Friends of Bucketty Incorporated v Buckettys Brewery Pty Ltd [2026] NSWLEC 118 | Case summary | Zoe

NSWNSWLEC

Friends of Bucketty Incorporated v Buckettys Brewery Pty Ltd

[2026] NSWLEC 118

Land and Environment Court (NSW)|2026-09-11|Before: Pritchard J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-09-11

Before

Pritchard J

Catchwords

JUDICIAL REVIEW – review of Council’s decision to grant development consent for food and drink premises comprising a pub, restaurant and ancillary brewery – whether Council failed to consider proposed instrument pursuant to s 4.15(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 – whether Council was required to consider proposed development as integrated development pursuant to Div 4.8 of the EPA Act – whether a development being integrated development within the meaning of s 4.46 of the EPA Act is a jurisdictional fact – whether provisions of Div 4.8 are optional – whether Council purported to grant consent for consent that was prohibited – whether brewery component was an ancillary or independent and prohibited use – whether Council misdirected itself in its application of Pt 3.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 – whether the land was core koala habitat – whether Council failed to consider public submissions – whether Council’s decision was legally unreasonable – proceedings dismissed

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Catchwords

JUDICIAL REVIEW – review of Council’s decision to grant development consent for food and drink premises comprising a pub, restaurant and ancillary brewery – whether Council failed to consider proposed instrument pursuant to s 4.15(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 – whether Council was required to consider proposed development as integrated development pursuant to Div 4.8 of the EPA Act – whether a development being integrated development within the meaning of s 4.46 of the EPA Act is a jurisdictional fact – whether provisions of Div 4.8 are optional – whether Council purported to grant consent for consent that was prohibited – whether brewery component was an ancillary or independent and prohibited use – whether Council misdirected itself in its application of Pt 3.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 – whether the land was core koala habitat – whether Council failed to consider public submissions – whether Council’s decision was legally unreasonable – proceedings dismissed

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Friends of Bucketty Incorporated v Buckettys Brewery Pty Ltd [2026] NSWLEC 118

Hearing dates: 11, 12 March 2026, further written submissions received 2 September 2026

Date of orders: 11 September 2026

Decision date: 11 September 2026

Jurisdiction: Class 4

Before: Pritchard J

Decision: The Court makes the following orders:
(1) The proceedings are dismissed.
(2) Unless either party files and serves written submissions no longer than 5 pages in length in relation to costs within seven days of this judgment, there will be no order as to costs.

Catchwords: JUDICIAL REVIEW – review of Council’s decision to grant development consent for food and drink premises comprising a pub, restaurant and ancillary brewery – whether Council failed to consider proposed instrument pursuant to s 4.15(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 – whether Council was required to consider proposed development as integrated development pursuant to Div 4.8 of the EPA Act – whether a development being integrated development within the meaning of s 4.46 of the EPA Act is a jurisdictional fact – whether provisions of Div 4.8 are optional – whether Council purported to grant consent for consent that was prohibited – whether brewery component was an ancillary or independent and prohibited use – whether Council misdirected itself in its application of Pt 3.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 – whether the land was core koala habitat – whether Council failed to consider public submissions – whether Council’s decision was legally unreasonable – proceedings dismissed

Cases Cited: Anderson v Director General, Department of Environmental and Climate Change (2008) 163 LGERA 400; [2008] NSWCA 337
Artmade Architectural Pty Ltd v Central Coast Council [2025] NSWLEC 1249
Azzopardi v Gosford City Council (2002) 123 LGERA 118; [2002] NSWCA 234
Azzopardi v Gosford City Council (No 2) (2001) 119 LGERA 132; [2001] NSWLEC 283
Bat Advocacy NSW Inc v Minister for Environment Protection Heritage and the Arts (2011) 180 LGERA 99; [2011] FCAFC 59
Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404
Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; [2007] NSWCA 171
Bronger v Greenway Health Centre Pty Ltd (t/as Greenway Plaza Pharmacy) (2023) 256 LGERA 401; [2023] NSWCA 104
Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472
Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
Carr v The State of Western Australia (2007) 232 CLR 138; [2007] HCA 47
Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215
Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; [2004] NSWLEC 401
Cheetham v Goulburn Motorcycle Club Inc (2017) 223 LGERA 43
Colonial Bank of Australasia v Willan (1874) LR 5 PC 417
Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69
Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc (INC2200560) v MACH Energy Australia Pty Ltd [2024] NSWLEC 86
Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc v Mach Energy Australia Pty Ltd (2025) 263 LGERA 264; [2025] NSWCA 163
Foodbarn Pty Ltd v Solicitor-General (NSW) (1975) 32 LGRA 157
Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417; [2012] FCA 288
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23
Maule v Liporoni (2002) 122 LGERA 140; [2002] NSWLEC 25
Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
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
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Page v Sydney Seaplanes Pty Ltd trading as Sydney Seaplanes (2021) 106 NSWLR 1; [2021] NSWCA 204
Parramatta City Council v Hale (1982) 47 LGRA 319
Plaintiﬀ M1/2021 v Minister for Home Aﬀairs (2022) 275 CLR 582; [2022] HCA 17
Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127
Scott’s Provisions Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191
South East Forest Rescue Inc v Bega Valley Shire Council (2011) 211 LGERA 1; [2011] NSWLEC 250
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255
Weal v Bathurst City Council (2000) 111 LGERA 181; [2000] NSWCA 88
Woolworths Limited v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Gunning Sustainable Development Association Inc v Upper Lachlan Council
(2005) 138 LGERA 281; [2005] NSWLEC 23
Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138

On 8 May 2024, the second respondent submitted an updated flora and fauna assessment report prepared by Fraser Ecological Consulting on 27 April 2024 (the updated flora and fauna assessment).
From 14 June 2024 until 28 June 2024 (a period of 14 days), Council undertook a second period of public notification for the development application (the second notification period). Various persons and entities made submissions to Council during the second notification period.
On 25 June 2024, a person whose name was redacted sent a submission to Council. The submission referred to the updated flora and fauna assessment report and said that there had been more recent koala sightings within a 10km radius of the land recorded on NSW Bionet and not referred to in the report. The submission also said that the land was “likely part of an established home range of koalas”.
On 10 August 2024, Council held a “Koala Workshop”. On 19 September 2024, a person whose name was redacted sent an email to an officer of Council referring to the koala workshop, and asking the officer if they could have a copy of “the Koala map”. On 20 September 2024, the officer replied that he was “happy to provide a copy of the sighting data map that was at the workshop”. On 24 September 2024, the officer sent a map produced by Council titled “Koala Sightings in Cessnock LGA (2019 – 2024)” (Council’s koala sighting****s map). An extract from that map is reproduced below:
On 17 January 2025, NSW Police sent Council an email in relation to the development application. The email referred to a proposed updated management plan sent to NSW Police by the second respondent, and provided that “[f]rom our previous meeting Police still do not support the building and running of a licensed venue with a Hotel Licence due the associated risks”, but that “an option with reduced risk is that of running a on-premises licence (common with restaurant) & a wholesaler/producer licence within the building”.
It was not in dispute that an undated operational plan of management accompanied the development application (the operational plan of management). The operational plan of management provided relevantly as follows in relation to the service of alcohol, takeaway sales and ancillary brewing:

Under the heading “4.15(1)(a)(ii) The provisions of any proposed instrument …”, the first assessment report did not refer to Amendment No 40 as a proposed instrument that needed to be considered. Under the heading “4.15(1)(d) Any submissions made in accordance with this Act or the regulations”, the first assessment report contained a detailed summary of the submissions in support of and in objection to the proposal.
In a section titled “External Referrals” the first assessment report said that the development application was required to be referred to NSW Police and Transport for NSW, but did not refer to the requirement for approvals to be obtained from WaterNSW under the Water Management Act.
Between 12 February 2025 and 19 February 2025, Council received a number of further submissions in relation to the development application.
On 14 February 2025, Hunter Wildlife Rescue sent a submission to Council. The submission provided that “koalas may live on the site from time to time despite not having been recorded at the time of the observation during the koala survey that was undertaken for the Development Application”, and that the land could not be “assessed in isolation due to the integrity of the habitat that lies adjacent to Yengo National Park, Orney State Forest and Jilliby State Conservation area”. The submission referred to Council’s koala sightings map which it said “reveal[ed] that Bucketty is the epicentre of the known [koala] population in the LGA”. The submission said that as “koalas are known to have home ranges of up to several hundred hectares then it is feasible that any or all of these koalas could call the area on or around [the land] as home, breeding territory or foraging range”.
On 19 February 2025, there was email correspondence between persons whose names were redacted with the subject “FW: Council meeting tonight for DA”. The email said that a person “from the Sydney Koala basin project has just sent this Map with the red dot which shows it is core Koala habitat”. The email from SBKN said “I’ve attached a map from the NSW Gov database seed showing the ‘Koala Tree Index’ anything green (ie above 50%) is koala habitat and the darker the green the more suitable it is” and that the property location “is in 80% Koala Habitat - i.e. very high”.
At Council’s meeting on 19 February 2025, the elected members of Council considered the development application. After hearing from various objectors to the proposed development and from the second respondent, and after debating the merits of the development application, the elected members of Council resolved to defer the determination of the development application to its next ordinary meeting and pending the receipt of responses to a number of questions from senior officers of Council.
In the transcript of Council’s 19 February 2025 meeting, Amendment No 40 was referred to as follows:

In addition to the background set out above, the respondents sought to rely on the following evidence in relation to Issue 2.1 which is whether Council was required to assess the development application as integrated development within the meaning of s 4.46 of the EPA Act:
an affidavit of David Pavey, qualified engineer engaged by the first respondent to design the stormwater management system for the proposed development, dated 17 September 2025 (Pavey affidavit) and the documents annexed thereto;
an affidavit of Julian Furzer, architect engaged by the first respondent to design and document the development scheme for the proposed development, dated 17 September 2025 (Furzer affidavit) and the documents annexed thereto; and
an affidavit of Cameron Warwick Leal, land surveyor who prepared a survey of the land, dated 17 September 2025 (Leal affidavit) and the documents annexed thereto.
In the Pavey affidavit, Mr Pavey said that he was engaged by the first respondent to design the stormwater management system for the development approved in the development consent. In relation to the blue line marked “OVERFLOW TO ADJACENT CREEK THEN TO SITE DAM” on the drawing prepared by Pavey Consulting Services dated 6 September 2023 (reproduced above at [15(2)]), Mr Pavey said that the blue line was “an indicative line only, to demonstrate the direction of Overflow water, and does not indicate any detail of the Overflow design”.
In relation to condition 18 of the consent concerning detailed drainage design, Mr Pavey said that an overflow system such as that proposed in condition 18 “typically” consists of “a length of pipe or a shallow swale from the stormwater tank that deposits overflow water in a location near the tank so that the water then flows via normal overland topography to the relevant stream or catchment”. Based on his knowledge of the land, Mr Pavey estimated that the overflow was “likely to consist of a short length of pipe (approx. 5 m long) which will discharge into a shallow swale extending approx. 5 metres from the Overflow”.
The applicant objected to the entirety of the Pavey affidavit on the basis that it purported to be expert evidence (Mr Pavey stating that he had read and agreed to be bound by the Expert Witness Code of Conduct in Schedule 7 to the UCPR) when no leave had been sought by or given to the respondents to rely on expert evidence. The applicant also objected to Mr Pavey’s evidence on the basis that he was speculating.
Annexed to the Leal affidavit were the following surveys of the land:
a survey prepared by Marshall Scott Surveyors dated 26 July 2018 (an extract from which is reproduced below); and
a survey prepared by Mr Leal dated 30 May 2024 (an extract from which is reproduced below):
The applicant objected to the surveys annexed to the Leal affidavit on the basis that they were not before Council when it made the decision to grant consent to the development application.
In the Furzer affidavit, Mr Furzer said that in February 2022 he was engaged by the second respondent to design and document a development scheme for the proposed development. Mr Furzer said that he was provided plans prepared by Up Architects which showed “a stream wholly contained in the Property”, and the survey of 26 July 2018 prepared by Marshall Scott surveyors. As the survey of 26 July 2018 “did not show the location of any watercourse on site”, Mr Furzer “considered it reasonable to use the base information used in the Up Architects site plan”. Using the updated survey prepared by Mr Leal on 30 May 2024, Mr Furzer prepared an updated site plan drawing dated 30 July 2025, an extract from which is reproduced below:
To prepare this drawing, Mr Furzer overlaid the survey prepared by Mr Leal on 30 May 2024 to the same scale as the architectural plans. He then measured the distance from the “1st Order Stream” to the buildings in the approved plans, and said that the building is about 59.6 metres from the property boundary of the land, and “the closest it comes to the stream is just over 72 metres”.
In relation to the applicant’s objection that parts of the Furzer and Leal affidavits referred to materials which were not before Council when it made the decision to grant consent to the development application, the respondents submitted that the applicant’s contention that Council was required to assess the proposed development as integrated development (Ground 2, Issue 2) involved a contention that the issue was one of jurisdictional fact. If the applicant was correct on this contention, the affidavits would be relevant as to whether that jurisdictional fact existed, referring to the decision of the Court of Appeal in Azzopardi v Gosford City Council [1] (Azzopardi CA), an appeal from the decision of Sheahan J in Azzopardi v Gosford City Council (No 2) [2] (Azzopardi LEC). In oral submissions, the respondents also submitted that if the applicant’s contention that the integrated development issue is jurisdictional was correct, then the requirements to identify a jurisdictional fact set out by Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL [3] (Timbarra) would be satisfied. In the alternative, the respondents submitted that the affidavits were relevant to Issues 8 and 9 and the Court’s discretion in refusing the applicant’s proposed orders or exercising its powers pursuant to s 25B of the LEC Act.
In relation to the applicant’s objection that Mr Pavey purported to provide expert evidence, the respondents submitted that the evidence given by Mr Pavey, Mr Furzer and Mr Leal was in the nature of lay evidence, even though they had been qualified as experts. To the extent that the Court considered the affidavits to be in the nature of expert evidence, the respondents sought leave to rely on that expert evidence.
In relation to the relevance of materials not before Council when it made the decision to grant consent to the development application, the applicant submitted that whether an issue is one of jurisdictional fact requires analysis of the indicators of jurisdictional facts: Woolworths Limited v Pallas Newco Pty Ltd [4] (Pallas Newco) at [30]. In relation to what was said to be the speculative nature of Mr Pavey’s evidence, the applicant submitted that whether the overflow is to be a swale or overland flow rather than a pipe had not been assessed by council, and so what Mr Pavey was suggesting was “not necessarily within the scope of what council has approved and may require a modification to the development”. Another problem was that the evidence suggested that the survey showed the wrong location of the tributary which was now shown to go onto neighbouring land. The applicant submitted that “a swale would still need work but we’re now on neighbouring property and that would need owner’s consent”. There were submitted to be “a lot of problems with accepting evidence about some future scenario which may or may not involve an amended development or a modification to the development consent”. Further, the Azzopardi decisions were submitted not to say anything about whether leave was sought or should have been sought in relation to expert evidence, and “such minor work” was involved which presented a “very different circumstance” to the present case.
My consideration of and rulings in relation to the objections to the Pavey, Furzer and Leal affidavits are as follows. I am satisfied that the Furzer affidavit and the surveys annexed to the Leal affidavit are capable of being relevant to Ground 2 and Issue 2 which raise whether Council was required to assess the development application as integrated development within the meaning of s 4.46 of the EPA Act. That raises whether the proposed development required approval pursuant to s 91 of the Water Management Act which in turn depends on whether the proposed development, or part of it, was “in, on or under waterfront land”, the Dictionary to the Water Management Act defining “waterfront land” as including land within 40 metres of a river. Accordingly, whether material that was not before Council at the time of the decision to approve the development application is admissible in these Class 4 judicial review proceedings depends on whether the question of whether the proposed development is for integrated development is one of jurisdictional fact.
After the conclusion of the hearing, I asked the parties to provide a supplementary submission on whether the question of whether a development is integrated development within the meaning of s 4.46 is a jurisdictional fact, and whether on that assumption its existence is satisfied on the evidence before the Court.
In its supplementary submission, the applicant submitted that here as in Timbarra the process of making an application, and whether the application is for integrated development, are preliminary to and distinct from the process of determination by the consent authority “because an application either is, or is not, for integrated development on the terms of section 4.46”. As in Timbarra where whether or not a development proposed to occur in critical habitat was “entirely a matter of objective fact”, the applicant submitted that whether development is integrated development or not is “entirely a matter of objective fact”. Further, once an application is “integrated” it cannot lose its character as integrated development: “regardless of whether approvals by other bodies are granted during the assessment process, the application itself remains integrated”. In relation to the respondents’ reliance on the decision of Lloyd J in Maule v Liporoni, [5] the applicant submitted that the present proceedings are more closely aligned with Reid's Farms Pty Ltd v Murray Shire Council [6] (Reid’s Farms) and Artmade Architectural Pty Ltd v Central Coast Council [7] (Artmade Architectural). However, having submitted that the question raised by s 4.46 must be a jurisdictional fact, the applicant did not proceed to address the admissibility and relevance of the evidence of Messrs Pavey, Furzer and Leal to the existence or otherwise of that fact.
In their supplementary submissions, the respondents submitted, somewhat cryptically, that “the s 4.46 question of whether development is integrated development is a matter of jurisdictional fact, if a jurisdictional matter at all”. The respondents relied on Maule v Liporoni as holding that the question is not capable of giving rise to jurisdictional error at all, but acknowledged that Azzopardi CA “is consistent with it being a question of jurisdictional fact”. The factors in Pallas Newco, “as a whole”, suggested that “the question of whether or not development is integrated development pursuant to s 4.46 is a matter of jurisdictional fact “as it is completely preliminary to the decision-making process, and each factual issue arising under the listed legislation may be objectively determined by the Court”. Secondly, the respondents submitted, if the Court concludes that the question is one of jurisdictional fact, that jurisdictional fact has not been satisfied on the evidence before the Court and the development the subject of the impugned consent is not integrated development. The Court would find that the approved development lies more than 40 metres from “waterfront land” and hence no controlled activity approval was required under the Water Management Act.

It is apparent that the second reading speech evinces Parliament’s intention, through the introduction of Pt 4, Div 5 (now Div 4.8) of the EPA Act, to address what it considered to be the delays and duplication, inconsistency and uncertainty and environmental costs resulting from multiple assessment processes, including the “poor co-ordination of planning referrals between State and local government”. [15] The provisions in Pt 4, Div 5 were enacted to benefit the community and the environment more broadly, “not only developers” and applicants for development consent.
As Herzfeld and Prince have commented, the provisions of (inter alia) the Interpretation Act, relevantly s 33, mandate a construction that would promote the statutory purpose over one that would not. [16] Both at common law and under the Interpretation Act provisions, the “purpose” is to be identified objectively. A construction is required that would promote or best give effect to the purpose. Attention is directed to the mischief sought to be remedied by the legislature. [17] It is undoubtedly the case that statutory purpose will not always assist, as Gleeson CJ explained in Carr v The State of Western Australia [18] at [5] to [6]. Here, however, it is tolerably clear that a significant purpose of the provisions in Pt 4, Div 4.8 of the EPA is to benefit the community and the environment more broadly, and not only developers and applicants for development consent, by reducing the inconsistency and uncertainty and environmental costs resulting from multiple assessment processes. Such a purpose would be frustrated by a construction of the provisions of Pt 4, Div 4.8 of the EPA Act so as to permit an applicant for consent to elect to have a development which objectively meets the criteria for “integrated development” assessed otherwise than as integrated development. Likewise, that purpose would be frustrated by a consent authority failing to characterise such a development as integrated development.
This leads to the second statutory indicator identified by Spigelman CJ in Pallas Newco pointing to the question being one of jurisdictional fact: the language of ss 4.46 and 4.47 and the statutory implications of development being integrated development. As at the date Council granted the consent, [19] s 4.46(1) defined “integrated development” as development that, in order for it to be carried out, requires development consent and one or more of the approvals listed in s 4.46(1). Section 4.46 cannot be read in isolation from s 4.47 which applied to the determination of a development application for development that is integrated development: s 4.47(1). Section 4.47(2) provided in relation to the determination of a development application for development that is integrated development that, before granting development consent, the consent authority must obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Section 4.47(3) provided that a consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted, and s 4.47(4) that a consent authority must refuse consent if the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out.
As was a consideration in Hunter Industrial at [182] (Basten JA) pointing towards the existence of a jurisdictional fact, none of ss 4.46(1), 4.47(2), 4.47(3) or 4.47(4) is expressed to be based on the discretion or opinion of a consent authority. Nor is any of these provisions expressed to be based on an applicant for consent electing to have a development assessed as integrated development. Whilst a decision of a Commissioner of the Court is of persuasive value only, I find the reasons of Commissioner Dickson in Artmade Architectural at [27(7)] to be of assistance. The Commissioner there said that whilst a development application form may include “an option for an applicant to nominate that their development is integrated”, this “does not subvert the effect of Div 4.8”. Nor does the second reading speech evince an intention of Parliament for the provisions of Div 4.8 to depend for their effect on the choice of an applicant for consent or the opinions or discretion (emphasis added): [20]

Here, the evident purpose of Div 4.8 is to reduce conflicts between development consents and the approvals of State authorities. It is difficult to see how the requirements in s 4.47(2) to (4) could be understood as imposing conditions based on the election of the applicant for consent or the opinion of the consent authority. The second indicator in Pallas Newco, here the language of ss 4.46 and 4.47 and the statutory implications of development being integrated development, leans strongly in favour of the question of whether the proposed development is for integrated development being one of jurisdictional fact.
The third statutory indicator identified by Spigelman CJ in Pallas Newco pointing to the factual reference being one of jurisdictional fact is the existence of provisions which increase the flexibility of the legislative scheme in specific circumstances. In the present case, s 4.47(5) provided that if the approval body and the Planning Secretary (who may act on behalf of an approval body: sub-s (4A)) fail to inform the consent authority whether or not it will grant the approval, the consent authority may determine the development application: sub-s (5)(a). If the consent authority grants consent, the approval body cannot refuse to grant approval in respect of the development (sub-s (5)(b)(i)), and an approval granted by the approval body must not be inconsistent with the development consent (sub-s 5(b)(ii)). As in Pallas Newco at [46] (Spigelman CJ), the significance of such provisions is that the requirements in s 4.47(2) to (4) mean what they say.
The fourth statutory indicator identified by Spigelman CJ in Pallas Newco pointing to the question being one of jurisdictional fact is where the factual reference “is appropriately characterised as preliminary or ancillary to the decision-making process” or is “extrinsic to the facts and matters necessary to be considered in the exercise of the substance decision-making process itself” (at [49]). In Hunter Industrial, the legislative scheme dealt in separate provisions with the preconditions to the engagement of the power to grant or vary a licence and the circumstances governing the exercise of that power. This led Basten JA to conclude that the preconditions were “extrinsic to the process of determining whether consent should be given” (at [183]). Here, the matters to be taken into account in exercising the power to grant a development consent are those identified in Div 4.3, s 4.15 “Evaluation”, not Div 4.8 “Integrated development”. This, in addition to the language of s 4.47(2) which requires a consent authority to receive any proposed general terms of approval before exercising its power to grant consent, strongly suggests that the question of whether development is integrated development is “legally antecedent” or “preliminary or ancillary to the decision-making process” (Pallas Newco at [47] and [49]). This is consistent with the intention of Parliament to increase coordination between consent authorities and approval bodies by ensuring that the consent authority has received any proposed general terms of approval before exercising its power to determine whether or not to grant development consent.
A further consideration is that I do not consider any of the indicators identified by Spigelman CJ in Pallas Newco pointing against the existence of a jurisdictional fact to be presently applicable. None of the provisions in Div 4.8 of Pt 4 involves a matter of fact and degree requiring a consent authority to engage “in the assessment of a wide range of matters of considerable complexity involving the formation of value judgments” (Spigelman CJ at [58]). As noted by Commissioner Dickson in Artmade Architectural at [27(6)], whether a development is integrated development is a finding of fact that arises from the application of the provisions in s 4.46(1). Here, that finding of fact concerns whether the proposed development required approval pursuant to s 91 of the Water Management Act which depends, in turn, on whether the development or part of it was “in, on or under waterfront land”, which is defined to include land within 40 metres of a river. In relation to s 4.47(2), the finding of fact concerns whether or not a consent authority has received any general terms of approval proposed to be granted by the approval body in relation to the development.
In Pallas Newco Spigelman CJ said at [9] that the determination of whether or not a fact is jurisdictional in the requisite sense can give rise to considerable difficulty and is a matter upon which reasonable minds can differ, and that there is no bright line between jurisdictional error and error in the exercise of a jurisdiction. However, in light of my consideration of the indicators identified by Spigelman CJ in Pallas Newco as in favour of and against a conclusion that a factual reference is jurisdictional, I conclude that here the question of whether a development is integrated development within the meaning of s 4.46(1) of the EPA Act is jurisdictional. Accordingly, the question is to be determined on the material which is before the Court, and not only the material which was before Council when it granted consent. As noted by Talbot J in Gunning Sustainable at [69], this conclusion appears also to be consistent with Azzopardi LEC and Azzopardi CA where Sheahan J at first instance and the Court of Appeal proceeded on the basis that the granting of consent in respect of integrated development without first complying with the provisions of s 91A (now s 4.47) could lead to invalidity.

The applicant identified the following principles as applicable to the duty to “take into consideration” in s 4.15 of the EPA Act:
in order to perform its obligation to take a matter “into consideration”, a “consent authority needs to inform itself sufficiently”; [35]
the duty “requires more than simply adverting to the matter”: Kindimindi at [73] to [79] (Basten JA) and Anderson at [51] to [60] (Tobias JA);
the duty “requires an understanding of the matters and their significance, and a process of evaluation, such as to demonstrate that the matters were considered”: Weal at [80] to [95] (Giles JA);
a “failure to take matters into consideration may be demonstrated where it can be shown that the decision-maker had inadequate personal acquaintance with the facts and issues, and generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it”: Centro Properties at [37] (McClellan CJ of LEC);
compliance with the duty requires an “active intellectual engagement”: Khadgi at [57], [63] (Stone, Foster and Nicholas JJ), Bat Advocacy at [45] (Emmett, McKerracher and Foster JJ) and Manning at [66] (Pepper J); and
the consideration “must be proper consideration and, in some cases, significant weight should be given to draft instruments”, citing Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [36] (Terrace Tower) and Maygood Australia Pty Ltd v Willoughby City Council [37] (Maygood Australia).
The applicant submitted that Council failed to consider Amendment No 40 because having regard to the material that was before Council:
the agendas for Council’s February and March meetings did not refer to Amendment No 40;
reference to Amendment No 40 in the first and second assessment reports in section 4.1 “Permissibility” was confined only to the savings provision;
the first and second assessment reports did not refer to Amendment No 40 in section 4.3 “Relevant Sections” when considering the duty in s 4.15(1)(a)(ii); and
the SEE which considered Amendment No 40 in section 4.1.3 “Draft Environmental Planning Instruments” was not before Council when it approved the development application.
In addition to the material that was before Council, the applicant referred to the transcript of the February and March meetings, and submitted that when councillors “asked questions of their senior officers on the subject of Amendment 40, they were directed to the savings provision only, advised that the development application was ‘lawful’ and not advised that they were required to consider Amendment No 40 and could give weight to it in the making of the decision”. Accordingly, councillors were “unaware of their obligation (and ability) to consider Amendment No 40 beyond the savings provision”, and “submissions from objectors on the issue of Amendment No 40 were largely ignored”.
Thus, the applicant submitted, the “presumption of regularity” was rebutted and the Court could not be satisfied that Council considered Amendment No 40 in determining the development application. Based on the reasons in the Amendment planning proposal, Amendment No 40 “should have been given significant weight” because “land uses such as those of the [development proposal] had been identified as being harmful to the environment in rural land use zones, and as environmental harm was likely to be caused by the development of the type that the Proposed Instrument prohibited in the zone”: Terrace Tower at [50] to [51] and Maygood Australia at [29] to [34].

Hence, it follows that as at the date the development application was lodged Amendment No 40 was still a “proposed instrument” and mandatory relevant consideration pursuant to s 4.15(1)(a)(ii) even though it had come into force by the time of Council’s decision.
In relation to the main dispute, whether Amendment No 40 was taken into consideration, it is necessary first to deal with the principles relied upon by the applicant set out above at [143], many of which needed to be treated with caution. Formulations requiring a consent authority to “inform itself sufficiently”, to “understand the matters and their significance”, to engage in a “process of evaluation”, to have “adequate personal acquaintance with the facts and issues”, to “understand the scope of a problem”, to “engage in an active intellectual process”, or to engage in “proper consideration” are all formulations which “risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review” (Basten JA in Kindimindi at [79]), and which have the “danger of creating ‘a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised’” (Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 at [26]).
The applicant further submitted that “in some cases, significant weight should be given to draft instruments”, referring to Terrace Tower and Maygood Australia. Those decisions concerned Class 1 merits review, not Class 4 judicial review proceedings. In Terrace Towers, the Court of Appeal held (at [51]) that Cowdroy J, sitting in the position of the original decision-maker, did not make an error of law by giving a planning instrument significant weight because it had come into force, notwithstanding a savings provision similar to that in the present case requiring that the instrument be treated as a draft instrument. Maygood Australia only referred to Terrace Towers and “significant weight” at [24] in relation to the issue dealt with above at [151] to [152]. In Terrace Towers and Maygood Australia the Court did not say that in Class 4 judicial review proceedings it can invalidate a decision because it disagrees with the weight given to a proposed instrument that it considers “should” have been given significant weight. This is contrary to the principle that it is for the decision-maker to determine the appropriate weight to be given to mandatory relevant matters: Peko-Wallsend at 40.
Hence, I do not accept the applicant’s submission that Amendment No 40 “should have been given significant weight” because “land uses such as those of the [development proposal] had been identified as being harmful to the environment in rural land use zones, and as environmental harm was likely to be caused by the development of the type that the Proposed Instrument prohibited in the zone”. The submission is an impermissible slide into merits review. I accept, as submitted by the applicant, that the relevant matter must be “more than adverted to or given mere lip service”, as Tobias JA said in Anderson at [58]. However, as Basten JA said in Kindimindi at [80], in “the absence of an egregious omission in the decision” the task of proving a failure to consider will be difficult.
In relation to the application of these principles, it arises next to identify the material that was before Council when it made the decision to grant development consent. As submitted by the applicant, the Statement of Environment Effects prepared by JW Planning Pty Ltd which concluded that “Council should not give determining weight to the draft LEP amendment” was not before Council when it made the decision to grant consent. The first and second assessment reports which were before Council only referred to Amendment No 40 to say that the effect of the savings provision in cl 1.8A(2) of the Cessnock LEP was such that “Council is able to assess the development as a permitted land use … as the Application was lodged prior to gazettal of the draft LEP”. Notably, the first and second assessment reports did not refer to Amendment No 40 in section 4.3 “Relevant Sections” under the heading “4.15(1)(a)(ii) The provisions of any proposed instrument …”.
I accept that such a cursory reference to Amendment No 40 in the first and second assessment reports did not constitute “consideration” of Amendment No 40. Such a reference is akin to the situation in Anderson where Tobias JA said also that it would not be “sufficient to advert to the matter and then discard it as irrelevant”. The reports refer to Amendment No 40, but appear then to discard it as irrelevant because Council was “able to assess the development as a permitted land use” given cl 1.8A(2). There is no reference to Amendment No 40 in the dedicated section for s 4.15(1)(a)(ii). In relation to this omission, the respondents submitted that it “would of course been erroneous for the Assessment Report to have referred to Amendment 40 as a proposed instrument” because Amendment No 40 had commenced by the time of the decision. However, as set out above at [151] to [152], this involves a misunderstanding of the effect of cl 1.8A(2). If the Council officers who prepared the first and second assessment reports believed that they did not need to consider Amendment No 40 as a draft instrument pursuant to s 4.15(1)(a)(ii) because it had commenced by the time of the assessment, then those Council officers were in error. Accordingly, I attach little weight to the fact that the amended statement of reasons said that Amendment No 40 was considered in the preparation of the assessment reports.
However, I do not accept the applicant’s submission that the councillors, as opposed to the Council officers who prepared the first and second assessment reports, were unaware of their obligation (and ability) to consider Amendment No 40 beyond the savings provision, and that “submissions from objectors on the issue of Amendment No 40 were largely ignored” as a result. The transcript of Council’s 19 February extracted above at [41] shows that Amendment No 40 was referred to by at least one councillor, Tracey Harrington. The transcript records an objector saying that the first assessment report did not “take into consideration the draft LEP”, and asking Council to either refuse the development application or “defer [until] the Council report is amended to take into consideration the provisions of the comprehensive LEP review”. Councillor Harrington later referred to Amendment No 40 as follows:

This demonstrates that more than lip service was given to Amendment No 40 and that it was considered by Council beyond the effect of the savings provision. There is nothing in the transcript which suggests that the councillors were operating under an apprehension that they were not required to consider Amendment No 40 because it was no longer a “proposed instrument”, or that they “ignored” the submissions of objectors in relation to it. A conclusion that a consent authority failed to consider a relevant matter by way of inference is one to be come to only after anxious consideration: Hale at 345 (Moffitt P). The “largely” in the applicant’s submission that the objectors’ submissions in relation to Amendment No 40 were “largely ignored” reveals that the applicant’s complaint is one concerning the weight which Council gave to Amendment No 40, and not the absence of consideration.
Even if the evidence of Council’s decision-making process, viewed as a whole, permits an inference that Council was operating under a misunderstanding of the effect of cl 1.8A(2), this does not necessarily point to a failure to consider. As Payne JA said in Ceerose*,* the duty to consider a relevant matter “is separate from the absence of any duty to deal with it correctly, whether in law or in fact” (at [66]). A decision-maker who does not refer to a particular matter may have misunderstood the legal principle to be applied, but in such a circumstance “a complaint of failure to consider will not be proven” (at [68]). Having regard to the comments of councillor Harrington, I find that there was consideration of Amendment No 40 by the councillors even if they might have misunderstood the legal effect of cl 1.8A(2).
The applicant’s complaint here that Council failed to take Amendment No 40 into consideration is one which shades into a claim about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which as Payne JA observed in Ceerose at [57] tends towards merits review. As Adamson JA said in Denman Aberdeen CA at [222] (citations omitted):

In relation to Issue 2.1, the applicant submitted that the proposed development was within 40 metres of a creek and thus on “waterfront land” as defined in the Water Management Act, and involved development including earthworks, sewage treatment and irrigation, and stormwater drainage. The proposed development thus required controlled activity approval pursuant to s 91 of the Water Management Act and was “integrated development” within the meaning of s 4.46 of the EPA Act.
Orally, the applicant submitted that its case was “based primarily” on the line labelled “STORMWATER CONNECTION TO EXISTING OVERLAND TRIBUTARY” in the approved detailed site plan (reproduced above at [50(1)]) (the stormwater connection line). This line was “a solid line all the way to the tributary” and so “there would be no question if that involves works, whether it’s a pipe or construction of a channel, that that would involve works within the 40 metres”. The “secondary basis” for the applicant’s case was that there were other works in the proximity of the tributary, although it was “unclear, on the face of the approved plans, what the distance is between those works and the tributary”. These works were the restaurant effluent and brewery irrigation areas and the clearing for the asset protection zone shown in the approved vegetation modification plan (reproduced above at [50(4)]). Because the box in the development application indicating that the development was integrated development was ticked and “there were clear indicators on the face of the plan” that “a controlled activity approval was required”, Council was “on notice” and obliged to “interrogate all of the plans and documents provided with the development application to determine whether approvals are required for integrated development”. This was a “factual inquiry that must be undertaken” because if the development was “in fact, integrated development, then the consent authority must do the things required by these provisions”.
In relation to the primary basis of its case, the applicant submitted that the stormwater connection line must be understood as a pipe. This was because the approved ground floor plan (reproduced above at [50(2)]) depicted a line labelled “SW” connecting the proposed building and an “indicative location” for “brewery sewerage treatment” (indicated in the detailed site plan). The applicant submitted that “SW” meant either “sewerage water” or “sewer”, and further that:

As set out above at [168], there were two bases for the applicant’s contention that the development application was for integrated development such that Council was required to assess the development application as integrated development. The applicant’s case was “primarily” based on the stormwater connection line in the approved detailed site plan. The “secondary basis” was that there were “some other works that are in the proximity of the tributary”, and while the distance between those works and the tributary was unclear, given that the box for integrated development in the application form was ticked and there were “clear indicators on the face of the plan” that a controlled activity approval was required, Council was “on notice” and obliged to undertake a factual inquiry to determine whether the development was integrated development, which it did not do.
The secondary basis for the applicant’s contention that the development application was for integrated development must be rejected. I have found above at [125] that the question of whether development is integrated development is one of jurisdictional fact. This means that is a fact that is properly characterised as an “essential preliminary to the decision-making process” and not a “fact to be adjudicated upon in the course of the inquiry”: Pallas Newco at [46] (Spigelman CJ) quoting Colonial Bank of Australasia v Willan [39] at 442 to 443*.* I do not accept that the applicant can complain on procedural grounds that Council did not undertake a “factual inquiry” to determine whether the development was integrated development. This is not how Ground 2 was drawn. Council was only obliged to assess the development as integrated development if, as a matter of fact, the development was integrated development. This required the applicant to prove in these proceedings that the proposed development was within 40 metres of the creek. It was insufficient for the applicant to contend that there were works within an “unclear” proximity to the creek.
In relation to the primary basis for the applicant’s contention that the development application was for integrated development and the applicant’s submission that the stormwater connection line must be understood as a pipe, I have some sympathy with the respondent’s submission that this approach involved a “jump in logic”. There was no explicit indication in the approved architectural drawings that the line was a pipe. The notes on the drawings provided that all works were “to be in accordance with authority and statutory approvals”, that reference was to be made to the “site survey” for “all information relating to existing site conditions” (which implicitly includes the location of any creek), that “minor changes to form and configuration may be required after development consent when drawings are prepared for construction purposes”, and that the areas in the drawings “are schematic only and subject to Council and other requisite approval”. Consistently with the indicative and schematic nature of the stormwater connection line, condition 18 of the consent provided in relation to “Stormwater – Detailed Design Requirements” that a “detailed drainage design shall be prepared for the disposal of roof and surface water from the site” before the issue of a construction certificate. Given such uncertainty in relation to the stormwater connection line on the face of the approved architectural drawings and noting condition 18 of the consent, further evidence was required in order to establish that the proposed development was within 40 metres of the creek.
Such evidence required was provided in the Pavey, Furzer and Leal affidavits and the annexed documents, which I admitted into evidence following my conclusion at [125] above that the question of whether works were to occur on land within 40 metres of a watercourse is a question of jurisdictional fact. Consistently with the note on the approved architectural drawings that reference was to be made to the “site survey” for “all information relating to existing site conditions”, Mr Leal prepared a survey of the land (reproduced above at [86(2)]) depicting a “1st order stream” further away from the proposed development and not wholly within the boundaries of the land as it was in the approved architectural drawings. Mr Furzer then overlaid Mr Leal’s survey to the same scale as the architectural drawings to prepare an updated site plan (reproduced above at [88]). That plan demonstrated that if the stormwater connection line was to connect directly with the 1st order stream, it would need to go onto the neighbouring property. Mr Furzer measured the distance from the 1st order stream to the buildings in the approved plans as “just over 72 metres”. Finally, Mr Pavey, consistently with the note on the approved architectural drawings that the areas were “schematic only”, said that a line labelled “overflow to adjacent creek” in a drawing prepared by Pavey Consulting Services (reproduced above at [15(2)]), similar to the stormwater connection line in the approved detailed site plan, was “an indicative line only, to demonstrate the direction of Overflow water, and does not indicate any detail of the Overflow design”. Mr Pavey said that the design proposed in condition 18 would likely consist of a short length of pipe approximately 5m long which would discharge into a swale extending approximately 5m from the overflow so that “the water then flows via normal overland topography to the relevant stream”. The evidence of Messrs Leal, Furzer and Pavey established that no works were proposed within 40 metres of a creek.
Accordingly, the applicant has not established that the proposed development required a controlled activity approval pursuant to s 91 of the Water Management Act and hence was integrated development within the meaning of s 4.46 of the EPA Act. That being so, there was no legal error in Council not assessing the development application as integrated development pursuant to Div 4.8 of the EPA Act, notwithstanding the first respondent having ticked the box for integrated development, and not referring the development application to WaterNSW for a controlled activity approval. The applicant has failed to establish Ground 2 in its amended summons.

First, the respondents submitted that s 32(1) of the Interpretation Act 1987 requires the consent to be construed as not exceeding the power to grant consent in the EPA Act. The consent was to be construed as only authorising a brewery use to the extent it is an ancillary use, the consent expressly providing in its description of development that it grants consent to an “ancillary brewery”. Condition 58, “in excluding a pub use and thus entailing that the sale of liquor cannot be the primary or principal purpose, was an additional term of the consent that ensures the dominance of the restaurant or cafe purpose”.
Secondly, in relation to the applicant’s submission that a brewery cannot be ancillary to a restaurant or cafe, the respondents submitted that while the first and second assessment reports initially characterised the brewery component as ancillary to the pub component, there was “no real or serious question that the brewery can be ancillary to a restaurant and café”, and that this was a “matter of fact and degree”. The concept of ancillary use could extend to such a situation. The only kind of brewery approved by the consent was one that was ancillary to the overall food and drink offering approved for the land. The definition of “food and drink premises” in the Cessnock LEP expressly contemplates the provision of liquor which “creates the ability of on-site liquor production as an ancillary use”. As recorded in the first and second assessment reports, the production capacity of the ancillary brewing facility would be a maximum of 1,500 litres of beer per month (approximately 50 litres per day). Given the maximum capacity of 150 persons, this represented “less than a schooner of beer per person per day” (where a schooner is 425 ml, unless in South Australia). The respondents also referred to the approved area calculation drawing reproduced above at [50(3)] and submitted that the brewery component was 11% of the overall floor area and 7% of the building footprint. The area of the brewery equipment was only 48 square metres, whereas the seating areas, kitchen and back of house had a total footprint of 705 square metres.
Further, condition 58 of the consent referenced an on-premises licence which, according to the Liquor Act*,* requires that the sale and supply of liquor cannot be the primary purpose of the business or activity at the premises subject to an on-premises licence. The respondents submitted that this explained how the brewery would be (and was required to be) ancillary to the restaurant and cafe.

In reply, the applicant submitted that regardless of the description of the development in the consent, the consent is to be construed according to law. The exercise of the power to grant consent “must result in a consent to a development for the purpose or purposes for which consent was sought in the development application made”: Conservation of North Ocean Shores Inc v Byron Shire Council [43] at [22] and [69]. That is, the applicant submitted orally, there is a “need for there to be some link between the development application and the consent, what’s actually approved”. The purpose of the development the subject of the development application was a “pub with ancillary brewery, and a restaurant/café (together with other ancillary works)”. Condition 1 of the consent required the development to be carried out in accordance with the development application and approved plans, except as amended by the conditions. While Council modified the development application by imposing condition 58, the design and scale of the proposed development, as shown in the approved plans, was not amended by the conditions and still showed the pub and bar uses. Council assessed the application on the basis that the brewery was ancillary to the pub (not the restaurant) and “thought it was approving a pub”. It was “artificial to suddenly come along and say now we’re a restaurant with an ancillary brewery” because “that is not what was sought and council didn’t assess that development”.
The applicant submitted that the test of whether a purpose of development is ancillary and incidental to another purpose is whether the two purposes are not severable but are inextricably linked; that is, the operation of one does not inextricably require the other, citing Scott’s Provisions Stores Pty Ltd v Sydney City Council [44] (Scott’s Provisions Stores) and Foodbarn. [45] Contrary to the respondents’ submission that the brewery was inspired by the “overall restaurant or café purpose”, the brewery was “clearly inspired by the pub, not the restaurant/café purpose”. This was clear from the development application which was for a “pub with ancillary brewery”, described in the statement of environmental effects as a “Pub comprising a bar with a brewery feature”. The operational management plan provided that the beer brewed onsite would be available for “onsite consumption and takeaway”, that takeaway sales were to be conducted, and that beer tasting would be permitted without ordering a meal. Accordingly, the applicant submitted, the proper characterisation of the approved development was development comprising separate uses as a brewery and as a restaurant. The restaurant did not need the brewery in order to operate, and the brewery did not need the restaurant to operate.

In relation to Ground 4 and Issue 4, it arises to determine whether the use of part of the premises as a brewery is for a purpose which is subordinate to the purpose of the proposed development as a food and drink premises, or whether it is for a purpose which is independent of and not merely incidental to that purpose, and is thus for a purpose which is prohibited.
I am not satisfied that a micro-brewery “showcase feature” (as described in the first and second assessment reports) can only be characterised as a use for a purpose ancillary to a pub, and not as a use for a purpose ancillary to a restaurant. There is no reason in principle that a micro-brewery producing beer in small quantities onsite can only be characterised as subordinate, incidental or ancillary to a pub and not a restaurant, such that if there is no longer a pub component, the micro-brewery becomes an independent and dominant use. Whether one use of the land can be said to be an independent use of the land is a question of fact and degree in all the circumstances of the case: Bronger v Greenway Health at [41] (Beech-Jones JA) quoting Baulkham Hills Shire Council v O’Donnell. [46] Here, I am satisfied in all the circumstances of the case, including that the brewing equipment is limited in its production capacity to only allowing tastings of less than a schooner per person per day, and that the area of the brewery component was only 48 square metres, whereas the restaurant seating areas, kitchen and back of house (not all of which would be used for the restaurant) totalled 360 square metres, that the proper characterisation of the micro-brewery is a use for a purpose ancillary to the restaurant. As a matter of fact and degree, it is not properly characterised as a use for a purpose which is independent of and not merely incidental to the dominant purpose of the proposed development as a food and drink premises, and thus for a purpose which is prohibited.
Further, the “pub” component of the proposed development did not consist only of a “bar” area for which a hotel licence was required. As set out in the operational plan of management, there was also to be an area adjacent to the bar where there would be available for takeaway sale beer and products brewed both on site and at the respondents’ other licenced venues (that is, the Brookvale brewery and venue):

The applicant submitted that the ecology officer who authored the ecological conditions report dismissed the information provided by the first respondent and proceeded on the information he obtained himself before concluding that the land was not core koala habitat. This conclusion was despite:
Council’s director of planning and environment informing councillors in March 2024 that the land was “heavily vegetated and core koala habitat”;
multiple “well-informed” submissions made to Council in objection to the development application providing information demonstrating that the land was very likely to be core koala habitat (thus warranting further investigation);
a senior environmental planner of Council having engaged with external parties and shared information of Council (Council’s koala sightings map reproduced above at [23]) that demonstrated that the land was or was very likely to be core koala habitat (thus warranting further investigation);
the ecology officer not having appropriate qualifications and experience in biological science and fauna survey and management; and
the ecology officer acknowledging in the ecological conditions report that the “region is home to a population of koalas, as evidenced by the records in the locality”, and the “density of historical records is sparse”.
The applicant submitted that the ecology officer determined that the land was not core koala habitat based on the following conclusions:
the allocation of the land as “core koala habitat” was “not considered viable given the lack of support from Planning Secretary for the creation of Koala Plans of Management, a requirement for any approval issued on land identified as ‘Core Koala Habitat’”;
Council had “issued a number of approvals for the removal of equivalent vegetation in these regions since the establishment of the Koala SEPP 2020”, approvals which had “not considered the vegetation to constitute Core Koala Habitat, acknowledging the lack of support from State Planning Authorities from which concurrence is required”;
given “the retention of feed trees within the Asset Protection Zone”, Council did “not consider that the outcome of the application would likely be influenced by the identification of the area as Core Koala Habitat”; and
the proposed development would “result in the modification of approximately 0.5ha of native vegetation and suitable habitat for Koala’s”; “to mitigate these impacts the applicant has proposed that no feed trees be removed” and a “Vegetation Management Plan will be conditioned, with the intention of improving the condition of vegetation over the remainder of the site”, and “to ensure that the proposed retained trees are retained in perpetuity, an updated Tree Retention Plan will be submitted and protected under an 88b covenant”.
The applicant submitted that these conclusions were not relevant to a determination of whether specific land is core koala habitat pursuant to the Biodiversity SEPP and the proposed conditions of consent did not discharge Council’s obligations under the Biodiversity SEPP. In reaching these conclusions, the applicant submitted, the ecology officer erred as follows:
he misdirected himself in relation to Council’s obligations under the Biodiversity SEPP;
he failed to consider what constitutes core koala habitat as defined by the Biodiversity SEPP;
he failed to consider whether the land is core koala habitat as defined by the Biodiversity SEPP;
he did not have sufficient information to satisfy himself that the land was not core koala habitat.
The ecology officer therefore erred by failing to consider s 3.8 of the Biodiversity SEPP and by failing to apply ss 3.9 and 3.15 of the Biodiversity SEPP and consider the guidelines referred to in Chapter 3 “Koala habitat protection 2020”, of the SEPP (the guidelines). The applicant submitted that the ecology officer’s errors infected the first and second assessment reports provided to councillors which provided “heavily summarised versions” of the ecological conditions report. While councillors were informed, according to the applicant, by the second respondent during Council’s February meeting that there were koalas on the land, they were only provided with and relied on the first and second assessment reports and their decision was “duly infected by the erroneous assessment of the Biodiversity SEPP”. Council thus failed to properly apply the Biodiversity SEPP.

The respondents submitted that the transcripts of Council’s February and March meetings confirm that “the required matters were considered”, and that specific advice engaging with the definition of core koala habitat in cl 3.2 as to the existence of core koala habitat on the land by reference to the Biodiversity SEPP was given by the general manager. The flora and fauna assessment contained a detailed assessment carried out by reference to the Biodiversity SEPP and Guidelines, and concluded that no koalas were observed during the fauna survey and no evidence of koala habitation was found.
The respondents referred to South East Forest Rescue Inc v Bega Valley Shire Council [48] (South East Forest Rescue) where there was evidence as to Council’s usual practice which corroborated the inference the chief judge drew that the Council did not consider and form the required mental state of satisfaction under cl 8(3) of Bega Valley Local Environmental Plan that the development was consistent with the objectives of the relevant zone. South East Forest Rescue was submitted to be distinguishable as here the transcripts of Council’s February and March meetings demonstrated that Council considered material beyond the first and second assessment reports, extending to submissions on ecological matters.
Further, the respondents submitted that Council was entitled to rely on the first and second assessment reports’ summary of matters in relation to the Biodiversity SEPP and on the oral advice provided by the general manager, referring to Peko-Wallsend at 30 to 31 (Gibbs CJ) and 65 to 66 (Brennan J). The applicant had not discharged its onus of demonstrating that the advice in the assessment reports and from the general manager was materially deficient in relation to the Biodiversity SEPP, thereby precluding reliance on it by councillors in applying the Biodiversity SEPP, referring to Gbojueh at [63] (Bromberg J). It was not permissible in judicial review proceedings to “compile a list of matters that in a party’s view should have been better considered by a decision maker and allege a failure to consider these as mandatory relevant considerations”: Walsh v Parramatta City Council [49] (Walsh) at [58] (Preston CJ of LEC).
In relation to the applicant’s submission that Council’s ecology officer did not have appropriate qualifications and experience in biological science and fauna survey and management, the respondents submitted that this was the “only common sense inference to draw” from the ecological conditions report and “the fact that the office is held”. The applicant did not explain how the ecology officer was not so qualified or experienced. In relation to the applicant’s complaint that the ecology officer did not proceed on information provided by the applicant for the development application within the meaning of s 3.7(2) of the Biodiversity SEPP, the respondents submitted that on the basis of the assessment reports and the flora and fauna assessment submitted with the development application, the Court would infer that the advice to Council in the assessment reports represented advice from any or all of the sources identified in s 3.7(2). Finally, consideration of the guidelines must be inferred having regard to the fact that they were applied and considered in the flora and fauna assessment.

In light of that evidence, I am satisfied that Council formed the state of satisfaction required by s 3.7(1) of the Biodiversity SEPP that the land was not core koala habitat within the meaning of s 3.2, and was so satisfied for the purpose of s 3.7(2) on information obtained by it or the applicant for the development application from a person with appropriate qualification and experience in biological science and fauna survey and management. On the basis of the flora and fauna assessments prepared by Fraser Ecological Consulting submitted with the development application (which refer to surveys and scat treatments), the two assessment reports and the general manager’s reference to “reports done through ecological surveys, scat treatments, those kinds of things,” I infer that the advice to Council in the assessment reports and during its March meeting represented advice from any or all of the sources identified in s 3.7(2).
In relation to Issue 5.1, it does not matter that the ecology officer determined that the land was not core koala habitat based on information obtained after dismissing the flora and fauna assessments prepared by Fraser Ecological Consulting which accompanied the development application. Even if that determination by the ecology officer was the only basis for the conclusion in the first and second assessment reports, which was not proven on the evidence, Council did not rely only on the first and second assessment reports, but also the answers given by the general manager during its March meeting which referred to the flora and fauna assessment reports. It is thus unnecessary to deal with Issue 5.2, whether the ecology officer had appropriate qualifications and experience.
In relation to Issues 5.3 and 5.4, that Council did not have sufficient information and did not consider relevant information that was available to it, the applicant submitted that the two assessment reports did not address all the information that was before Council’s ecology officer and excluded “highly relevant information”, including detailed submissions from objectors. As found above, however, the material before Council was not just the two assessment reports, but also the answers given to councillors by the general manager which referred to the flora and fauna assessments undertaken by Fraser Ecological Consulting.
Councillors were not to be expected to read for themselves all the relevant material relating to the matter: Peko-Wallsend at 30 to 31 (Gibbs CJ). As Gibbs CJ said in Peko-Wallsend in relation to Ministerial decision-making, it would not be unreasonable for a Minister to rely on a summary of the relevant facts furnished by the officers of the Minister’s Department. And at 65 to 66, Brennan J said that the Department does not have to draw the Minister’s attention to every communication it receives and to every fact its officers know: “Part of a Department’s function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions”. Here, the councillors’ reliance to a great extent on the analysis, evaluation and précis in the two assessment reports and the answers of the general manager was not tantamount to an impermissible delegation of Council’s function. There is nothing in the submissions made by the applicant which suggest that the reports and answers of the general manager failed to draw the councillors’ attention to the salient facts (such as that no nursing mothers were found, as communicated to the councillors by the general manager), or were seriously deficient to enable the drawing of an inference that they failed to consider a material consideration in the decision-making process: Gbojueh at [63] (Bromberg J).
The complaint that the two assessment reports did not address all the information that was before Council’s ecology officer and excluded “highly relevant information” is essentially one that challenges the merits of the decision. As the chief judge said in Walsh at [58], “[i]t is not for a party affected by a decision, or a reviewing court to make an exhaustive list of the matters which a decision maker might conceivably regard as relevant then attack the decision on the ground that a particular one of them was not specifically taken into account”.
Finally, in relation to Issue 5.5, that Council did not consider or apply ss 3.8, 3.9 and 3.15, I have found that Council reached the necessary state of satisfaction that the land was not core koala habitat, such that it was not required to consider or apply s 3.8: s 3.7(3)(b). In relation to ss 3.9 and 3.15 which require that a council must take “the guidelines” into consideration, it was not in dispute that the relevant guideline was the Koala Habitat Protection Guideline (NSW Department of Planning, Industry and Environment 2019) referred to in the flora and fauna assessment undertaken by Fraser Ecological Consultants. I infer that consideration was given to the guidelines having regard to the fact that they were considered and applied in the flora and fauna assessments, the details of which were communicated to Council by the general manager in Council’s March meeting.
The applicant has failed to establish Ground 5 in its amended summons.

While the applicant relied on the same particulars and submissions as in relation to Ground 5 for Ground 6, and while the same sub-issues raised in relation to Ground 5 were raised in relation to Ground 6, Ground 6 raises the distinct issue of whether the satisfaction reached by Council that the land was not core koala habitat was legally unreasonable in the sense that no reasonable decision-maker would have come to such a conclusion.
In relation to Issues 6.1 and 6.2, that the ecology officer reached the conclusion that the land was not core koala based on information that he obtained himself and where he did not have the appropriate qualifications and experience, the applicant referred to the ecology officer’s reasoning in the ecological conditions report and submitted that his conclusion was based on “irrelevant matters”. While I have some sympathy with this submission in that the definition of “core koala habitat” in s 3.2 of the Biodiversity SEPP is “an area of land with a resident population of koalas, evidenced by attributes such as breeding females” and does not depend on a “lack of support from State Planning Authorities”, the issue is not whether the ecology officer’s conclusion was unreasonable, but whether Council’s conclusion was unreasonable.
As I said above at [213], it was not proven that the reasoning and conclusion of the ecology officer was the only basis for the conclusion in the first and second assessment reports that the land was not core koala habitat. Another possible basis was provided in the flora and fauna assessment reports which accompanied the development application. At its March meeting, Council was informed by the general manager that “mating, or female and nursing” koalas were not identified on the land “through the history and the reports done through ecological surveys, scat treatments”, referring to the flora and fauna assessments. Further, there was no reference in the transcript of Council’s March meeting to the reasoning and conclusion of the ecological officer. Accordingly, any deficiency in the reasoning and conclusion of the ecology was not such as to make Council’s conclusion that the land was not core koala habitat legally unreasonable.
In relation to Issues 6.3 and 6.4, that Council did not have sufficient information and did not consider relevant information that was available to it, the applicant’s submissions appeared to be directed to Council having previously considered the land to be core koala habitat, having received “well-informed” submissions, and possessing internal information, demonstrating that the land was “very likely to be core koala habitat”, so as to warrant further investigation (see the submissions summarised above at [201(1)] to [201(3)]). However, further investigation was undertaken by Fraser Ecological Consulting which informed Council’s conclusion that the land was not core koala habitat. While the applicant referred to the supposed inadequacies of the tests and surveys undertaken by Fraser Ecological Consulting in relation to Issues 6.1 and 6.2 in that the ecology officer dismissed the assessments, the applicant did not appear to contend that the inadequacies of the tests and surveys were such that Council’s reliance upon them was unreasonable. If the applicant did so contend, it was asking the Court to consider the merits of Council’s decision. As submitted by the respondents, the ground of legal unreasonableness is not an invitation for merits review. As Gleeson CJ and McHugh J (Gummow and Hayne JJ agreeing, Gaudron and Kirby JJ dissenting) said in a frequently cited passage in Minister for Immigration and Multicultural Affairs v Eshetu [50] at [40]:

Friends of Bucketty Incorporated v Buckettys Brewery Pty Ltd

At a glance

Court

Decision date

Before

Catchwords

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Catchwords

Judgment

Source

JUDGMENT

Introduction

Factual background

Issues

Relevant legislative provisions

Environmental Planning and Assessment Act 1979

Water Management Act 2000

Land and Environment Court Act 1979

Liquor Act 2007

Interpretation Act 1987

Relevant planning controls

Cessnock Local Environmental Plan 2011

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Pavey, Furzer and Leal affidavits

Is the question of whether the proposed development is for integrated development one of jurisdictional fact?

Admissibility of the Pavey, Furzer and Leal affidavits in relation to Ground 2 and Issue 2

Issue 1: whether Council took Amendment No 40 into consideration

Principles: “take into consideration” in s 4.15 of the EPA Act

Submissions in relation to Issue 1

Applicant’s submissions

Respondents’ submissions

Applicant’s submissions in reply

Consideration and conclusions in relation to Issue 1: whether Council took Amendment No 40 into consideration

Issue 2: whether Council was required to assess the development application as integrated development pursuant to Div 4.8 of the EPA Act

Submissions in relation to Issue 2.1

Applicant’s submissions

Respondents’ submissions

Applicant’s submissions in reply

Consideration and conclusions in relation to Issue 2.1: whether the development application was for integrated development

Issue 3: whether the development application was notified for 28 days

Issue 4: whether the consent was for development that was prohibited development

Principles

Submissions in relation to Issue 4

Applicant’s submissions

Respondents’ submissions

Applicant’s submissions in reply

Consideration and conclusions in relation to Issue 4: whether the consent was for development that was prohibited development

Issue 5: whether Council misdirected itself and made an error of law in its application of the Biodiversity SEPP

Principles

Submissions in relation to Issue 5

Applicant’s submissions

Respondents’ submissions

Applicant’s submissions in reply

Consideration and conclusions in relation to Issue 5: whether Council misdirected itself and made an error of law in its application of the Biodiversity SEPP

Issue 6: whether the decision was legally unreasonable having regard to Council’s application of the Biodiversity SEPP

Submissions in relation to Issue 6

Applicant’s submissions

Respondents’ submissions

Consideration and conclusions in relation to Issue 6: whether the decision was legally unreasonable

Issue 7: whether Council failed to consider submissions

Principles

Submissions in relation to Issue 7

Applicant’s submissions

Respondents’ submissions

Consideration and conclusions in relation to Issue 7: whether Council failed to consider submissions

Issues 8 and 9: discretion

Costs

Conclusion and orders

Endnotes

Amendments

24 September 2026

Parties

Legislation Cited (17)

Cases Cited (75)