Failure to comply with cl 11 of LEP 1987
34Provisions of local environmental plans, having the effect of proscribing the grant of consent to carry out development on land unless the development in contemplation is consistent with the objectives either of the instrument or of the land use zone within which development is proposed, are provisions that are commonplace. Regrettably, provisions of that kind are not uniformly expressed among local environmental plans that have not been prepared under the Standard Instruments (Local Environmental Plans) Order 2006 (NSW).
35Many local environmental plans containing provisions of the kind that I have identified require that development consent not be granted unless the consent authority is either "satisfied" or is "of the opinion" that carrying out the development being assessed is consistent with "the objectives" or "objectives relevant to the proposal" as are identified elsewhere in the planning instrument. The failure to comply with provisions so expressed has founded a number of challenges, by way of judicial review, to decisions of consent authorities granting development consent. The necessity for the consent authority to direct itself to and to have reached the requisite "satisfaction" or to have identified the need for and formed the requisite "opinion" have each been described as a condition precedent to the grant of a valid development consent (Manly Council v Hortis [2001] NSWCA 81; 113 LGERA 321 at [28]; South East Forest Rescue Incorporated v Bega Valley Shire Council and South East Fibre Exports Pty Ltd [2011] NSWLEC 250 at [90]).
36However, cl 11(3) of LEP 1987 is not expressed in terms that imposes any subjective requirement upon the Council when determining the consistency of development with Zone objectives. The clause neither requires the formation of an opinion by the Council nor satisfaction on its part that carrying out the development being considered would be consistent with Zone objectives. Rather, the subclause imposes an objective requirement: it proscribes the grant of development consent unless the development in contemplation is consistent with the objectives of the Zone in which the development is to be carried out.
37The requirement that development be consistent with the objectives of the Zone is undoubtedly an essential precondition to the exercise of power to grant development consent. As an essential precondition, imposed in terms that require determination by reference to an objective standard, it has the hallmarks of a "jurisdictional fact" (Timbarra Protection Coalition Inc v Ross Mining ML [1999] NSWCA 8; 46 NSWLR 55 at [38]; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 at [60]-[61]).
38The description of the precondition in those terms has important consequences for the manner in which these proceedings are to be determined. Unlike the position that pertained in Hortis or South East Forest Rescue Inc, no examination of the evidence in the present case is required in order to determine whether the Council reached the requisite mental state of satisfaction or formed an opinion as to consistency with Zone objectives. The need so to do in those cases was necessary, having regard to the terms in which the provision of the relevant local environmental plan was framed. In the present case, the Court is required to determine, on the evidence before it, whether the carrying out of the development proposed in DA 320/12 is consistent with the objectives expressed in the development control Table for Zone 10 under LEP 1987.
39As it transpired, no evidence additional to that available from the Council's records was tendered at the hearing before me. It is therefore from the tendered documentary evidence that the determination required by cl 11(3) will be made.
40FMB submits that the evidence before the Court failed to demonstrate that the Council "formed the requisite mental state of satisfaction" as to the consistency with the objectives of Zone 10 (submissions at [13]). It contended that the Council "was obliged to form a positive opinion of consistency" with those objectives, citing Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; 167 LGERA 52 at [84]. According to the submission, the evidence does not disclose that the Council addressed itself to the formation of that opinion.
41For the reasons I have stated, an assessment of the evidence from that perspective misconceives the determination to be made in the present case. Like Hortis and South East Forest Rescue Inc, the observations of Preston CJ in Conservation of North Ocean Shores Inc were founded upon the provisions of the LEP there being considered, imposing, in terms, the need for the consent authority to form an opinion as to consistency with objectives. What is required in the present case is an assessment of the evidence to determine whether the carrying out of the subdivision posed is consistent with the Zone 10 objectives.
42Before turning to identify the material both before the Council and the Court, directed to compliance with cl 11(3) of LEP 1987, it is necessary to address the meaning of "consistent" when used in the subclause. In Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 Clarke JA stated that, in the context of the provisions there being considered, the paragraph was intended to prohibit "antipathetic development". Subsequently, that meaning was attributed to provisions of local environmental plans requiring development to be "consistent" with identified objectives (Schaffer Corporation Ltd v Council of the City of Hawkesbury (1992) 77 LGRA 21; Mackenzie v Warringah Council [2002] NSWLEC 131 at [98] and the cases there cited). More recently, the ordinary meaning of "consistent" has been applied to such provisions. In Gillespies v Warringah Council [2002] NSWLEC 224; 124 LGERA 147, Bignold J considered the meaning of the word in the context of planning instruments requiring the opinion by a consent authority that a proposed development be "consistent with the zone objectives". In that context, his Honour considered at [70] that the word "consistent" should assume its ordinary meaning and should not be confined to the notion of a proposed development that is "not antipathetic" to a zone objective.
43According to the Macquarie Dictionary (on-line) that meaning is: "1. agreeing or accordant; compatible; not self-opposed or self-contradictory." It seems to me that, in the present context, it is appropriate to regard "consistent" as being synonymous with "compatible" (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45]).
44Having identified the principles by which the present issue is to be determined, it must be acknowledged that those principles are not easily applied, having regard to the manner in which the objectives of Zone 10 are framed in paragraph 1 of the development control Table for that Zone. That is particularly the case in respect of paragraph (b) of those objectives. It is subparagraphs (i), (iii) and (iv) of that paragraph upon which FMB placed particular emphasis.
45The difficulty in applying the principles that I have identified to paragraph (b) of the objectives arises from the chapeau to that clause. Read in context, cl 11(3) requires in the present case that development consent not be granted to the carrying out of subdivision of the Land unless that subdivision is compatible ("consistent") with "consideration given by the Council" to the matters enumerated in subparagraphs (i) to (v) of paragraph (b) of the Zone 10 objectives. So understood, consistency or compatibility with consideration of those topics by the Council is required: not compatibility with a particular conclusion drawn by the Council consequent upon its consideration of those topics. Necessarily, that consideration must involve more than mere advertence to those topics. Whether it has done so involves an evaluative process based upon the determination of the Council directed to those topics (Anderson v Director-General, Department of Environment and Climate Change [2008] NSWCA 337; 163 LGERA 400 at [57]-[58]).
46Further, the context in which the evaluative process is to be undertaken must recognise that the Council is not required by the EPA Act to provide reasons for its decisions. When considering matters to which attention must be given in the process of determination, Councillors are not required to pursue every possible aspect of a topic for themselves. They are entitled to rely upon assessments made and conclusions drawn by appropriately qualified members of staff and to accept or reject conclusions so expressed (Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7 at [59]).
47The material tendered in Exhibit A in the proceedings constitutes documents in the possession of the Council directed to the consideration and determination of DA 320/12. As such, it is material that should be treated as being in the possession of Councillors when they considered the development application on 7 August 2012 and then further considered and determined that application on 9 October 2012. Those documents included the application for development consent with the accompanying SEE, the submissions received by way of objection to the development application, responses from statutory authorities, the report of the Acting Divisional Manager, Development Services to the meeting of 7 August 2012, a further report of that same officer to the meeting of 9 October 2012 and the development application assessment sheets together with the development control plan assessment sheets.
48As the documents included in Exhibit A were documents in the possession of the Council at the time at which DA 320/12 was both considered and determined, it is material that should be treated as being in the possession of Councillors (Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67]). No evidence is led to contradict this presumption. The evidence of Mr Simms summarised at [32], reflecting his observations at the meeting of 9 October 2012, does not establish that Councillors did not have recourse to this material or had neither read it nor considered it prior to that meeting.
49The SEE quoted the objectives of Zone 10 in LEP 1987 and asserts that the subdivision has been "devised to take into consideration" those objectives (Exhibit A, pp 129-130). The SEE then contains discussion on topics that had the potential to inform consideration of the matters identified in paragraph (b) of the Zone 10 objectives.
50At the time of preparation of the SEE, a new draft local environmental plan for the Council's area and known as Draft Eurobodalla Local Environmental Plan 2011 (DLEP 2011) was on public exhibition. Under the draft instrument, almost the whole frontage of the Land to Ridge Road was proposed to be zoned R2 Low Density Residential while the rear or southern part of the Land was to be zoned E4 Environmental Living. Reference was made to this draft instrument in the SEE as evidence not only that the proposed subdivision was consistent with that draft but also as relevant to those topics requiring consideration by reference to subparagraphs (iii) and (iv) of paragraph (b) of the Zone 10 objectives.
51By 9 October 2012 when DA 320/12 was determined by the Council, DLEP 2011 had become a statutory planning instrument known as Eurobodalla Local Environmental Plan 2012 (LEP 2012). The zoning of the Land remained generally as indicated in DLEP 2011, that is partially zoned R2 and partially zoned E4. Within each zone, both subdivision and the erection of dwelling houses is development permissible with consent. The lot sizes proposed in DA 320/12 conformed with the minimum lot sizes specified for those parts of the Land that fell within each zone. Notwithstanding the making of LEP 2012 and the zoning of the Land under that instrument, as DA 320/12 was a development application that had not been finally determined before the commencement of LEP 2012, it was required to be determined as if that instrument "had not commenced": cl 1.8A of LEP 2012.
52The terms of LEP 2012 and the zoning of the Land under that instrument, together with the need to consider both that circumstance and the circumstance that the development application was required to be determined under LEP 1987 was the subject of discussion in the Acting Divisional Manager's report to the meeting of the Council on 7 August 2012 (Exhibit A, pp 459-460). So also was the Greater Bateman's Bay Structure Plan of 2007. That Plan identified the constraints and opportunities for development of the Land in the context of urban structure for Malua Bay. The Plan described Malua Bay as consisting of mixed natural and urban settlement "where the natural environment is intermixed with the built form" a passage referred to in the SEE (Exhibit A, p 135).
53The fact that DA 320/12 was to be determined as if LEP 2012 had not commenced did not make its provisions irrelevant to that determination. For present purposes, the identification of the zoning and land use within those zones, as discussed in the 7 August planning report, was clearly relevant to a consideration of "the limits of urban development" under subparagraph (iv) of paragraph (b) of the Zone 10 objectives expressed in LEP 1987. By October 2012 when the Council determined DA 320/12, those limits had been established by the making of LEP 2012.
54The "range and pattern" of land uses appropriate to the Land (objective (b)(iii)) was also identified in part by the references made in the 7 August planning report to the then statutory zoning of the land under LEP 2012. That discussion also informed consideration of objective (d) of Zone 10 which was to ensure that no development permitted in the Zone would jeopardise future use of land within that Zone for urban purposes.
55On the material available to Councillors, it was clearly open to them to form "the view" that subdivision of the Land for housing would not jeopardise the future use of land within Zone 10 for urban purposes. The use of land within Zone 10 for urban purposes had, by October 2012, been determined by the making of LEP 2012.
56The discussion in the documents before the Council also addressed the pattern of land use appropriate to the Land (Zone 10 objective (b)(iii)). The SEE identified the basis upon which lots of different dimensions and areas should be located within the Land, having regard both to external elements and internal physical constraints (Exhibit A, pp 87-88; 137-138). The SEE also identified where within each proposed lot any dwelling should be located (Exhibit A, pp 150-151). In combination, the discussion of these matters identified a pattern of land uses appropriate for the Land.
57The 7 August planning report reiterated these matters and added an assessment of the application against the provisions of DCP 182, particularly directed to the location of building envelopes within the proposed lots (Exhibit A, p 533). The proposed siting of future dwellings on these lots was also addressed in the report by reference to the Residential DCP (Exhibit A, p 534).
58In short, both the SEE and the report to the meeting of 7 August addressed the range and pattern of land uses appropriate for the Land, together with a justification for adopting that pattern of use. There is no evidence advanced indicating either directly or by inference that Councillors did not consider that material. It was material apt to be considered by reference to objective (b)(iii) of Zone 10.
59The content of the SEE, the report to the meeting of 7 August and a number of submissions received by way of objection to DA 320/12 all contained material directed to the impact of the proposed subdivision ("urban development") on the physical environment. The location of the Land as it adjoined existing or approved residential development to the north, east and south as well as its proximity to bushland was identified in both the SEE and the report to the 7 August meeting (Exhibit A, pp 78-80; 135-136; 458). So also was the impact of site disturbance for the provision of infrastructure and future housing discussed. This is reflected in the planning report to the Council where both retention of trees to preserve a visual buffer is discussed (Exhibit A, p 460-461) and the need to retain an area of approximately 12.3 ha of native vegetation along and adjacent to the watercourse running through the Land is identified (Exhibit A, pp 463-464). External impacts such as impact on traffic in Ridge Road are identified and discussed both in the report itself (Exhibit A, p 468) and in the development application assessment sheet (Exhibit A, p 739). The substance of written objections sent to the Council each addressed, in different ways, the impact that carrying out residential development on the Land would have.
60As the minutes of the Committee meeting of the Council on 7 August record, the impact of further urban development in the manner proposed by DA 320/12 was addressed orally by objectors who spoke at that meeting. Both written objections and those articulated orally urged the Council to reconsider the zoning of the Land in a manner that located it within an environmental protection zone. Submissions to that effect were addressed in the planning report to the meeting (Exhibit A, p 467).
61It is apparent that there was material available to Councillors enabling consideration of the impact of urban development on the physical environment (Zone 10 objective (b)(i)). There is no basis to conclude that the topic was not, in fact, considered. Moreover, that consideration was not necessarily confined to the documents to which I have referred. The planning report to the meeting of 7 August records that the site had been visited "by a number of Council representatives" and by Councillors on another occasion (Exhibit A, pp 457-458). Further, some understanding on the part of Councillors of the impact that "urban development" might have on land within Zone 10 at Malua Bay may be assumed (Franklins Ltd v Penrith City Council [1999] NSWCA 134 at [25]). It cannot be assumed that Councillors have no knowledge of the physical or topographical features of urban areas within the local government area for which they are responsible nor of the general impact that urban development might have upon an existing bushland site.
62Similarly, a general understanding by Councillors of the social and economic impact of urban development might be assumed. The prospect of increased population, the need to assess the availability of resources to service the needs of that additional population, together with any perceived advantages or disadvantages from population increase, if any, together with the extension of existing urban development into new areas would, as topics of consideration, be likely within the contemplation and experience of Councillors. At a level of generality, those are topics that would regularly arise for consideration under both the EPA Act and the Local Government Act 1993 (NSW).
63However, determining whether the Council considered the social and economic impact of urban development need not be left to assumptions as to the general knowledge and experience of Councillors. In both August and October 2012, there was material capable of assisting that consideration.
64In 2006, the Council had adopted the Eurobodalla Settlement Strategy. Discussion of and quotations from that Strategy appears in the SEE (Exhibit A, pp 113-116). At its core it is said to be a belief that "containing new development and accommodating population growth within compact well-planned settlements will bring social, cultural, economic and environmental benefits" (Exhibit A, p 113). Some social and economic impacts of urban development are identified in this Strategy (Exhibit A, p 115). Malua Bay, including the Land, is identified as an area of urban settlement to which the Strategy applies.
65In 2007, the Council adopted the Greater Batemans Bay Structure Plan. The provisions of that Structure Plan are referred to at some length in the SEE (Exhibit A, pp 117-127). The Structure Plan is also referred to in the report to the meeting of 7 August (Exhibit A, pp 460-461). The quoted passages from the Structure Plan in the SEE provide some insight into the development strategy that addresses social and economic impact of urban development by identifying the economic use of existing resources and public facilities.
66Further, in 2007 the State Government released the South Coast Regional Strategy. This is a broad based policy directed to planning for development in areas that include the Greater Batemans Bay area. The 2007 Strategy included support for the development of Malua Bay in accordance with the Eurobodalla Settlement Strategy. Relevantly, the South Coast Strategy is identified and addressed in the SEE (Exhibit A, pp 110-113). The extracted parts of that Strategy also provide material informing consideration of the social and economic impact of urban development.
67The "social impact" of the subdivision proposed for the Land is addressed in the SEE (Exhibit A, pp 173-174) and is adverted to in summary form in the development application assessment sheet (Exhibit A, p 741). In the latter document the social and economic impact is said to be positive by making provision for additional housing and providing the benefit of employment in the construction industry associated with the carrying out of development. While these latter references are specific to the subdivision identified in DA 320/12, they identify matters that might more generally be applied to a consideration of social and economic impact.
68In all, I am satisfied that there was material within the documents available to Councillors enabling consideration of social and economic impact of urban development upon land within Zone 10 at Malua Bay. Again, there is no basis to conclude that this material was not considered by Councillors, as objective (b)(ii) of the Zone 10 objectives required.
69The extent, range and capacity of services to be provided (Zone 10 objective (b)(v)) were identified in the SEE (Exhibit A, pp 153-157; 173-174). Onsite services and infrastructure is stated as being provided at the cost of the developer. The level of contribution to be made to the Council for services is also stated. Reference to service "assets" to be provided by the developer and its costs is also made in the report to the meeting of 7 August (Exhibit A, p 465). The extent to which site works for services will impact upon the existing environment are identified in the SEE as being within the areas to be cleared for site works generally and to accommodate the nominated building areas for each Lot. The consideration of costs to the Council and the community of services (the economic and social costs) is reflected in the contribution required by the Council from the developer, as ultimately identified in conditions it imposed when granting development consent (Exhibit A, pp 482-483).
70As I have earlier recorded, the focus of the challenge by FMB on this ground was directed to objective (b) of the Zone 10 objective. For reasons that I have stated, I am satisfied that there was material before the Council enabling the topics identified in that paragraph to be considered. In the absence of evidence to the contrary, I have no reason to conclude other than that consideration was given by the Council to those topics as the chapeau to paragraph (b) required.
71Applying provisions of cl 11(3) of LEP 1987 to objective (b), the carrying out of development upon the Land is compatible with the consideration by the Council of each of the topics to which the Council was directed by subparagraphs (i) to (v) of paragraph (b). Clause 11(3) did not therefore operate to deny the Council the power to grant consent to DA 320/12 by reason of inconsistency with that paragraph of the Zone objectives.
72I do not understand any submission of FMB to be directed specifically to objectives (a), (c), (d) and (e) of Zone 10. However, the general submission is made that the Council failed to form "the requisite mental state of satisfaction" as to consistency with these zone objectives and that the Council was "obliged" to form a positive opinion of consistency with zone objectives". For reasons earlier stated, neither way of expressing the obligation upon the Council reflects the provisions of cl 11(3). Relevantly, for reasons earlier disclosed, it was necessary to determine whether the development proposed was compatible or consistent with objectives (a), (c), (d) and (e).
73It is apparent that the author of the report to the Council of 7 August recognised the need for consistency with objectives (Exhibit A, pp 457 and 468). Further, reference is made in the development application assessment sheet to cll 1, 2, 3 and 4 of the development control Table for land in Zone 10, cl 1 being the clause in which the zone objectives are stated (Exhibit A, p 736). The zone objectives are set out in full in the SEE (Exhibit A, pp 129-130). In the context of those references, the proposed development is identified as being "generally consistent with the relevant zoning" under LEP 1987 (Exhibit A, p 737). At p 743 of Exhibit A the author of the development application assessment schedule concluded that the proposed development "is consistent" with LEP 1987.
74It must also be borne in mind that the provisions of cl 11(3) applied to development in all zones under LEP 1987. As at October 2012, those provisions had been in place for about 25 years. Over that period of time it may properly be inferred that the subclause had been regularly applied by the Council when assessing applications for development under LEP 1987 (Schroders Australia Property Management Ltd v Shoalhaven City Council at [60]). In this circumstance, the absence of reference to the provisions of cl 11(3) in the documents before the Council does not demonstrate an absence of understanding of its requirements (Hill v Woollahra Municipal Council at [53]; Notaras v Waverley Council [2007] NSWCA 333; 161 LGERA 230 at [131]).
75I have earlier identified the circumstance that the Council is not required to provide reasons for its decisions. Relevantly, it was not obliged to express an intermediate determination that the development proposed by DA 320/12 is consistent with the Zone 10 objectives. Its obligation is that imposed by s 80(1) of the EPA Act, namely to determine the application by granting consent, conditionally or unconditionally, or refusing consent. There being material available to the Council upon which consistency with the objectives of Zone 10 could be determined, the grant of development consent implies a determination that the precondition imposed by the provisions of cl 11(3) was satisfied.
76Assessing the question of consistency with zone objectives as a "jurisdicitional fact" and therefore to be determined by the Court in proceedings of the present kind, I would not reach any different conclusion on that matter from that which I impute to the Council. Clearly, by 2012 any question as to the identity of "areas within which urban development may be accommodated" (objective (a)) had been resolved by the making of LEP 2012 by which the zones earlier identified and the land uses appropriate to them had been determined.
77The proposed provision of services, the availability of community facilities and their adequacy (objective (c)) are addressed in the SEE both by reference to the Council adopted Strategies, earlier described, as well as the specific provision of on-site services and proposed contributions to community facilities. These matters are also taken up in the planning report to the meeting of 7 August. The "assets" to be provided by Mr Perkins are identified as are the contributions to be made for community facilities.
78I have earlier addressed those materials tendered in evidence and available to the Council that were directed to objective (d). As DA 320/12 contemplates use for an urban purpose, jeopardisation of future use of the Land for urban purposes does not arise. In a sense, "the view" of the Council in this regard was made manifest in the adoption by it of DLEP 2011 identifying the proposed zoning and land uses under that draft instrument, subsequently made as LEP 2012.
79A matter critical to the consideration of DA 320/12 was to ensure that "sensitive environmental features" of the Land were "identified and permanently conserved" (objective (e)). Both the tree screen towards the frontage of the Land, providing a visual buffer to development on it and the environmentally sensitive southern section of the Land through which the forested watercourse ran were the subject of assessment in the SEE, informing the subdivision design and location of dwellings on the Lots proposed (Exhibit A, pp 168-172; 267-352). The Council's consideration of the SEE and the flora and fauna impact assessment report attached to the SEE clearly identifies the sensitive features of the Land, the means by which the effects of development may be mitigated, as well as areas to be permanently conserved. The planning report to the meeting of 7 August summarised the subdivision proposal so far as it related to the environmentally sensitive southern area of the Land in the following way (Exhibit A, p 467).
"The key environmental component of the proposal involves the retention of the watercourse and its riparian buffer zones as fully structured, near pristine condition, native vegetation. This part of the property is proposed to be managed in perpetuity to ensure it will maintain the significant environmental values associated with this area. This includes value as a water quality buffer for Reedy Creek, the provisions of valuable habitat for flora and fauna including foraging and breeding areas, provision of a key strategic bio corridor link between adjoining habitat areas to the east and west of the site".
The area that is the subject of that summary is identified as an area of approximately 12.3 ha.
80The essence of this material is that sensitive areas that may be affected by the proposed development have been identified. Those areas are identified as being within the Land. None of the submissions to the Council by way of objection indicate otherwise. The means by which the area so identified could be permanently conserved was also identified. While there was objector debate in the submissions, both written and oral, as to the success of proposed conservation measures, steps required to be taken before and during site works, together with mechanisms for permanent conservation through the preparation and performance of environmental management plans and vegetation management plans (Exhibit A, pp 481-482; 798-799), coupled with restrictions as to user registered on title, all provide a rational demonstration upon which to conclude that the carrying out of the subdivision proposed in DA 320/12 is compatible with objective (e) of Zone 10.
81For all these reasons, FMB has not made good its challenge, founded upon a failure to comply with the provisions of cl 11(3) of LEP 1987.