Friends of South West Rocks Inc v Machro Pty Limited and Ors

Friends of South West Rocks Inc v Machro Pty Limited and Ors - [2004] NSWLEC 721 - NSWLEC 2004 case summary — Zoe

[5]

The Second Respondent's Arguments 41 In contrast, the Second Respondent submitted that cl 10(1) and Sch 2 of SEPP 71 should be interpreted as being confined to development the subject of a development application. Accordingly, the Second Respondent submitted that where, as here, two development applications were made, the development the subject of the two development applications is not a single development for the purposes of determining whether it is state significant development pursuant to cl 10(1) of SEPP 71. In this regard the Second Respondent submitted that the machinery of the EP&A Act as a whole relates to development applications rather than development per se. In support of this argument the Second Respondent submitted that: (a) s 76A(1) of the EP&A Act states that if an environmental planning instrument provides that development cannot be carried out except with development consent, a person must not carry out development without first obtaining a development consent; (b) the first step in the development consent process contained in Pt 4 Div 2 of the EP&A Act is an application for development consent and, accordingly, it is the application which is the trigger for the development consent process; (c) s 79C of the EP&A Act limits the consideration of the consent authority in determining a development application to such of the matters listed in s 79C "as are of relevance to the development the subject of the development application" ; (d) the EP&A Act imposes no obligation on a developer to include all land the subject of the development applications in the one development application and the decision of Talbot J in Waverley Council v C. M. Hairis Architects [2002] NSWLEC 180 at [30] makes it clear that there is no limit on the number of development applications that may be made with respect to a particular piece of land; and (e) Starray Pty Limited v Sydney City Council [2001] NSWLEC 129 established that it is a jurisdictional error to determine two concurrent development applications where only one of those development applications was currently before the consent authority for determination.

[30]

67 Recently these authorities were considered in Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401 where McClellan J set out at [37] a distillation of the principles in Hale and Weal among others, including: · the onus falls upon the challenger to satisfy a court that the relevant discretion has miscarried · when exercising its decision-making power, an administrative body must give "proper, genuine and realistic consideration" to the merit of the matter: see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292; Paramanamtham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64. Mere advertence to a matter may not be sufficient. Zhang at NSLLR 601; … · legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment from the development; · generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it; … 68 The evidence suggests that there was not real and adequate consideration by the Council of the relevant aims of SEPP 71 (cl 8(a)), the suitability of development given its type, location and design and its relation with the surrounding area (cl 8(b)), and the scenic qualities of the New South Wales coast and means to protect and improve those qualities (cl 8(f)) in its consideration of the Machro DA and the Eric Norman DAs. There is no evidence that the specific aims of the policy were drawn to the Council's attention given there is no mention of these in the Assessment report. It is not, in my view, sufficient for the Council to argue that the numerous objections attached to the report raised matters generally which were relevant to the aims of SEPP 71 and the other matters referred to in cl 8(d) and (f) given the complete absence of any discussion or acknowledgement of these matters in the Assessment report. 69 I note that Hemmings J said in Somerville v Dalby at p 429 that: … there is no duty to refer to all matters actually considered or assessed in the determination of a development application … It is usually sufficient to refer only to the most important matters or those having determining weight.

[54]

89 The Points of Claim do not represent the arguments ultimately put to me by the Applicant. I found the Applicant's case in relation to this ground somewhat confusing although the Court was certainly assisted by a second set of submissions made by the parties in response to questions posed by me after the hearing was over. The Applicant's case was ultimately summarised by the following three alternative arguments: (i) The compensatory habitat payment was a material matter which was taken into account by the Fourth Respondent in determining to grant concurrence. However, as it was not within the Fourth Respondent's power to impose such a condition on the grant of concurrence, the decision by the Fourth Respondent to grant concurrence was based on an irrelevant consideration and is therefore invalid. In this case the Applicant argued that there is no need to consider the construction of conditions 1 and 7 as the concurrence is invalid no matter what conditions have been imposed on its grant. The Applicant conceded that if I find that the Fourth Respondent had the power to impose a compensatory habitat payment as a condition of concurrence then it must fail in relation to this ground. (ii) It is only if the compensatory habitat payment was a material matter and it was within the power of the Fourth Respondent to require such a payment that it is necessary to construe conditions 1 and 7 to determine whether they in fact require the making of such a payment. The Applicant argued that as conditions 1 and 7 do not make any mention of such a payment they do not require the making of a compensatory habitat payment. The Applicant argued that the effect of this was that the decision of the Fourth Respondent to grant the concurrence was invalid as the grant of concurrence was conditional on the imposition of a condition requiring such a payment. (iii) If the making of a compensatory habitat payment was a material matter, was within power and was imposed in conditions 1 and 7 then conditions 1 and 7 are so uncertain that they could not, in any event, be enforced and are accordingly void. As conditions 1 and 7 are not severable the concurrence is invalid. The Court only deals with the uncertainty argument if it finds that the imposition of a compensatory habitat payment is within power.

Parties

Applicant/Plaintiff:

Friends of South West Rocks Inc

Respondent/Defendant:

Machro Pty Limited and Ors

Cases Cited (10)

CITATION : Friends of South West Rocks Inc v Machro Pty Limited and Ors [2004] NSWLEC 721 APPLICANT: Friends of South West Rocks Inc FIRST RESPONDENT: Machro Pty Limited PARTIES : SECOND RESPONDENT: Eric Norman Developments Pty Limited THIRD RESPONDENT: Kempsey Shire Council FOURTH RESPONDENT: The Director-General of National Parks and Wildlife FILE NUMBER(S) : 41639 of 2003 CORAM: Pain J KEY ISSUES: Development Consent :- Whether development application made if not accompanied by SIS - Whether separate development applications can be aggregated to determine whether state significant development under SEPP 71 or whether masterplan required under SEPP 71 - failure by consent authority to consider relevant matters - whether concurrence given by NPWS invalid as requires a payment in compensation for loss of threatened species habitat Coastal Protection Act 1979 Environmental Planning and Assessment Act 1979, s 76A, s 78A, s 79B, s 79C, s 80A, s 94 Environmental Planning and Assessment Regulation 2000, cl 49, cl 50(1), cl 51 Interpretation Act 1987, s 11, s 32(2)(a) LEGISLATION CITED: Kempsey Local Environmental Plan 1987 Land and Environment Court Act 1979, s 25B National Parks and Wildlife Act 1974, s 8(7) State Environmental Planning Policy 71 - Coastal Protection, cl 2, cl 7(b), cl 8, cl 10, cl 17, cl 18(1), cl 25, sch 2 Threatened Species Conservation Act 1995 Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208; Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41; Fitch v Shoalhaven City Council (1989) 67 LGRA 165; Meriton Apartments Pty Limited v Minister Urban Affairs and Planning (2000) 107 LGERA 363; CASES CITED: Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Parramatta v Hale (1982) 47 LGRA 319; Rockdale Municipal Council v Tandel Corporation Pty Limited (1975) 34 LGRA 196; Somerville v Dalby (1990) 69 LGRA 422; Starray Pty Limited v Sydney City Council [2001] NSWLEC 129; Waverley Council v C. M. Hairis Architects [2002] NSWLEC 180; Weal v Bathurst City Council (2000) 111 LGERA 181 10/06/2004 DATES OF HEARING: 11/06/2004 15/06/2004 25/10/2004 DATE OF JUDGMENT: 12/21/2004

(2000) 50 NSWLR 312

(2000) 107 LGERA 363

(1991) 23 NSWLR 734

(2000) 111 LGERA 181

(1998) 94 FCR 28