[1990] HCA 33
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446
[2005] FCA 1707
Bankstown Municipal Council v Fripp (1919) 26 CLR 385
(2010) 178 LGERA 411
Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 2) [2010] NSWLEC 1
(2010) 172 LGERA 25
Carstens v Pittwater Council [1999] NSWLEC 249
Source
Original judgment source is linked above.
Catchwords
[1990] HCA 33
Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446[2005] FCA 1707
Bankstown Municipal Council v Fripp (1919) 26 CLR 385(2010) 178 LGERA 411
Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 2) [2010] NSWLEC 1(2010) 172 LGERA 25
Carstens v Pittwater Council [1999] NSWLEC 249(1999) 111 LGERA 1
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135(2012) 188 LGERA 26
Dougherty Bros Pty Ltd v Outline Planning Consultants Pty Ltd [2016] NSWLEC 72(2016) 216 LGERA 144
Franklins Ltd v Penrith City Council [1999] NSWCA 134
Hortis v Manly Council [1999] NSWLEC 151(1999) 104 LGERA 43
Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116(2008) 161 LGERA 136
Lesnewski v Mosman Municipal Council [2005] NSWCA 99[1986] HCA 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611[2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259[1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Geoffrey John Lomman v Windbelt Pty Limited [2018] NSWLEC 29 | Case summary | Zoe
[1999] HCA 21
Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134
(2007) 161 LGERA 118
Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council and Ors [2001] NSWLEC 28
(2001) 114 LGERA 35
Zhang v Canterbury City Council (2001) 51 NSWLR 589
Judgment (13 paragraphs)
[1]
Background facts
The site is commonly known as Centennial Vineyards, and is located on the western fringe of Bowral, approximately five kilometres from Bowral Railway Station. There is an amphitheatre in the south-eastern corner of the site, which is the proposed location of the outdoor concerts.
The site has previously had the benefit of two separate development consents approving temporary use for occasional outdoor concerts. The first consent (DA 08/1186) was granted to Windbelt on 16 January 2009. Under DA 08/1186, use of the site for outdoor concerts was approved as an ancillary use to the primary use of the site as a vineyard, which was a permitted use under the Wingecarribee Local Environment Plan 1989. Nine concerts were held over the course of three years, before the consent expired on 19 November 2013. The second consent granted to Windbelt on 10 September 2015 (DA 15/0180) was surrendered shortly thereafter on 18 February 2016.
The concerts hosted at the site between 2009 and 2013 were subject to a number of complaints from local residents due to the allegedly excessive noise they generated. After Windbelt was granted its second development consent, the applicant filed a summons for judicial review (2015/40967) seeking a declaration that the consent was invalid. These proceedings were discontinued shortly before Windbelt surrendered its second development consent.
The Lommans reside at Pine Hill, at 22 St Clair Street, Bowral ('the Lomman property'), a four hectare property that directly adjoins the site to the east. The approved concert stage is located between 110m and 120m south-west of the Lomman property.
[2]
Present pleadings
As there was significant debate regarding the precise nature of the Lommans' claims, it is appropriate to detail their pleaded claim. The Amended Summons sought the following relief:
(1) A declaration that the power of the second respondent to grant consent to DA No.16/0491, as a temporary use of land, was prohibited unless the Second Respondent concluded that the proposed use would not adversely impact on any adjoining land or the amenity of the neighbourhood pursuant to clause 2.8(3)(b) of Wingecarribee Local Environmental Plan 2010 ('WLEP 2010').
(2) A declaration that the evidence before the Second Respondent, as at 8 February 2017, overwhelmingly and inexorably led to the conclusion that the proposed use of the subject land for outdoor concerts would result in adverse impact on adjoining land, and adverse impact on the amenity of the neighbourhood.
(3) A declaration that the Second Respondent, at the time of determination of the Application on 8 February 2017, did not have before it sufficient material to enable it to make a proper and genuine consideration of the Application in respect of prospective impacts on the residences and neighbours proximate to the subject land.
(4) A declaration that the Second Respondent failed to give proper and genuine consideration to the relevant matters identified in s.79C of the EP&A Act.
(5) A declaration that in the circumstances the purported consent by the Second Respondent of DA No.16/0491 is void and of no effect.
(6) Such further or other order as the Court may deem appropriate.
(7) An order that the Respondents indemnify the Applicants for their costs and disbursements on an indemnity basis.
The Amended Summons contained 11 paragraphs under "Grounds" which relevantly provided:
1. On 15 June 2016 the First Respondent lodged a Development Application NO.16/0491 ("the Application") with the Second Respondent seeking approval for the use of land commonly known as 254 Centennial Road, Bowral ("the subject land") for "outdoor concerts", upon 5 weekends in any given year, for an unlimited period.
2. The Applicants reside at Pine Hill, at 22 St. Clair Street Bowral, a 4 hectare property, the residence upon which is approximately 110m from the approved concert stage on the subject land where the concerts previously have been, and are now approved to be, conducted.
3. The subject land was and is zoned E3 Environmental Management under Wingecarribee LEP 2010, in which zone the proposed use of outdoor concerts fell within the definition (as an "entertainment facility") of "function centre".
4. The use or purpose of function centre in the E3 zone is not a permissible use with or without consent, and was prohibited.
5. The Second Respondent considered and determined the said application for consent by granting approval on 8 February 2017 for the proposal as a temporary use pursuant to clause 2.8 of WLEP 2010.
6. The Second Respondent's power to grant approval pursuant to clause 2.8 of WLEP 2010 was constrained to require, prior to granting of consent, that the Second Respondent "…must not grant [consent] unless [the Second Respondent] was satisfied that … the [proposed] temporary use will not adversely impact on any adjoining land or the amenity of any neighbourhood…" (per clause 2.8(3)(b)).
7. The Second Respondent, prior to granting of consent on 8 February 2017, could not, and was not, satisfied that the proposed "temporary use" would not "adversely impact on any adjoining land or the amenity of the neighbourhood…".
…
Particulars
…
(b) As a result of the concerts held pursuant to the 2008 Consent, the Second Respondent received many and various complaints from occupiers of residential properties proximate to the subject land, indicating that the holding of the concerts had caused marked adverse and detrimental noise impacts upon the adjoining land, and the amenity of the neighbourhood.
…
(c) Prior to the granting of consent on 8 February 2017, the present First Applicant addressed the Second Respondent and listed in detail the adverse noise impacts prior concerts held at the subject land had caused or effected upon the amenity of the Applicants at their residence.
…
8. The report to the Second Respondent by its Officer on 8 February 2017 (see particulars to paragraph 5 above):
(a) Expressed the view that the proposed "temporary use" would not potentially adversely impact on adjoining land after concluding that the noise criteria proposed was acceptable notwithstanding expert reports to the contrary. The Council failed to obtain an independent report but relied on a report submitted by the First Respondent. (pages 8 and 10 and page 12 of Report)
(b) Noted that monitoring of prior concerts (pursuant to the 2008 Consent), that despite noise limitation, "…noise level of the concerts frequently reached the upper noise limits and had to be adjusted down. Concerts were loud even when inside the closest dwelling". [page 8 of Report]
(c) Council Staff expressed concerns regarding the estimated noise impact from the proposed development on surrounding residential properties but accepted the First Respondent's explanation without undertaking independent inquiries. [page 10 of Report]
(d) Failed to take into account the Wilkinson Murray Report on Noise of January 2017 which concluded that Clause 2.8 of WLEP 2010 could not be satisfied.
(e) Failed to obtain legal advice on Clause 28 of WLEP 10 [sic].
9. On 8 February 2017 the Second Respondent determined the application in favour of approval, adopting the recommendations of its officer.
10. On 8 February 2017 the Second Respondent gave notice to the First Respondent of Approval of the Application; in the conditions attached and imposed in that Approval was reproduction, inter alia, in condition 29 as to noise criteria, essentially of the same condition in the 2008 Consent for noise criteria except for identifying "… residential receiver locations as shown in the Benbow reports of June 2016 and 21 September 2016 …", to being measured "… at the closest residential receiver location at 22 St. Clair Street, Bowral (or a closer dwelling should one be constructed after the issue of this consent)…"
11. The Second Respondent in considering and determining that application:
(a) Failed to conclude whether or not the proposed concerts would have an adverse impact on the adjoining land or the amenity of the neighbourhood.
(b) Failed to have before it, or produced to it, material which would enable the Second Respondent to consider and determine the effects and impacts of the application;
(c) Failed to give proper and genuine consideration to the relevant heads of consideration per s.79C of the EP&A Act, such that the consideration given to those matters was nugatory, invalid and inoperative; and
(d) Improperly delegated to the General Manager the imposition of relevant conditions to assess and control prospective adverse impacts (some particulars omitted).
[3]
Evidence
The Lommans relied on a two-volume bundle of documents styled "Applicant's Documents - Part A", which included a large number of documents from Council's records relating to Council's consideration of the proposal comprising the development application and its supporting material including a Statement of Environmental Effects ('SEE') prepared by Windbelt's town planner, Scott Lee; Noise Impact Assessment prepared by Mr Benbow of Benbow Environmental ('the Benbow Report'); a number of further reports prepared by Mr Lee and Mr Benbow; various internal reports and memoranda prepared by Council officers including various memoranda of Mr Denis Boulavine, Council's Environmental Health Officer, and a detailed assessment report prepared by Mr Mark Pepping, the Deputy General Manager Corporate, Strategy and Development Services ('Assessment Report'), recommending approval of the proposal subject to conditions; correspondence from various objectors including 9 letters from the Lommans' solicitors variously providing responses to material provided to Council by Windbelt and on four occasions proffering legal advice regarding the application of cl 2.8(3)(b); a report of Barry Murray of Wilkinson-Murray, acoustic consultants (in response to the Benbow Environmental acoustic material); a transcript of the audio recording of Council meetings on 14 December 2016 and 8 February 2017; minutes of Council meetings held on 14 December 2016 and 8 February 2017; draft Conditions of Consent; and the Notice of Approval.
A further bundle of documents was tendered by Windbelt comprising correspondence received by Council in relation to the proposal including responses from public authorities and various parties in support of the proposal.
The Benbow Report identifies a number of noise receptors in the vicinity of the site, and considers the predicted acoustic impact of the proposed development on those receptors. The report identifies "moderate and significant exceedance" at the Lomman property, which is referred to in the report as "R1". The Benbow Report accordingly suggests a mitigation strategy of using shipping containers on the site to contain the acoustic impact.
As will be considered below, Council received much further material both of an expert and non-expert type during its consideration of the proposal specifically addressing the projected impacts of the proposal on the Lommans' property and to the surrounding area.
[4]
Legislative framework
While the term "outdoor concerts" is not defined in the Wingecarribee LEP, the term "function centre" is defined as follows:
function centre means a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres and reception centres, but does not include an entertainment facility.
The term "entertainment facility" is defined as:
entertainment facility means a theatre, cinema, music hall, concert hall, dance hall and the like, but does not include a pub or registered club.
The site is zoned E3 Environmental Management, and accordingly only specified uses are permitted as set out in the Wingecarribee LEP. Neither use as a function centre nor as an entertainment facility is permitted in the zone.
However, cl 2.8 provides an exception to a prohibition if the use is temporary, stating:
2.8 Temporary use of land
(1) The objective of this clause is to provide for the temporary use of land if the use does not compromise future development of the land, or have detrimental economic, social, amenity or environmental effects on the land.
(2) Despite any other provision of this Plan, development consent may be granted for development on land in any zone for a temporary use for a maximum period of 60 days (whether or not consecutive days) in any period of 12 months.
(3) Development consent must not be granted unless the consent authority is satisfied that:
(a) the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument, and
(b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and
(c) the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land, and
(d) at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use…
[5]
Lommans' submissions
The Lommans provided extensive written and oral submissions. As noted above, Mr McEwen accepted, with some amendment, Windbelt's identification of the "issues" that were properly for consideration and confirmed that the Lommans were not relying upon any claim that Council's decision was manifestly unreasonable or that Council failed to give proper and genuine consideration to the relevant heads under s 79C of the Environmental Planning and Assessment Act 1979 (NSW) ('EP&A Act'). However, the Lommans did not accept Windbelt's characterisation of the second argument as a "no evidence ground".
In their written submissions, the Lommans contended that Council did not have before it sufficient and adequate evidence to allow it to achieve the requisite state of satisfaction required under cl 2.8(3)(b) of the Wingecarribee LEP. Accordingly, they submitted the precondition to the exercise of Council's power to grant development consent was not met, rendering the consent void and of no effect. Further, the Lommans submitted that in fact the evidence before Council demonstrated that the proposed use would result in an adverse impact on land adjoining the site, and on the amenity of the neighbourhood. To this end, they directed the Court in detail to various matters in resident objections, material in relation to earlier concerts that were held on the site pursuant to previous consents, and detailed commentary in the Benbow Report and the other reports, in particular the Assessment Report, in the evidence.
The Lommans submitted that, as a precondition of undertaking a merit assessment under s 79C of the EP&A Act, the Council was required to form the requisite state of satisfaction captured in cl 2.8(3)(b) of the Wingecarribee LEP that the proposed development would not adversely affect adjoining land or the amenity of the neighbourhood. To support this submission, the Lommans cited Bungendore Residents Group Inc v Palerang Council (No 3) [2007] NSWLEC 251; Franklins Ltd v Penrith City Council [1999] NSWCA 134 ('Franklins'); and Hortis v Manly Council [1999] NSWLEC 151; (1999) 104 LGERA 43 ('Hortis').
Relying on Currey v Sutherland Shire Council (1998) 100 LGERA 365 ('Currey'), the Lommans contended that mere references to the statutory provision in various documents including the Assessment Report and the Benbow Report were insufficient to indicate that Council had formed the requisite state of satisfaction. The Lommans directed the Court to the various references to cl 2.8(3)(b) in the detailed material before Council.
[6]
Windbelt's submissions
Windbelt, in accordance with its "Issues for Determination" document, submitted that the Lommans' case could be separated into two distinct grounds, these being:
1. First, that Council failed to conclude whether or not the proposed concerts would have an adverse impact on the adjoining land or the amenity of the neighbourhood; and
2. Second, that Council failed to have before it, or produced to it, material to enable Council to consider and determine the effects and impacts of the application.
Windbelt initially submitted that the Lommans raised a third ground, that Council failed to give proper and genuine consideration to the relevant heads of consideration required under s 79C of the EP&A Act, such that consideration given to those matters was nugatory, invalid and inoperative. To the extent this was a separate ground, Windbelt accepted it was abandoned on day one of the hearing.
In any case, Windbelt submitted that the claim that cl 2.8(3)(b) is a jurisdictional fact was not properly arguable. Hence, the requisite state of satisfaction was not something that could be objectively determined by the Court in these proceedings. Relying on Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; (2012) 188 LGERA 26 at [76], Windbelt submitted that the use of statutory language requiring the decision-maker to form an opinion reflects a legislative intention to prevent litigation on questions of jurisdictional fact. The relevant precondition for the exercise of power, Windbelt submitted, is the formation of the relevant state of satisfaction, rather than the underlying circumstances; relying on Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 at [33]. Therefore, the proper issue for determination in the proceedings is, Windbelt submitted:
Whether the Applicant has established on the balance of probabilities that prior to granting approval to development consent No. 16/0491, the Second Respondent failed to form the requisite mental state of satisfaction under clause 2.8(3)(b) of WLEP "that the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood."
Windbelt submitted that the onus is on the Lommans to establish that Council did not form the requisite state of satisfaction, with there being no duty in law for Council to refer in official records to all considerations which informed its decision, referring to Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 2) [2010] NSWLEC 1; (2010) 172 LGERA 25 ('Caroona No 2'); and Danis Hotels Pty Ltd v Dubbo City Council (1991) 72 LGRA 35 ('Danis Hotels').
[7]
Council's submissions
Mr C Leggat, senior counsel for Council, specifically accepted and adopted the written and oral submissions made by Windbelt, except insofar as there was any departure from them in Council's own submissions.
Council expressed significant concerns in relation to the manner in which the Amended Summons was pleaded and the extra issues sought to be raised and dealt with in the Lommans' written submissions. Council provided detailed written submissions dealing with, among other things, the issues raised in the Amended Summons (and the Grounds pleaded therein) and, in oral submissions, Mr Leggat maintained his concerns regarding the Lommans' "Issues for Determination".
In its written submissions, Council placed particular emphasis upon the manifest unreasonableness argument which was subsequently abandoned by the Lommans at hearing. Council also accepted the formulation of the "Real Issues" that were prepared by Windbelt.
In considering the Amended Summons, Council dealt briefly with Grounds 1 to 10, and submitted that these did not set out grounds of review with the specificity required under r 59.4(c) of the UCPR and considered in Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134; [2015] NSWCA 113 at [68].
Considering paragraph 11(a) of the Grounds, being that Council failed to "conclude" whether or not the proposed use would have an impact on the adjoining land or the amenity of the neighbourhood, Council submitted that the Lommans again failed to state the ground "with specificity", as there was no ground of judicial review constituted in the words "failed to conclude". Accordingly, Council submitted that no legal basis for relief was articulated. Further, Council submitted that the paragraph failed to state with specificity whether it involved a "jurisdictional fact", or whether the ground was based on unreasonableness in the sense identified in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.
Similarly to Windbelt, Council submitted that had the Lommans articulated either of these grounds in their pleading, Council would have called evidence to refute the contentions. Relying on Arnold v Minister Administering the Water Management Act 2000 (No 5) [2013] NSWLEC 42, Council submitted that the Court should refuse to allow an amendment to raise a judicially reviewable issue, and that Ground 11(a) of the Amended Summons should be ignored by the Court given it does not state a ground of review with specificity.
[8]
Consideration
I will deal first with Windbelt's submission that the Lommans' written submissions canvas arguments not raised in the Amended Summons such that the proceedings represent an "ambush", and are therefore inconsistent with the terms of Pt 59 of the UCPR. In a similar submission, Council contended that the Lommans have failed to articulate with clarity their grounds of review as required by r 59.4(c) of the UCPR.
Identification of the precise grounds of judicial review has proved to be a contentious point between the parties. Windbelt submitted that the Lommans challenged Council's decision on three distinct bases, including the argument with respect to s 79C of the EP&A Act which was abandoned at hearing. Both respondents were concerned that the Lommans' "Issues for Determination" and written submissions framed issues and made submissions that did not address the grounds upon which their relief was pleaded in the Amended Summons.
It is clear that a party is bound by its pleadings and I accept that a number of the written submissions made by the Lommans go outside the pleaded case. In the light of Mr McEwen's confirmation that the Lommans were not seeking to amend their pleadings, I have disregarded those matters, primarily in the written submissions, that do not relate specifically to the pleaded case. Similarly, I note that Council has provided written submissions which addressed claims which are now not relied upon by the Lommans.
The dispute regarding the Lommans' pleading meant, among other matters, that there was considerable argument during the course of the hearing in relation to the admissibility of extensive background documentation. I declined to allow lengthy historical documentation into evidence for reasons stated in two interlocutory judgments given on 15 and 16 August 2017. I do not repeat my reasoning except to note that paragraphs (1) to (7) of the relief claimed in the Amended Summons, particularly the declarations sought in paragraphs (1), (2), (3) and (4) were not in a form which, even if the Lommans were to be entitled to relief, I would have been prepared to make. Further, the paragraphs stating the grounds, noted at [10] above, were to some extent confusing. Subject to the below, I accept what I now understand to be a common position between the parties as to the issues for determination.
As referred to above, in the course of oral submissions, Mr McEwen indicated that he was satisfied to proceed on Windbelt's formulation of the first ground of review, which was reflective of the Lommans' formulation of the issues, but that the second ground dealt with the sufficiency of evidence before Council, and should not have been formulated as a "no evidence ground".
[9]
Failure to form the requisite state of satisfaction
As noted above, cl 2.8(3)(b) of the Wingecarribee LEP relevantly provides as follows:
2.8 Temporary use of land
(3) Development consent must not be granted unless the consent authority is satisfied that: …
(b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood; and …"
I accept, as submitted by Windbelt, that the underlying circumstances (that is, whether or not there will be an adverse impact) referred to in cl 2.8(3)(b) do not constitute a jurisdictional fact which can be objectively determined by the Court in these judicial review proceedings. I accept Windbelt's submission that the use of language requiring the decision-maker to form an opinion has been held to reflect a legislative intention to prevent litigation on questions of jurisdictional fact (Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; (2012) 188 LGERA 26). Indeed, it limits the circumstances in which an application for judicial review can succeed.
The use of a subjective criterion or precondition is well understood in the context of judicial review, however, given that the nomenclature of "jurisdictional fact" proved to be contentious between the parties, it is worth remembering some of the underlying principles. A helpful analysis was provided by Basten JA, with whom Macfarlan and Meagher JJA agreed, in Trives v Hornsby Shire Council [2015] NSWCA 158 ('Trives') where his Honour said at [9]-[11]:
The language of "jurisdictional fact" is commonly used as a basis for review of administrative decisions. A "jurisdictional fact" describes a fact which is an essential precondition to the exercise of a power. For a person to seek to exercise the power absent such a fact is to act without legal authority.
Preconditions to the engagement of a power come in different forms. One common form is a requirement that the repository of the power be "satisfied" as to the existence of a particular matter. Perhaps unhelpfully, the existence or absence of such an opinion is itself referred to as a "jurisdictional fact".
For legal purposes, facts do not exist, or not exist [sic], in the ether. The existence or otherwise of a fact depends on a body with authority to do so making a finding as to the existence of the fact. To describe a fact as jurisdictional is to say that its existence or otherwise may depend upon a finding, not by the repository of the power, but by a court with the function of reviewing the repository's decision. As a practical matter, a party challenging the existence of such a fact will be entitled to call evidence and, in effect, carry out a trial in the original jurisdiction of the court, to the extent necessary for the court to determine the fact (citations omitted).
[10]
Failure to have "sufficient" information
As outlined above, the second real issue was contentious in the sense that the precise articulation of the ground of review sought was not agreed. Windbelt maintained that it was a "no evidence" ground and was therefore easily disposed of once it was established that relevant documentation was in fact before Council when it made its decision.
The Lommans, however, maintained that their contention was not that there was no evidence before Council but rather that its evidence was "insufficient". For their part, both Windbelt and Council submitted that this was not a recognised ground of judicial review. Whilst I do not accept that "insufficiency" is a matter not properly raised by the Lommans' pleading, I will consider the submissions.
To support its position, the Lommans relied on a number of authorities. It mentioned in written submissions Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council and Ors [2001] NSWLEC 28; (2001) 114 LGERA 35 ('Wilson'), in which Pearlman J said at [37]:
the Court should proceed as it usually does - that is, evidence relating to the issues should be furnished, the relevance of the issues in the particular case should be considered as required by s 90(1), and appropriate weight should be attributed in the Court's discretion to those issues and the evidence furnished in relation to them.
However, I do not find that Wilson assists the Lommans. In that case, as Council submitted, her Honour was dealing with an interlocutory application in the Court's Class 1 jurisdiction. The above extract related to whether evidence was required for the Court to assess the merits of the application. Her Honour's comment has no bearing on these judicial review proceedings.
The Lommans also referred to Schroders, where Ipp JA at [103], with whom Spigelman CJ and Sheller JA agreed, said:
Local authorities are not normally obliged to consult with independent town planners, or to solicit independent planning opinions about the appropriateness of the grant or refusal of consent: King v Great Lakes Shire Council (1986) 58 LGRA 366 (at 371). Of course, there may be circumstances where there is a compelling need to make further inquiries, or inquiries through an independent agency, and where failure to do so may be so unreasonable as to render the decision invalid. But no such finding can be made in this case.
[11]
Conclusion
For the above reasons, I find that the Lommans have failed to make out any of their purported grounds of challenge. Therefore I find that the proceedings should be dismissed and, in these circumstances, the usual order for costs should be made.
[12]
Orders
The Court orders that:
1. The proceedings are dismissed.
2. The applicants are to pay the respondents' costs as agreed or assessed.
[13]
Amendments
14 March 2018 - Correction to case name in par 76.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 14 March 2018
Parramatta City Council v Hale (1982) 47 LGRA 319
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191; (2015) 213 LGERA 103
Rossi v Living Choice Australia Ltd [2015] NSWCA 244
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118
Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council and Ors [2001] NSWLEC 28; (2001) 114 LGERA 35
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Category: Principal judgment
Parties: Geoffrey John Lomman (First Applicant)
Susan Nicola Lomman (Second Applicant)
Windbelt Pty Limited (First Respondent)
Wingecarribee Shire Council (Second Respondent)
Representation: Counsel:
P McEwen SC (First and Second Applicants)
P Tomasetti SC with A Hemmings (First Respondent)
C J Legatt SC with J Smith (Second Respondent)
The respondents' concerns in relation to the pleadings stemmed from a direction earlier given by the Court on 30 June 2017 that the parties were to provide "an agreed list of the real issues for determination" and, if agreement could not be reached, separate lists identifying the issues for determination. The respondents expressed concern that a document styled "Issues for Determination" prepared by the Lommans, dated 27 July 2017 ('Lommans' "Issues for Determination"') and included in the Court Book, sought to raise matters outside the Lommans' pleaded case and that the Lommans' written submissions failed to address the grounds of challenge raised in the Amended Summons, but instead relied upon the Lommans' "Issues for Determination". Windbelt submitted that pursuant to Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), a party is not permitted to recast its pleadings by framing issues for determination that do not address the grounds on which the relief sought was originally based. Windbelt submitted that this rule is fundamental to ensure that the opposing party knows the case to be answered, and to avoid ambush.
Windbelt submitted that the Lommans' written submissions sought to raise an entirely new ground of judicial review from that pleaded, in particular, that the Lommans now contended that the state of satisfaction required under cl 2.8(3)(b) was not open to Council as a matter of law. Further, Windbelt noted the Lommans' argument that cl 2.8(3)(b) was a jurisdictional fact, such that the Court could now objectively determine the matter. If the Lommans' "Issues for Determination" was to be relied upon or if the Amended Summons was to be amended, Windbelt submitted that the pleadings would be embarrassing in the sense discussed in McGuirk v University of New South Wales [2009] NSWSC 1424 at [30]-[35], in that they are unintelligible, ambiguous or so imprecise in their identification of material facts and allegations so as to deprive the opposing party of proper notice of the substance of the claim.
Windbelt submitted that it was not given any notice, prior to service of the Lommans' written submissions on 2 September 2017, that cl 2.8(3)(b) was alleged to be a jurisdictional fact, and that any new ground of challenge would have required a further amended summons. Whilst the Court may grant leave for a party to amend its pleading at any time pursuant to ss 64 and 65 of the Civil Procedure Act 2005 (NSW), Windbelt submitted that the dictates of justice weighed against allowing such an amendment given the Lommans' lack of expediency in raising the claim and the degree of injustice that Windbelt would suffer if the amendment were allowed. Windbelt submitted that it did not accept that cl 2.8(3)(b) is a jurisdictional fact, and had the claim been formally raised, it would have adduced relevant expert evidence to refute it.
In response to the respondents' concerns, Mr P McEwen, senior counsel for the Lommans, (transcript day one, page 21.20) clarified that the Lommans, apart from abandoning the declaratory relief sought in par (4) and deleting paragraph 11(c) in the Grounds, did not seek to amend the Amended Summons and no such application was made.
The issue with respect to the respondents' concerns regarding the pleadings was largely overcome by Mr McEwen's concession that the real issues for determination were, with some slight amendment, the two questions articulated by Windbelt in its filed document styled "Issues for Determination" ('Windbelt's "Issues for Determination"'). Despite this, the Lommans did not precisely adopt Windbelt's formulation of the second question.
The two grounds of review which were pressed by the Lommans by the conclusion of the hearing can be expressed as follows, adopting Windbelt's "Issues for Determination" but substituting the word "any" in Ground 2 for "sufficient", as per the Lommans' amendment.
1. Whether the applicant has established on the balance of probabilities that prior to granting approval to development consent No. 16/0491, the Second Respondent failed to form the requisite mental state of satisfaction under clause 2.8(3)(b) of WLEP "that the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood".
2. Whether there was sufficient evidentiary basis for the Second Respondent to support the state of satisfaction reached by it for the purposes of clause 2.8(3)(b) of the WLEP "that the temporary use will not adversely impact on:
a. Any adjoining land or
b. The amenity of the neighbourhood."
With specific reference to Hortis, the Lommans submitted that the only consideration given to cl 2.8(3)(b) was by Mr Murray, the Lommans' noise engineer, and that none of the evidence relied upon by Council or noted in the Assessment Report addressed the relevant issue for consideration under cl 2.8(3)(b).
The Lommans submitted that in order for Council to be satisfied that there would be no adverse effect, it would, as stated in Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116; (2008) 161 LGERA 136, have needed to consider and assess the impact of carrying out the development.
The Lommans submitted that there is no qualification of the word "adverse" in the clause and similarly no qualification of the two potential adverse impacts noted in cl 2.8(3)(b). Consequently, in the Lommans' submission, these impacts are disjunctive such that either, if found to exist, would deprive Council of jurisdiction.
The Lommans submitted that the proper process for exercising the power in cl 2.8 would have been for Council to have before them material relevant to each criterion, and then to undertake a process of consideration and evaluation of that material against the criteria stated in cl 2.8(3). They submitted this approach was consistent with Parramatta City Council v Hale (1982) 47 LGRA 319 ('Hale'). They further submitted that the test under cl 2.8(3)(b) is not qualified by notions of reasonableness, likelihood, or probability in the sense that Council was required to undertake any weighting exercise, but rather the appropriate test is whether or not there is an adverse impact (Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1; BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274).
The Lommans submitted that Council was required to state or exhibit satisfaction that neither criterion was triggered, with this satisfaction needing to be rational, logical and reasonable (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16). In the Lommans' submission, mere advertence to a matter is insufficient to indicate this satisfaction (Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167 at 601).
The Lommans were critical of the Benbow Report. Mr McEwen directed the Court to the detail of that document and submitted that Mr Benbow's reliance on criteria in relation to other venues which were not analogous to the present site, put an impermissible gloss on cl 2.8 to the effect that if one complied with relevant policies and guidelines an adverse effect would not matter. The Lommans submitted that approach was mistaken, and led Council to ask itself the wrong question.
Relying on Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [38] and [60], the Lommans submitted that Council's obligation to find and express satisfaction is a jurisdictional fact, meaning that it is open to the Court to determine whether or not the fact does or does not exist. The Lommans submitted that Council did not conclude or address a state of satisfaction pursuant to cl 2.8, and that this failure leaves Council bereft of power to approve the development.
In summary, the Lommans submitted that Council erroneously conflated s 79C merit matters and likely impacts (with mitigation measures) as the basis for assessing whether the impacts of the proposed use were acceptable, which the Lommans submitted imputed an impermissible gloss on the words of cl 2.8. Accordingly, the Lommans submitted that Council failed to address the correct question. In light of the evidence before Council, the Lommans submitted that it was not open to Council to come to the conclusion that the proposed use would not adversely affect the adjoining land or the amenity of the neighbourhood. The question which Council had to ask itself was whether there was an adverse impact. The wording of cl 2.8 was "unvarnished" and Council had not been "satisfied".
Windbelt submitted that the Lommans' approach to challenging the requisite state of mind was flawed for a number of reasons:
1. First, the Lommans conducted a minute examination of the Assessment Report, using an approach finely attuned to the perception of error. In any case the approach was flawed as the decision under review is that of Council, not the assessment of the Council's officers: Rossi v Living Choice Australia Ltd [2015] NSWCA 244 ('Rossi') at [268]-[269];
2. Second, the fact that Council adopted a recommendation in the Assessment Report does not support an inference that this was the totality of matters considered by Council in determining the development application: Dougherty Bros Pty Ltd v Outline Planning Consultants Pty Ltd [2016] NSWLEC 72; (2016) 216 LGERA 144 ('Dougherty Bros') at [26];
3. Third, the Lommans erroneously and selectively relied on the Benbow Report and the Assessment Report to discharge their onus that the state of satisfaction was not reached, and further suggested a list of considerations which should have been taken into account. Windbelt submitted that this constituted an "impermissible shopping list approach", which could not discharge the Lommans' onus. Further, Windbelt submitted that the Lommans' reliance on the Benbow Report was irrelevant to the question for determination, and represented no more than a submission on the merits of the decision; and
4. Fourth, the Lommans' case omitted any reference to the vast body of evidence that was before Council, which, when examined fairly and as a whole, rendered impossible the inference that Council was not satisfied of the matters in cl 2.8(3)(b). Relevantly, Windbelt submitted that Council had before it and was informed by:
1. the SEE;
2. the Benbow Report;
3. many submissions that addressed noise with some people expressing no objection or conditional support, and only 12 people expressing objection;
4. a report by Mr Boulevine, Council's Environmental Health Officer, dated 21 July 2016, who at the time advised that noise levels were unacceptably high and intrusive at two noise receptors;
5. a response to that report by Mr Benbow dated 21 September 2016;
6. a further response to the Benbow Report by Mr Boulevine dated 6 October 2016;
7. a set of draft conditions prepared by Mr Boulevine dated 18 November 2016 which were advised to be fair and properly acceptable to Windbelt;
8. a more prescriptive set of conditions prepared by Mr Boulevine on 28 November 2016;
9. an acoustic report prepared by Wilkinson Murray dated January 2017, and submitted on behalf of the Lommans;
10. oral submissions made to councillors at Council meetings where the decision was made, including by Mr Bilinsky (solicitor for the Lommans), Mr Murray from Wilkinson Murray, and on behalf of Windbelt, Mr Large;
11. a report to the Committee of the Whole by Council's town planner which recommended the approval of the development application subject to a number of conditions addressing the amenity of the neighbourhood. It also made recommendations for management of noise and traffic; and stated, inter alia, "it is considered that the proposed events are unlikely to have an adverse impact on the environment"; and
12. condition 29, which contained more prescriptive measures than those advocated by Mr Benbow.
Windbelt submitted that while the Benbow Report concluded that there was non-compliance with certain standards in respect of the Lomman property and one other receptor, cl 2.8(3)(b) requires consideration of the "amenity of the neighbourhood", and the Lommans are simply one receptor. Windbelt also submitted that the clause refers to an adverse impact "on any adjoining land", and an adverse impact on "the amenity of the neighbourhood", which are separate considerations. Windbelt submitted any effect relating to noise could only go to the impact on the amenity of the neighbourhood, not the impact on the adjoining land. The clause's reference to impact on the adjoining land did not include any impact on the amenity of adjoining land, and Council was satisfied that the amenity of the neighbourhood would not be adversely impacted despite the predicted impact on two receptors.
Considering the breadth of evidence available to Council, Windbelt submitted that it cannot be inferred that Council did not form the requisite state of satisfaction required under cl 2.8(3)(b). Further, given that the councillors were told the development was otherwise prohibited, Windbelt submitted that it could not be stated that they had not turned their minds to cl 2.8.
In relation to Windbelt's second identified issue, being that Council failed to have before it any (or, in the Lommans' submission, "sufficient") material that would enable it to consider and determine the effects of the application, Windbelt submitted that this claim was also embarrassing, as it presented no identifiable ground of judicial review in the Amended Summons. Windbelt submitted that, if the appropriate ground suggested by the Lommans was a "no evidence" ground, this could not be made out by showing inadequate or insufficient evidence, referring to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33. Rather, the Lommans would be required to demonstrate that there was no evidence to support the impugned conclusion, citing Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707.
Windbelt submitted that in light of the detailed material before Council, it could not be maintained that there was no evidence upon which Council could have relied to form the requisite state of satisfaction under cl 2.8(3)(b). Further, Windbelt submitted that Council did not have a duty to make specific inquiries under cl 2.8(3)(b) or s 79C of the EP&A Act as the Lommans may have suggested. Further, even if there were such a duty, it is clear that Council did make further inquiries of Windbelt's representatives Mr Benbow and Mr Lee, by requesting further expert information and putting forward draft conditions of approval for consideration. Windbelt further noted that the fact that the Lommans themselves were clearly dissatisfied with Windbelt's acoustic assessment and directed this concern towards Council, along with providing their own acoustic assessment, cured any alleged failure under cl 2.8(3)(b) of the Wingecarribbee LEP, or s 79C of the EP&A Act.
Further, as a matter of statutory construction, Windbelt submitted that there is no possible objective standard to be relied upon in determining whether something is "adverse", and that therefore whether an effect qualified as adverse was an opinion upon which Council was empowered to draw its own conclusion. The requirement was for Council to have formed the requisite state of satisfaction. To this end, Mr Tomasetti pointed to the evidence in the transcript of the Council meeting which showed councillors considering clause 2.8(3)(b), and submitted that they had "their mind focussed like a laser rifle on the centre of the target".
Windbelt submitted, relying on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, that it is for the decision-maker to determine the appropriate weight to be given to the evidence and opinions before it. Windbelt submitted that the Lommans' criticism of the material before Council is in fact a criticism of the factual soundness of the decision, a merits critique which is not available in these judicial review proceedings.
In relation to Ground 11(b) of the Amended Summons, being that Council failed to have before it material that would enable it to consider and determine the effects and impacts of the proposal, Council submitted that this ground also failed to state with specificity a ground of judicial review. Council submitted that the ground did not specify whether the legal basis was one of relevancy, irrationality or illogicality, or a failure to seek further information. Nor did the Lommans make any allegation in relation to jurisdictional fact, or unreasonableness. Council submitted that had any of these grounds been properly articulated in the Amended Summons, Council would again have called evidence to refute the contentions. In the circumstances, Council submitted that Ground 11(b) of the Amended Summons ought to be ignored.
Council submitted that the Lommans' real concern related to the merits of Council's decision, and submitted that seeking a merits review under the guise of judicial review is an impermissible approach, as noted in Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 per Preston CJ of LEC at [62]. Council further submitted that the Lommans' submissions approached Council's decision-making with an eye finely tuned for error, as counselled against by Preston J at [67].
In oral argument, Council submitted that the Court need not finally determine the correct construction of cl 2.8(3)(b) because Council had benevolently assessed the amenity on "R1", being the Lommans' property, as though the word amenity applied independently to R1, rather than being directed only to the neighbourhood.
Accordingly, the two grounds of review which were pressed by the Lommans are those extracted above at [16].
Prior to proceeding to determine those two questions, I consider the question of onus and the manner which a court should consider material before a decision-maker as those matters relate to this case.
In Caroona No 2, Preston J stated at [69]:
The onus rests on the applicant as the challenger of the Minister's decision to renew A216 to establish that the Minister did not form the required mental state of satisfaction under s 114(6). The applicant can discharge this onus by reference to the documentary material evidencing the decision-making process if that material is sufficient to allow the Court to draw the inference that the Minister did not form the required mental state of satisfaction. However, having regard to all of the documentary evidence, I do not consider that it would be proper to draw the inference that the Minister did not form the mental state of satisfaction required by s 114(6) of the Mining Act. Having regard to all of the documentary evidence, I also do not consider that the applicant has established that the inference should be drawn that the Minister was misled by the statement in the Ministerial Briefing that "all statutory requirements have been met". Viewed in context, I do not consider that this statement meant that the Minister need not turn his mind to the requirement of s 114(6).
In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd & Anor [2010] NSWCA 353; (2010) 178 LGERA 411, Tobias JA, with whom Giles and Hodgson JJA at [69]-[70] agreed, with Preston J's approach.
In Dougherty Bros, Pain J stated at [28]:
As the moving party the Applicants bear the onus of proof of establishing a breach of the EPA Act on the balance of probabilities in these proceedings. This onus may be discharged "by reference to the documentary material evidencing the decision making process if that material is sufficient to allow the Court to draw the inference" that the JRPP did not comply with the statute per Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) [2010] NSWLEC 1; (2010) 172 LGERA 25 at [69]. Mechanisms were available to the Applicants to meet the onus beyond the documentary materials, such as administering interrogatories or service of an order for the giving of a statement of reasons pursuant to r 59.9(2) of the Uniform Civil Procedure Rules 2005 (NSW)…
It is clear that cl 2.8(3)(b) requires Council to form the requisite state of satisfaction that "temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood…" prior to granting consent. The Lommans focused on a number of authorities including Hortis, Franklins, Currey and Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 ('Schroders') where the courts had considered that a required state of satisfaction had not been achieved.
A number of these authorities were recently considered by Pain J in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191; (2015) 213 LGERA 103 ('Roden'), in a manner relevant to the present facts and I respectfully adopt her Honour's analysis at [87]-[89] where her Honour stated:
[87] Hortis considered earlier decisions of Franklins Ltd v Penrith City Council [1999] NSWCA 134 and Currey v Sutherland Shire Council (1998) 100 LGERA 365 in relation to the drawing of inferences where no specific reference was made to the mandatory precondition in the relevant LEP in the material before elected councillors. In Currey the Court of Appeal held that the inference of satisfaction should not be drawn where the officer's report to the council simply referred to the relevant clause without further discussion in the context of the particular DA. In Franklins also in the Court of Appeal none of the material before the elected councillors made reference to the relevant clause compliance with which was required before consent could be granted. That gave rise to a conclusion that the council failed to form the requisite opinion of satisfaction in the absence of any evidence to the contrary. In Hortis the Court of Appeal did not overturn the Land and Environment Court finding that the council had failed to form the necessary satisfaction about a required precondition to the grant of consent, namely that the council was satisfied the development would not have a detrimental effect on the foreshore scenic protection area. The absence of express reference to the effect of the relevant clause gave rise to the inference that the council did not consider the clause. These cases required a close consideration of what documents were before the elected councillors and what inferences if any could be drawn from any absence of reference to the effect of a clause which was a mandatory precondition to the granting of development consent.
[88] A council's file is taken to be within the constructive knowledge of council officers unless evidence to the contrary is adduced, per Schroders v Shoalhaven City Council [1999] NSWLEC 251; (1999) 110 LGERA 130 at [7(c)] and [24]. In Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67] the Court of Appeal in affirming the Court below also held that material in the possession of a council will generally be treated as being in the possession of individual councillors, citing Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 31. These principles have been applied since, for instance in Eurobodalla Fluoride Issues Inc v Eurobodalla Shire Council [2014] NSWLEC 182 at [109] and Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [126]. I disagree with the Applicant's assertion that the Court must look at the Assessment Report only and no other material on the Council's file. No authority supporting that approach has been provided. That assertion is contrary to the authorities referred to immediately above which require that evidence must be brought forward by a party which is asking for an inference to be drawn that the Council's file was not considered by a decision maker. No such evidence has been brought by the Applicant.
[89] An example of where the negative inference was drawn is South East Forest Rescue. Preston CJ held there was a failure by an elected council to consider a clause which was a precondition to the exercise of the power to grant development consent. The collegiate body failed to take into consideration relevant zone objectives or form the required mental state of satisfaction that the development was consistent with those objectives. There was evidence that no councillor had read the council's file.
At [52], his Honour also made the following comment:
As explained in Enfield City Corporation, "[t]he term 'jurisdictional fact' (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion." In short, the phrase "jurisdictional fact" is a potentially confusing label for what is better described as a precondition to the engagement of a statutory power.
To some extent, it could be said that the confusion alluded to by Basten JA has been experienced in this case. It was not always clear whether the term "jurisdictional fact" was employed to refer to the attainment of the required state of satisfaction or whether it referred to the objective circumstances to which Council was required to turn its attention.
In any event, and leaving the language of jurisdictional fact to one side, in this matter, it is common ground that the forming of a state of satisfaction, rather than the underlying circumstances, is the criterion which preconditions the exercise of the power to grant consent (Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 at [33] per Basten JA citing Bankstown Municipal Council v Fripp (1919) 26 CLR 385; [1919] HCA 41 at 403.
That is, the existence of Council's mental state of satisfaction is the "precondition or an essential preliminary to the exercise of the power" to grant the consent (Caroona No 2 at [59] per Preston J; Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [84] per Tobias JA, Hodgson and Ipp JJA agreeing).
It is clear, and I find, that in this matter the underlying circumstances in cl 2.8(3)(b) are not questions of fact to be assessed by the Court. To adopt the language of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130], it is the state of satisfaction of Council as decision-maker which is the "jurisdictional fact".
The Lommans accepted they bear the onus to establish, on the balance of probabilities that Council did not form the required mental state of satisfaction under cl 2.8(3)(b). As is not uncommon in matters regarding decisions of local government authorities, Council has no obligation to provide in any official record all the considerations that informed its decision or to provide specific reasons. The Lommans did not seek to avail themselves of other mechanisms such as administering interrogatories or seeking a statement of reasons pursuant to r 59.9(2) of the UCPR. As such, the Lommans must discharge the onus by reference to documentary material evidencing the decision-making process is sufficient to allow the Court to draw the inference that Council did not form the required state of mental satisfaction (Caroona No 2 at [69]).
It is trite to state that in a matter such as this the Court is not required to focus on a minute examination of all the material before Council with an eye keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272). To that extent, close or slavish consideration of a particular report of an officer of a local government body is not necessarily determinative as it is the case that it is the decision of Council itself that is under review.
On the evidence, contrary to the Lommans' submissions, it could not be said that Council relied solely upon the Assessment Report which itself contained a number of specific references to cl 2.8(3)(b). The recommendation in the report referred to other matters and this case again highlights the necessity to closely consider all of the material before a decision-maker.
It is clear that the following material and information was before, and considered by, Council, at the time of its determination to grant consent. I am of the view that this material assists in considering whether Council was "satisfied", pursuant to cl 2.8(3)(b), that the temporary use would not "adversely impact on any adjoining land or the amenity of the neighbourhood". I note that each of the Lommans and Windbelt specifically, and in some detail, brought the following to the Court's attention:
1. The SEE specifically referred to the intention to rely upon cl 2.8 and set out the clause in full and gave detailed commentary in relation to the application of that clause, including its subclauses, which included reference to the imposition of appropriate conditions of consent and stated "diligent adherence to them from the site operators will ensure that offsite impacts are minimalised" and that "Council can be satisfied that there is no adverse impact…";
2. The SEE referred to the Benbow Report (at pg 13) and recorded the "Noise Mitigation Measures" referred to in the Benbow Report. The Benbow Report was styled "Noise Impact Assessment" and addressed the potential for noise affectation, including identification of "Sensitive Receptors" including the property of the Lommans as Receptor 1 (R1). The Benbow Report dealt with various noise criteria applied by various regulatory authorities and made reference to mitigation measures including a noise management plan and specific noise mitigation measures which specifically related to "exceedance predicted at location R1";
3. Various reports by Council's Environmental Health Officer, Mr Boulevine, responding to material including the Benbow Report including a number of draft sets of conditions including the conditions that seek to ameliorate noise concerns;
4. An acoustic report prepared by Wilkinson Murray dated January 2017 prepared on behalf of the Lommans, which specifically raised cl 2.8(3)(b), commenting upon its application and noting matters in relation to "adverse impact on adjoining land" and the "amenity of the neighbourhood";
5. The Assessment Report prepared by Council's town planner containing a recommendation for approval to the development application subject to conditions that specifically addressed the amenity of the neighbourhood and related to matters such as noise, traffic and other matters. That report contained details of the proposal with specific references to cl 2.8; and
1. expressly referred to the relevant power to be exercised by Council, being 2.8(3)(b) and setting out that clause;
2. stated "the application has been considered under the temporary use of land provisions in cl 2.8 of the LEP";
3. stated "the temporary use would potentially adversely impact on adjoining land";
4. stated "these noise levels approximately correspond to people talking at one metre or a TV set at normal home level at one metre";
5. stated "assessment of the application and supporting documentation recommended mitigation and management measures, Government Agency comments and conditions and taking into account the recommended conditions of consent if the application was to be approved leads to the conclusion that the temporary use would not adversely impact adjoining land or the amenity of the neighbourhood" [emphasis added]; and
6. contained proposed noise control condition 29 which required, among other matters, that a suitably qualified acoustic professional attend the whole duration of the outdoor concert events, oversee the full implementation of the noise management and mitigation measures suggested in Benbow Report, continuously monitor compliance with the noted noise criteria during the concert event, ensure that immediate and effective measures have been taken to rectify any exceedance of the noted noise criteria, and prepare and submit the noise monitoring results to Council.
1. A transcript of the meeting on 8 February 2017 which clearly shows that Council received an oral presentation from Mr Murray, the Lommans' acoustic expert. Apart from addressing Council, Mr Murray answered a number of questions from councillors in relation to the noise impact upon the Lommans' and other properties. The transcript indicates that Council received oral submissions from various parties with particular emphasis upon potential or likely noise impacts and there was discussion, debate, engagement, and submissions amongst councillors in relation to cl 2.8.
The above material was open for and was part of the consideration by Council. Based upon this evidence, I am not satisfied that it can be inferred that Council did not form the requisite state of satisfaction as a precondition to the exercise of the power. Further, it is clear from the material before Council including extensive correspondence and advice (including a number of legal opinions specifically raising cl 2.8(3)(b) provided by the legal representatives of the Lommans which were before Council) such that councillors were aware that the development was otherwise prohibited pursuant to the Wingecarribee LEP and of what cl 2.8 required.
As referred to above, I accept that consideration of cl 2.8 and the attaining of the satisfaction is a precondition, in the sense of an essential preliminary, to the exercise of power to grant consent.
Some commentary should be made in relation to the authorities relied upon by the Lommans. The present situation is different to that considered by the Court in Currey, where the material before council including the development application and the report of the council officer, did not make any reference to relevant clauses in the Sutherland Local Environmental Plan 1993, and the Court was required to consider whether, in those circumstances, an inference could be drawn that council failed to address a precondition. The circumstances were that council had simply adopted the council officer's recommendation which did not frame the question necessarily to be addressed. The situation is quite different here. Again, in Franklins, none of the material before council made reference to the relevant clause in issue. Further, in Hortis, the relevant clauses were not referred to in the council officer's report which gave rise to the inference that council did not consider the clause as Pain J noted in (Roden at [87]). These cases considered what inferences if any could be drawn from the absence of reference to a particular clause which was a mandatory precondition to the granting of a development consent. In considering the material before Council in the current matter, it is clear that the councillors had material which addressed the clause. Furthermore, unlike the facts in Currey and Zhang, the material before Council, both the documentary material and further submissions and representations were more than mere advertence to cl 2.8(3)(b) there was as I have found, clear engagement.
However, I should add that the correct construction of cl 2.8 is a question of some nicety. I accept Council's submission that it is not necessary for me to reach a concluded answer as to whether "effect on the adjoining land" includes an effect on the amenity of the adjoining land in circumstances where Council clearly considered amenity effects on the Lomman property.
In any event, where Council reached the requisite state of satisfaction, any submission as to whether an effect properly qualifies as "adverse" goes to the reasonableness of that satisfaction. It is not something which needs to be decided in this case in circumstances where the Lommans did not seek to prove that Council could not reasonably have formed the required state of satisfaction on the materials before it.
I accept Windbelt's submission that consideration of the transcript of the Council meeting indicates that Council specifically understood the importance of its consideration of cl 2.8. There was active debate in relation to whether the temporary use would adversely impact on any adjoining land or amenity of the neighbourhood. Although Mr McEwen strongly submitted that Council conflated its consideration of merit matters pursuant to s 79C of the EP&A Act and its consideration of cl 2.8, I do not accept this submission, primarily because it is clear that Council had had brought to its attention on numerous occasions both in Council reports, legal advices, objectors' submissions, expert reports retained on behalf of Windbelt and numerous other matters, that consideration of cl 2.8 and the satisfaction required in cl 2.8(3)(b) was a live issue. This was not a case where it could be said that Council was unaware that it was required to consider cl 2.8 as a step to moving to a merit assessment. On the evidence, I do not accept the submission that Council moved to the "second" step, merit assessment, without forming the requisite satisfaction pursuant to cl 2.8.
Lest there be any misunderstanding, I should state that Mr McEwen accepted that merits matters under s 79C of the EP&A Act could be considered before the state of satisfaction was reached under cl 2.8(3)(b) so long as the decision to approve the development was not made before the statutory precondition was discharged.
In that regard, I do not rely only upon the Senior Council Officer's Assessment Report (prepared by the Deputy General Manager Corporate, Strategy and Development Services), albeit that that report contains references, and on one view, direct references and consideration of matters pursuant to cl 2.8. I am also conscious that much of the material that was before Council referred to the relevant clause. This is not a case where Council simply embraced the Assessment Report without significant further debate.
Further, the decision to grant consent was made in circumstances where there was material both of an expert and non-expert nature in relation to the likely noise impact from the proposed development (including a detailed acoustic report prepared by Wilkinson Murray) and assessment reports and memoranda prepared by Council's in-house officers and by various expert town planners as well as material from interested parties both in support and opposing the proposal. Again, I do not consider it would be proper to draw the inference that Council did not form the mental state of satisfaction required by cl 2.8(3)(b).
I understand the difficulty faced by the Lommans in circumstances where, again as noted above, there is no duty that Council record its considerations. This is conduct about which the Lommans feel strongly and they understandably seek to discharge their onus by reference to the documentary material evidencing the decision-making process. However that material is simply not sufficient to allow the Court to draw the inference that Council did not form the required mental satisfaction.
In these circumstances, and having regard to all the documentary evidence, I am not satisfied that the Lommans have discharged their onus on the balance of probabilities. That is, they have failed to establish the factual premise of their case, namely that Council did not form the necessary state of satisfaction, in accordance with cl 2.8(3)(b) by reference to the documentary and other material that was before Council and the Court.
That comment should be put in overall context of that case. The respondent had been required to form an opinion that development was consistent with the objectives of the zone. It was alleged by the appellant that the information before the respondent was inadequate to reach that conclusion. The appellant relied on a comment of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 ('Prasad') in which, at 170, his Honour said:
"[I]n a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it".
On the relevance of Prasad to Schroders, Ipp JA said at [101]-[102]:
Critical to the result in Prasad and the other cases relied on by Schroders was the presence of highly significant ("centrally relevant") information that was in existence and available but not considered by the decision-maker concerned. Schroders contended that, by omitting to obtain further comments from GSA, the Council was ignoring available and centrally relevant information.
In my opinion, however, the present circumstances are entirely distinguishable from Prasad, Luu v Renevier and Videto. Schroders did not (and could not) assert that there was existing information that was available to the Council but which the Council did not consider. Rather, it was said, the Council should have used GSA instead of its own officers to report on whether its concerns had been alleviated. That is a fundamentally different argument that bears no comparison whatever with the argument upheld in Prasad and the other cases to which reference was made. The present case is one of omission to make inquiries through an agency different to that in fact employed. It is not a case of failure to use existing available information. Additionally, I would not categorise the information that would have resulted from the inquiries as centrally relevant, or being of material significance. The matters on which it was suggested GSA should report were of relatively minor importance. The work required was merely to assess whether Fabcot had complied with the Council's listed and detailed concerns. This is reflected by GSA's proposed charge of the relatively small amount of $500 to $1,000.
From this, a number of things follow. First, Wilcox J's comment in Prasad was in the context of a Wednesbury unreasonableness claim which is not made here. Second, the duty alluded to by Ipp JA for the council in that matter to make its own inquiries is a very high bar. It should not be lightly imputed.
Significant reliance was placed, both in the Lommans' written submissions and oral argument, on Hale. In that case, Street CJ at 335 said:
A normal prerequisite to taking a matter into consideration is that the members of the council should have an opportunity of understanding the relevant implications of the proposal before them in relation to the topics they are required to take into consideration… It is not necessary, in the resolution of the present appeal, to delve deeply into authority. The law is clear that a provision such as s 90(1) necessitates, as a precondition to the validity of a council's decision, consideration being given to such of the matters listed therein as objectively are of relevance to the application.
These principles are uncontroversial, but do not self-evidently assist the Lommans. The requirement to produce further documentation so as to have an opportunity of understanding the implications of a proposal before the decision-maker may only have application in the situation where the material before the decision-maker is manifestly inadequate.
In the circumstances, where all of the material outlined above was available to Council, and especially where the Lommans had procured their own expert to cure a perceived inadequacy in the material which otherwise would have been before Council, I do not find that the material was manifestly inadequate in that sense.
Despite my concern as to the Lommans' pleading, I find that the material was a sufficient basis for Council to reach the state of satisfaction which I have found it reached, and it was not unreasonable for Council not to seek further information.