(Subsection (5) permits a council to defer consideration of part of the land.)
186 The principles in relation to review for failure to take into account a relevant consideration were authoritatively stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. The application of the reasoning in that case requires reference to the statutory scheme under which the Minister was empowered to make a grant of land to a land trust, for the benefit of Aboriginal people, pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Minister could only take such steps where the Aboriginal Land Commissioner had reported findings of an inquiry into traditional Aboriginal ownership of the land and had recommended a grant of the land: s 50(1)(a)(ii). The Commissioner was required, in the report, to "comment on", but not determine the effect of, detriment to other persons or communities, if the grant were made: s 50(3)(b). The High Court held that, although there was no express statement to this effect, the Minister was bound to have regard to the comments of the Commissioner in exercising a discretionary power to grant the land, when "satisfied … that the land … should be granted": s 11(1)(b)(i) - see 162 CLR at 44 (Mason J). His Honour continued:
"The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner's comments on detriment. Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most accurate and information that the Minister has at hand."
187 Although there was no provision for interested parties, who might suffer detriment, to have an opportunity to make submissions to the Minister, where such submissions were made which "may have a direct bearing on the justice of making the land grant", there was an implication to be derived from the statutory scheme that the Minister was required to have regard to them: at 45. As Mason J further noted, to fail to do so might involve a breach of procedural fairness: pp 45-46. This approach is in conformity with the reasoning adopted in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ) and at [87] and [88] (Kirby J) referred to by this Court in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [73].
188 However, the present case is not directly analogous to Peko-Wallsend. The analogy would arise if the Appellant had made submissions to, or drawn the attention of, the Director-General or the Minister to the relevant consultancy report and the Director-General or the Minister had disregarded the content of the report. Rather, in the present case, it was the body in the position of the Aboriginal Land Commissioner which is said to have disregarded information it was bound to consider.
189 This point of distinction is important: the Council is not the authority with power to make a local environmental plan, and the Minister may vary a draft plan submitted by Council, at least if there is a matter of State or regional significance involved: s 70(1)(a)(ii). Otherwise the Minister may decide not to proceed with the draft plan - s 70(1)(c) - or the Director-General may seek to obtain variations to the draft: see s 68(9)(a).
190 There is a second point of distinction from Peko-Wallsend, namely that the land the subject of the proposed grant in that case, according to the undisputed evidence, partly covered a major uranium ore body in respect of which Peko-Wallsend had an unresolved mineral lease application. As noted by Gibbs CJ, the obligation of the Minister was to consider matters "in the light of the actual facts as disclosed by the material in his possession": at p 30. His Honour continued:
"It does not follow that the Minister is bound to consider every argumentative submission made to him after the Commissioner has furnished his report; in the present case we are concerned only with material which reveals that the comments in the report were based on an erroneous view of the facts.
… No complaint could be made if the Departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a Departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law."
191 As noted in Foster v Minister for Customs and Justice (2000) 200 CLR 442, the "level of particularity with which a matter is identified for the purpose of applying this principle may be significant": at [23] (Gleeson CJ and McHugh J). That was a matter of significance where it was not suggested that the Minister had entirely neglected a mandatory consideration, but where a particular level of detailed inquiry was said to be required. To similar effect, Gaudron and Hayne JJ stated at [38]:
"The relevant state of satisfaction is of matters described in qualitative terms which call for the making of value judgments about which reasonable minds may differ."
192 In the present case, what was in issue was not the failure to take account of a specific fact, but the failure to have regard to an opinion expressed by a consultant, namely a report prepared by an organisation called "Core Economics", which had been engaged by Council on 20 August 2003 to prepare a retail development strategy for the Shire. The relevant report was provided to Council on 12 January 2004, some six weeks before the decision under challenge. Had that report constituted the "environmental study" required to be undertaken pursuant to s 57(1) of the EP&A Act, to which the specifications were notified, the Council would have been bound to have regard to it, in accordance with the express terms of s 61 of the EP&A Act. However, the relevant environmental study was undertaken by a different organisation, known as "Geolink". Geolink submitted its report on 24 February 2004. In that report, Geolink noted that two studies were "currently underway (the findings of which were not available when the LES was prepared; nor are they available now)": at p 61 of the Council Minutes of 3 March 2004. One of those reports concerned flooding; the other concerned the retail strategy being considered by Core Economics. The Geolink report continued (Minutes, p 62):
"That study is examining conventional retail as well as commerce and trade uses and will provide more information upon which to base the future zoning of this site. However, we are advised that its conclusion is some time away.
Given the urgent need to commence the establishment of a new Sewerage Treatment Plant to service the Kingscliff locality, and the fact that the rezoning of this site is the first step in this process, there are significant concerns relating to delaying a decision about the zoning of this site until the retail study is concluded.
Given this urgency, and given the question marks that remain before it can be categorically stated that a Commerce and Trade zone is more appropriate than an Industrial Zone, the 'safest' action at this time would be to proceed with rezoning of the site to 4(a) Industrial, as exhibited by Council."
193 It cannot be said that Council did not know of, or was unaware of, the retail strategy study, which it had commissioned Core Economics to undertake in August 2003. Its attention was drawn by Geolink to the fact that the study by Core Economics was currently underway. In effect, the complaint is that it should have been advised that, far from the conclusion being "some time away", Core Economics had already provided what is described as a "third report", of which Geolink was unaware.
194 The history to the strategic planning undertaken by the Council with respect to the Tweed coast, between 1998 and 2004, was set out in some detail in an affidavit sworn by Mr Douglas Jardine, the Manager, Strategic Town Planning, for Tweed Shire Council, a position he had held for approximately 14 years. He had been involved in discussions between the Council, Core Economics and other parties, including representatives of the Appellant, throughout the second half of 2003, in relation to the preparation of a retail development strategy for the Tweed Shire Council. He referred in his affidavit to a "first working draft", provided by Core Economics in October 2003: Affidavit, 23 February 2005, par 56. He concluded that the draft required further work, both in terms of the issues to be addressed and the analysis of future retail demand. On or about 15 November 2003, a "second working draft document", was supplied to him, which addressed some of his concerns, but not all of them. He identified particular continuing concerns: Affidavit, par 59. He continued at par 60:
"It was my opinion that the strategy did not give a complete analysis of the retail needs of the Shire. Following discussions with the then Acting Director [of Planning], we agreed to defer any further action until the new Director was in place."
195 The new Director, Mr Noel Hodges, was apparently appointed after March 2004: Tcpt, 29 April 2005, p 146. Mr Jardine gave evidence of further discussions with Core Economics which led, on 11 August 2004, to Core Economics requesting Council approval for an expansion of its consultancy to allow it to "expand upon this initial work by producing a detailed demand analysis that includes floor spacing and associated timing". Approval was given by the Council at a meeting on 6 October 2004. A revised brief was sent to Core Economics the following day. As at the date of Mr Jardine's affidavit, in February 2005, the work had not been completed.
196 At the trial, counsel for the Appellant cross-examined Mr Jardine as to why he had not put before the Council, at its meeting on 3 March 2004, the "third report" of Core Economics. This matter was pursued by the Appellant because the Core Economics assessment had reduced the possible sites for retail development to three, of which one had already been rejected by Council as unsuitable and a second of which was rejected as unsuitable by Core Economics, leaving the Appellant's land as the remaining viable option. Accordingly, the Appellant sought to challenge Mr Jardine's view, as held in March 2004, that the Core Economics proposal should not be taken to Council for approval of its public exhibition, and should not be before Council with respect to the rezoning. Nevertheless, his Honour accepted Mr Jardine's evidence that the study was incomplete and there is no challenge to that finding: [2005] NSWLEC 617 at [200].
197 It follows that any inference as to the appropriate zoning which might have been drawn by Council members from the Core Economics material, would have been based on incomplete information which the Council's own responsible planning officer did not think it appropriate to refer to Council. That Council implicitly accepted this judgment follows from its later conduct in expanding the brief given to Core Economics, in October 2004.
198 The precise relevance of this evidence was not fully explained in the course of the appeal. There was no suggestion that material submitted by the Appellant was not given appropriate consideration, nor that material the Council was bound to consider, such as the environmental study, was not given consideration. The complaint is that a Council officer formed an evaluative judgment that opinions provided by another consultant were not yet sufficiently refined to be appropriate for consideration by Council. It was not suggested that Council erred in failing to defer its consideration of the draft Plan. The correct approach is to ask whether, if Council itself had formed the view in fact formed by its planning officer, it would have erred in law. In other words, it may be stuck with the opinion formed by its officer, but it was not argued that it could not delegate to an officer the power to form such an opinion. However, to say that the Council (through its officer) erred in making a finding of fact, namely as to the materiality of the Core Economics material, is to engage in merit review of the fact-finding process, which is not open to this Court.
199 I therefore conclude that this ground of appeal has not been made out. The appeal should be dismissed with costs.
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