to consider "the reasons given" for the original grant of the Consent, in circumstances where those reasons were mandatory relevant considerations when granting the Approval pursuant to s 4.55(3) of the EPA Act. Second, that Council did not form the necessary mental state, being an opinion of satisfaction, when granting the Approval, that the development to which the Consent as modified by the proposed Modifications relates was "substantially the same development" as the development for which the Consent was originally granted, as required by s 4.55(2)(a) of the EPA Act.
Mr J Lazarus of senior counsel, with Mr J Farrell of counsel, appeared for the applicant. Mr A Galasso of senior counsel, with Ms N Hammond of counsel, appeared for the respondent. Council, being the second respondent in these proceedings, filed a submitting appearance save as to costs.
For the reasons that follow, I find that the applicant has not established that Council erred in granting the Approval.
[4]
Evidence
The Court received an evidence book comprising 560 pages, containing documents relating to both the assessment and the grant of the Approval (including a transcript of Council's meeting on 27 May 2020), and the earlier assessment and the grant of the Consent. The applicant read the affidavit of Anthony Mark Hudson affirmed 5 May 2021.
As the applicant's challenge relates to Council's decision-making process when granting the Approval, the factual background is largely uncontentious.
[5]
Salient facts
The Land is located on the outskirts of Mittagong on the eastern side of the Old Hume Highway, between the intersection of the Old Hume Highway and Braemar Avenue and the intersection of the Old Hume Highway and Isedale Road. To the west of the Land is the Great Southern Railway Line.
The applicant is the owner of adjacent land immediately to the south of the Land, comprising Lots 2 and 3 in DP 607486 and Lots 1 to 8 in DP 1045844, at 71-73 Old Hume Highway, Braemar (collectively, 'Nattai Ponds'). An understanding of the physical relationship between the Land and Nattai Ponds, including the common boundary, is gleaned from Figure 1 below (being an annotated version of a figure extracted from the evidence book).
[6]
Figure 1 - interface between the Land and Nattai Ponds
The applicant has the benefit of a development consent dated 28 March 2013 for Nattai Ponds ('Nattai Ponds Consent'), which (as modified) provides for the subdivision of Nattai Ponds in four stages and associated works. The parties agree that the Nattai Ponds Consent contemplates "shared access arrangements" for the likely future development of the Land and Nattai Ponds, and more specifically, that a manner of egress from future development on the Land would be via lsedale Road through Stage 4 of the Nattai Ponds development to the Old Hume Highway. In this respect, the development of the Land and Nattai Ponds were "master planned" together.
The respondent sought development consent to subdivide the Land. An internal Council assessment report prepared in June 2019 ('Consent Assessment Report'), which was considered by Council before granting the Consent, engaged with the proposed access arrangements for the Land. It noted that the respondent had the right to construct an extension of Isedale Road through Stage 4 of the applicant's adjacent Nattai Ponds development at its cost, pursuant to a voluntary planning agreement. On this basis, the Consent Assessment Report recommended that development consent for the subdivision be granted subject to a deferred commencement condition requiring "the construction of the road and bridge across Nattai Rivulet".
[7]
Figure 2 - development of Nattai Ponds
Relevantly, Stage 4 of the Nattai Ponds development, being the eastern portion of Nattai Ponds, is yet to be constructed, as shown on Figure 2 above (being an annotated version of an aerial photograph extracted from the evidence book).
Council granted the Consent for the subdivision of the Land on 26 June 2019, subject to five deferred commencement conditions. This included the following deferred commencement condition regarding access to the Land via Nattai Ponds:
"Conditions of development consent that must be satisfied before the consent can operate
1. That legally enforceable arrangements are in place between the owner(s) of Lot 1 DP 1232714 ("the Site") and the owner(s) of that part of Isedale Road and Lot 355 DP 1228384 which will form the rear northern and western extension of Isedale Road (including any necessary bridge) ("the adjoining land"), which arrangements must provide for and authorise full and permanent access (including vehicular and pedestrian) over the adjoining land, for all current and future owners of the Site (including future owners of any subdivided parts of the Site)."
Simply stated, the deferred commencement condition meant that the Consent for the subdivision of the Land would not be operative until arrangements for the extension of Isedale Road through the adjoining Stage 4 of the Nattai Ponds development (owned by the applicant) had been made, so that the Land could be accessed, among other ways, through Nattai Ponds. While development of this area of land was approved as part of the Nattai Ponds Consent, as noted above, Stage 4 had not been constructed.
Accordingly, when the Consent was granted, access to the Land was envisaged to include an access route from the intersection between Isedale Road and the Old Hume Highway, through Nattai Ponds, to the Land via an extension of Isedale Road. The intersection between Isedale Road and the Old Hume Highway supports both left turns in and out, and right turns in and out. Additionally, direct access to the Land would also be available from the Land itself at the intersection of the Old Hume Highway and the road adjoining what is known as Kamilaroi House. However, this intersection would only support left turns in and out, and a right turn in only (with no right turn out).
On 20 December 2019, Council granted a further development consent DA20/0340 ('3-lot Consent') which had the effect of subdividing the Land into three lots as set out in Figure 3 below, providing for a "new realigned dedicated public road" adjoining Kamilaroi House in the southwest of the Land (updating the direct access to the Land to and from the Old Hume Highway referred to at [15] above), and providing for the extension of Lomandra Lane from Nattai Ponds to connect to the new road adjoining Kamilaroi House. The respondent notes that in approving the 3-lot Consent, Council was aware that Transport for NSW "in principle" agreed to change the traffic direction on Lomandra Lane from northbound to southbound to provide the new lots with access to the intersection between Old Hume Highway and Isedale Road.
[8]
Figure 3 - subdivision of the Land in the 3-lot Consent
On 10 January 2020, the respondent lodged a modification application for the Consent pursuant to s 4.55 of the EPA Act as follows:
1. Delete deferred commencement conditions 1, 2, 3, 4 and 5 in Schedule 1 of the Consent;
2. Change the traffic direction of Lomandra Lane from one way travel northbound to one way travel southbound (permitting residents of the Land to access the Old Hume Highway by travelling south along the one way Lomandra Lane and onto the western (built) portion of Isedale Road);
3. Amend conditions 18, 62, 66, 77, 82 and 92 in Schedule 2 of the Consent; and
4. Amend relevant sewer conditions.
Details of the proposed change to the traffic direction of Lomandra Lane are illustrated in Figure 4 below.
[9]
Figure 4 - proposed change to traffic direction on Lomandra Lane
The effect of the proposed change to the traffic direction of Lomandra Lane is that vehicles wishing to exit the Land and take a right hand turn from Isedale Road onto the Old Hume Highway are able to travel south down the existing Lomandra Lane and then turn right onto the existing Isedale Road, rather than proceeding south through Stage 4 of the Nattai Ponds development along the (yet to be built) extension of Isedale Road and then down the existing Isedale Road.
As considered further below, the respondent provided Council with a number of documents with the modification application, including a Statement of Environmental Effects prepared by Ryan Planning dated 10 January 2020 ('SEE'). Council officers prepared an internal assessment report in relation to the modification application ('Modification Assessment Report'), and Council granted the Approval on 27 May 2020.
It is Council's conduct in granting the Approval that is the subject of these judicial review proceedings.
The practical effect of the Approval was that the extension of Isedale Road northeast, through (undeveloped) Stage 4 of the Nattai Ponds development and the bridge across Nattai Rivulet, did not need to be constructed to facilitate the development of the Land. The respondent characterises this as a "factual circumstance of less development in the modified state than in the unmodified state". Although not strictly determinative, the applicant raises the lack of a temporal limitation on the southbound use of Lomandra Lane, meaning this change could constitute a permanent access arrangement for the Land. In response, the respondent highlights that the "main" access to the Land was, and remains, the direct access to and from the Old Hume Highway using the road adjoining Kamilaroi House, and that the southbound use of Lomandra Lane is temporary because once Stage 4 of the Nattai Ponds development is complete, the extension of Isedale Road through Stage 4 of Nattai Ponds, as contemplated in the original Consent, can be undertaken.
[10]
Legislative framework
The primary section in the EPA Act in relation to applications to modify development consents and the determination of those applications is s 4.55, which provides as follows:
4.55 Modification of consents - generally
…
(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if -
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
…
(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
…
As a result of the submissions made by the parties in relation to s 4.55 of the EPA Act, it is also relevant to consider the amendment of s 96(3) of the EPA Act (now s 4.55(3)) on 1 March 2018, to include the second sentence, and the contemporaneous insertion of mandatory requirements for community participation in the EPA Act pursuant to cl 4.1(14) of Sch 4 and cl 2.1 of Sch 2 of the Environmental Planning and Assessment Amendment Act 2017 (NSW) ('Amendment Act').
Clause 2.1(1) of Sch 2 of the Amendment Act inserted s 2.22 into the EPA Act, as follows:
2.22 Mandatory community participation requirements
(1) Part 1 of Schedule 1 sets out the mandatory requirements for community participation by planning authorities with respect to the exercise of relevant planning functions.
Note -
The mandatory requirements include public exhibition for a minimum period, public notification requirements and the giving of reasons for decisions by planning authorities. The regulations under that Schedule may also require community consultation by applicants for consents or other approvals.
(2) Those mandatory requirements for community participation include any other forms of community participation that are set out in a community participation plan under this Division and that are identified in that plan as mandatory requirements.
[11]
Issues
The parties contend, and I accept, that there are three overlapping issues for determination by the Court, as follows:
1. In granting the Approval, whether Council took into consideration "the reasons given" by it for the original grant of the Consent pursuant to s 4.55(3) of the EPA Act;
2. In granting the Approval, whether Council formed the necessary mental state, being an opinion of satisfaction, that the development to which the Consent as modified by the proposed Modifications relates was "substantially the same development" as the development for which the Consent was originally granted pursuant to s 4.55(2)(a) of the EPA Act; and
3. Whether, if the Court accepts the applicant's contentions, as a matter of discretion, the relief sought by the applicant should be granted.
For completeness, the applicant does not take issue with whether Council took into consideration those matters referred to in s 4.15(1) of the EPA Act that are relevant, as it was required to by the first sentence of s 4.55(3) of the EPA Act.
It is important to note that the applicant (as the party challenging the Approval) bears the onus of establishing, on the balance of probabilities, that the issues for determination by the Court should be answered in the negative, being that Council did not consider "the reasons given" by Council for the original grant of the Consent, and/or Council did not form the necessary mental state, being an opinion of satisfaction, that the development to which the Consent as modified by the proposed Modifications relates was "substantially the same development" as the development for which the Consent was originally granted: 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 LEC') at [60], [69]. The respondent is not required to affirmatively demonstrate that Council did consider the reasons for the original grant of the Consent and did form the necessary opinion of satisfaction: Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd [2010] NSWCA 353; (2010) 178 LGERA 411 ('Caroona Coal') at [57]-[58].
Further, it is clear that the issues for determination by the Court give rise to questions of inference, in circumstances where the Modification Assessment Report did not expressly refer to the legislative requirements in the EPA Act to consider the reasons given for the original grant of the Consent and to form the necessary opinion of satisfaction. As noted by Moffitt P in Parramatta City Council v Hale (1982) 47 LGRA 319 ('Hale') at 345:
"Proof of a state of mind whether of a person or collegiate body may be a matter of difficulty, but the person, who seeks under s. 123 [now s 9.45] to bring down a decision, must discharge that onus however difficult that may be and he must do so in accordance with proper legal requirements and by inference not suspicion. …A conclusion by a court finding a breach of s. 90 [now s 4.15] by way of inference is one to be come to only after anxious consideration, but when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has drawn."
[12]
Submissions
The applicant accepts that documents in Council's possession will generally be considered to be in the possession of Council members; and further, that there is a prima facie, rebuttable, assumption that members of Council will have read the material on Council's file: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 31; Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 ('Schroders Australia') at [67], [72]. However, in these proceedings, the applicant issued a notice to produce to Council on 14 May 2021 seeking "all documents relied upon by the Councillors of the Second Respondent [Council] in making the Determination [Approval]." The response to this notice to produce from Council's solicitors dated 7 July 2021, confirmed that the Modification Assessment Report and its eight attachments were before the Councillors for the purpose of being relied upon when determining the Approval. The applicant refers to Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304; (2018) 236 LGERA 176 ('Moorebank Recyclers') at [122] as authority for the proposition that this response to the notice to produce provides "sufficient clarity" as to what documents were before Council at the time that it granted the Approval.
The applicant contends that, where the documents referred to by the decision-maker can be identified (as is the case in these proceedings), whether an interference about an opinion of satisfaction or a matter being taken into consideration can be made will depend on the content of the documents which were before the decision-maker and upon which it based its decision: Currey v Sutherland Shire Council (1998) 100 LGERA 365 ('Currey') at 373. In this respect, on the applicant's submission, the Court should determine whether the applicant has established its challenges to the Approval on the basis that the only document before Council when granting the Approval was the Modification Assessment Report and its eight attachments. In this way, the applicant submits that it has discharged its onus of demonstrating that the SEE was not considered by Council when granting the Approval (where, as considered below, whether Council considered the SEE as relevant to the second ground of review and whether Council formed the necessary opinion of satisfaction).
While the applicant agrees that it would have been possible to seek to obtain a formal statement of Council's reasons for the Approval to assist its arguments in these proceedings, it submits that any such reasons would need to be treated with caution. The applicant also notes that a failure to utilise all available legal mechanisms to obtain evidence does not automatically lead to an inference that there is an evidentiary lacuna: 4nature Incorporated v Centennial Springvale Pty Ltd [2016] NSWLEC 121; (2016) 218 LGERA 289 ('4nature') at [159]. As such, the applicant rejects the respondent's position that it has failed to use the "forensic tools" that are available.
[13]
Consideration
I note that the requirement to consider the reasons given for the original grant of the Consent or correctly form the necessary opinion of satisfaction when granting the Approval applied to Council as a collegiate body, such that it is Council's collective consideration or state of satisfaction that is relevant. In assessing whether an inference can be drawn that Council did not consider the reasons given for the original grant of the Consent or did not form the necessary opinion of satisfaction, the whole of the evidence must be considered and assessed: Hale at 345.
The applicant referred the Court to previous decisions where the absence of evidence that a council took a matter into consideration meant it was appropriate to infer, from the evidence available, that the council did not consider the matter: Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321 ('Hortis') at [32]; Currey at 375; Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty. Limited [1999] NSWCA 134 ('Franklins') at [30]. As noted in Hortis at [22], these previous decisions do not establish "any new principle in relation to inferential fact-finding by the Land and Environment Court". Rather, they were decided on the basis of the available (or absent) evidence, and illustrate the drawing of an inference in the manner contemplated in Hale at 345, where Moffitt P reminded decision-makers not to hesitate to draw an inference if it is available on the evidence.
In considering the grounds of review in these proceedings, I proceed on the basis that it is clear from Council's response to the notice to produce that Council relied on the Modification Assessment Report and its eight attachments when granting the Approval. While I consider that this response to the notice to produce positively indicates certain documents were physically before Council, I do not consider it to "rule out" the possibility that other information was relied on by Council when determining the Approval. In this respect, while the response to the notice to produce is indicative of the physical documents that were before Council, it is not determinative of whether Council only exercised its mind on the basis of these physical documents.
In coming to this conclusion I do not give weight to the qualification in Council's solicitors' letter dated 7 July 2021 in response to the notice to produce indicating that the response was "to the best knowledge of those instructing us", which I consider to be an unfortunate, and unnecessary, turn of phrase. Rather, I accept the submission of the respondent that there were specific legal mechanisms available to the applicant to obtain further evidence regarding Council's decision-making process when granting the Approval, such as a statement of reasons and the administration of interrogatories, noting that these legal mechanisms have been previously identified by the Court to be useful: Caroona Coal at [70]; 4nature at [142].
[14]
Submissions
The applicant submits that in granting the Approval, Council was required to, but did not, consider the reasons it gave when originally granting the Consent pursuant to s 4.55(3) of the EPA Act. The applicant contends that taking into consideration the reasons for the original grant of the Consent was a mandatory relevant consideration, such that it is a precondition to the validity of the Approval (where a failure to consider the reasons given for the grant of a consent will "vitiate" the approval of a modification application so long as the breach is material to the approval of the modification application).
The applicant contends that the evident purpose of the requirement to consider the original reasons given for the grant of a consent in s 4.55(3) of the EPA Act (which is a relatively new requirement) is to ensure that applications to modify consents are not considered in a vacuum, and instead that departures from the original reasons for the granting of consents are justified. In this respect, the applicant submits that the requirement is a "significant burden that has been quite deliberately put into the [EPA] Act", intended to make it more difficult to obtain a modification.
The applicant makes three key points about the obligation in s 4.55(3) of the EPA Act. First, when taking reasons "into consideration", a decision-maker needs to inform itself "sufficiently". It is not enough simply to advert to the matter, rather, an understanding of the matter and its significance, and a process of evaluation is required: Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 ('Weal') at [80]-[95]. The applicant characterises the obligation as "active intellectual engagement" by the decision-maker: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145 at [57], [63]; Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186; (2013) 199 LGERA 147 at [66]. The identified reasons would then serve as a "focal point for, or constituted a fundamental element in", Council's assessment of the application for modification: Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 ('Zhang') at [64], [74]-[77]. On the applicant's submission, this did not occur as Council did not even advert to the reasons for the original grant of the Consent in granting the Approval, let alone understand and evaluate those reasons.
[15]
Consideration
This ground of review raises a number of contentions between the parties, the resolution of which are both interconnected and consequential. Accepting the proposition that s 4.55(3) of the EPA Act required Council to consider "the reasons given" by Council for the original grant of the Consent when granting the Approval, the first contention that arises between the parties is whether there were, in fact, any reasons which could have been considered by Council when granting the Approval. If there were reasons, then the second contention involves the identification of the content of those reasons (noting that this process of identification is also contentious between the parties). Following the identification of any reasons, the final contention is whether Council considered those reasons when granting the Approval, as it was required to do, pursuant to s 4.55(3) of the EPA Act.
Turning to the first contention, the respondent's primary position is that there were no reasons given by Council for the original grant of the Consent, adopting a narrow interpretation of the reference to "the reasons given" in the second sentence of s 4.55(3) of the EPA Act. In contrast, the applicant adopts a broader interpretation of the phrase in s 4.55(3), and submits that there were reasons given by Council for the grant of the original Consent, which should have been considered by Council when granting the Approval.
When considering the reference to "the reasons given" in the second sentence of s 4.55(3) of the EPA Act, the task before the Court is to construe the statutory provision so it is consistent with the language, context and purpose of the statue when considered as a whole. As noted 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)
[16]
Submissions
The applicant submits that Council did not form the necessary mental state, being an opinion of satisfaction, when granting the Approval, that the development to which the Consent as modified by the proposed Modifications relates was substantially the same development as the development for which the Consent was originally granted as required by s 4.55(2)(a) of the EPA Act. Forming the necessary opinion of satisfaction was a precondition to Council's exercise of the power to grant the Approval, and accordingly is an issue capable of review by the Court.
The respondent submits that Council's state of satisfaction under s 4.55(2)(a) of the EPA Act is a "special", subjective, kind of jurisdictional fact. In this respect, the respondent submits that the Court may "subject the Council's state of mind to judicial review, … but cannot itself determine the existence or non-existence of the facts to which the state of mind relates." Council is required to form an evaluative judgment in good faith, within the EPA Act's scope and purpose, as to the matters in the statutory provision, properly construed: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 ('Agricultural Equity Investments') at [139]-[161]; Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594; (2006) 149 LGERA 41 ('Bechara'); and Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [5].
The parties agree that the relevant legal principles to consider when assessing whether Council formed the necessary opinion of satisfaction were conveniently set out by Pepper J in 4nature at [153]-[161], and include the following:
1. The party seeking to establish jurisdictional error bears the onus of establishing on the balance of probabilities the absence of the necessary mental state: Caroona Coal LEC at [58]-[60], [68]-[70]. The other parties are not required to affirmatively demonstrate that the necessary mental state was held: Caroona Coal at [57]-[58];
2. A Court will not "lightly" infer that a decision-maker has overlooked or failed to reach the required state of satisfaction, it is a conclusion that would require "anxious" deliberation: Hale at 345; 4nature at [157]; and
3. While there are legal mechanisms to obtain reasons from a decision-maker and these may assist in establishing whether the required state of satisfaction has been reached, if the mechanisms are not used, this does not support an inference that there is an "evidential lacuna": Gold and Copper at [87]; 4nature at [159].
[17]
Consideration
I accept the requirement in s 4.55(2)(a) of the EPA Act, for a consent authority to be satisfied that the development to which the development consent as modified relates is substantially the same development as the development for which the development consent was originally granted, is a precondition to the exercise of the power to approve the modification of a development consent. I also accept the summary of the relevant legal principles to be considered when assessing whether this precondition has been satisfied in 4nature at [153]-[161].
Of particular relevance, in the circumstances, is the principle that where the applicant bears the onus of establishing the absence of the necessary opinion of satisfaction, the respondent is not required to affirmatively demonstrate that the necessary opinion of satisfaction was held (although it may be that the Court is satisfied that the evidence allows it to make a positive inference that the necessary opinion of satisfaction was held): Caroona Coal at [57]-[58].
Importantly, the formation of the necessary mental state is a matter for the consent authority, not the Court: Bechara at [42], [46]. I accept the respondent's submission that Council's state of satisfaction under s 4.55(2)(a) of the EPA Act is a "special", subjective, kind of jurisdictional fact: Agricultural Equity Investments at [161]. In this respect, it is not for the Court to determine, as an objective fact, whether the development to which the Consent as modified by the Approval relates was substantially the same as the development for which the Consent was originally granted. Rather, the Court is concerned with determining whether Council was itself satisfied that this was the case (although the Court may consider whether the opinion of satisfaction reached by Council was reasonably open to Council based on the evidence before it).
I also accept that the task to be taken by Council when reaching the necessary opinion of satisfaction is a comparison between two developments, being "the development as modified and the development as originally approved" (rather than a comparison between two documents, the Consent and the Consent as amended by the Approval): Arrage at [24]; Scrap Realty at [16].
This comparison can be undertaken a number of different ways, as noted by Preston J in Arrage at [27]-[28], albeit when determining an appeal from a Commissioner of the Court's decision pursuant to s 56A of LEC Act, as follows:
"This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry.
That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects [(No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298] at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17]."
[18]
Conclusion
After anxious consideration of the evidence before the Court and the written and oral submissions made by the parties, for the reasons above, I find that the applicant has not been successful in establishing either of the grounds of review raised in these proceedings.
[19]
Relief
The parties took different positions on the issue of the exercise of the Court's discretion to grant relief if the applicant established that Council erred in granting the Approval. In summary, the respondent submits that even if it was established that Council erred and there was a breach of the EPA Act, the Court would not, in the exercise of its discretion, grant the orders sought by the applicant because the applicant has not demonstrated that the breach is material, such that Council would have come to a different decision had the alleged errors not been made. The applicant submits that the respondent has not raised any discretionary reasons why the Court would not make the orders sought by the applicant, that it is "entirely possible" that Council would have come to a different decision had the alleged errors not been made, and that as a result, the Court should have "little hesitation" granting the requested orders.
Given my findings in relation to the two grounds of review, I do not need to resolve the issue of whether to exercise my discretion to grant relief.
[20]
Costs
The usual rule in Class 4 judicial review proceedings is that costs follow the event unless it appears that some other order should be made: r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW). On the evidence currently before the Court, I am of the preliminary view that the usual rule should be followed such that the applicant pays the respondents' costs. However, given the approach to costs in circumstances where the applicant was not successful was not canvassed by the parties in submissions and given Council filed a submitting appearance save as to costs, I am prepared to give the parties the opportunity to consider this further.
Unless an application for a specific order as to costs is made by any of the parties on or before 20 January 2022, I shall make an order that the applicant pays the respondents' costs, as agreed or assessed. If an application for a specific order as to costs is made, I will list the proceedings for mention in relation to costs on 27 January 2022.
[21]
Orders
The Court orders:
1. The judicial review proceedings commenced by Feldkirchen Pty Ltd by summons filed on 26 August 2020 are dismissed.
2. Costs are reserved.
3. If necessary, the proceedings will be listed for mention on 27 January 2022 at 9.30am in relation to costs.
[22]
Further order entered (12 April 2022)
As no application has been made for any costs order different to the usual rule that costs follow the event, as provided for at [129]-[130] above, I make the following order in relation to costs:
1. The applicant is to pay the respondents' costs, as agreed or assessed.
[23]
Amendments
07 September 2022 - Further order entered (12 April 2022) at par [132].
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: 07 September 2022
Parties
Applicant/Plaintiff:
Feldkirchen Pty Ltd
Respondent/Defendant:
Development Implementation Pty Ltd and Anor
Legislation Cited (7)
Environmental Planning and Assessment Amendment Act 2017(NSW)
Environmental Planning and Assessment Further Amendment (Miscellaneous) Regulation 2018(NSW)
Environmental Planning and Assessment Regulation 2000(NSW)
In addition, cl 2.1(2) of Sch 2 of the Amendment Act inserted new Pt 1 of Sch 1 into the EPA Act, which included cl 20, as follows:
20 Public notification of certain decisions and reasons for the decisions
(1) This clause applies to the following decisions:
…
(c) the determination by a consent authority of an application for development consent,
…
(2) The mandatory notification requirement in relation to a decision to which this clause applies is public notification of:
(a) the decision, and
(b) the date of the decision, and
(c) the reasons for the decision (having regard to any statutory requirements applying to the decision), and
(d) how community views were taken into account in making the decision.
Later, cl (1) of Sch 1 of the Environmental Planning and Assessment Further Amendment (Miscellaneous) Regulation 2018 (NSW) inserted cl 20(3) into Pt 1 of Sch 1 of the EPA Act, providing that "[t]he requirement in subclause (2) (c) may be satisfied by reference to any document that contains the reasons for decision."
Finally, when considering the operation of the scheme for mandatory requirements for community participation in the EPA Act with respect to the original grant of the Consent, the parties referred to cl 16 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) ('Transitional Regulation'), as follows:
16 Community participation plans
(1) A planning authority is required to prepare its first community participation plan under section 2.23 of the Act (as inserted by the amending Act) before 1 December 2019.
(2) Until the first community participation plan of a planning authority is prepared and published, mandatory community participation requirements under Schedule 1 to the Act that are to be determined by reference to the community participation plan of the planning authority are required to be determined by reference to the requirements of or made under the Act that would have applied but for the enactment of the amending Act.
In these circumstances, a preliminary matter that is relevant to both grounds of review is the evidence before the Court regarding the decision-making process undertaken by Council, and the implications for the inferences that are available to be drawn from this evidence.
Given this, prior to considering the parties' arguments in relation to the primary grounds of review, I will consider the evidence before the Court regarding Council's decision-making process, and the implications for whether an inference can be drawn that Council did not consider the reasons given for the original grant of the Consent or did not form the necessary opinion of satisfaction.
The applicant relies on the transcript of Council's meeting on 27 May 2020 as further evidence of Council's decision-making process. As will be further discussed in relation to the primary grounds of review, the applicant submits that a review of the transcript supports an inference that Council did not consider the reasons given for the original grant of the Consent, and did not form the necessary opinion of satisfaction, when granting the Approval.
Finally, the applicant accepts that the Councillors' general knowledge and knowledge from experience should be considered as part of Council's decision-making process, and in oral submissions accepted that the Councillors may be aware of the requirements of s 4.55(2) of the EPA Act. However, the applicant contends that a broad appreciation of the legislative regime does not mean the Councillors met the specific requirements of the EPA Act when granting the Approval, and so gives this limited weight.
Turning to the position of the respondent, the respondent embraces the assumption that the Councillors read the documents and have constructive knowledge of Council's file, and contends that this assumption has not been rebutted by the applicant: Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191; (2015) 213 LGERA 103 at [88]. In this respect, the respondent seeks to limit the effect of Council's response to the notice to produce, noting Council's solicitors' letter dated 7 July 2021 is "in qualified terms"; and further, that the notice to produce does not seek to expose the mental state or knowledge of the Councillors when they determined the Approval. Given this, while the response to the notice to produce provides information about the physical documents before Council, there is still an assumption that the material on Council's file was available to the Councillors (which would include the SEE).
The respondent notes that there are other legal mechanisms for obtaining evidence about Council's decision-making process that were available to, but not utilised by, the applicant, such as requesting a formal statement of Council's reasons for the Approval, and the administration of interrogatories which are designed to deal with issues regarding the mental state of decision-makers. In these circumstances, the respondent contends that the applicant "failed to use the forensic tools" available to displace the inference that the Approval was validly made, such that no inference can be made against the regularity of the decision-making process: Caroona Coal at [70]; 4nature at [142].
Like the applicant, the respondent also places weight on the content of the transcript of Council's meeting on 27 May 2020. However, unlike the applicant, and as discussed further in relation to the primary grounds of review, the respondent submits that a review of the transcript supports an inference that the Councillors were familiar with the Consent, and engaged with the Consent and application for the proposed Modifications for the purposes of forming the necessary opinion of satisfaction and considering the reasons given for the original grant of the Consent when granting the Approval.
Finally, the respondent also relies on general and specific knowledge held by the Councillors. The respondent places weight on the fact that the Councillors who granted the Approval were the same Councillors who had determined the original grant of the Consent less than a year prior, and contends that this imports a familiarity with the development the subject of the original grant of the Consent. The respondent also contends that the Councillors would have general knowledge of the legislative requirements for the modification of a development consent as a general provision of the statutory scheme for development in the EPA Act: Springer v Woollahra Municipal Council [2000] NSWLEC 135; (2000) 108 LGERA 392 ('Springer') at [44]. Further submissions regarding the implications of the general and specific knowledge held by the Councillors regarding the inferences that can be drawn are outlined in my consideration of the primary grounds of review.
That is not to say that the applicant's case is necessarily deficient because those legal mechanisms were not utilised: Gold and Copper Resources Pty Limited v Minister for Resources and Energy [2013] NSWLEC 66; (2013) 211 LGERA 196 ('Gold and Copper') at [87]; 4nature at [159]. Rather, the circumstances are analogous to Caroona Coal LEC at [70], where Preston CJ of LEC noted that the applicant could have, but did not, invoke the available judicial mechanisms to displace the inference that was otherwise available to be drawn on the basis of the (in that case, documentary) evidence before the Court.
Relevant to the evidence before the Court in these proceedings, the parties agree, and I accept, that the transcript of Council's meeting on 27 May 2020 provides evidence of Council's decision-making process when granting the Approval. I deal with the parties' competing submissions about the implications that can be drawn from the transcript in my consideration of the primary grounds of review.
In addition, I accept the respondent's submission that the Councillors held general and specific knowledge that may have informed the grant of the Approval. It is clear that a council may take into account matters that were before the council during previous considerations, matters which constitute the general knowledge of councillors (including of the relevant statutory scheme), matters which constitute individual expertise of councillors, and local knowledge: Hale at 340; City of Ryde Council v State of New South Wales [2019] NSWLEC 47; (2019) 242 LGERA 211 at [98] and cases cited therein. I accept that where the Councillors who granted the Approval were the same Councillors who had determined the original grant of the Consent, there would be some familiarity with the development the subject of the original grant of the Consent. I also accept that the Councillors would have general knowledge about the statutory scheme for development in the EPA Act, although I deal with the level of understanding of ss 4.55(3) and 4.55(2)(a) of the EPA Act separately in relation to the primary grounds of review.
Finally, in circumstances where the response to the notice to produce specifies the physical documents that were before Council, it does not appear that the SEE was discretely before Council when granting the Approval. In this respect, and acknowledging the complexity of the submissions made, I accept that the evidence marshalled by the applicant, in the absence of any evidence to the contrary marshalled in response by the respondent, rebuts the assumption that Council had constructive knowledge of the SEE as part of the material on Council's file: Moorebank Recyclers at [122]; cf. Schroders Australia at [72]; Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 ('Notaras') at [132].
Second, the reference to "reasons" encompasses "the grounds, facts or circumstances justifying the decision to grant the Consent" to the extent that those reasons were "given", with reference to the Court of Appeal's consideration of "reason" in Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390; (2009) 171 LGERA 112 ('Waugh Hotel') at [38]-[39]. The applicant contends that, having regard to the provisions of cl 20 of Sch 1 of the EPA Act in relation to the public notification of the reasons for a decision, it is not the reasons for the original grant of the Consent that need to be considered "per se", but rather the reasons given by Council for the original grant of the Consent. The applicant refers to the comments of Pain J in Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 59 ('Tasman Property') at [43], where her Honour noted that s 4.55(3) of the EPA Act does not require consideration of the circumstances behind the grant of the consent but rather the reasons given by the consent authority in granting the consent. Further, the applicant contends that the requirement to consider reasons is not limited only to those reasons that may be relevant to the modification, but rather encompasses all the reasons given for the original grant of the Consent.
Third, in circumstances where Council's decision-making documents do not "expressly" refer to the reasons for the decision to grant the Consent, this does not mean there were no reasons for the decision. Rather, the decision-making documents should be reviewed and the reasons for the decision ascertained, pursuant to Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 ('Premier Customs') at [32]; Wollongong Coal Pty Ltd v Minister for Planning and Environment [2016] NSWLEC 154 ('Wollongong Coal') at [17]-[18]. The applicant characterises ascertaining the reasons given for the original grant of the Consent as a "fundamental task" that should have been carried out by Council granting the Approval to modify the Consent. In this respect, the applicant contends that the minutes of Council's meeting on 26 June 2019, where the Consent was granted; the notice of determination dated 1 July 2019 (where the applicant draws the Court's attention to the "reasons" provided under each of the conditions in the notice of determination); and the Consent Assessment Report (which the applicant contends was "in effect" adopted by Council when it granted the Consent on terms recommended by the Consent Assessment Report), need to be taken into account when considering the reasons for granting the Approval. The applicant rejects the respondent's contention that no reasons were given.
Without ascertaining all the reasons for the original grant of the Consent, the applicant identifies the resolution of the issue of access to the Land requiring access via Isedale Road as a "fundamental" reason. The applicant contends that the "prominence" of this issue is illustrated in the notice of determination dated 1 July 2019 which indicated that the Consent had been granted subject to deferred commencement conditions (including deferred commencement condition 1 extracted above); the minutes of Council's meeting on 26 June 2019, which also noted the deferred commencement conditions; and the Consent Assessment Report, which noted the access issue and proposed conditions to confirm the access arrangements for the Land.
In contrast, the respondent takes the primary position that there were no "reasons" given within the meaning of s 4.55(3) of the EPA Act, such that there was no obligation on Council to take into account reasons when granting the Approval. The respondent submits that s 4.55(3) must be read in the context of the introduction of the requirement for mandatory community participation plans in Div 2.6 of the EPA Act. In circumstances where ss 2.22 to 2.24 and Pt 1 of Sch 1 of the EPA Act set out the mandatory requirements for community participation including the preparation of community participation plans (and cl 20 of Sch 1 is located within Pt 1 of Sch 1), and, at the time the Consent was granted there was no community participation plan in force, there was therefore no statutory obligation to provide reasons for Council's decision for the original grant of the Consent, and as a matter of fact, no reasons were provided.
The respondent rejects the applicant's reliance on the approach to reasons in Waugh Hotel, given its contentions about the relationship with mandatory community participation plans, and also Premier Customs, on the basis that the case relates to the assessment of reasons of a Commissioner of the Court and thus is irrelevant to the formulation of the provision of reasons under the EPA Act. Instead, the respondent submits that the reference to "the reasons given" by the consent authority in s 4.55(3) of the EPA Act is undefined. The respondent also takes issue with the formulation of "focal point" from Zhang in circumstances where the decision concerns a different statutory provision and context.
In the alternative, the respondent submits that Council fulfilled its obligation under s 4.55(3) of the EPA Act. While accepting that the Modification Assessment Report did not refer to s 4.55(3), the respondent contends that this absence does not lead to a conclusion that Council failed to consider the reasons given by Council for the original grant of the Consent because, first, the Modification Assessment Report refers to s 4.55 of the EPA Act more generally; second, the absence of reasons means there was nothing to refer to; and, third, to the extent that the Consent Assessment Report constitutes the reasons given for the original grant of the Consent (which the respondent denies), the Modification Assessment Report was entitled to engage with those reasons in "a similar broad manner".
In oral submissions, the respondent further noted that to the extent that there were reasons identified in the notice of determination dated 1 July 2019, those reasons were taken into account when granting the Approval. It points to three matters. First, Transport for NSW made a submission noting the proposed access arrangements for the Land and indicating it would not object to the proposed Modifications, which was referenced in the Modification Assessment Report. Second, where reasons were provided for specific conditions, these were engaged with in the Modification Assessment Report and the transcript of Council's meeting on 27 May 2020. The respondent also rejected the applicant's broad construction of "reasons" and submitted that only the reasons relevant to the proposed Modifications needed to be considered (in circumstances where a modification is not an avenue to reopen a decision). As such, the only relevant reason for the purpose of the proposed Modifications was the reason for condition 62, which identified that the condition was imposed to ensure access to the Land. Third, where the same Councillors granted the Consent and granted the Approval, the Court would be entitled to assume they were aware of the reasons given for why they originally granted the Consent.
Turning to the content of the Modification Assessment Report, while the parties agree that the Modification Assessment Report did not refer to s 4.55(3) of the EPA Act, they take different positions on the inference that can be drawn from Council's consideration of the reasons given for the original grant of the Consent. The applicant submits that Council failed first, to identify the reasons given for the original grant of the Consent; and second, to include those reasons in its consideration of the application for the Modifications. The applicant refers to the conclusion of Street CJ in Hale at 331, being that "there was no real opportunity afforded to the aldermen present as a group at that meeting to comprehend, let alone give consideration to, the content or significance of the [relevant matter]".
The applicant submits that while the Modification Assessment Report claimed that the proposed Modifications had been assessed "in accordance with the matters for consideration under section 4.55 of the [EPA Act]", the application for the proposed Modifications, and the Modification Assessment Report, did not refer to Council's reasons for the original grant of the Consent and the reasons were also not discussed at Council's meeting on 27 May 2020. Accordingly, this assertion can be dismissed as "mere advertence", it being insufficient to discharge Council's statutory obligation. The applicant rejects the respondent's reliance on the general discussion of traffic and access issues and the alternative access arrangements for the Land in the Modification Assessment Report and in the transcript of Council's meeting on 27 May 2020 - submitting that this constitutes Council's consideration of the merits of the application for the proposed Modifications, rather than a consideration of the reasons given for the original grant of the Consent for the purposes of s 4.55(3) of the EPA Act.
In contrast, the respondent contends that satisfaction of a statutory requirement does not require specific advertence to that requirement, and accordingly, a failure to refer to particular matters in the Modification Assessment Report or otherwise, does not necessary support the conclusion that it has not been taken into account. Whether an inference can be drawn will depend on the surrounding facts and circumstances, including the decision-making documents and the statutory context: 4nature at [149]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [67], [70].
The respondent submits that a "beneficial construction" should be afforded to reasons (complete or incomplete) which explain the basis for a challenged decision: Australian Conservation Foundation Inc v Minister for the Environment (2016) 251 FCR 308; [2016] FCA 1042 at [141]-[147]. The respondent submits that the Court would be satisfied that the Modification Assessment Report addressed and evaluated Council's reasons given for the original grant of the Consent and the imposition of conditions on the Consent, for the following reasons:
1. Access to the Land through Nattai Ponds was a "material and essential feature" of the Consent;
2. The Modification Assessment Report compared the Consent as granted and the proposed modification to the Consent (echoing the language of the Consent Assessment Report);
3. The Modification Assessment Report analysed traffic and road access issues and indicated that the deferred commencement condition was no longer required; and
4. Accordingly, the reason for deleting deferred commencement condition 1 was "at the forefront of consideration" when Council decided to approve the Modifications.
With this in mind, I find that it is clear that the purpose of the second sentence of s 4.55(3) of the EPA Act, requiring that the consent authority take into consideration the reasons given by the consent authority for the grant of the original consent that is sought to be modified (in addition to consideration of the matters referred to in s 4.15(1) of the EPA Act which are relevant to the development which is the subject of the modification application), is to require the consent authority to keep in mind the results of the previous assessment and determination process that was undertaken when granting the original consent, when assessing and determining an application to modify that consent.
I consider that the use of the definitive "the" as well as the past participle "given" in the second sentence of s 4.55(3) of the EPA Act restricts the consent authority's obligation to consider reasons to those objectively identifiable reasons that are specifically produced by the consent authority when granting the original consent.
In this respect, and applying the principles of statutory construction, an interpretation of s 4.55(3) of the EPA Act which gives the terms "the" and "given" work to do is to be preferred to an interpretation that does not: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [71]; Taylor v Public Service Board of New South Wales (1976) 137 CLR 208; [1976] HCA 36 at 213. This interpretation is also consistent with the distinction drawn by Pain J in Tasman Property at [40], [43] and [55], being that s 4.55(3) imports a requirement to consider the reasons given for the grant of development consent by the consent authority, rather than the background circumstances in which the development consent was granted.
As noted by the respondent, the introduction of the second sentence in s 4.55(3) of the EPA Act on 1 March 2018 coincided with the introduction of mandatory requirements for community participation by planning authorities with respect to the exercise of certain planning functions in the EPA Act, which oblige the consent authority to publicly notify the reasons for the determination of an application for development consent (where it was later clarified that the public notification requirement could be satisfied by reference to any document that contains the reasons for the decision): s 2.22 and cl 20 of Sch 1 of the EPA Act; cl 4.1(14) of Sch 4 and cl 2.1 of Sch 2 of the Amendment Act.
I find the inclusion of a specific provision for the giving of reasons by consent authorities when determining applications for development consents in the EPA Act to be another factor supporting the conclusion that the narrow interpretation of "the reasons given" in s 4.55(3) of the EPA Act should be adopted. Where objectively identifiable reasons are specifically produced by the consent authority when granting the development consent to comply with cl 20 of Sch 1 of the EPA Act, the broad interpretation of "reasons" in the second sentence of s 4.55(3) proposed by the applicant is not required to achieve the purpose of the section.
The applicant relies on cl 20(3) of Sch 1 of the EPA Act and the reference to satisfying the requirement for public notification of the "reasons" by reference to any document that contains the reasons for the decision, and submits that this means there is no requirement for a discrete document that purports to constitute the reasons for the original grant of the Consent. I accept that no discrete document is required for the purposes of cl 20(3) of Sch 1, but do not consider this to be inconsistent with my interpretation of s 4.55(3) of the EPA Act, as the requirement to consider objectively identifiable reasons that are specifically produced by the consent authority when granting the development consent could be fulfilled through consideration of multiple documents that contain the objectively identifiable reasons, and consideration of documents that contain other content in addition to the objectively identifiable reasons.
The respondent submits that there were no objectively identifiable reasons specifically produced by Council when granting the Consent, because in the specific circumstances of the original grant of the Consent, there was no obligation for public notification of the reasons for Council's determination of the Consent. This is because the absence of a community participation plan and the operation of cl 16(2) of the Transitional Regulation deferred the operation of the obligation for public notification of the reasons pursuant to cl 20 of Sch 1 of the EPA Act, such that the reasons for the original grant of the Consent were not required to be provided, and as a matter of fact, were not provided.
I do not accept the respondent's submission that the reasons for the original grant of the Consent were not required to be publicly notified. Section 2.22(1) of the EPA Act identifies that Pt 1 of Sch 1 of the EPA Act sets out the mandatory requirements for community participation (where Pt 1 of Sch 1, by dint of cl 20 of Sch 1, includes the obligation for public notification of the reasons). In contrast, s 2.22(2) contemplates "other" forms of community participation that are set out in a community participation plan (being a plan about how and when a consent authority will undertake community participation when exercising relevant planning functions pursuant to s 2.23 of the EPA Act) and also identified as being mandatory requirements for community participation. Clause 16(2) of the Transitional Regulation is directed to mandatory community participation requirements under Sch 1 of the EPA Act that are to be "determined by reference to the community participation plan of the planning authority". It does not appear to me that the requirement for the reasons for a decision to be publicly notified in cl 20 of Sch 1 is determined by reference to the community participation plan of the planning authority. Rather, it is applicable, notwithstanding the existence and content of a community participation plan, pursuant to s 2.22(1) and cl 20 of Sch 1 of the EPA Act. As a result, I accept the applicant's position in relation to the operation of cl 16(2) of the Transitional Regulation.
However, despite the operation of the mandatory requirements for community participation in the EPA Act, on the evidence before the Court, I consider that there were no objectively identifiable reasons that were specifically produced (moreover "given") by Council when granting the Consent. In support of this conclusion I note the following: first, the Consent Assessment Report was prepared for Council's consideration prior to Council granting the Consent and so was not specifically produced by Council when granting the Consent; second, the minutes of Council's meeting on 26 June 2019 are limited to recording (in plain terms) Council's decision to grant the Consent subject to certain conditions and cannot be characterised as constituting reasons for the Consent; and third, notwithstanding the inclusion of reasons for the imposition of conditions in the notice of determination dated 1 July 2019, these reasons can be distinguished from the reasons given for the grant of the Consent (where the former are required to be included in a notice of determination pursuant to cl 100(1)(c) of the Environmental Planning and Assessment Regulation 2000 (NSW) ('EPA Regulation') and are directed at elucidating the motive for imposing discrete conditions in circumstances where this is relevant to the statutory right of appeal on the merits, and the latter are concerned with the Consent as a whole and directed at fulfilling mandatory requirements for community participation in the EPA Act pursuant to cl 20 of Sch 1 of the EPA Act). I have also considered the other evidence before the Court and have not identified any document which can be considered to be objectively identifiable reasons that were specifically produced by Council when granting the Consent. In conclusion, I find that where no reasons were given by Council when granting the Consent, there was no obligation on Council to consider the reasons for the original grant of the Consent when granting the Approval. As such, I find that Council did not fail to consider a mandatory relevant consideration, and that this ground of review raised by the applicant has not been made out.
Notwithstanding this conclusion, which is determinative of this ground of review, I have considered the alternative outcome if I am wrong in relation to the first contention between the parties, such that the reference to "the reasons given" in s 4.55(3) of the EPA Act should be interpreted in a broader manner (with the result that the reasons for the original grant of the Consent did not need to be objectively identifiable and specifically produced by Council when granting the Consent but instead, as submitted by the applicant, constitute the more general "grounds, facts or circumstances justifying the decision to grant the Consent"). In these circumstances, the second contention between the parties needs to be resolved and the reasons for the original grant of the Consent and the content thereof need to be identified by the Court.
The applicant's position is that the process of ascertaining the reasons requires a review of the decision-making documents utilised by Council to determine "as best it [the relevant decision-maker] can what were the essential reasons for a decision": Premier Customs at [32]. The applicant identifies three relevant decision-making documents from which to ascertain those reasons, and contends that the resolution of the issue of access can be identified as a reason (as identified at [57] above), such that Council was required to (and did not) consider this reason when granting the Approval. The respondent's position is that to the extent that there were reasons given (which it denies), the reasons were those "apposite" particular conditions and were identified in the notice of determination dated 1 July 2019.
In considering this position, as I noted above, cl 100(1)(c) of the EPA Regulation requires reasons for the imposition of conditions to be included in the notice of determination of a development application (where this provision existed prior to the imposition of the second sentence of s 4.55(3) and the mandatory requirements for community participation in the EPA Act).
I do not consider the applicant's reliance on Premier Customs to be persuasive in circumstances where that case was concerned with the identification of reasons in a Commissioner of the Court's decision to grant development consent in the course of an appeal to a Judge of the Court pursuant to s 56A of the Land and Environment Court Act 1979 (NSW) ('LEC Act'). This process can be distinguished from the circumstances before me, which concern the identification of reasons in a previous decision of Council to grant a development consent in the course of a determination to grant a modification to that consent. In the former circumstances, the Court is reviewing reasons for a decision for appealable error; in the latter, Council is considering the reasons for a decision as a factor to be taken into account when making a further determination in accordance with the statutory scheme in the EPA Act. The same analysis arises in relation to the applicant's reliance on Wollongong Coal.
I have closely considered each of the minutes of Council's meeting on 26 June 2019, where the Consent was granted; the notice of determination dated 1 July 2019; the Consent Assessment Report identified by the applicant as containing the reasons given for the original grant of the Consent; and the parties' submissions regarding the identification of reasons. In these circumstances, and noting this conclusion is only relevant if my primary finding at [77] above was wrong, I prefer the position of the respondent and find that to the extent that there were reasons given by Council, the reasons were the reasons for the imposition of conditions provided by Council in the notice of determination dated 1 July 2019 pursuant to cl 100 of the EPA Regulation. The notice of determination provides a specific "reason" under most, but not all, of the 98 conditions of the Consent in Schedule 2.
I consider recourse to the Consent Assessment Report when ascertaining the reasons for the original grant of the Consent to be inappropriate, as the content of the Consent Assessment Report is better characterised as outlining the "reasoning" behind the original grant of the Consent. This again engages with the distinction between the reasons given for the grant of a development consent and the circumstances behind the grant of a consent: Tasman Property at [43]. Finally, I do not consider the minutes of Council's meeting on 26 June 2019 to constitute reasons, where those minutes simply record the content of the determination made by Council. While there is a reference to Attachment 1 to the Consent Assessment Report in the minutes of Council's meeting, that reference functions to incorporate the substantive draft conditions of the development consent in the decision, and does not provide reasons for that determination.
Having made this finding, and again on the assumption that if I am wrong in my finding at [77], the final contention regarding whether Council considered the reasons when granting the Approval needs to be addressed. The applicant's position is that Council was obliged to consider all the reasons, whereas the respondent contends that the only those reasons relevant to the application to modify the Consent were required to be considered. I accept the respondent's submission, and find that the scope of the second sentence in s 4.55(3) of the EPA Act should be interpreted having regard to its context. Where the requirement to consider matters required in the first sentence of s 4.55(3) is limited in scope to matters "of relevance to the development the subject of the application", the scope of the second sentence would be limited in a similar manner.
Further, I accept the respondent's submission that the broad scope of the second sentence in s 4.55(3) of the EPA Act contended for by the applicant, would lead to an absurd or unreasonable outcome where s 4.55 is clearly part of the regime for the modification of development consents in the EPA Act. In this respect, an interpretation of the second sentence in s 4.55(3) that requires a consent authority to consider the whole gamut of conditions imposed on a development consent when determining an application to modify one such condition is unreasonable.
Given this, I find that the obligation to consider "the reasons given" for the Consent in the second sentence of s 4.55(3) of the EPA Act is limited to those reasons which are relevant to the elements of the Consent the subject of the modification application. This includes the reason for condition 62 of the Consent, which requires the construction of Isedale Road (as referred to in the deferred commencement condition) prior to the release of the first subdivision certificate, which was imposed "to ensure access to the Development Site [Land]". Council was required to consider this reason when granting the Approval.
Thus, the final contention to be addressed (when considering the alternative outcome) is whether Council considered the issue of ensuring access to the Land when granting the Approval, as required by s 4.55(3) of the EPA Act. The parties were generally in agreement regarding what the obligation to "take into consideration" required Council to have done, but departed on the issue of whether Council had fulfilled this requirement when granting the Approval. In this respect, I am satisfied that more than mere advertence to the issue of ensuring access to the Land is required, and that Council was required to understand and evaluate the issue of ensuring access to the Land: Weal at [80].
In determining whether the applicant has established, on the balance of probabilities, that the inference should be drawn that Council did not take into consideration the issue of ensuring access to the Land when granting the Approval, I have had regard to previous decisions where courts have grappled with questions of inference. In Hale at 337, Moffitt P identified the a variety of circumstances, which, when combined, supported an inference that the council failed to take matters into consideration, including: the characteristics of the development consent which was granted and the environmental problems that arose as a result of the grant of the development consent; the inadequacy of the information before the council; the council's lack of awareness of relevant matters; the council's failure to seek further information to better inform itself; the characteristics of the meeting at which the development consent was granted including consideration of the proposal without prior notice and the refusal to postpone the question of whether development consent should be granted.
Adopting this approach, on the basis of the evidence before the Court, I do not consider the applicant to have established on the balance of probabilities that an inference should be drawn that Council did not take into consideration the issue of ensuring access to the Land when granting the Approval. My reasons for this finding are as follows:
1. While the Modification Assessment Report does not specifically refer to the requirement in s 4.55(3) of the EPA Act for Council to take into consideration the reasons it gave when originally granting the Consent, a specific numerical statutory reference is not obligatory provided the requirement is addressed in substance: Notaras at [131]. In any event, the Modification Assessment Report included the statement that the proposed Modifications had been assessed "in accordance with the matters for consideration under section 4.55 of the [EPA Act]", which includes the requirements in s 4.55(3) of the EPA Act.
2. For completeness, I note that where the legislative requirement in s 4.55(3) of the EPA Act does not require Council to form a necessary mental state, but rather consider a factual matter, I consider that, although not determinative of my decision, Council did not necessarily have to be aware of the legislative requirement in s 4.55(3) in order to comply with it.
3. The Modification Assessment Report engaged with the issue of ensuring access to the Land, including through: consideration of the approach to accessing the Land contemplated in the original grant of the Consent; the new approach to accessing the Land contemplated in the proposed Modifications; and the impact of the proposed Modifications on the Land and Nattai Ponds. I find that this demonstrates that Council understood the issue of ensuring access to the Land: Weal at [80].
4. The Modification Assessment Report included a summary of the results of a Traffic Management Study that provided a technical assessment of the impacts of the changes in the access to the Land as a result of the proposed Modifications. While this provided Council with evidence relevant to its consideration of the merits of the proposed Modifications, it also engaged with the issue of ensuring access to the Land which was the relevant reason given for the original grant of the Consent.
5. The Modification Assessment Report included consideration of, and responses to, objections to the proposed Modifications relating to access to the Land. Relevantly, one of the objections noted that the proposed Modifications included an earlier proposal for access to the Land that had been raised but not adopted in the course of assessing and granting the Consent. In the response to this objection, the Modification Assessment Report specifically engaged with the reasons why the proposal for accessing the Land included in the proposed Modifications was now appropriate. I consider that this indicates Council engaged with the issue of ensuring access to the Land, and thus the relevant reason given for the original grant of the Consent.
6. The Modification Assessment Report reminded Council that it had previously assessed and granted the 3-lot Consent in relation to the Land, and that at that time Transport for NSW had provided "in principle" agreement for a change in the traffic direction on Lomandra Lane from northbound to southbound. This indicates first, that Council was familiar with the issue of ensuring access to the Land as a result of its previous assessment; and second, that this previous assessment was being utilised to inform Council in relation to the grant of the Approval.
7. The proposed Modifications were discussed at Council's meeting on 27 May 2020, where Council granted the Approval. At this meeting, Council was informed about the issue of the access arrangements to the Land in the Consent and the motivation for seeking the proposed Modifications relating to access to the Land by a Mr George Almonte, who addressed the meeting on behalf of the respondent. This (when considered with the above reasons) indicates that the issue of ensuring access to the Land was a focal point during Council's assessment of the Approval: Zhang at [77].
8. During Council's meeting on 27 May 2020, the Councillors also engaged with one Councillor's proposal to request that "alternative traffic solutions for traffic access and egress" to the Land be provided prior to determining the modification application. While this proposal was not ultimately adopted (as the Approval was granted during Council's meeting), I consider that this process indicates that Council turned its collegiate mind to the issue of ensuring access to the Land during Council's meeting.
9. During Council's meeting on 27 May 2020, the Councillors considered and determined to adopt an amendment to the terms on which the Approval was granted, where that amendment specifically addressed how construction vehicles would access the Land. Again, I consider that this process indicates that Council turned its collegiate mind to the issue of ensuring access to the Land (and the most appropriate way of undertaking this) during Council's meeting.
10. Finally, where, as noted at [50] above, the Councillors who granted the Approval were the same Councillors who had determined the original grant of the Consent and were therefore familiar with the development, I consider that the Councillors brought their specific knowledge of the development and the local conditions to the grant of the Approval. Further, I accept the submission of the respondent that where the Councillors had granted the Consent subject to conditions, the Councillors would have been cognisant of the reasons for the original grant of the Consent by dint of this previous decision-making process: Hale at 340.
Accordingly, if I am wrong in relation to the first contention between the parties and my conclusion at [77] is not determinative of this ground of review, an assessment of the alternative outcome leads me to the same conclusion, being that Council did not fail to consider a mandatory relevant consideration, and that this ground of review raised by the applicant has not been made out. In this respect, even if the reference to "the reasons given" in s 4.55(3) of the EPA Act should be interpreted in a broader manner, I consider that the reasons given by Council were the reasons for the imposition of conditions provided by Council in the notice of determination dated 1 July 2019. The relevant reason for the proposed Modifications is the reason for condition 62 of the Consent, being, ensuring access to the Land. In summary, based on my review of the evidence before the Court, I do not consider the applicant to have established on the balance of probabilities that an inference should be drawn that Council did not take into consideration the issue of ensuring access to the Land when granting the Approval.
Further, it is uncontroversial that in forming the opinion of satisfaction that the development to which the Consent as modified relates is substantially the same development as the development for which the Consent was originally granted, as required by s 4.55(2) of the EPA Act, Council needed to undertake a comparison between two developments - being the development as modified and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 ('Scrap Realty') at [16]; Arrage v Inner West Council [2019] NSWLEC 85 ('Arrage') at [24].
The applicant submits that the physical documents considered by Council, including the Modification Assessment Report, did not in substance address the test of "substantially the same development" in s 4.55(2)(a) of the EPA Act. The statement in the Modification Assessment Report that the application for the proposed Modifications was assessed "in accordance with the matters for consideration under section 4.55 of the [EPA Act]", constitutes mere advertence to the statutory requirement and is accordingly not sufficient to establish that the necessary opinion of satisfaction under s 4.55(2)(a) was formed. Discussion of s 4.55(2)(a) was "[c]onspicuously absent" from the Modification Assessment Report (where it may be expected that it would have been addressed near the s 4.15 evaluation), which instead primarily addressed merit issues under s 4.15. Given this, there is no evidence that the "fundamental jurisdictional enquiry" was in fact undertaken by Council, supporting an inference that Council failed to form the necessary opinion of satisfaction under s 4.55(2)(a) of the EPA Act.
The applicant accepts that it can be inferred that the Councillors, as a result of their general experience with Council, were aware of the existence of s 4.55(2) of the EPA Act as part of the statutory regime for modifying development consents. However, the applicant distinguishes between general awareness of the requirements of s 4.55(2) in the statutory regime for modifying development consents, and forming the necessary mental state, being an opinion of satisfaction pursuant to s 4.55(2)(a), when granting the Approval specifically.
The applicant also rejects the respondent's use of the SEE to support an inference that the necessary opinion of satisfaction was obtained. This is because, by reference to the notice to produce issued to Council discussed above at [35], the applicant submits that where the SEE was not one of the physical documents before Council when it determined the Approval, the prima facie presumption that the Councillors relied upon Council's file when determining the modification application is rebutted. Instead, Council relied upon on the Modification Assessment Report and its eight attachments when granting the Approval, and therefore, these are the physical documents that should be assessed when determining whether the necessary opinion of satisfaction was obtained.
The applicant notes that no evidence has been called by the respondent to contradict the inference (that Council did not form the necessary opinion of satisfaction) sought to be drawn by the applicant. Finally, the applicant rejects the respondent's submissions based on the materiality of the proposed Modifications, noting there is an "arguable possibility" that the development as amended is not substantially the same as the development for which the Consent was originally granted. In these circumstances, the applicant submits that Council did not form the necessary opinion that the test of "substantially the same development" in s 4.55(2)(a) of the EPA Act was satisfied, such that Council did not have the power to modify the Consent by approving the proposed Modifications because the precondition to the exercise of that power was not satisfied.
The respondent accepts that the Modification Assessment Report did not use the phrase "substantially the same development", however, it contends that the Court would draw an inference that Council considered the issue and was satisfied that the development to which the Consent as modified by the proposed Modifications relates, was substantially the same development as the development for which the Consent was originally granted, for the following reasons:
1. Section 4.55(2) of the EPA Act was referenced twice in the Modification Assessment Report, and the Modification Assessment Report indicated that the application for the proposed Modifications had been considered in accordance with the EPA Act.
2. The Modification Assessment Report addressed how the issue of access to the Land was dealt with in the Consent and the rationale behind deferred commencement condition 1, and compared this with the alternative access arrangements in the proposed Modifications. Accordingly, the respondent submits that it is "apparent" that the Modification Assessment Report carried out the required comparison, between the development as modified and the development as originally approved.
3. A comparison exercise was also undertaken between the development as modified and the development as originally approved in the Modification Assessment Report in response to issues raised in submissions received as a result of public notification, including comparisons of the traffic movements expected in the original Consent and as a result of the proposed Modifications.
4. The SEE explicitly engaged with the test of "substantially the same development" and concluded "[i]t is clear that the modified development will be substantially the same development as originally approved". It is "apparent" that the preparation of the Modification Assessment Report was largely based on the SEE (where paragraphs were extracted from the SEE and reproduced in the Modification Assessment Report).
5. As a matter of fact, the proposed Modifications are of a minor nature such that they satisfy the "substantially the same development" test, and there is no factual basis to suggest otherwise.
6. The test of "substantially the same development" is commonly invoked, such that the proper inference for the Court to make is that Council was aware of the precondition: Springer at [33]-[50].
The respondent also submits that the fact that the same Councillors granted the Consent and granted the Approval is also relevant to this ground of review, as the Councillors were aware of the nature and characteristics of the Consent for the purposes of making a comparison with the proposed Modifications. The respondent took the Court to various parts of the transcript of Council's meeting on 27 May 2020, where it contends that the Councillors undertook a comparison exercise between the Consent and the proposed Modifications which were before the Councillors for determination. The respondent also notes that Council included a suffix in the terms on which it granted the Approval that was not initially proposed in the Modification Assessment Report (regarding limitations on access to the Land by construction vehicles), which suggests that Council engaged with the statutory requirement when granting the Approval.
I now turn to whether Council formed the necessary opinion of satisfaction required by s 4.55(2)(a) of the EPA Act when granting the Approval. I find that it is clear that there is no evidence recording in explicit terms that Council was satisfied that the development to which the Consent as modified by the Approval relates was substantially the same as the development for which the Consent was originally granted. In these circumstances, the question becomes one of inference based on the available evidence, being whether it can be inferred that Council did not form the necessary opinion of satisfaction.
For the reasons that follow, and based on the evidence before the Court, the applicant has not convinced me that an inference should be drawn that Council did not form the necessary opinion of satisfaction when granting the Approval.
The parties advanced conflicting submissions about the approach that should be taken to the statement in the Modification Assessment Report that the application to amend the Consent to include the proposed Modifications had been assessed "in accordance with the matters for consideration under section 4.55 of the [EPA Act]". While I accept that this statement does not affirmatively confirm that Council engaged with the requirement in s 4.55(2)(a) of the EPA Act and formed the necessary opinion of satisfaction when granting the Approval, I consider it to support an inference that this occurred.
I note that the power to modify development consents has been a consistent feature of the statutory regime for development in the EPA Act since the introduction of the EPA Act in 1979. Although the scope of the power has changed over time; has been phrased in different terms; and has been located in different places in the EPA Act, I consider the requirements in s 4.55 of the EPA Act to be well-known to consent authorities. Given this, I am prepared to accept that Council officers and the Councillors were aware of the requirement of s 4.55(2)(a), as one element of s 4.55, and that as such, the statement in the Modification Assessment Report that the modification application was assessed in accordance with s 4.55 indicated, by inference, that the application to amend had been assessed in accordance with s 4.55(2)(a), and the necessary state of opinion had been formed.
In this respect, the approach to, and the inferences that can be made about, s 4.55 of the EPA Act can be distinguished from the approach to, and the inferences that can be made about, other less familiar provisions of the EPA Act and other environmental planning instruments: Springer at [44]; South East Forest Rescue Inc v Bega Valley Shire Council [2011] NSWLEC 250; (2011) 211 LGERA 1 ('South East') at [124]. I consider this factor to differentiate the circumstances before me from previous cases where the court was invited to draw an inference that a consent authority had knowledge of a less commonly used or new provision in the statutory regime or other environmental planning instruments: Currey at 373; Hortis at [45]; Franklins at [26]. For example, in Franklins at [26], the Court of Appeal noted that while it may be reasonable to make a presumption that councillors have a general knowledge regarding their principal planning instrument, there was no reason to infer knowledge of a specific new provision which was inserted as a result of amendments made by Parliamentary Counsel.
In contrast to Franklins, in the circumstances before me, I consider it reasonable to presume that Council (and the Councillors) had general knowledge of s 4.55(2)(a) of the EPA Act and the requirement to form the necessary opinion of satisfaction. This is consistent with Preston J's comments in South East at [125], noting that where a relevant provision had to be considered and applied by the council before granting consent to all development that was regulated by the applicable local environmental plan, councillors may have knowledge of the existence and content of the provision. However, Preston J also noted that knowledge of the existence and content of the provision is insufficient where the provision must be applied and satisfied in each particular development application.
I now consider the further evidence before the Court as to whether Council applied s 4.55(2)(a) of the EPA Act and formed the necessary opinion of satisfaction when granting the Approval.
The Modification Assessment Report, which was relied upon by Council when granting the Approval, identifies that the proposed Modifications include the deletion of deferred consent condition 1 and the removal of the requirement for agreement with the owner of Nattai Ponds regarding the extension of Isedale Road, in order to facilitate an "alternative temporary access" to the Land through Lomandra Lane. The Modification Assessment Report also identifies that two of the other deferred commencement conditions are being deleted as part of the proposed Modifications, but the substantive obligations are being relocated to another area of the Consent. I consider that the Modification Assessment Report identifies the essential and material features of the proposed Modifications, such that it can be inferred that Council was aware of these features when it granted the Approval.
The Modification Assessment Report also records the manner of accessing the Land that was approved in the original grant of the Consent and then assesses the consequences of the proposed Modifications on accessing the Land. For example, it notes that the "implications of this [amending the Consent] is that the completion of Isedale Road through the unformed section of Stage 4 of Nattai Ponds would not be required in the immediate future". Further, the responses to objections recorded in the Modification Assessment Report address a concern regarding additional traffic movements, by noting that "there will be no increase in traffic movements than was originally planned".
Finally, the Modification Assessment Report records an objection to the proposed Modifications on the basis that an earlier proposal for access to the Land that had been raised, but not adopted, in the course of assessing and granting the Consent. The response to this objection in the Modification Assessment Report notes the changed circumstances since Council considered the proposal when the Consent was granted, including that the developer has not completed Stage 4 of the Nattai Ponds development and that this inhibits development of the Land by landlocking it.
In this respect, I find that the Modification Assessment Report specifically deals with the expected environmental impacts of the development as amended by the proposed Modifications by reference to the development as originally granted in the Consent. I consider that this evidence supports an inference that a comparison between the development as modified and the development as originally approved was undertaken in the Modification Assessment Report. Given this, I do not accept the applicant's submission that the statement indicating that the application for the proposed Modifications had been assessed in accordance with s 4.55 of the EPA Act in the Modification Assessment Report was mere advertence to the statutory requirement. Rather, it can be inferred that the statement regarding s 4.55 was a conclusion reached as a result of the assessments and comparisons undertaken in the Modification Assessment Report.
I note for completeness that this assessment and comparison can be distinguished from the consideration of the merits of the proposed Modifications in the Modification Assessment Report. For example, the summary of the traffic assessment report (prepared on behalf of the respondent and which assessed the traffic and road infrastructure implications of the development as amended by the proposed Modifications) in the Modification Assessment Report is primarily concerned with the merits of the modification application for the proposed Modifications, rather than a comparison with the development reflected in the original grant of Consent. In addition, the Modification Assessment Report contained an explicit section that reflected a s 4.15 evaluation of the modification application.
I also accept that the transcript of Council's meeting on 27 May 2020 indicates that when the modification application was introduced to the Councillors, the essential features of and reasons for the proposed Modifications were described. The Councillors also engaged in a discussion about elements of the proposed Modifications that concerned them, including the impact on heritage items; the impact on residents; road safety; and the impact of construction vehicles. I consider this to confirm that the Councillors identified the material and essential features of the proposed Modifications at Council's meeting, and considered what this meant for the development. Given this, I accept the respondent's submission that the transcript of Council's meeting provides evidence of Council undertaking the required assessment and comparing the development as modified and the development as originally approved.
I have also considered the knowledge of the Councillors who granted the Consent. I accept that the fact the same Councillors constituted Council when granting the Consent in June 2019 and when granting the Approval in May 2020 supports an inference that the Councillors were familiar with the development approved in the original grant of Consent when determining whether to grant the Approval. For example, in the transcript of Council's meeting on 27 May 2020, Council is addressed in a manner that indicates familiarity with the development: "[j]ust to recall the application was approved by Full Council in 2019". Specific Councillors also confirmed their familiarity with the development with comments such as "…I've always agreed and support the development" and "I have no problem with the development, I've supported the development since the inception".
Given this, I consider that there is evidence that the Councillors had knowledge of the essential features of the development, and that they would have brought this knowledge to their assessment and determination when granting the Approval. Combined with my comments above regarding the Councillors' understanding of the essential features of the proposed Modifications, this also militates against an inference being drawn that Council did not form the necessary opinion of satisfaction when granting the Approval.
While the respondent submits that, factually, the proposed Modifications are of a minor nature and so would satisfy the "substantially the same development" test in s 4.55(2)(a) of the EPA Act, I do not give this submission weight in circumstances where the Court is not itself deciding whether it is satisfied that the development to which the Consent as modified by the Approval relates was substantially the same as the development for which the Consent was originally granted, but rather is considering whether it can be inferred, on the evidence, that Council was not so satisfied. In this respect, it does not appear to me that the factual nature of the proposed Modifications is such that it inherently supports an inference that Council was satisfied, because it would be unreasonable for Council not to be so satisfied. In this respect, I accept the applicant's submission that there is an "arguable possibility" regarding the "substantially the same development" test.
Although not determinative to my conclusion given my reasoning set out above, the respondent also relied on the explicit engagement with the "substantially the same development" test in the SEE as further evidence in support of the inference the necessary opinion of satisfaction was reached, on the basis that significant extracts of the SEE were included in the Modification Assessment Report. As noted at [51] above, I accept the submission of the applicant and find that the evidence before the Court indicates that the SEE was not discretely before Council when granting the Approval, and it cannot be assumed that Council had constructive knowledge of the SEE as part of the material on Council's file.
However, a further layer of complexity is introduced by the respondent's contention that the author of the Modification Assessment Report had regard to the content of the SEE and reproduced "many paragraphs" from the SEE in the Modification Assessment Report. I have considered the extent to which it could be said that the SEE was incorporated into the Modification Assessment Report, such that the engagement with the "substantially the same development" test in the SEE was also incorporated into the Modification Assessment Report. While acknowledging this submission raises matters of some nicety, I do not think the reproduction of paragraphs from the SEE in the Modification Assessment Report means the engagement with the "substantially the same development" test in the SEE is incorporated into the Modification Assessment Report, where Council was not aware the source of the reproduced paragraphs was the SEE or of the other content in the SEE. Of course, this does not take away from the inferences that can be drawn on the basis of the content of the reproduced paragraphs themselves which were before Council.
Finally, while the applicant submits that no evidence has been called by the respondent to contradict the inference sought to be drawn by the applicant (that Council did not form the necessary opinion of satisfaction), I do not give this submission weight as I consider it to constitute a reversal of the onus of proof in these proceedings. In circumstances where the applicant has brought these proceedings to challenge the grant of the Approval, it is the applicant who bears the onus of calling evidence to make out the inference that the necessary opinion of satisfaction was not held. The fact that the respondent did not consider it necessary to call further evidence, and instead made its submissions on the basis the existing evidence, does not support the applicant's position.
For the above reasons, I do not find that the evidence before the Court supports the applicant's position that it should be inferred that Council did not form the necessary opinion of satisfaction when granting the Approval for the purposes of s 4.55(2)(a) of the EPA Act, such that Council did not have power to grant the Approval. That is, the applicant has not established on the balance of probabilities that a negative inference regarding the necessary opinion of satisfaction should be drawn, such that Council erred in granting the Approval. Given this, this ground of review has not been made out.