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[1999] NSWCA 134
Court of Appeal (NSW)
1999-04-29
Powell JA, Stein JA, Giles JA, Bignold J
Original judgment source is linked above.
Introduction 3 This is an appeal from a decision of Bignold J in the Land and Environment Court dismissing proceedings brought by Franklins Limited (the appellant). The application challenged the validity of a development consent granted by the Penrith City Council (the first respondent) on 12 December 1994 to Campbells Cash & Carry Pty. Limited (the second respondent) with respect to premises at Gibbes Street, Regentsville. 4 The case argued by Franklins before this court and the Land and Environment Court was threefold: (a) that in granting consent the Council failed to consider the requirement of cl 32(2) of the Penrith Local Environment Plan No. 231 (LEP 231) that it be satisfied that not less than 60% of the goods sold from the premises would be resold by retail after removal from the premises
(b) if it did consider the requirement in cl 32(2), its decision was a manifestly unreasonable one (c) the use for which consent was granted did not relate to the use applied for in the development application
Factual Background 5 The Council was the owner of the subject land which became surplus to its requirements. Accordingly, it decided to sell, and, commencing in December 1991, Campbells made inquiries about possible acquisition. The land was located in a Special Industrial 4(c) zone under Interim Development Order No 28 Penrith (the IDO). The IDO included a definition of 'warehouse' via the Model Provisions (cl 3). The definition was such that Campbells' proposed use of the premises was not permissible. The main concern of the Council was that the Campbells' operations included too great a retail component to fall within the warehouse definition in the IDO. During 1992 a series of meetings were held between Council officers and Campbells as to possible acquisition of the premises and the development of a definition which would accommodate Campbells' operations. The mechanism to achieve this objective was to be by way of rezoning. In November 1992 a number of definitions were proposed, including a reference to a requirement that 60% of the floor area be used for display and storage of goods. 6 Campbells made a conditional offer to buy the premises for $1.2 million in February 1993. In April of that year Council endorsed a report recommending that a draft Local Environmental Plan (LEP) be prepared to amend the 4(c) industrial zoning in IDO 28 so as to permit 'warehouse/retailing' activities. In May 1993 Council sent a draft LEP to the Department of Planning seeking the issue of a s 65 certificate to allow public exhibition of the rezoning proposal. On 28 June 1993 the Department rejected the Council's request, which was a zoning wide one, as inconsistent with its Circular C11 - Flexible Industrial Lands Policy. At the end of July, Campbells confirmed its offer to buy the property and enclosed sample wording for a proposed site specific rezoning which included reference to a 60% resale requirement. In September 1993 Council resolved to sell the property to Campbells subject to development consent and a rezoning to permit 'warehouse/retailing'. During the next month Council resolved to pursue a spot rezoning of the land to permit 'warehouse/retailing' and to make application to the Department of Planning. The new draft LEP was forwarded to the Department on 25 October 1993. This time a s 65 Certificate was granted and the draft LEP was exhibited in December 1993 and January 1994. On 4 February 1994 it was considered by Parliamentary Counsel for the purpose of determining whether it could be lawfully made. 7 The draft LEP submitted by the Council and considered by Parliamentary Counsel relevantly provided in cl 32 the following: (2) Notwithstanding any other provisions of this Order, but subject to this clause, a person may with the consent of the Council, carry out development for the purpose of 'warehouse/retailing' on the land to which this clause applies. (3) In this clause: 'warehouse/retailing' means a building of not less than 6,000m2 used for the purpose of storing goods where those goods are sold to persons for sale in retail premises or use in restaurants, institutions, trades, business associations or the like, provided that not less than 60% of such sales are sold for resale. 8 Parliamentary Counsel approved the making of the LEP but in an amended form. It is important to set forth the amended form of cl 32 as redrafted by Parliamentary Counsel and subsequently gazetted on 6 May 1994. It relevantly provides: (2) Despite any other provisions of this Order, a person may, with the consent of the Council, carry out development for the purposes of a wholesale and retail warehouse on land to which this clause applies, but only if the Council is satisfied that not less than 60% of the goods sold from the land will be resold by retail after being removed from the land. (3) In this clause, 'wholesale and retail warehouse' means a building occupying an area of not less than 6,000 square metres used for storing goods, including groceries, in bulk quantities and for the sale of those goods in bulk quantities. [Emphasis added] 9 Subsequently, and on 23 August 1994, Campbells lodged a development application for a 'new warehouse, car parking areas and associated services'. At its meeting on 5 December 1994 Council gave approval to the development application subject to conditions and specified the use as a 'wholesale and retail warehouse'. The formal consent was issued on 12 December 1994. The sale was completed on 12 May 1995. Later, in 1997, a new LEP was made covering all industrial land in the City and LEP 231 and the IDO were repealed. The premises are now zoned 4(b) Special Industry and the specific zoning of the premises is preserved in cl 22 of the new Industrial LEP, which is identical to the wording of the previous cl 32 in LEP 231.
The Judgment of Bignold J 10 His Honour, in dealing with the first challenge to the validity of the development consent, noted that the form of cl 32 had been changed from that which was publicly exhibited. This change in wording was made by the Parliamentary Counsel who Bignold J said 'conventionally settles the final form of environmental planning instruments made in accordance with the Environmental Planning and Assessment Act'. The Judge said that the documentary evidence showed that the Council appreciated that Parliamentary Counsel had redrafted the clause and that it had adopted the redrafted version. His Honour said that the appellant had overstated the significance of the changes. He accepted, as do the respondents to this appeal, that cl 32(2) imposed a requirement, as a pre-condition to granting consent, that the Council be satisfied at the time of granting consent that not less than 60% of the goods sold be resold by retail. However, this was the same substantive requirement as the essential ingredient in the definition of 'warehouse/retailing' in the draft clause. His Honour did not think that there was any substantive change between the draft and final form of cl 32. 11 Bignold J held that the documentary evidence did not support the inference that the Council did not consider the pre-condition in cl 32(2). The fact that there was no express reference to the 60% resale requirement in the Council officers' report on the development application; in the consultants' report to the Council on the application; and in the minutes of the 5 December 1994 when consent was granted, did not establish a failure to consider. The Judge said that the fallacy in the appellant's argument was that it presupposed that the documentary material before the court revealed the entirety of Council's knowledge. He added that it was probable that the documentary evidence was incomplete in respect of the central question, with the consequence that the inference sought to be drawn could not be reasonably found. The appellant challenges this finding and I will return to it later. 12 Moreover, Bignold J held that the contents of the documents before the court tended to establish that the Council did in fact consider cl 32. His Honour pointed to three features:
(a) In the officers' report on the development application and in granting consent, the development was described as a 'wholesale and retail warehouse' whereas the only reference to this expression was in cl 32.
(b) In the officers' report on the development application, reference was made to LEP 231 as enabling the use of the site for the purpose of a 'wholesale and retail activity involving the erection of a warehouse/wholesale building with a floor space of not less than 6,000 sq m'. The report added that the use was permissible with consent.
(c) In the consultant's report to the Council on the development application, reference was made to LEP 231. 13 The Judge concluded that these passages from the documents 'established' that the Council had expressly adverted to cl 32. From this fact, said his Honour, it may be inferred that the Council considered the resale requirement. The appellant challenges this finding stressing that it is not mere consideration which is required (although it does not concede that there was any) but a satisfaction of the issue as a pre-condition to jurisdiction to consider the merits of the application. 14 Bignold J also relied on the presumption of regularity as supporting the inference that the relevant matter was considered by the Council. 15 As to the second and alternative issue, his Honour concluded that the appellant had failed to establish that the Council's satisfaction with respect to the 60% resale requirement was legally unreasonable in the Wednesbury sense. 16 His Honour rejected the last issue raised by Franklins, noting its excessively literalistic interpretation of the words used. Indeed, he held that the submission misunderstood what was clearly intended and understood by the Council and Campbells as to the relevant development as a wholesale and retail warehouse.
Failure to consider or be satisfied of cl 32(2) 17 The starting point for consideration of the appeal is the nature of cl 32(2) of LEP 231. I will repeat the content of the sub-clause:
(2) Despite any other provisions of this Order, a person may, with the consent of the Council, carry out development for the purposes of a wholesale and retail warehouse on land to which this clause applies, but only if the Council is satisfied that not less than 60% of the goods sold from the land will be resold by retail after being removed from the land . [Emphasis added] 18 The clause acknowledges that a wholesale and retail warehouse is prohibited on the subject land, but says that the prohibition may be relaxed if the Council forms a positive opinion that the ratio of wholesale to retail sales from the premises meets the requirement in the clause. The key words in the sub-clause are 'but only if the Council is satisfied that'. It is clear that the Council had to be so satisfied prior to the granting of consent to Campbells. It had to be satisfied, as a pre-condition to approval, that Campbells' operations from the premises comprised a wholesale component of not less than 60%. Council had to address itself to this criterion in order to form the requisite opinion and before embarking on a consideration of the 'merits' under s 90 of the Environmental Planning and Assessment Act 1979, see Clifford v Wyong Shire Council (1996) 89 LGERA 240 and Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 372 and 374. 19 It is important to examine the differences between LEP 231 as made and the draft submitted for making. The appellant submits that they are materially different in the way in which they operate. Bignold J discounted these differences. I think that he was wrong to do so. Under the draft LEP 'warehouse/retailing' was made permissible on the land. The definition of such included a requirement that not less than 60% of sales to certain persons are sold as retail. But this did not require the Council to be satisfied prior to granting consent that an applicant would comply. It was not a pre-condition which must be satisfied before Council could proceed to consider the application. If consent was granted, the applicant would have to operate in accordance with the definition of 'warehouse/retailing' or be in breach of the consent. Indeed, it would be normal to include a condition to that effect. It may be noted that no relevant condition was included in the subject development consent. 20 By contrast, whether or not (as the appellant submits) the 60% requirement in cl 32(2) of the LEP as made did not continue to apply to a development for 'wholesale and retail warehouse' because it was not a defining characteristic of that type of use, the Council had to form the requisite satisfaction in relation to the 60% requirement at the time of the development application. It could not do so afterwards. 21 It is the appellant's submission that the Council failed to grasp and understand the significance of the amendments made by Parliamentary Counsel and the implication they had for the exercise of Council's statutory function. Council failed to appreciate that it had a mandatory obligation to consider and be satisfied of compliance with the 60% requirement prior to granting consent. According to the appellant, there is no reference in the documentary evidence to Council's consideration of anything concerning the 60% requirement in cl 32(2). 22 There is no reference, according to the appellant, in the officers' report to Council recommending that it endorse the draft LEP amended by the Parliamentary Counsel; in Campbells' development application; in the officers' planning report to Council for its consideration of the development application; in the minutes of Council of 5 December 1994; or in the consent itself. 23 It must be remembered that the importance of the requirement in cl 32 (2) is that the development is prohibited unless the Council forms the opinion. Put shortly, the appellant submits that there was nothing in the documents before the Council to alert it to the need to be satisfied of the 60% requirement. The appellant disagrees with the three references relied on by the trial judge as establishing that Council did consider cl 32(2). The first reference in the officers' report to Council to 'wholesale and retail warehouse' does no more than describe the nominated use and fails to draw attention to the provision prohibiting such a use unless satisfaction with the 60% requirement is met. The second reference to the summary of the site specific LEP is potentially misleading and contains no reference to the use being only permissible if Council formed the requisite opinion, which requirement Council was not told about. Moreover, the consultants' report added nothing to Council's knowledge of the need to be relevantly satisfied as a pre-condition to consent. In my opinion, none of these documents, contrary to the findings of his Honour, leads to an inference that the Council considered cl 32(2) and the 60% resale requirement. 24 As I have mentioned, Bignold J found that, as a matter of probability, the documentary evidence was incomplete. A bundle of documents (Ex 1) was tendered by the appellant. Although the second respondent did not agree that the file necessarily contained all of the documents, neither of the respondents called any evidence to suggest that they were in fact incomplete. Indeed, the second respondent tendered some additional documents. One would have thought that the respondents (particularly the Council) would be in the best position to know what documents were relevant. Moreover, the Council had given discovery and purported to produce all of the relevant documents, see AB 646 - 649. Neither of the legal representatives for the respondents submitted to his Honour that the documents were incomplete. In addition, nobody pointed to any suggestion in the documents before the court that there was further relevant material before the Council when it granted consent than that which had been produced. 25 There is, of course, an issue raised by the respondents as to what general knowledge the councillors may have had and used in the decision-making. While no evidence was called on the issue, there are clearly cases where councillors go into a meeting carrying with them general or particular knowledge, pertinent to a development application, in addition to that which is contained in the documents before them. Undoubtedly councillors would have had some general pre-knowledge of the site, the development application and the rezoning process, including the spot rezoning exercise. However, it is impossible to infer that they had an understanding of the amendments made by Parliamentary Counsel, as they affected cl 32 of the LEP and Council's functions under sub-clause (2). It is not possible to infer that they had pre-knowledge, taken to the Council meeting, of the need to be satisfied as to the 60% requirement as a pre-condition to consent. There is nothing in the documents that suggests any such specific knowledge. 26 In Currey I noted that Moffitt P had referred to a Council's 'general knowledge, of all the relevant s 90(1) matters' (Parramatta City Council v Hale (1982) 47 LGRA 319 at 346. See also Hemmings J in Somerville v Dalby (1990) 69 LGRA 422 at 429. Of course, in the latter case, his Honour noted that although a consent authority was under no duty to refer to all matters to be considered, it was usually sufficient to refer to 'the most important matters or those having determining weight'. His Honour then referred to councillors' individual expertise and local knowledge. Here local knowledge is irrelevant. What is needed is actual knowledge of the pre-condition of satisfaction to be held by Council. While it may be reasonable to presume, as I said in Currey, that councillors may have a general knowledge of their principal planning instrument and, given the history and the documents before Council, even general knowledge of the LEP as submitted to the Minister to make, there is no reason to infer knowledge and understanding of Council's role under cl 32(2) of LEP 321, unless it was drawn to attention. It is common ground that the precise requirement of the Council to form a satisfaction as to the 60% requirement as a pre-condition to consent was never before the Council in the documentation. 27 The circumstances of this case bear an extraordinary parallel with Currey. Although the facts are different, the situation faced by the Council in each case is similar. In Currey, the proposed development was prohibited unless the Council was satisfied that the offending building would be removed. An exception required Council's satisfaction that the removal would not be inconsistent with the objectives of the clause and unnecessary to achieve those objectives. As I said in Currey, this consideration required some positive attention by the Council. It was a pre-condition to consent. 28 Before coming to the often difficult issue of whether the inference of failure to consider or form the requisite opinion should be drawn, it is convenient to deal with the question of the relevance of the presumption of regularity. As mentioned earlier, Bignold J thought it appropriate to apply the presumption and not to draw the inference urged by the appellant. In my opinion, the presumption of regularity has no place in a case such as this. What is here involved is a question of power. If the pre-condition in cl 32(2) was not satisfied, then Council had no power to grant consent. The existence of the mental state of satisfaction is an 'essential condition' or preliminary to the exercise of the power, Craig v South Australia (1995) 184 CLR 163 at 179 and Timbarra Protection Coalition Inc. v Ross Mining NL [1999] NSWCA 8 per Spigelman CJ at paras 42 and 94. Accordingly, the Land and Environment Court and this court on appeal can review whether the Council held the requisite satisfaction. The presumption of regularity has no part to play in this consideration. 29 Should the inference be drawn? Moffitt P cautioned in Hale about drawing the inference of failure to consider a relevant fact by a collegiate body without anxious consideration. However, he added that if it was available to be drawn, the court should not hesitate. The inference may be more readily drawn in the absence of any evidence from Council officers with knowledge of the facts. In addition, no member of the Council was called, nor any of the authors of the reports before the Council. One might have thought that if the requirement of satisfaction had been reached by Council, but not recorded in writing, oral evidence would have been called. One cannot lightly cast aside the remarks of Kitto J in Jones v Dunkel (1959) 101 CLR 298 at 308 and many succeeding authorities, see for example, Burchett J in Alec Finlayson Pty. Limited v Armidale City Council (1994) 84 LGERA 225 at 243. 30 Accepting the documentary evidence before the court as the whole of the relevant material before the Council at the time it granted consent, one cannot escape the fact that none of it makes reference to cl 32(2) and its application or the 60% requirement. In the absence of any other evidence, this provides the foundation for a conclusion that the Council failed to consider cl 32(2) of the LEP and failed to form the requisite opinion of satisfaction as to the 60% requirement. In my opinion, the inference should have been drawn. 31 The Council submits, joined in by Campbells, that it had actual knowledge of cl 32(2) of the LEP. In addition, or in the alternative, the respondents submit that considered globally, the material before the Council may be taken to establish the satisfaction by the Council of the pre-condition. The material, so it is said, forms a bank of knowledge in Council as a collegiate body, and material available to Council when it made its decision. The state of mind of the Council when it made its decision must be considered in the context of the process in making the LEP, only some few months before the lodgment of the development application. The collective knowledge of the Council is enhanced by the knowledge of its officers properly to be imputed to Council. A host of documentation is relied on by the respondents. The documents, so it is submitted, make it clear that the Council was aware of the nature of the proposed use, the need for amending the LEP and that the amending LEP catered for Campbells' proposed use on the site. The changes to the draft LEP before it was gazetted made no difference to the true nature of the matters of which the Council had to be satisfied before granting consent. 32 As to the submission of Council having actual knowledge of the pre-condition, reliance is placed upon the documents relevant to the adoption of the draft LEP on 7 February 1994 upon its return to the Council from Parliamentary Counsel. This was faxed to the Council by the Department of Planning on 4 February 1994. For its meeting on 7 February, Council had before it a report from its Environmental Planning Manager recommending that Council endorse the draft LEP upon receiving advice from the Parliamentary Counsel that it may be legally made. The report noted that the advice was yet to be received. As I have said, by the time of the meeting it had been received and the Council resolution to endorse the draft plan deleted the reference to the advice of the Parliamentary Counsel. What is important about this aspect of the evidence is that there is no hint that Council was aware, when it resolved to adopt the LEP, that Parliamentary Counsel had changed the draft or in what respect. In the resolution of Council on 7 February 1994 the use was still referred to as 'warehouse/retail' and not 'wholesale and retail warehouse'. The inference which arises is that Council never appreciated the changes that had been made to the draft and no-one drew the councillors' attention to it. The documents, when examined, reveal a lack of awareness by Council of the consequences of the changes made to the draft LEP by Parliamentary Counsel. 33 I turn to the submission that the material taken globally leads to the conclusion that Council had the requisite knowledge and formed the necessary opinion of satisfaction. It may be accepted that prior consideration may be relevant if it is enlivened, see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 44 - 45 and Hale at 339 and 346. However, when the Council made its decision in December 1994 there was nothing to enliven its knowledge of the need for it to be satisfied as to the 60% requirement in cl 32(2). This is assuming that it understood what it was doing in February 1994 in resolving to adopt the LEP with the altered wording. The fact of the matter is that there are no indicators of awareness of the pre-condition at the meeting of 7 February 1994, nor up to and including the meeting in December 1994 when consent was granted. 34 When one examines the large number of documents relied on by the respondents, they take the matter no further. In brief, many of them relate to a different purpose and a different time and are not made relevant by the development application and its accompanying documentation, council officers' reports or the reports of the consultants. None of these documents provides the Council with the necessary knowledge to appreciate its functions and duties at the meeting in December 1994 when it granted consent. 35 I repeat that the original form of cl 32 in the draft LEP placed on exhibition did not require the Council to form any view as to whether it was satisfied that the premises would be used in the manner set forth. The use was made permissible and the Council could either impose a condition in the terms of the clause or rely on the elements in the definition in the clause should trading appear to be inconsistent with the definition. However, the changes effected by Parliamentary Counsel imposed a pre-condition, removed the percentage requirement from the definition and added a requirement for bulk quantities. This was a quite different structure and lead to the need for a different approach by Council in determining the application which was later before it. I need not repeat that the LEP, as gazetted, required the Council to form the opinion of satisfaction of the 60% requirement. This was a pre-condition to permissibility necessary to be held by Council before it could consider the balance of the application and grant consent. The decision to grant approval without that necessary satisfaction is no decision to approve, see Darling Casino Ltd v NSW Casino Control Australia (1997) 191 CLR 602 at 635. It follows that the development consent is invalid. Accordingly, it is unnecessary to consider the appellant's alternative submissions.
Discretion 36 The parties are agreed that in the event of the court finding a breach of cl 32 the matter should be remitted to the Land and Environment Court to consider the court's discretion to grant the injunctive relief sought by the applicant. This is sensible given the passage of time since the consent was granted and since the decision of Bignold J. There may be considerable evidence sought to be adduced on the exercise of the discretion to grant or withhold relief. The matter should be remitted to the Land and Environment Court to consider the prayer for injunctive relief sought by the appellant. However, the same considerations do not apply to the declaration. The appellant seeks a declaration of invalidity of the development consent. The respondents oppose the declaration in so far as it refers to consent for the construction of a building, since erected with Council's building approval. Counsel for the appellant accepts this position. I can see no discretionary reason why a modified form of declaration, omitting reference to the construction of the building, should not be made.
Orders made by Bignold J that the application be dismissed with costs set aside.
In lieu thereof, order that the respondents pay the appellant's costs before Bignold J.
Declare that development consent No. 370/94 dated 12 December 1994 granted by the first respondent Council to the second respondent for the purpose of a wholesale and retail warehouse in respect of premises at Lot 2 DP 309868 Gibbes Street, Regentsville is invalid.
Remit the matter to the Land and Environment Court to determine the balance of relief sought by the appellant. 38 GILES JA: I agree with Stein JA. ************
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FRANKLINS LIMITED
PENRITH CITY COUNCIL and CAMPBELLS CASH & CARRY PTY. LIMITED
New South Wales Court of Appeal CITATION : FRANKLINS LIMITED v PENRITH CITY COUNCIL and CAMPBELLS CASH & CARRY PTY. LIMITED [1999] NSWCA 134 FILE NUMBER(S) : CA 40115/97 HEARING DATE(S) : 23, 28 and 29 April 1999 JUDGMENT DATE : 13 May 1999
P.D. McClellan QC/B.J. Preston (Appellant) COUNSEL : M.G. Craig QC/A.E. Galasso (1st Respondent) N.A. Hemmings QC (2nd Respondent) Clayton Utz (Appellant) SOLICITORS : Wilshire Webb (1st Respondent) Allen Allen & Hemsley (2nd Respondent) CATCHWORDS : Application challenging the validity of a development consent - draft Local Environmental Plan (LEP) designed to amend industrial zoning in Interim Development Order so as to permit 'warehouse/retailing' activities - s 65 certificate - making of LEP but in an amended form - redrafting of clause - whether in granting consent the Council failed to consider a requirement contained in the redrafted clause ACTS CITED : Environmental Planning and Assessment Act 1979 (NSW); s 90 Clifford v Wyong Shire Council (1996) 89 LGERA 240 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Parramatta City Council v Hale (1982) 47 LGRA 319 Sommerville v Dalby (1990) 69 LGRA 422 CASES CITED: Craig v South Australia (1995) 184 CLR 163 Timbarra Protection Coalition Inc. v Ross Mining NL [1999] NSWCA 8 Alec Finlayson Pty. Limited v Armidale City Council (1994) 84 LGERA 225 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Darling Casino Ltd v NSW Casino Control Australia (1997) 191 CLR 602 DECISION : Appeal allowed with costs
(1996) 89 LGERA 240
(1998) 100 LGERA 365
(1995) 184 CLR 163
(1994) 84 LGERA 225
(1986) 162 CLR 24
(1997) 191 CLR 602
(1959) 101 CLR 298