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

40 The Applicant argued that this interpretation is in line with the intention of SEPP 71, being the protection of the coastal environment. This intention would be frustrated if, by dividing a development into two or more separate development applications, a developer could avoid the operation of cl 10(1) of SEPP 71. In this regard, the Applicant noted that the Eric Norman DAs were lodged at the same time and that: (a) only one SIS and one Council assessment report were prepared; and (b) one concurrence was granted by the Fourth Respondent; in relation to both the Eric Norman DAs and the Machro DA. The Applicant submitted that where two applications are lodged at the same time and are dealt with at the same time in essentially the same assessment processes then they must, for the purposes of Sch 2 of SEPP 71, be regarded as being for the one development. The Applicant conceded in the course of argument that this argument would not be available if the Eric Norman DAs were lodged at different times.

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.

42 Further, the Second Respondent argued that there may be cogent commercial reasons why a developer may not wish to subdivide the entirety of its land at one time, not least being the obvious cost in terms of compliance with consent conditions, such as those relating to s 94 contributions and infrastructure development, which must be complied with before the developer can expect to make any return on the development.

Finding on Ground 1(b) 43 I accept the Second Respondent's argument that the consent process which the EP&A Act regulates is one which is driven by development applications. It is not open to a consent authority to determine a development application by reference to activities which are the subject of a separate, albeit concurrent, development application.

44 While cl 10(1) and Sch 2 of SEPP 71 refer to "development" those provisions should be confined to mean "development the subject of a development application" as the provisions of SEPP 71 must be read in the context of the regime for development consent contained in the EP&A Act. If a development is state significant development under the EP&A Act, then the Minister becomes the consent authority for development applications concerning state significant development, and various other consequences relating to the manner in which development consents are to be determined and may be challenged, apply. Thus a finding that a certain development is state significant development only has meaning in the context of a development application which has been lodged for that development.

45 Accordingly, the words "development" in cl 10(1) and Sch 2 of SEPP 73 should be interpreted as being confined to "development the subject of a development application". Given this, the Applicant's argument that the development the subject of the Eric Norman DAs is state significant development and, accordingly, that the Minister and not the Council is the consent authority for the Eric Norman DAs, must fail.

Ground 2 - The Requirement for a Master Plan Ground 46 Clause 18(1) of SEPP 71 relevantly provided that: (1) A consent authority must not grant consent for: … (b) subdivision of land within a residential zone that is not identified as a sensitive coastal location into more than 25 lots, or … unless: (d) the Minister has adopted a master plan for the land, or (e) the Minister, after consulting the Coastal Council, has waived the need for a master plan for the land under subclause (2).

47 The Applicant argued that cl 18 had not been complied with for either the Machro Consent or the Eric Norman Consents.

2(a) - The Machro DA 48 As I found in Ground 1(a) that SEPP 71 applied to the Machro DA and that the Minister is the appropriate consent authority, cl 18(1) of SEPP 71 applies. As set out above, cl 18 of SEPP 71 prohibits a consent authority from granting consent to the Machro DA unless a master plan has been adopted by the Minister in relation to the land, or the Minister has waived the requirement for a master plan. It is not disputed by the parties that no master plan has been adopted or that the Minister has not waived the requirement for any such master plan. Accordingly cl 18 of SEPP 71 has not been complied with and the Machro Consent must be invalid on this ground also.

2(b) - The Eric Norman DAs The Applicant's Arguments 49 The Applicant argued that cl 18(1)(3) of SEPP 71 prohibits the Council from determining the Eric Norman DAs unless a master plan has been adopted by the Minister in relation to the land, or the Minister has waived the requirement for a master plan. It is not disputed that no master plan has been adopted nor has the Minister waived the requirement for such a plan.

50 Clause 17 of SEPP 71 defines a "master plan" as follows: Master plan means a document consisting of written information, maps and diagrams that outlines proposals for development of the land to which the master plan applies.

51 The Applicant argued that the requirement for a master plan is not limited to developments which are state significant development under cl 10(1) of SEPP 71. In this regard the Applicant argued that even if I am satisfied, as I am, that the development the subject of the Eric Norman DAs cannot be aggregated for the purpose of determining whether the development is state significant development, and accordingly is not state significant development, a master plan was still required under cl 18(1) of SEPP 71. 52 The Applicant argued that the word "proposals" in the definition of "master plan" contained in cl 17 of SEPP 71 indicates that master plans may relate to development which is intended to be or which is the subject of two or more development applications. The Applicant argued that this indicates that cl 18(1) is directed at the subdivision of land per se rather than development the subject of development applications and that the development the subject of the Eric Norman DAs must be aggregated for the purpose of determining whether a master plan is required under cl 18(1) of SEPP 71.

The Second Respondent's Arguments 53 The Second Respondent submitted that the provisions of cl 18(1) of SEPP 71 do not apply to the Eric Norman DAs. Accordingly, the Second Respondent argued that there was no prohibition on the Council determining the Eric Norman DAs without a master plan first being adopted by the Minister. The Second Respondent relied on the same submissions that it made in relation to the Proper Consent Authority Ground to support its submission that the development the subject of the Eric Norman DAs cannot be aggregated for the purposes of cl 18(1) of SEPP 71.

Finding on Ground 2(b) 54 The purpose of master plans, as the definition contained in cl 17 of SEPP 71 suggests, is to provide a mechanism whereby an area of land which is larger than that likely to be covered by a single development application is subject to a plan, presumably to encourage its development in an integrated manner. Clause 18(1) of SEPP 71 refers to the subdivision of land into more than 25 lots where it is in a residential zone.

55 There is no reference to "development" in cl 18(1). Accordingly, the arguments canvassed in relation to issue 1(b) as to whether development is limited to development the subject of a development application do not, in my view, arise in relation to cl 18(1) of SEPP 71. Therefore, the development the subject of two development applications which collectively apply for 47 subdivisional lots is, in my view, to be regarded as the "subdivision of land … into more than 25 lots" as referred to in cl 18(1). Given this, it is appropriate that the subdivision development the subject of the Eric Norman DAs be aggregated for the purpose of determining whether a master plan is required pursuant to cl 18(1). This conclusion is clearly supportive of the aims of SEPP 71, particularly the aim contained in cl 2(l) of SEPP 71 which provides that SEPP 71 aims "to encourage a strategic approach to coastal management."

56 I find that the Council as consent authority, was prohibited from granting consent to the Eric Norman DAs in the absence of either a master plan adopted by the Minister for the development, or a decision by the Minister to waive the requirement for a master plan. Accordingly, the Eric Norman Consents are void as the Council acted ultra vires in granting these consents.

Ground 3 - The Clause 7 Ground 57 Clause 7(b) of SEPP 71 provides that a consent authority must take into account the matters set out in cl 8 of SEPP 71 in determining a development application relating to land to which SEPP 71 applies. The Applicant argued in the alternative that, if the Council is the correct consent authority, the following parts of cl 8 which are relevant to the Machro DA and the Eric Norman DAs and were not taken into account by the Council in determining these development applications: (a) the aims of this Policy set out in clause 2, … (d) the suitability of development given its type, location and design and its relationship with the surrounding area, (e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore, (f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities, (g) measures to conserve animals (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats, … (i) existing wildlife corridors and the impact of development on these corridors,

3(a) - The Machro DA 58 I have found that SEPP 71 applies to the Machro DA so that the Minister, and not the Council, is the proper consent authority in relation to the Machro Consent, with the consequence that the Machro Consent is void. If I am wrong in relation to this then SEPP 71 does not apply to the Machro DA at all because the development application is subject to the transitional provisions in cl 25 of SEPP 71 and this ground cannot arise in relation to the Machro DA.

3(b) - The Eric Norman DAs 59 Given that I have found that the Eric Norman Consents are void for ultra vires as no master plan was adopted or the requirement for such a master plan was not waived by the Minister, it is not strictly necessary for me to determine the Clause 7 Ground. However, in case I am wrong on that ground and as the Court had the benefit of the parties' argument in relation to this ground I will briefly set out my findings in relation to the Clause 7 Ground for the Eric Norman DAs.

The Parties Arguments 60 The Applicant argued that the Assessment Report prepared by the Council in relation to the Eric Norman DAs (contained at Tab 30 of Exhibit A) indicates that, other than referring to cl 8, the Council has not considered the matters required to be considered by cl 7. The Applicant relied on Weal v Bathurst City Council (2000) 111 LGERA 181 ("Weal") to establish that simply referring to a mandatory consideration is not sufficient unless the matters are given real consideration. Further, the Applicant relied on Parramatta v Hale (1982) 47 LGRA 319 ("Hale") to support its case that such a failure to consider these matters renders the Eric Norman Consents void.

61 The Second Respondent argued that an examination of the Concurrence Report prepared by the Fourth Respondent (contained at Tab 28 of Exhibit A and Exhibit C) and the SIS (Tab 13 of Exhibit A), which were before the Council at the time of its determination to grant the Eric Norman Consents, shows that the matters listed in cl 8 of SEPP 71 were adequately addressed by the Council in determining the Eric Norman DA. Further, the Second Respondent argued that the Applicant has failed to establish any evidentiary basis to support its contention that the Council failed to take into account the matters listed in cl 8 of SEPP 71. In this regard the Second Respondent noted the statement of Moffitt P in Hale at p 345-346 to the effect that an inference that there has been a failure to take into account a relevant consideration is one which should only be made after "anxious consideration." Further, the Second Respondent relied on the decision of Somerville v Dalby (1990) 69 LGRA 422 to support the proposition that an assessment report prepared by a consent authority does not need to refer to all the matters which the consent authority took into account in determining the development application.

62 Following the Second Respondent's submissions, the Applicant conceded that the matters in subclauses (g) and (i) of cl 8 of SEPP 71 were considered in the SIS and that accordingly, the Applicant only relied on the matters identified in subclauses (a), (d) and (f) of cl 8 of SEPP 71, as set out above, to support its arguments in relation to this ground.

Finding in Relation to Ground 3(b) 63 The Assessment Report prepared by the Council officers for the Council in relation to the Eric Norman DAs (and the Machro DA) states (Exhibit A, Tab 30 at p 332) that: However Council must consider matters listed in Clause 8 of the Policy (Appendix S): - It is considered that the matters identified by Clause 8 have been adequately addressed including potential impacts on Aboriginal heritage, and the proposals are not inconsistent with the Policy.

64 Further, the Appendices to the Assessment Report: (a) contain an extract of cl 8 of SEPP 71 at Appendix S (p 124 of Exhibit C); and (b) contain 72 submissions made in relation to the proposed development, a number of which raised matters which may be broadly regarded as concerning the matters contained in subclauses (a), (d) and (f) of clause 8 at appendix G (pp 126 to 292 of Exhibit C). As set out above, consideration (a) in cl 8 is the "aims of this Policy set out at clause 2". The aims of SEPP 71, as set out in cl 2, were not referred to in the Assessment Report.

65 Numerous cases in this Court have had to consider the scope and nature of council consideration of development applications. The decision of the Court of Appeal in Hale established that a failure by a consent authority to give "real" consideration to the provisions in an environmental planning instrument which a consent authority is required to take into account in determining a development application is an error of law which renders that development consent invalid. However, as the Second Respondent correctly submitted, Hale is also authority for the proposition that an inference that a consent authority failed to give real consideration to such a matter can only be drawn after "anxious consideration".

66 In Weal Giles JA held at 201 that: Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration .

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.

70 However, given that SEPP 71 provides mandatory requirements as to what must be considered in assessing development applications to which the policy applies, I do not consider that the comments made by Hemmings J in Somerville v Dalby apply in the circumstances before me. Accordingly, the Applicant must succeed in relation to this ground. Ground 4 - The Irrelevant Consideration Ground 71 The Applicant argued that the Council took into account an irrelevant consideration, being the s 94 contributions which the Council would not receive if it refused development consent, in determining whether to grant consent to the Eric Norman DAs and the Machro DA. In this regard the Applicant relied on the following comments made in the Council report (Tab 30 of exhibit A at p 346): Council is also obliged to consider both the broader economic benefits of the subdivision as a result of opportunities for further residential construction and the direct costs to the community in providing open space, drainage, roads, sewerage and water, infrastructure planned for the area.

For the 82 lots proposed, the developers are required to contribute $795,000 towards those services under Council's existing developer contributions plans.

The potential loss of those contributions would require Council to review those plans and either abandon or significantly modify existing programs.

72 As, for the different reasons set out above, I have determined that the Machro Consent and the Eric Norman Consent are void on the grounds of ultra vires it is not strictly necessary that I consider this ground. While I heard brief arguments on this ground from the parties I do not consider that argument was sufficient for me to adequately decide this issue. Accordingly I decline to do so.

Ground 5 - The Concurrence of the Director General 73 Given my finding that the Minister and not the Council was the appropriate consent authority for the Machro DA it is not strictly necessary that I consider the Applicant's arguments in relation to the concurrence granted by the Fourth Respondent to the Machro DA. Similarly, given my finding that the Eric Norman Consents are, for the reasons set out above, invalid, it is also not strictly necessary for me to consider the Applicant's arguments in relation to the validity of the concurrence granted by the Fourth Respondent to the Eric Norman DAs. Further, the issue of the concurrence of the Fourth Respondent becomes somewhat theoretical in relation to the Machro DA. As a result of my finding that the Minister was the appropriate consent authority, the concurrence of the Fourth Respondent is not required in relation to the Machro DA. Rather s 79B(3) of the EP&A Act prohibits the Minister from granting development consent unless he has first consulted with the Minister administering the Threatened Species Conservation Act 1995.

74 As, however, the validity of the concurrence granted by the Fourth Respondent to the Machro DA and the Eric Norman DAs occupied a lot of the hearing, I think it is appropriate that I set out my preliminary findings, to the extent I am able to make them, in relation to this ground. As will become clear, I am however unable to finally resolve the issues raised by the parties.

The Legislation 75 Section 79B(3) of the EP&A Act states that: Consultation and concurrence - threatened species development consent cannot be granted for: (a) development on land that is, or is a part of, critical habitat, or (b) development that is likely to significantly affect a threatened species, population, or ecological community, or its habitat, without the concurrence of the Director-General of National Parks and Wildlife or, if a Minister is the consent authority, unless the Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995 .

76 Section 79B(5) of the EP&A Act specifies the matters which must be considered by the Director General in deciding whether or not to grant concurrence as follows: (a) any species impact statement that accompanied the development application, (b) any assessment report prepared by the consent authority, (c) any submissions received concerning the development application, (d) any relevant recovery plan or threat abatement plan, (e) whether the development proposed is likely to reduce the long-term viability of the species, population or ecological community in the region, (f) whether the development is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction, (g) the principles of ecologically sustainable development (as described by section 6 (2) of the Protection of the Environment Administration Act 1991 ), (h) the likely social and economic consequences of granting or of not granting concurrence. 77 Under s 79B(8) of the EP&A Act concurrence can be refused or granted conditionally or unconditionally. Under s 79B(9) if the Council grants consent to the carrying out of development for which a concurrence has been granted, the Council must grant the consent subject to any conditions imposed on the concurrence.

The Concurrence 78 As stated above, it was agreed by the parties that the development the subject of the Machro DA and the Eric Norman DAs is likely to significantly affect threatened species habitat, and hence that the development application was required to be accompanied by an SIS and that the concurrence of the Fourth Respondent was required pursuant to s 79B(3) of the EP&A Act before consent could be granted by a consent authority to the development application.

79 The Director General, by his delegate Andrew McIntyre, Manager, Threatened Species, Northern Directorate, purported to grant concurrence to the Machro DA and the Eric Norman DAs on 1 September 2003. The evidence of the decision made by the delegate of the Director General of National Parks and Wildlife, to grant concurrence in the bundle of documents tendered consisted of: (a) A letter dated 1 September 2003 from Andrew McIntyre which referred to the Machro DA and the Eric Norman DAs and stated that: Following consideration of the matters listed in Section 79B(5) of the Environmental Planning and Assessment Act 1979, I have decided to grant concurrence to the Council's requests for concurrence for the above three proposed developments, for the reasons set out in Section 10 of the attached report and subject to the conditions outlined in Section 11 of the attached report. (b) The report attached to the above letter is a report dated September 2003 entitled "Concurrence Report - For the Proposed Residential Subdivisions, DA T6-02-42, Lot 223 DP754396 Trevor Judd Avenue, and DAs T6-030-186 and T6-03-191 Lot 511 DP1048157, Belle O'Connor Street South West Rocks" ("the Concurrence Report"). Page iii of the Concurrence Report contains the following statement, dated 1 September 2004, made by Andrew McIntyre: I have considered the requests for concurrence from Kempsey Shire Council in accordance with Section 79B(5) of the Environmental Planning and Assessment Act 1979. I have decided to grant concurrence to the proposed development for the reasons set out in Section 10 of this report and subject to the conditions outlined in Section 11 of this report.

80 The two conditions of concurrence which require consideration here are condition 1 and condition 7. Condition 1 provides as follows: The Applicant for development consent (the Applicant) must undertake the development in accordance with the ameliorative measures documented in the Species Impact Statement (SIS) that are currently extant and referred to in Sections 2.2 and 2.3 of this report, unless modified by the following conditions. Reason : To ensure compliance with the ameliorative measures proposed in the SIS and currently extant.

81 Condition 7 provides as follows: Prior to both any construction certificate being issued for any subdivision or engineering works the subject of the development and the development being commenced, the Applicant must submit to the Council evidence in writing that the Applicant has entered into an arrangement with the Director-General of National Parks and Wildlife in respect of the acquisition or embellishment of land containing habitat similar to that within the subject site and/or providing known or potential habitat for threatened species known or likely to occur within the subject site, and/or the conservation and management of those threatened species known or likely to occur within the subject site. Reason : To fund the development and implementation of measures to conserve or increase the conservation status, security and management of those threatened species and habitats known or likely to occur on the subject site, as compensation for the loss of habitat for threatened species on the subject site.

82 Concurrence conditions 1 and 7 were respectively incorporated, as the Council was required to do by s 79B(9) of the EP&A Act, as consent conditions 22(i) and (vii) of the Machro Consent and consent conditions 20(i) and (vii) of the Eric Norman Consents.

The Concurrence Report and the SIS 83 As set out above, a single SIS was prepared in relation to both the Machro DA and the Eric Norman DAs. Section 9 of the SIS is headed "Measures to Mitigate Adverse Impacts". This section of the SIS contains five alternatives for mitigating the impacts of the proposals on the threatened species which the SIS identifies as being located on the subject land. These alternatives are as follows: (a) Avoiding the impacts by leaving the natural forest cover which is currently on the land intact. The SIS concludes at p 32 that: Given the zoning of the site for development, significant investment in planning development of the site, lack of non-floodplain cleared land in the locality and the desire for further growth, this option is identified as unsuitable.

(b) Mitigating the impacts by reserving as much of the site as the developers consider they could afford for the development to still be profitable, being a 1.04ha reserve across the centre of the site which included most of the trees where threatened species had been identified. The SIS concludes at p 33 that this option was not suitable as it would not protect the threatened species in the long term, posed bush fire risks and the reserve created would not necessarily link up with any further reserves to the west in the future. (c) Compensating for the impacts by adopting the "preferred option" of the developers which is that the developers provide "$160,000 to be used for identification and protection of suitable habitat in, or nearby the locality and/or more detailed planning for areas at risk from development in the locality to protect the identified threatened species." (d) The provision of a Species Impact Management Plan. The SIS notes at p 33 that " given the nature of the development described in this document and the constraints on providing on-site mitigating measures … the most appropriate strategy that has been identified is one of compensatory habitat. For that reason a Species Impact Management Plan for the study area is not considered relevant at this point in time ." (e) Translocation of the identified threatened species. The SIS notes at p 34 that " following discussions with National Parks and Wildlife Service, the option of translocation has been considered as an ameliorative measure ." The SIS concludes at p 34 that "… the only feasible alternative is to provide for compensatory habitat (as described above)."

84 The Concurrence Report refers to the conclusions of the SIS as follows at p 9: Given that the impacts of the proposed developments on threatened species and their habitats could neither be avoided or ameliorated, the applicants therefore considered and put forward a proposal to compensate for the impacts. This proposal essentially involved the provision of $160 000 to undertake one or more of: · The identification and protection of areas of vegetation in or near the locality that contained habitat of at least some of the threatened species adversely impacted upon by the proposed developments, through Voluntary Conservation Agreements or gazettal as lands reserved as NPWS estate under the National Parks and Wildlife Act 1974. · Fauna and flora surveys, and subsequent development and implementation of a strategy by Council to identify and conserve areas of high natural heritage conservation and appropriately manage development in the South West Rocks area.

The applicants' preference was to provide the proposed compensatory habitat funds to the NPWS for the latter to determine the most appropriate form of disbursement.

85 The Concurrence Report refers to the proposal contained in the SIS as follows at p 12-13: The NPWS's approach to addressing the impacts of proposed developments on threatened species and their habitats is: firstly, to avoid the impacts; secondly, to ameliorate the impacts if the first option is not possible, and thirdly to compensate off-site for impacts if neither of the first two options are considered practicable. This approach was communicated to the applicants in the DGRs and utilised in the SIS, resulting in the conclusion that compensation was the only viable option for the applicants. … The $160 000 mentioned in the SIS as compensation for the loss of threatened species habitat on the subject site is an amount proposed by the developer and is not necessarily acceptable to the NPWS. One application of funds provided by a developer to compensate for the loss of threatened species is the acquisition of private lands for addition to the NPWS estate, thereby substantially enhancing the conservation security and management for threatened species of those lands. …

86 The Concurrence report concluded at p 21 that: … I have decided to grant concurrence to the three proposed developments, subject to the conditions detailed in Section 11 of this report. The reasons for this decision are: … On the available evidence, the proposed development, as ameliorated by the conditions of concurrence, is unlikely, in the opinion of the NPWS, to significantly compromise the regional viability of any threatened species known to occur on the subject site.

Generally, the impacts of the proposals on the threatened species as considered in the SIS and additional information provided by the applicants will be ameliorated by the effective implementation of the measures outlined in the SIS and the conditions of concurrence detailed in section 11 of this report. …

NPWS has considered the option of refusing concurrence … this option is not appropriate … for the following reasons: … The impacts of the proposed development on threatened species and their habitats are considered to be sufficiently ameliorated at the local and regional scales, if not the scale of the site of the proposed developments, by the proposed concurrence conditions, in particular, the "compensatory habitat payment."

The Applicant's Arguments General 87 The Applicant's Points of Claim assert that the concurrence given by the Fourth Respondent's delegate in relation to both the Machro DA and the Eric Norman DAs was dependent on the imposition of a condition requiring the making of a "compensatory habitat payment" by the First and Second Respondents and; (a) the Fourth Respondent had no power to require a compensatory habitat payment as a condition of concurrence (par 5.1 of the Points of Claim headed "Compensatory Habitat Payment - No Power"); (b) the Fourth Respondent's reliance on the compensatory habitat was unreasonable (par 5.2 of the Points of Claim headed "Compensatory Habitat Payment - Unreasonable"); alternatively (c) no compensatory habitat payment was imposed in the concurrence (par 5.3 of the Points of Claim headed "Compensatory Habitat Payment - No Part of Concurrence"); with the result that the concurrence is invalid.

88 Further the Applicant's Points of Claim assert that condition 22(i) of the Machro Consent and condition 19(i) of the Eric Norman Consents (condition 7 of the concurrence): (a) imposed a compensatory habitat payment but are void for uncertainty because the amount of this payment is unknown. As these conditions are not severable the development consents are void (par 5.4 of the Points of Claim headed "Conditions of Consent Void for Uncertainty"); or alternatively (b) do not impose a condition requiring the making of a compensatory habitat payment with the result that the development consents are void (par 5.5 of the Points of Claim headed "Compensatory Habitat Payment - Condition not imposed").

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.

90 The Applicant accepted that its arguments in relation to this ground must fail if the making of a compensatory habitat payment by the First and Second Respondents: (a) was not material to the decision of the Fourth Respondent's delegate to grant concurrence; or (b) was material to the decision of the Fourth Respondent's delegate to grant concurrence, is within power and conditions 1 and 7 are certain. 91 The Applicant's primary arguments in relation to this ground were directed at challenging the concurrence (rather than the conditions of that concurrence) because of alleged defects in the decision making process followed by the delegate of the Fourth Respondent, namely acting beyond power in seeking to impose a compensatory habitat payment and taking into account an irrelevant consideration, being the compensatory habitat payment.

The Concurrence 92 The Applicant argued that the SIS makes only one proposal to mitigate the impacts of the development the subject of the Eric Norman DAs and the Machro DA and that proposal is that the "developers provide $160,000 to be used for the identification and protection of suitable habitat in, or nearby, the locality and/or more detailed planning for areas at risk from development in the locality to protect the identified threatened species." The Applicant argued that the statements made by the delegate of the Director General as set out at par 79 above, make it clear that concurrence was granted for the reasons set out in the Concurrence Report. The Applicant noted that, as set out above, the Concurrence Report states at p 23 that: The impacts of the proposed development on threatened species and their habitats are considered to be sufficiently ameliorated at the local and regional scales, if not the scale of the site of the proposed developments, by the proposed concurrence conditions, in particular, the "compensatory habitat payment."

93 The Applicant argued that the Concurrence Report makes it clear that the delegate of the Fourth Respondent took into account the making of a compensatory habitat payment by the First and Second Respondents in granting concurrence to the Machro DA and the Eric Norman DAs. Further the Applicant argued that the Concurrence Report makes it clear that the grant of concurrence was dependant on the imposition of a condition requiring the First and Second Respondents to make a compensatory habitat payment.

Power 94 The Applicant argued there is no power conferred by the National Parks and Wildlife Act 1974 ("the NPW Act") or any other Act which permits the Director General to grant concurrence to a development application subject to a condition requiring a payment aimed at compensating for the habitat which will be destroyed as a result of the carrying out of the development the subject of the development application. In this regard, the Applicant relied on the decision of Cowdroy J in Meriton Apartments Pty Limited v Minister Urban Affairs and Planning (2000) 107 LGERA 363 ("Meriton") at [45] and the cases referred to therein to the effect that: "A public authority is not permitted to impose a financial burden upon a citizen in the absence of clear and plain statutory language." Accordingly, the Applicant argued that the decision of the Fourth Respondent to require such a payment was ultra vires.

95 The Applicant argued that the decision of the Court of Appeal in Rockdale Municipal Council v Tandel Corporation Pty Limited (1975) 34 LGRA 196 ("Tandel") does not decide the matter finally. The Applicant argued that while this decision is authority that a condition requiring the payment of money may be imposed in the absence of an express power regarding the imposition of such conditions, it does not deal with the issue of whether the Fourth Respondent has the power to accept such a payment under the NPW Act. The Applicant argued that in requiring a compensatory habitat payment the Director General was effecting a tax.

96 Further, the Applicant argued that under s 79B(9) of the EP&A Act it is the consent authority, and not the Fourth Respondent, who must impose any concurrence conditions as a condition of consent. Section 94 of the EP&A Act limits the circumstances in which a consent authority can impose a condition of consent requiring the payment of money. No applicable contributions plan including conservation objectives has been adopted by the Council, as required by s 94(11), so that no contribution for a compensatory habitat payment can be legally required under s 94. Accordingly, the Applicant argued that even if the Fourth Respondent had the power to grant concurrence subject to a condition requiring a compensatory habitat payment, the condition is still invalid as it is the consent authority and not the Fourth Respondent who must ultimately impose and enforce the concurrence conditions and the consent authority lacks the power to impose a condition requiring a compensatory habitat payment.

Fundamental Flaw/Uncertainty 97 Alternatively, the Applicant argued that conditions 1 and 7 do not impose any requirement on the developers to make a compensatory habitat payment or, if they do require the developers to make a compensatory habitat payment, are so uncertain, applying Mison v Randwick Municipal Council (1991) 23 NSWLR 734 ("Mison"), as to be unenforceable. The Applicant further argued, in the alternative, that if such a condition requiring the payment of a compensatory habitat payment was not ultimately imposed, then the grant of concurrence was fundamentally flawed as it was intended to make the concurrence conditional on the imposition of such a condition.

98 The Applicant argued that if its argument is correct and conditions 1 and 7 are void, the conditions are not severable as they were fundamental to the decision made by the Fourth Respondent to grant concurrence. Accordingly, the Applicant argued that the conditions are not severable with the result that the entire concurrence is void and the Eric Norman DAs and the Machro DA are also void.

The Respondents' Arguments General 99 The Fourth Respondent argued that the Applicant's pleadings and arguments as originally articulated did not reveal any valid ground for challenging the validity of the concurrence as "fundamental flaw" is not a legally recognised ground of administrative review. Accordingly, the Fourth Respondent argued that the Applicant's arguments in relation to this ground must be recast in terms of arguments that: (a) the Fourth Respondent took into account an irrelevant consideration, being the compensatory habitat payment, in determining to grant concurrence; or (b) the decision of the Fourth Respondent to grant concurrence was manifestly unreasonable given that it was based on the imposition of a condition, being the compensatory habitat payment, which the Fourth Respondent had no power to impose; or (c) the decision of the Fourth Respondent to grant concurrence was based on an error of fact in that the Fourth Respondent believed erroneously that it had the power to require the making of the compensatory habitat payment in circumstances where it did not.

Was the grant of concurrence dependant on the imposition of a condition requiring a compensatory habitat payment? 100 The Fourth Respondent conceded that the Concurrence Report did consider whether a condition requiring the making of a compensatory habitat payment ought to be imposed. However, the Fourth Respondent argued that the grant of concurrence by the Fourth Respondent was not dependant on the imposition of a condition requiring the making of any compensatory habitat payment and the conditions imposed did not require such a payment. In this regard the Fourth Respondent relied on the wording of the conditions themselves as well as the documentary evidence that: (a) a monetary amount was not agreed and it seemed at risk of shrinking to insignificance by the time the developers took costs out; (b) the developers themselves had formulated an alternative proposal to secure conservation agreements over other land; (c) there were no guidelines by which a monetary amount could be fixed; (d) many of the public submissions received did not support the concept of a compensatory habitat payment; and (e) the Director General had received legal advice that the imposition of such a condition was not legally available; as establishing that the Fourth Respondent had declined the proposal made in the SIS for the making of a compensatory habitat payment by the First and Second Respondents by the date on which concurrence was granted.

101 Similarly, the First Respondent argued that, while the Concurrence Report did consider whether such a compensatory habitat payment ought to be imposed, the concurrence granted by the Fourth Respondent was not dependant on the imposition of a condition requiring the making of a compensatory habitat payment.

102 In contrast to the submissions of the First and Fourth Respondent, the Second Respondent argued that the Director General had imposed a condition requiring the payment of a compensatory habitat payment as a condition of concurrence or alternatively, that such a payment could satisfy the conditions imposed.

What is the meaning of conditions 1 and 7? 103 The Fourth Respondent submitted that condition 1 was a standard condition which, in the context of the particular SIS relating to the Machro DA and the Eric Norman DAs, had no effective operation. As set out above, condition 7 requires the developers to enter into an agreement with the Fourth Respondent: in respect of the acquisition or embellishment of land containing habitat similar to that within the subject site and/or providing known or potential habitat for threatened species known or likely to occur within the subject site, and/or the conservation and management of those threatened species known or likely to occur within the subject site 104 The Fourth Respondent argued that this condition could be satisfied by measures other than the developers agreeing to make a payment to the Fourth Respondent, such as the developers obtaining and transferring to the Fourth Respondent land containing relevant threatened species habitat. Such measures are clearly within the power of the Director General of the National Parks and Wildlife Service ("NPWS") to impose given her responsibilities and powers under the NPW Act.

105 The First Respondent similarly argued that condition 7 requires the acquisition or embellishment of land to satisfy the condition and does not require the making of a compensatory habitat payment.

106 The Second Respondent, in contrast to the arguments made by the First and Fourth Respondents, argued that condition 7 requires the carrying out of the ameliorative measures identified in the SIS by the NPWS and that the Respondents are to facilitate this by making a payment of $160,000 as indicated in the SIS.

Are the conditions uncertain? 107 The Respondents submitted that the fact that the final terms of the arrangement to be reached between the Respondents had not yet been agreed on did not affect the validity of condition 7 as the condition will become certain once the Respondents had settled on an arrangement and a construction certificate would not be issued until such time as the First and Second Respondents can demonstrate that they have in fact entered into such an arrangement with the Fourth Respondent. Accordingly, the Respondents argued that condition 7 meets the test for certainty propounded in Mison.

Are the conditions severable? 108 Further, the First and Second Respondents argued that even if conditions 1 and 7 are void for uncertainty, these conditions are severable from the concurrence and from the Eric Norman DAs and the Machro DA. In contrast, the Fourth Respondent agreed with the Applicant's submission that condition 7 is not severable from the concurrence but disputed the contention that this voids the Eric Norman DAs and the Machro DAs. Rather, the Fourth Respondent submitted that s 25B of the Land and Environment Court Act 1979 permits the Court to suspend the operation of the consents pending the grant of a valid concurrence by the Fourth Respondent.

Statutory construction 109 The Fourth Respondent noted that no declaration is being sought as to the proper meaning of condition 7 in these proceedings. However, the Fourth Respondent argued that, applying ordinary principles of statutory construction: (a) if a condition can be given effect to it should. Here condition 7 can be given effect as it is not uncertain; and (b) if condition 7 is capable of being satisfied in a way which would be within power, for example, the donation of land with suitable habitat, then s 32(2)(a) of Interpretation Act 1987 applies and the condition is to be read down as in power.

Irrelevant consideration 110 In relation to the irrelevant consideration argument, the Fourth Respondent argued that she was bound to consider the proposal contained in the SIS in determining to grant concurrence as s 79B(5) of the EP&A Act requires the Director General to consider the matters listed in that section in determining whether to grant concurrence. The SIS is one of the specified matters. The Fourth Respondent argued that the obligation on the Director General to consider the proposal made in the SIS is not affected by the fact that the proposal may be beyond the power of the Director General to accede to.

Power 111 The Respondents argued that the power of the Director General to impose conditions when granting concurrence pursuant to s 79B(8) of the EP&A Act is unlimited so that the principles in Rockdale Municipal Council v Tandel Corporation Pty Limited (1975) 34 LGRA 196 ("Tandel") apply. In this regard the Respondents argued that s 94 is not relevant to determining the scope of the Director General's power as s 94 is directed only to conditions imposed by consent authorities and not at conditions imposed on a grant of concurrence. Further the Second Respondent noted that s 8(7)(b) and (c) of the NPW Act permits the Fourth Respondent to: (b) … enter into arrangements for the carrying out of such works as the Director-General considers necessary for or in connection with the protection and care of fauna and the protection of native plants, (c) … undertake such scientific research as the Director-General considers necessary for or in connection with the preservation, protection and care of fauna and the protection of native plants and other flora, either separately or in conjunction with other persons or bodies,

Finding What does the decision to grant concurrence consist of? 112 The Applicant argued that the decision of the Director General's delegate to grant concurrence must be considered separately from the conditions placed on that concurrence. I agree with the Fourth Respondent's submission that the concurrence and conditions cannot be divorced as both reflect the exercise of the one function by the Director General's delegate. Clearly the decision and conditions are one and the same in light of the wording of the decision at par 79 above. In order therefore to decide what the substance of the concurrence is it is also necessary to construe the conditions.

113 I agree with the Fourth Respondent that there is a fundamental inconsistency in the Applicant's argument that the concurrence is invalid because: (a) it was beyond power to impose a certain condition; and/or (b) the decision to grant concurrence was based on an irrelevant consideration, being the making of a compensatory habitat payment; if the conditions do not in fact require the making of a compensatory habitat payment. Whether the conditions do so require is not easily determined, however.

Construction of the concurrence and conditions. 114 The Fourth Respondent correctly submitted that there is no legal requirement that a Concurrence Report be prepared nor any requirement as to the contents of such a report if produced. There are no legislative requirements imposed on the Fourth Respondent in relation to the giving of reasons or the form of those reasons. The concurrence decision dated 1 September 2003 and the accompanying conditions should be interpreted on their face, particularly as the conditions are incorporated into the development consent conditions imposed under the Machro DA and Eric Norman DAs by the Council, as required by s 79B(a) of the EP&A Act. There is no reference in conditions 1 or 7 to the Concurrence Report and it does not form part of the conditions.

Condition 1 115 An examination of the documents referred to in condition 1, that is, the SIS and sections 2.2 and 2.3 of the Concurrence Report clearly show that there are no extant ameliorative measures in the SIS as referred to in s 2.2 and s 2.3 of the Concurrence Report. In other words condition 1, which refers to extant ameliorative measures in the SIS, imposes no obligation on anybody to do anything. In its written submissions the Fourth Respondent suggested one conclusion the Court could draw is that the condition was satisfied. Given that there is nothing necessary to be done to satisfy the condition, such a finding is unwarranted. I accept the Fourth Respondent's oral submission that the condition can be considered superfluous as it has no work to do. This does not render the concurrence void, however, as the condition is clearly severable from the other conditions imposed, as the Fourth Respondent submitted.

Condition 7 116 Condition 7 makes no specific reference to a compensatory habitat payment. It refers to "arrangements for the acquisition and embellishment of land containing [certain] habitat". The reason set out for the condition is "to fund the development and implementation of measures …".

117 I agree that condition 7 does not, on its face, require the payment of money for compensatory habitat as both the Fourth Respondent and the Applicant argued, albeit with different consequences on their respective cases.

118 However I do not consider that I can ultimately resolve this issue in favour of the Fourth Respondent as I do not know what "arrangement" will satisfy condition 7. The Fourth Respondent argued that the dedication of land with suitable habitat would be one example of such an arrangement which could satisfy condition 7. Equally, I am of the view that the wording of condition 7 is so broad that a compensatory habitat payment could also be an "arrangement" which would satisfy condition 7. Ultimately I consider the wording is so open ended that its meaning is difficult to divine.

119 In this context the decision-making process leading up to the decision may be material in construing the meaning of condition 7. The decision making process followed by the Fourth Respondent in relation to the issue of the concurrence granted by the Fourth Respondent to the Machro DA and the Eric Norman DAs can only be inferred from the documents tendered in Court from the NPWS files. The SIS proposes only one means of dealing with the loss of threatened species habitat which will result if the developments the subject of the Machro DA and the Eric Norman DAs are approved. This is the payment of money by the developers to the NPWS to enable the preservation of similar habitat elsewhere in the locality. It is this proposal which forms the main topic discussed in subsequent correspondence between the NPWS and the First and Second Respondents and which is discussed in the Concurrence Report. The relevant extracts of the Concurrence Report are set out above at par 84 to 86.

120 The letter sent by the Director General's delegate to the Council informing them that concurrence has been granted, referred to at par 79 above, states that concurrence has been granted "for the reasons set out in Section 10 of the attached report and subject to the conditions outlined in Section 11 of the attached report." The Concurrence Report attached to that letter states the concurrence was granted because: Generally, the impacts of the proposals on the threatened species as considered in the SIS and additional information provided by the applicants will be ameliorated by the effective implementation of the measures outlined in the SIS and the conditions of concurrence detailed in section 11 of this report. …

The SIS only proposes one amelioratory measure, being the making of a compensatory habitat payment.

121 A minute dated 24 September 2003 executed by, amongst others, the same NPWS officer who acted as the Director's delegate in issuing the concurrence (Tab 29 of exhibit A), states that: NPWS's preferred substantive amelioratory measure would have been the retention of part of the site as a reserve. However this option was not practicable … Consequently, the NPWS agreed to the applicants' proposal to provide funds to NPWS to acquire, conserve and/or manage similar threatened species habitat. … While this minute was prepared after the grant of concurrence on 1 September 2003 I consider that it is nonetheless material.

122 A letter dated 29 July 2003 from the developer's consultant to the Director General's delegate (Tab 25 of Exhibit A) is the only document to which I was referred which raises any alternative option to the a compensatory habitat payment. This letter seems to suggest that land suitable for a voluntary conservation agreement had been located and to offer this to the NPWS as an alterative to the compensatory habitat payment. No copy of any response by NPWS to this letter was tendered in evidence. The Concurrence Report dated September 2003 was prepared after this letter was received.

123 While the other matters relied on in argument by the Fourth Respondent to suggest that a compensatory habitat payment was not imposed, as set out at par 100, the clear inference which is able to be drawn from the documents tendered is that the only concrete proposal before the Fourth Respondent's delegate at the time concurrence was granted was that a compensatory habitat payment would be made by the developers. What is unclear, based on the Concurrence Report and other documents tendered in evidence, is the size of the payment to be made by the First and Second Respondents as, at the time concurrence was granted, NPWS had not accepted the developers' monetary offers. This material suggests that the compensatory habitat payment was a material matter in the mind of the Director General's delegate at the time concurrence was granted.

124 The wording of condition 7 taken together with the decision making process which lead up to the issue of concurrence by the delegate of the Director General is unclear.

125 As I noted above, condition 7 does not appear, on its face, to impose any requirement on the First or Second Respondents to make such a payment but merely requires evidence that: …the Applicant has entered into an arrangement with the Director-General of National Parks and Wildlife in respect of the acquisition or embellishment of land containing habitat similar to that within the subject site and/or providing known or potential habitat for threatened species known or likely to occur within the subject site, and/or the conservation and management of those threatened species known or likely to occur within the subject site

126 Arriving at a final conclusion on the legal arguments of the parties is therefore problematic. It is however clear that, whatever it means, condition 7 is not severable as it is integral to the conditions of concurrence and hence of the relevant development consent conditions.

127 I have found none of the parties' arguments as to the construction of condition 7 completely persuasive. The Applicant's primary arguments in reliance on the compensatory habitat payment, being arguments (i) and (ii) set out at par 89 above would appear to fail but nor can I accept the Fourth Respondent's arguments as to the validity of condition 7.

128 That leaves the Applicant's uncertainty argument ((iii) at par 89 above) although I note the Director General's submission that uncertainty is not an independent head of legal error. Rather the Director General argued that where delegated legislation or an executive instrument is challenged on the ground that it is uncertain or otherwise ineffective, the task is to determine the true nature and extent of the power pursuant to which it is alleged the executive instrument has issued or the delegated legislation has been made. This was used as the basis of the Fourth Respondent's submission, set out at par 109 above, that if the conditions are capable of being given effect to as within power they should be. The difficulty with that approach in this case is that it is not clear what condition 7 requires the First and Second Respondents to do at all. As neither of those Respondents raised any arguments about the lack of certainty in the conditions this was not an aspect of this issue raised before me. I am inclined to think the Applicant's argument on this ground fails but nor do I consider that all material argument in relation to this issue of uncertainty was presented to the Court.

Does the Fourth Respondent have the Power to Impose A Condition Requiring the Payment of a Compensatory Habitat Payment on a Grant of Concurrence? 129 I have not yet dealt with the opposing arguments of the parties in relation to whether the Fourth Respondent has the power to impose a compensatory habitat payment as one view this issue does not arise if no compensatory habitat payment was imposed in condition 7. I am, in any event, unable to finally determine the issue on the basis of the arguments received.

130 The Respondents argued that the imposition of a condition requiring the payment of a compensatory habitat payment is within power because of the principles enunciated by Moffit P and Glass JA in Tandel at p 199 to p 206. The Court of Appeal in Tandel considered the power of a council to impose a condition, pursuant to cl 27 of the County of Cumberland Planning Scheme Ordinance, requiring the payment of money on a development consent granted pursuant to the now repealed Local Government Act 1919. Neither cl 27 of the County of Cumberland Planning Scheme Ordinance nor the Local Government Act 1919 contained any provision specifically granting a council the power to impose a consent condition requiring the payment of money, with cl 27 merely providing that the council "shall decide whether to give or withhold consent and in the former event what conditions, if any, shall be imposed."

131 Glass JA, with whom Samuels JA agreed, quoted from Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208 at p 216 to the effect that the discretion to impose conditions was not unlimited but councils had power "to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised" at p 205 to 206.

132 Since Tandel was decided the EP&A Act has been enacted. Section 80A of the EP&A Act gives a consent authority a general power to impose conditions of consent while s 94 of the EP&A Act explicitly gives a consent authority the power to impose a condition of consent requiring the payment of money provided various requirements are met. Section 94(1) of the EP&A Act states: Subject to subsection (2), if a consent authority is satisfied that a development, the subject of a development application or of an application for a complying development certificate, will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant consent to that application subject to a condition requiring: (a) the dedication of land free of cost, or (b) the payment of a monetary contribution, or both.

133 In Fitch v Shoalhaven City Council (1989) 67 LGRA 165 at 170, Stein J held that s 94 provided the exclusive power for a council to impose a condition requiring the contribution of money as a condition of development consent. This approach was followed by the Court of Appeal in Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41. However, the concurrence condition imposed by virtue of s 79B(8) of the EP&A is arguably not imposed by the consent authority meaning the council pursuant to s 94(1) of the EP&A Act. Rather, it is being imposed by the Fourth Respondent as a concurring authority who is empowered by s 79B(8)(a) of the EP&A Act to "grant concurrence to the development, either unconditionally or subject to conditions" and, ultimately by the consent authority, who is required to by s 79B(9) of the EP&A Act to grant any consent "subject to any conditions of the concurrence."

134 My preliminary view, however, is that in the absence of an express power in the NPW Act or the EP&A Act enabling the imposition of a requirement for the payment of money for compensatory habitat, such a requirement is beyond power. It is not immediately apparent that Tandel can be relied upon as the basis for the necessary power. This is a preliminary view, the matter requires greater analysis and argument and it is not necessary that I finally resolve this issue here.

Conclusion 135 Given my findings that both the Machro Consent and the Eric Norman Consents are, for different reasons, void it is appropriate that I make the declarations to this effect sought by the Applicant. I do not, however, propose to make any orders in relation to the concurrence granted by the Fourth Respondent's delegate as, for the reasons set out above, I do not consider that I am in a position to finally determine the Applicant's arguments in relation to this ground and given my earlier findings it is not necessary that I do so. Nor do I propose to make any orders restraining the First and Second Respondents from acting on the Machro Consent and the Eric Norman Consents. I have held that these consents are void. Section 76A(1) of the EP&A Act prohibits the First and Second Respondents from carrying out the development the subject of these consents.

Orders 136 The Court makes the following declarations: 1. Development consent T6-02-402 granted to the First Respondent by the Third Respondent on 26 September 2003 is void and of no effect. 2. Development consent T6-03-191 granted to the Second Respondent by the Third Respondent on 28 October 2003 is void and of no effect. 3. Development consent T6-030-186 granted to the Second Respondent by the Third Respondent on 28 October 2003 is void and of no effect. 4. Costs are reserved.

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