Forsyth and Anor v Wilesmith and Ors

KEY ISSUES: Judicial Review :- whether Council failed to take into account mandatory relevant consideration when granting development consent

Administrative Decisions (Judicial Review) Act 1977 (Cth) LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C Wyong Local Environmental Plan 1991 cl 23

Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 CASES CITED: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55 Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 Weal v Bathurst City Council (2000) 111 LGERA 181

APPLICANTS Mr M Fraser SOLICITOR P J Donnellan & Co FIRST RESPONDENTS LEGAL REPRESENTATIVES: Mr P Larkin SOLICITOR Conditsis & Associates Solicitors SECOND RESPONDENT Mr J Ayling SC SOLICITOR HWL Ebsworth Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Her Honour: These proceedings challenge the decision of the Council to approve the First Respondents' development application for boarding kennels at 5 Old Maitland Road, Kangy Angy. The Applicants seek a declaration that the decision of the Council to approve the kennels on 17 December 2007 was invalid.

2 Animal establishments such as the kennels are permitted in the 7(b) Scenic Protection Zone of the Wyong Local Environmental Plan 1991 (the WLEP) which applies to the First Respondents' land.

3 The Applicants' counsel argued that there was a failure by the Council to take into account a mandatory relevant matter being the flooding impact on and by a 2.5m Hebel brick acoustic wall of approximately 75m in length approved as part of the development. This is to be located on both sides of and around the proposed kennels, which are to occupy an existing shed on the First Respondents' property.

4 The Council file was tendered in evidence. This included the development application and supporting documents such as the Statement of Environmental Effects (SEE) dated December 2006. Appendix 6 to the SEE is an on-site sewerage management report which stated that the land was above the 1:100 year flood. On the Council file is a flood report prepared for the adjoining property by GHD which identifies flood levels in the vicinity of the First Respondents' land. The Development Management Panel recommended in favour of approval of the application on 20 November 2007 and identified additional areas for further assessment including flooding details. The elected members of the Council and the relevant Council officer conducted a site inspection of the First Respondents' property.

5 The Council officer's assessment report to the Council of the development application under s 79C of the Environmental Planning and Assessment Act 1979 (the EP&A Act) dated 12 December 2007 identified a number of issues concerning the application. In relation to natural hazards it said: Information available to Council indicates that part of this land could be subject to the risk of flooding by a one in one hundred year recurrence frequency or less. The nearest measured flood levels to the subject site are at the intersection of Old Tuggerah Road and Old Maitland Road Kangy Angy at a level of 12.03 AHD. The area is very flat; however, it appears that the shed is located on land approximately 14m AHD or above, based on the topographic information on Council's GIS system. However, based on the topography and natural drainage line through the site and adjacent to the site, the parcel could potentially be fully flood affected, but this would need to be substantiated by a flood study. At this stage the site will be considered as partly flood affected by creek flooding. As the site is considered as a local overland flow path and the depth of flooding in a 1% AEP flood event is unknown a precautionary measure of applying a finished floor level of 300mm above the natural surface level should be applied. This is consistent with the Wyong Shire Council Flood Prone Land Policy F5. There is a waterway that runs through the middle of the property; however, it is located approximately 75m from the proposed dog kennels. It is not considered that the proposed boarding kennels are likely to impact on the waterway. The subject site is classified as bushfire prone land. The area where the dog kennels are located is shown as Buffer. No new buildings are proposed to be erected as a result of the current proposal and the shed is not habitable by humans. As the proposal does not involve the construction of any new buildings, a formal bushfire or flood assessment is not required. Applicants' submissions 6 The Applicants relied on the general provisions in s 79C(1) of the EP&A Act to argue that a mandatory relevant matter was not considered. Additionally, under s 79C(1)(a)(i) cl 23 of the WLEP had to be considered. That clause provides that: (1) Notwithstanding any other provision of this plan a person shall not erect a building or carry out a work on land which, in the opinion of the Council is within a flood prone area, other than on land within Zone No 2(a), 2(b), 2(c), 2(d) or 2(g), without the consent of the Council.

(2) The Council may, as a condition of its consent to the carrying out of development referred to in subclause (1), require the floor of the building or work to be erected at a height sufficient, in the opinion of the Council, to prevent or reduce the incidence of flooding of that building or work or of adjoining land.

(3) The Council shall take into account as a matter for consideration in determining whether to grant consent as referred to in this clause the effect of the proposed development on flooding. Further, parts of the Flood Prone Land Development policy of the Council, particularly objectives 1, 3, 4, 5, 6 and 7, also had not been considered when the Council approved the kennels development application.

7 The Applicants submitted that the land was flood liable, relying largely on the Council officer's report of 12 December 2007 set out above at par 5. The Hebel brick wall was located within the overland flow path for the 1:100 AEP flood event but this was not referred to in the report to the Council and there is no evidence that it was otherwise considered. The conclusion in the Council report that no new building was being built was incorrect as the proposed acoustic wall falls within the meaning of "building" under the EP&A Act s 4.

8 The principles identified in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, Weal v Bathurst City Council (2000) 111 LGERA 181, Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257, and Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [80] were relied on. As there is simply no reference to the relevant matter there was no understanding by the Council of that matter requiring consideration. Accordingly there was a complete failure to consider a relevant matter and the decision is invalid.

9 The Applicants' Amended Points of Claim and written submissions also raised the ground that a relevant matter was so inadequately taken into account that there was no real consideration of the matter, but conflicts with the first ground that there was no mention of a relevant matter. The ground of manifest unreasonableness was raised but not strongly pressed. First Respondents' submissions 10 Under s 79C of the EP&A Act the Council decides what is relevant in relation to a development application, confirmed by Timbarra Protection Coalition v Ross Mining NL (1999) 46 NSWLR 55, and therefore what matters it considers under s 79C. Further the Council report is not a statement of reasons and the fact that something does not appear there cannot give rise to any conclusion that a matter was not considered; Toohey J in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388. There are additional matters on the Council file which should be considered as part of the Council's decision making process.

11 Flooding issues in relation to the proposed acoustic wall were not relevant under s 79C. The information before the Council officers suggested that the proposed kennel site was above the 1:100 year flood event. It was therefore the Council officer's judgment that the flood impacts by and to the proposed acoustic wall did not need to be considered. It was not necessary that the Council officer refer in her report to a matter that was not relevant. Clause 23(1) of the WLEP requires that the Council consider if land is flood prone. The Council officer concluded in the report that it was not.

12 The Council officer responsible for preparing the relevant report had visited the site on at least two occasions, had a detailed topographic map showing the 14m contour generally across the property which suggested that the area of the kennels was above that contour. The Council had the GHD report which showed in Fig 1 the 1:100 year flood level and the extent of land downstream of the subject land and the tributary watercourse flowing into the land from upstream of Tuggerah Road which flows through the First Respondents' property. The 1:100 year flood level upstream of Tuggerah Road is 11.79m, and downstream 11.74m. The officer also apparently considered the Council's GIS to examine the relevant contour lines as there is a print out from that system on the Council file. The GHD report and GIS information clearly informs the "natural hazards" section of the report (see par 5). The report states that the land area above the 14m AHD is considered unlikely to be impacted upon by flooding. The Council officer took a precautionary approach as she stated in the report in requiring the shed to have a floor level 300mm above the surface level. Clause 23(1) of the WLEP did not apply. There was no failure of the Council to consider a mandatory relevant consideration.

13 The Second Respondent essentially supported the submissions of the First Respondent. Finding 14 There is no reference in the Council report of 12 December 2007 to the need to address whether the proposed acoustic wall would impact on or be impacted by flooding, or anywhere else in those parts of the Council file to which I have been directed. These are judicial review proceedings in which the Court must consider whether the decision-making processes of the Council have resulted in legal error on administrative law grounds. It is not for the Court to determine if the Council's conclusions as shown in the Council file that the relevant area of the First Respondents' land to be used for the kennels was not flood liable is factually correct. Further, contrary to the Applicants' counsel's repeated submissions it is not for the Court to consider whether the proposed acoustic wall was so likely to have an impact on flooding or be impacted by flooding that it therefore must follow that the Council's consideration of the matter was fundamentally flawed in a legal sense.

15 As stated by the First Respondents' counsel, s 79C in the introductory words states: (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application …

16 That suggests it is for the Council to determine what is relevant for the purposes of a s 79C consideration of a development application. As submitted by the First Respondents that was one of the findings in Timbarra at [80]. The Applicants' submissions were really to the effect that it was self evident that the subsections of s 79C, which are in general terms, required the flooding assessment of the proposed acoustic wall but that is a merits argument not an argument that can arise in judicial review proceedings.

17 I agree with the First Respondents' counsel's submissions concerning the correctness of the Council's decision-making when the Council file is reviewed as set out in some detail above at par 10. That argument was not a convoluted reconstruction of events to suit the First Respondents, as the Applicants' counsel submitted. The findings of Toohey J in Turner that the omission of a matter in a document did not mean it had not been considered were made in relation to the formal reasons required to be given in an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth). His findings apply all the more so when the document being considered is the report of a council town planner. It was for the Council to determine whether the land was flood liable and the relevant officer concluded that it was not after making appropriate inquiries as shown on the Council file, and after site inspections of the relevant land. Clause 23 of the WLEP which is a mandatory relevant consideration if it applies, did not therefore apply and there was no failure to consider that clause as a mandatory matter under s 79C(1)(a)(i). Nor was any other part of s 79C(1) a mandatory relevant consideration. It therefore follows that there was no failure to properly consider or apply the Council's Flood Prone Land Development Policy. The summary in the natural hazards section of the Council officer's report at par 5 commences with the statement that as the land is at 14m AHD or above it is considered unlikely to be impacted by flooding. The subsequent discussion must be considered in light of that finding. There is no legal error in the statement of the officer that no new building is being constructed simply because the definition of building in the EP&A Act can include a wall. The Council report was not prepared by a lawyer and should not be given an unduly technical legal reading.

18 I also note that the Applicants bear the onus of proof in these proceedings, which I consider they have failed to discharge. There was no failure on the Council's part in not calling additional evidence beyond that contained in the Council file referring to the Applicants' counsel's submissions.

19 While the Applicants have relied on well known authorities concerning the nature and scope of judicial review (par 8) it is unnecessary to refer to these as the Applicants' argument fails at the initial hurdle of demonstrating that there was a relevant matter under s 79C. The Class 4 application should be dismissed. The issue of costs needs to be determined.

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