GPT Re Limited v Wollongong City Council & Anor [2006] NSWLEC 303

Land and Environment Court (NSW)|2006-06-09|Before: Biscoe J

GPT RE LIMITED v WOLLONGONG CITY COUNCIL AND ANOR.

1 The issue in this case concerns the validity of a development consent granted in August 2005 by the Wollongong City Council to Belmorgan Property Development Pty Ltd (Belmorgan) for a $60 million development involving demolition of existing buildings and subsequent erection of a seven storey retail and leisure shopping centre, multiplex cinema and commercial office complex on the corner of Crown and Corrimal Streets in Wollongong. It would result in the most significant change to retailing in the Wollongong City Centre since 1986. The development site is approximately 200 metres from the existing Crown Street Mall shopping heart of Wollongong to the west, and a similar distance from the tourism orientated beach area to the east.

3 Belmorgan's development application was lodged in August 2004 together with an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) seeking a variation of the 15 metre height limit imposed by the Wollongong Local Environmental Plan 1990 (LEP). The objection was necessary because the height of the proposed building ranged from 19.43 metres to 28.85 metres.

4 The development consent was granted by the council's general manager pursuant to the EP&A Act s 80(1) under delegated authority contained in a council resolution of 1 August 2005.

5 The pleaded grounds of invalidity may be shortly stated (putting aside grounds abandoned during the hearing):

(a) The council's said resolution was invalid because it delegated authority to approve the development application but not to refuse it. This is the core of the case, according to the applicant's oral submissions.

(b) Alternatively, when granting consent, council or the delegate deferred essential matters for later consideration which were required to be determined when granting consent.

(c) When granting consent, there was no proper, genuine and realistic consideration by council or the delegate in terms of the EP&A Act s 79C, or at all.

(d) When granting consent, council or the delegate failed to form the opinion required to be formed under cl 9(3) of the LEP which provides: "Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out".

(e) There was no power to grant the consent because there is no evidence that council or the delegate was satisfied and formed the opinion required by cl 7 of SEPP 1. Clause 7 provided that where the consent authority "is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of the policy as set out in clause 3", it may grant consent notwithstanding the development standard the subject of the objection referred to in clause 6.

6 Grounds (b) to (e) above insofar as they are put against the council as distinct from its delegate, depend upon construing the said resolution as a development consent by council itself rather than as a delegation by council of authority to consent. The parties contend for, and I accept, the latter construction. Accordingly, grounds (b) to (e) above insofar as they are put against the council, as distinct from its delegate, do not arise for consideration.

7 I uphold ground (a) and reject the remaining grounds. My reasons are as follows.

8 On 26 August 2004, after a series of pre-lodgement meetings, Belmorgan lodged its development application with the council. The development description was: "Demolition of existing buildings and construction of a multi-storey entertainment, leisure and retail development as described in the SEE". These initials stood for the Statement of Environmental Effects in an accompanying Town Planning Report consisting of four volumes. The Town Planning Report volume 1 paragraph 3.1 stated:

The site is significant in size and strategically located in the City Core: being located on Crown Street and in close proximity to the Civic precinct and the Beach. The site is prime City Core real estate.

The proposal is Stage 1 of a two-stage development. Stage 1 includes development up to a podium level to an FSR which conforms with the existing control. Stage 2 of the development, subject to a separate proposal, will incorporate residential and hotel components above podium level to an FSR according with the future intention outline in the recently developed Wollongong City Centre Structure Plan.

9 In September 2004, the council established a Design Review Panel. In November 2004 the Panel provided a final report, which contained recommendations in relation to the city context, urban design issues, architectural design issues and landscape design issues.

10 On 11 October 2004, the Deputy Regional Director of the Department of Infrastructure, Planning and Natural Resources wrote to the council for the attention of Mr Zwicker, who was the council's Assistant Manager Development Assessment and Compliance, suggesting that serious consideration be given to various issues. In relation to the City Centre Revitalisation Strategy, the letter stated:

A key objective of the strategy is to revitalise the Wollongong City Centre so that its role as the regional capital of the Illawarra is retained and reinforced. Central to this objective is the need to re-enforce the core retail and commercial area. This area is defined in the draft DCP and the subject site lies outside of the core area within a tourism/cultural/recreational precinct which aims to support the core.

11 The development application was exhibited from 15 September to 15 October 2004 and attracted 17 submissions which included objections to the proposal. In May 2005, council engaged consultants to prepare an independent retail and commercial assessment and review of the proposed development. The review summary said that the benefits of the project were far outweighed by the potential impacts on the CBD and that for this reason it should be declined in its current form and scale.

12 On 1 August 2005, council's Environment and Planning Committee received a negative report on the proposal from its Manager Development Assessment and Compliance (Exhibit A tab 60) (Council Report). The Council Report concluded at p 54:

The Retail Overview Report - Wollongong City Centre/Crown Street Mall (June 2002) by Leyshon Consulting Pty Ltd (ie on behalf of Wollongong City Centre Management) and the Overview of Wollongong Region Economy Report (June 2002) by Leyshon Consulting Pty Ltd (on behalf of Wollongong City Council) and the Illawarra and South Coast Retail Centres Study February 2004 by HillPDA reinforce the need for the establishment of a discount department store and a multiplex cinema complex within the retail core of the city centre, in order to maintain the retail hierarchy in the city and the region.

The proposed centre incorporates a discount department store (DDS) and multiplex cinema complex in line with the recommendations of the previous studies into Wollongong City Centre.

However, the proposed centre is situated outside the retail core of the city centre and is likely to lead to further dispersal and fragmentation of existing retail activity in the city centre. This is considered contrary to the findings of the Wollongong Retail Centre Study which Council adopted as its interim retail planning document for the city prior to the formulation of the new comprehensive city wide LEP which is envisaged to include a comprehensive city wide retail hierarchy strategy. In this respect, the Wollongong Retail Centre Study recommends a coordinated strategic and statutory framework in order to reinforce the City Centre's status as the regional retail centre of the region. This study also states that any continuation of the dispersal and fragmentation of the retail core as a location for retail activity is likely to prejudice the revitalisation of the city core.

The proposed 29,036 m2 centre has the potential to pose medium to long-term viability impacts upon the existing retail core, particularly the lower end of the mall between Church and Kembla Streets given the fact that this proposed centre is likely to result in the two far ends of the city centre being the main retailing hubs with the existing lower retail core precinct (ie between Church and Kembla Streets) becoming further fragmented and disjointed.

In this respect, the approval of the proposed centre in its current form is likely to result in a number of existing retailing businesses being subject to direct competition from the proposed specialty retail, restaurants and food outlet stores contained in the proposed centre. The level of resilience of such existing retailing businesses is dependent upon a number of factors including existing profitability levels, debt levels and whether or not the premises are leased or owned by retailing operator, which determine a business's capacity to absorb the impacts of direct competition.

However, the issue of direct competition between two competing operators is not a relevant town planning consideration.

Notwithstanding this, the potential economic impact of the proposed centre (outside the defined retail core of the city centre) on the overall planned retail core of the city is an issue for consideration. In this respect, the proposal is likely to lead to some decline in retailing in the retail core, especially lower scale retailing businesses at the lower end of the mall between Church and Kembla Streets. It is also highly likely that the proposed centre will result in some loss of traditional retailers and shopfront vacancies in the mall due to the fact that the proposed centre is an enclosed shopping centre at the far eastern end of the city and is likely to capture and contain patrons to within the centre. The location of the proposed centre at the eastern end of the city centre is likely to result in a high percentage of private vehicle patronage to the centre whereas the existing retail mall strip encourages patrons to walk between retailing businesses between Keira Street and Kembla Street.

Any continuation of the dispersal and fragmentation of the retail core is likely to prejudice the revitalisation of the city centre as a whole. In this respect, the proposed 29,036 m2 centre will only further result in the dispersal and fragmentation of the retail activity in the city centre.

The proposed development ranges in height between 19.43 metres up to 28.85 metres and hence, varies from the current 15 metre maximum building height control contained in clause 12A and Schedule 2A of WLEP 1990 which pertains to all lands generally bounded by Corrimal Street, Bank Street, Harbour Street, Crown Street and the Wollongong foreshore public recreation area as per WLEP 1990 Amendment No. 143 (ie gazetted on 8 November 1996), which includes the subject site. Accordingly, the application was supported by a written objection pursuant to the provisions of State Environmental Planning Policy No 1 - Development Standards (SEPP 1) which seeks a variation from the maximum 15 metre building height limit contained under clause 12A and Schedule 2A of WLEP 1990. However, the SEPP 1 objection is not considered supportable with respect to the current proposal.

The proposal in its current form is also considered inconsistent with the provisions of Draft State Environmental Planning Policy No 66 - Integration of Land use and Transport particularly since the site is outside the retail core of the city centre and is situated further away from Wollongong railway station and hence, the proposal is likely to result in an increase in the number of passenger vehicle trips, rather than a reduction in the number of trips made to the city centre.

The Draft Wollongong City Centre Local Environmental Plan is currently being reviewed by the expert panel prior to the issuing of the Section 65 Certificate by the NSW Department of Infrastructure Planning and Natural Resources to enable the public exhibition of the draft plan. The Section 65 Certificate is however currently anticipated to be issued imminently. Accordingly, Draft Wollongong City Centre Local Environmental Plan has no current legal status until such time as the draft plan is placed on public exhibition. However, the draft plan will set the new framework for future planning decision-making in the city centre.

The current proposal is considered contrary to a number of the 3(c2) City Centre Support zone objectives, particularly since the amount of retail floor space proposed in the centre will operate against rather than complementing and supporting the functions of the City Centre Core zone. Further, the proposed centre is outside the retail core of the city and will further fragment rather than focusing and consolidate the retail core of the city centre, in the event that the scale of the proposed centre remains unaltered.

The proposal in its current form is also considered contrary to the intent of DCP 6 since the site is outside the retail core of Wollongong City Centre and is likely to result in the further fragmentation of the retail core of the city centre given that the proposed centre in its current form is likely to trade directly against Crown Central shopping centre and other existing retailers in the retail core. This further fragmentation of the existing planned retail core is likely to directly result in some short to medium term impacts on individual retailers are difficult to determine since it will be based upon a range of factors such as type of retail business, rent levels, market share, business costs etc.

The proposal has been assessed against the 'Matters for Consideration' as listed under Section 79C of the NSW Environmental Planning and Assessment Act 1979 and its current form is considered unsatisfactory.

In light of the above, the proposal is unsupportable in its current form. Therefore, it is recommended that the applicant be requested to undertake a redesign of the proposed development which involves the deletion of the proposed ground floor supermarket and the ground floor specialty retail floor space. The deletion of the proposed supermarket is considered reasonable on the basis that it is one of the retail anchors which dictates the quantum of specialty retail floor space necessary for the development. The removal of the supermarket will enable the associated reduction of the ground floor specialty retail floor space and the associated repositioning of the restaurants fronting Crown Street further inwards into the development in order to make provision for outdoor seating whilst not compromising suitable pedestrian access arrangements along the footpath area.

The reduction in the quantum of retail floor space in the development is likely to reduce the potential adverse impact upon the retail core in the city centre whilst enabling the provision of a discount department store operation in the city.

Accordingly, it is recommended that Council forward correspondence to the applicant requesting a redesign of the proposed development involving the deletion of the ground floor supermarket and ground floor specialty retail stores and the associated reconfiguration of the building. This correspondence is also recommended to include a request for the applicant to advise Council within 7 days from the date of Council's correspondence that a redesign of the proposal will be undertaken.

It is also recommended that delegated authority be granted to the General Manager, in the event that no correspondence is received within 7 days from the applicant confirming that the redesign of the development will be undertaken by way of the deletion of the supermarket anchor and other specialty retailing outlets on the ground floor level of the building and the associated reconfiguration of the building.

13 The above references to the "retail core in the city centre" are explicable by reference to a draft Wollongong Local Environment Plan at p 26 which refers to "Zone No 3 (c1) - City Centre Core Zone". The proposed development site is outside and to the east of this zone and within what the draft LEP at p 27 describes as "Zone No 3 (c2) - City Centre Support Zone" (Exhibit A tab 6]. This does not impact upon any issue before the Court.

14 The consistency of the development application with Wollongong Development Control Plan No 6 Commercial and Industrial Development, was assessed at p 23 of the Council Report:

The proposal is considered contrary to the intent of DCP 6 since the site is outside the retail core of Wollongong City Centre and the proposed development involves primarily a shopping centre which contains a number of major retail store chains as well as a range of specialty retail stores and food outlets with a correspondingly high quantum of retail floorspace.

However, if the proposal was limited to the provision of the proposed cinema complex and restaurants/cafes only, it is considered that the proposal would be relatively consistent with the tourist precinct, as contained in DCP 6.

15 The Council Report identified the following options (at p 53):

1. Redesign of the development to seek the deletion of the ground floor supermarket and associated ground floor retail floor space - This option is recommended to be pursued to reduce the quantum of retail floor space being proposed upon a site outside the defined retail core in the city whilst still enabling the provision of a discount department store and multiplex cinema complex in line with previous retail studies undertaken for the Wollongong City Centre.

2. Refusal of the application - This option is not recommended as the first option but in the event that the applicant is unwilling to undertake redesign of the development in line with the recommendation, the refusal of the application is then recommended.

3. Approval of the application - This option is not recommended since the proposed centre is outside the retail core of the city centre and is likely to result in two separate shopping centres trading at opposite ends of the city centre. This is likely to result in some decline in the middle section of the retail core particularly in the lower part of the mall. However, the approval of the application would guarantee the provision of a discount department store and a multiplex cinema complex in the city centre, albeit outside the identified retail core of the city.

16 Council's Environment and Planning Committee met on 1 August 2005. The minutes record the following (Exhibit A tab 61):

The application is for the demolition of the existing Dwyer's Holden and Salvation Army buildings and the subsequent erection of a 7 storey retail and leisure shopping centre, multiplex cinema and commercial office complex upon the subject site. The proposed centre comprises of a 5 storey building spread over the majority of the site with 2 additional upper commercial office level elements, proposed on the southern (Burelli Street) frontage of the site.

The site is outside the retail core of the city centre and is likely to result in the further fragmentation of retail activities in the city centre, rather than containing such retailing activity to the retail core. Accordingly, it is recommended that correspondence be forwarded to the applicant requiring a redesign of the proposed development by way of the deletion of the ground floor supermarket and ground floor specialty retail floor space and the associated reconfiguration of the proposed centre. The reduction in retail floor space will help address the proposal's inconsistency with the retail hierarchy strategy since the modified centre will still provide a discount department store and a new multiplex cinema complex but minimise the potential for significant adverse economic impacts on existing retailers in the defined city centre retail core.

MOVED Councillor Zanotto seconded Councillor Kent that -

1 The General Manager be delegated authority to approve Development Application 1565/2004 as per Option 3 of the report.

2. The consent not be issued until Councillors are informed of the conditions.

3. A 2 metre setback be placed on the Crown Street frontage in line with Council policy.

An AMENDMENT was MOVED by Councillor Kershaw seconded Councillor Brown that the General Manager be delegated authority to refuse the application on a number of planning, urban design and economic impact grounds.

17 A Notice of Determination addressed to Belmorgan dated 1 August 2005 was prepared by Mr Zwicker (Exhibit A vol 3 Tab 62). It stated that the development application had been determined by granting deferred commencement consent subject to the following conditions:

(i) The Development Consent shall not operate until Council has been satisfied as to the following matters:

A. The preparation of a Site Contamination Impact Assessment Report and Remediation Action Plan by a suitably qualified and experienced site contamination and remediation consultant. This report shall specifically address the exact location, depth and nature of contamination of any underground storage tanks within the site and / or underneath any existing road reserve and what strategies are required to ensure the appropriate removal of any such tanks and whether any further works are required within any road reserve to maintain the structural integrity of any such road reserve.

B. The submission of the Site Contamination Impact Assessment Report and Remediation Action Plan to Council within 7 days of completion of the report for council's endorsement of any required works within any existing road reserve.

C. The provision of a 2 metre building line setback from the northern property boundary off Crown Street for the ground and first floor levels of the building is required. The upper levels of the building shall remain at a minimum 3 metre building line setback off Crown Street. As a result, the proposed development will be required to also be re-designed to incorporate the following additional matters:-

· The 2 metre setback strip nominated for outdoor dining/seating areas;

· The provision of a minimum 2 metre wide pedestrian footway immediately adjacent to the Crown Street boundary of the development;

· A 2m reduction in the previously proposed road carriageway encroachment; and

· Treatment of the land between the nominated pedestrian footway and the Crown Street road carriageway to enable seating and associated picture window plinth.

This requirement shall be reflected on revised architectural and landscape drawings / plans which are required to be submitted to Council for appropriate endorsement since the road reserve is in Council ownership under the Roads Act 1993.

(ii) The developer must, within 12 months of the date shown on the top of this consent, produce evidence to the Council sufficient to enable it to be satisfied with the matters specified in condition number (i) have been complied with.

(iii) If compliance with the matters contained in condition number (i) results in a substantial variation to the development approved deferred commencement, a new development application must be submitted.

Once Council is satisfied that the matters contained in condition number (i) have been complied with and the director has been notified in writing of such compliance, the following conditions shall apply in respect of the approved development:

18 A note to this document stated that: "Once the Council is satisfied that the matters specified in condition number 1 have been complied with a notice will be issued giving the date from which this consent will operate".

19 Although the resolution in evidence appears within minutes of a committee of the council, before me it was common ground that it was, a resolution of the council. I shall proceed on that basis. I note that the Local Government Act 1993s 355(b) provides that a function of a council may be exercised by a committee of the council, and s 373 provides that a council may resolve itself into a committee to consider any matter before the council.

20 On 5 August 2005, Mr Zwicker sent an e-mail to council's general manager, Mr Oxley (Exhibit A vol 3 tab 64):

The consent for Dwyers will be finalised by 12 noon today.

As you are aware, Council's resolution on 1 August 2005 included Part 2 which required the consent not be issued until Councillors are informed of the conditions. This resolution is unfortunately unclear as to the time lag between when councillors are forwarded the consent and the applicant is able to receive the consent. However, it appears to be framed to enable Councillors to review the conditions and possibly make alterations to the conditions of consent.

Accordingly, I seek your advice as to how you would like this consent to be forwarded to Councillors (ie whether or not it should be faxed today or placed in today's mail) and what period of time should elapse between the delivery of the consent to Councillors and the consent being issued to the applicant. Additionally, it would be appreciated if you could confirm as to whether or not the resolution enables Councillors to make any amendments to the consent conditions.

21 Mr Oxley replied by e-mail of the same date (Exhibit A vol 3 tab 64):

Councillors only wish to be provided with a copy of the conditions for information. The info could be sent to them today by fax/e-mail. The issue of the consent should not be delayed by this resolution. As I indicated councillors don't wish to approve the conditions only be made aware of what they are. Therefore you should issue the consent whenever it is ready to go. Thanks for all your help and expeditious completion of the consent.

22 Mr Zwicker then sent an e-mail to Karen Mion, a council officer, stating: "As per the General Manager's advice, please forward to councillors first and then forward consent to the applicant" (Exhibit A volume 3 tab 64).

23 By letter dated 9 August 2005, the council informed those who made submissions in relation to the development application that the determination date was 5 August 2005 (Exhibit A vol 3 tab 64).

E. DELEGATION BY COUNCIL TO THE GENERAL MANAGER

24 The challenged resolution of 1 August 2005 was that:

1. The General Manager be delegated authority to approve Development Application 1565/2004 as per Option 3 of the report.

2. The consent not be issued until Councillors are informed of the conditions.

3. A 2 metre setback be placed on the Crown Street frontage in line with Council policy.

25 Option 3 in the council Report was approval of the application. Options 1 and 2 were, respectively, redesign of the development and refusal of the application. Option 3 was in the following terms:

Approval of the application -This option is not recommended since the proposed centre is outside the retail core of the city centre and is likely to result in two separate shopping centres trading at opposite ends of the city centre. This is likely to result in some decline in the middle section of the retail core particularly in the lower part of the mall. However, the approval of the application would guarantee the provision of a discount department store and a multiplex cinema complex in the city centre, albeit outside the identified retail core of the city.

26 An amendment that "the General Manager be delegated authority to refuse the application on a number of planning, urban design and economic impact grounds" was put to the vote and lost.

27 The issues in this part of the case are, first, the proper construction of the resolution; second, the validity of the partial delegation of the council's determination function (that is, delegation of the power to approve but not to refuse); third, the relevance (if any) of there being an earlier alternative delegation.

28 The construction of the resolution for which the parties contend, and which I accept, is that it was a purported delegation by the council to its general manager and was not a purported grant of consent by the council itself. A clear distinction is to be drawn between the delegation of a power and the exercise of that power through servants or agents: O'Reilly v Commissioner of State Bank of Victoria [1983] HCA 47; (1983) 153 CLR 1 at 30. In Re Reference under Ombudsman Act s 11 (1979) 2 ALD 86 at 94, Brennan J said:

But where the relevant power is delegable and has been delegated, the delegate may - without further authorisation - act in effective exercise of the power. His acts are not treated as acts vicariously done by the authority. He is not an agent to exercise the authority's power; he may validly exercise the power vested in him.

29 It is also common ground, and I accept, that the resolution, when read with option 3 in the Council Report and the defeated amendment, authorised the general manager to approve the application but did not authorise the general manager to refuse consent.

30 Beyond that, there is dispute as to the proper construction of the resolution. Belmorgan submits that it should be construed as authorising the general manager to exercise his discretion in any of three ways. First, to approve the development without conditions. Second, to approve the development with conditions determined by him. Third, impliedly, not to exercise his power at all. I agree with the first and second ways. Paragraph 2 of the resolution evidences an assumption or expectation that there would be conditions. In addition, attaching of conditions to the approval is, I think, within the ambit of the Interpretation Act 1987 (NSW) s 49(4) which confers power on a delegate to exercise any function that is "incidental to the delegated function".

31 I disagree that the delegate was authorised not to exercise his power of approval at all. If he did not exercise his power of approval, there would be a deemed refusal under the EP&A Act s 82(1). By this section, a consent authority that has not determined a development application within the prescribed period (40 days under the EP&A Regulation 2000 cl 113(1)(a)), is, for the purpose only of s 97, taken to have determined the application by refusing consent on the date on which the period expires. Section 97 allows the person making the development application to appeal the deemed refusal to the Land and Environment Court.

32 Thus, if the delegate in the present case did nothing, with the consequence that there was a deemed refusal, the effect would have been the same as refusing consent. Since it is common ground that the challenged resolution did not authorise the delegate to refuse consent to the development application, I am unable to accept that the resolution impliedly gave the delegate authority not to exercise the power of approval with the result that refusal would be deemed. Given the statutory context, an implied authority to do nothing is inconsistent with the express authority to approve but not to reject. It is unlikely to have been the intention of councillors to authorise the delegate to bring about a refusal by doing nothing when they had decided not to grant the delegate a power of refusal.

33 Furthermore, all that a council is empowered to delegate are its "functions": Local Government Act 1993 (NSW) s 377. The relevant function in this case is the function of determining a development application by either approving or refusing it: EP&A Act s 80. In my view, inertia in determining a development application within the prescribed time is not a "function" and therefore is not capable of being delegated.

34 This case is different from a case where an instrument of delegation simply refers to a power "to approve" (for example to approve development applications up to a prescribed value). In the latter type of case, I think that such words, without more, ordinarily would implicitly carry with them the additional words "or refuse". In the peculiar circumstances of the present case, there was no delegated power of refusal.

35 The applicant submits that the resolution was an invalid exercise or fetter of power because it authorised the delegate to approve the application but did not authorise the delegate to refuse consent. The applicant submits that the council had a single indivisible function to determine a development application under the EP&A Act s 80(1) granting consent conditionally or unconditionally or by refusing consent. Reliance is placed on Singh v Minister for Immigration, Local Government and Ethnic Affairs (1989) 90 ALR 397 (FCA / Keely J) and Singh v Castello (Spender J, FCA, 16 July 1990, unreported).

36 In summary, Belmorgan submits that the council had power to make the resolution for the following reasons:

(a) there is no principle of law restricting the terms upon which a delegator may delegate its powers to another person;

(b) the applicant's proposition that a council cannot delegate its powers in the manner contemplated by the resolution has been disputed in two decisions of the Land and Environment Court: Fuller v Bellingen Shire Council (Hemmings J, NSWLEC, 16 June 1988, unreported) and Weal v Bathurst City Council & Ors [2000] NSWLEC 51; 107 LGERA 396 (Bignold J);

(c) it is consistent with the purpose of the Local Government Act 1993(NSW) and the terms of the Interpretation Act 1987 (NSW) to allow a delegation limited in the manner described in council's resolution: Lyons v Sutherland Shire Council [2000] NSWLEC 214; (2000) 110 LGERA 441 at [66] and [67] and Wyong Shire Council v MCC Energy [2005] NSWCA 86; (2005) 139 LGERA 296 at [13];

(d) to the extent that the Singh cases are authority for the proposition that a delegation cannot be limited, they are distinguishable or wrong in law and should not be followed.

37 Belmorgan also submits that even if the council's resolution were invalid, the general manager had an alternative and independent source of power to grant development consent from an earlier council resolution of 7 April 2004 which granted the general manager delegated authority to exercise all functions of the council: Sumar Produce Pty Ltd v Griffiths City Council [2000] NSWLEC 27, Canada Bay City Council v Optus Mobile Pty Ltd [2004] NSWLEC 611; and Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd [1996] NSWSC 348; (1996) 91 LGERA 31 at 85 - 89.

38 In response to the last point, the applicant submits that the challenged resolution carried with it an implied partial rescission of the earlier general authority: Attorney General for NSW v North Sydney Municipal Council [1971] 2 NSWLR 373 at 379; Everall v Ku-Ring-Gai Municipal Council (1991) 72 LGERA 369 at 375.

39 In my opinion, the purported development consent was invalid because the delegation of authority to the general manager in the resolution of 1 August 2005 was invalid. My reasons are as follows.

40 Sections 21 and 22 of the Local Government Act 1993 (NSW) provide that a council has the "functions" conferred or imposed on it under this Act or any other Act. Section 355 provides that a "function" of a council may, subject to Chapter 12, be exercised by (inter alia) a committee of the council or a delegate of the council. Section 377 is within Chapter 12 and empowers a council, by resolution, to "delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council" (with specified exceptions which are not presently relevant). Sub-delegation by the general manager is permitted by s 378(2).

41 The relevant function of the council in this case is found in the EP&A Act s 80(1) which provides that:

A consent authority is to determine a development application by:

(a) granting consent to the application, either unconditionally or subject to conditions, or

42 In making that determination, it is mandatory to take into consideration the matters prescribed by s 79C insofar as they are relevant. Section 79C(1) provides:

In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

43 Within the curtilage of administrative discretion, such as that conferred by the EP&A Act s 80(1), the courts cannot trespass except in accordance with statutory or case-law controls which do not permit review of the merits of the decision. A light control is found in a provision such as s 79C(1), where the decision-maker is told that it does not have a complete discretion under s 80(1) but must "take into consideration" prescribed matters. A decision can be attacked if there is failure to consider those matters, but it cannot be attacked on the ground that insufficient weight was given to those matters: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 64. A heavier control is where the decision-maker is enjoined not to consent unless satisfied of a prescribed matter. Such a pre-condition is relevantly found in cl 9(3) of the LEP and in cl 7 of SEPP 1 which I have set out earlier and which I address later in this judgment.

44 The decision-maker must give "proper, genuine and realistic" consideration to the matters prescribed by s 79C: Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 at [37] per McLellan CJ, summarising the principles in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 (CA). However, epithets such as "proper, genuine and realistic" must be applied cautiously lest they "encourage a slide into impermissible merit review": Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [79] per Basten JA, with whom Handley JA and Hunt AJA agreed.

45 The function of determining a development application under s 80(1) requires either an unconditional or conditional consent or a refusal of consent. Supporting the conclusion that a function such as the s 80(1) function is indivisible are two Federal Court of Australia cases, albeit decided in a different statutory context. The first is Singh v Minister for Immigration, Local Government and Ethnic Affairs (1989) 90 ALR 397. In this case, instruments of delegation purported to empower government officers to accept recommendations of the Immigration Review Panel refusing an application for resident status. The officers were not authorised to grant an application for resident status. Keely J held at 402:

In my opinion the respondent Minister was not empowered by those words in s 66D(1) of the Migration Act 1958 and in section 34AB of the Acts Interpretation Act 1901 to delegate to an officer the power to decide against granting resident status to an applicant whilst at the same time deliberately withholding from that officer the power to grant the application for resident status.

In my opinion, an instrument so framed that the officer could only exercise the power against an applicant is not a valid delegation of the Minister's power to grant resident status. The power is the one indivisible power to grant resident status; it necessarily includes the power to decide that an application will not be granted but there is no separate power to refuse to grant it. A test umpire given the power to decide whether a batsman is out or not out is given one power not two.

46 Singh was approved and followed by Spender J in the same context in the similarly named case of Singh v Castello (Spender J, FCA, 16 July 1990, unreported) at [32] - [33]. Section 66D(1) of the Migration Act 1958 (Cth) provided that: "The Minister may either generally or as otherwise provided by the instrument of delegation by writing signed by him, delegate to an officer any of his powers under this Act other than this power of delegation". Section 34AB of the Acts Interpretation Act 1901 (Cth) provides that:

Where an Act confers power on a person or body (in this section called the authority) to delegate a function or power:

(a) the delegation may be made either generally or as otherwise provided by the instrument of delegation;

(b) the powers that may be delegated do not include that power to delegate;

(c) a function or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority;

(d) a delegation by the authority does not prevent the performance or exercise of a function or power by the authority; and

(e) if the authority is not a person, section 34A applies as if it were.

47 Also supporting a conclusion that the s 80(1) function is indivisible are the opening words of s 79C that the matters listed therein must be considered (if relevant) when "determining" a development application. It is the whole of the s 80(1) determination function that has to be exercised in accordance with s 79C. That is, by granting consent conditionally or unconditionally or by refusing consent. To limit the conclusion that can be reached is to limit the determination. It is difficult to see how s 79C matters can be properly, genuinely and realistically considered in making a determination if the determination can go only one way. To delegate to the general manager a power to approve only is a limitation on the nature of the opinion that can be formed and, I think, inconsistent with the statutory scheme that the delegate standing in the shoes of the council must make a s 80 determination on relevant matters referred to in s 79C.

48 It may be unnecessary to go so far, but there is substance, I think, in the applicant's submission that the delegate had in effect been told to approve the development application. If the delegate had no authority to refuse the application and no authority to do nothing, and thereby to bring about a deemed refusal, it may be said that he had no discretion at all and was in effect being told to approve.

49 The Singh cases I see as the outworking of a principle that an administrative function to determine an application is generally indivisible, in the absence of a contrary legislative intention, in the sense that the power to grant consent cannot be delegated without the power to refuse consent or vice versa. I respectfully agree with this thread in the fabric of the law and would apply it in the present case. I do not think that the different statutory context of the Singh cases requires them to be distinguished in point of principle. Another difference is that they were concerned with delegation of a power to refuse only, whereas the present case is concerned with a delegation of a power to approve only, but this is not a reason for distinguishing them.

50 It is not possible, in my opinion, to delegate a function defined only by s 80(1)(a) - that is, the power to approve - without delegating the whole of the function under s 80(1) - including the s 80(1)(b) power to refuse.

51 My opinion as to the indivisibility of the s 80(1) function takes into account Belmorgan's submissions to the contrary.

52 Belmorgan submits that the s 80(1) determination function is divisible because the Interpretation Act 1987 (NSW), s 49(2)(a) provides that a delegation "may be general or limited". This provision is comparable with s 34AB (a) of the Acts Interpretation Act 1901 (Cth) which the Singh cases held did not permit divisibility as to outcome. In my view, as the applicant submits, a provision such as s 49(2)(a) contemplates a delegation subject to limitations or conditions as to time, place, manner, subject matter and the like. It does not contemplate a limitation or condition as to outcome, as the council here sought to impose.

53 Next, Belmorgan submits that the proposition that the council cannot delegate its powers in the manner contemplated by the council resolution has been disputed in two decisions of the Land and Environment Court. It contends that these decisions show a willingness to allow a council to grant a limited delegation and should be preferred to the decisions of single judges in another jurisdiction in the Singh cases (Pancho Properties Pty Ltd v Wingecarribee Shire Council [1999] NSWLEC 245; (1999) 110 LGERA 352 and 369-370). The first case is Fuller v Bellingen Shire Council (Hemmings J, NSWLEC, 16 June 1988, unreported). There, the shire town planner was authorised to determine a development application. Subsequently he referred a specific issue of visual impact back to council for its determination. Council thereupon resolved "that the application be approved subject to conditions considered relevant by the Shire Town Planner". The next day, the shire town planner approved the application subject to a number of conditions. Belmorgan relies on the dictum of Hemmings J that a report submitted by the shire town planner prior to the council's resolution:

...was intended by him to give the Council the opportunity to revoke or limit his general delegation to determine the application....

The Council at its meeting of 21st May, 1985 considered his report and public submissions with respect to visual impact and did not, nor did it purport to consider otherwise, any matter relevant to the determination of a development application. Whilst it would have been open to the Council to limit the exercise of the Shire Planner's delegation with respect to a particular application, I am satisfied that it did not do so...

54 Fuller is distinguishable. It was not concerned with the indivisibility of the s 80(1) function. Although the resolution in that case was worded as an approval rather than as a grant of power to approve (as in the present case), the judgment recorded the parties' agreement that it could not be construed as a determination of the application by council. It appears that the resolution was council's way of saying that it agreed with the shire town planner's assessment of the visual impact issue. Furthermore, Hemmings J added to the dictum quoted above by saying: "In any event I am satisfied that it did not fetter the exercise of the delegation as he expressly stated that he believed that he still retained the power to disapprove the application". In the present case there is no suggestion that the delegate did or might have had any such belief.

55 The second case on which Belmorgan relies is Weal v Bathurst City Council (NSWLEC, 11 June 1999, Bignold J, unreported). In that case, a council resolution directed a council officer to approve a development subject to conditions to be determined by the council officer. Bignold J held that the resolution was not a delegation which fettered the delegate's discretion, but was a direction to implement the council's decision.

56 The decision was the subject of an appeal which did not deal with this aspect (Weal v Bathurst City Council and Anor [2000] NSWCA 88; (2000) 111 LGERA 181). Weal is distinguishable from the present case, where the development application was not determined by the council. Weal was a case where the development application had already been approved by the council and the job of the council officer was to work out conditions.

57 Next, Belmorgan submits that in deciding whether the power to delegate includes the power to make a resolution in the terms of the challenged resolution, the purpose of the Local Government Act 1993 (NSW_)_ should be taken into account. The Interpretation Act 1987 (NSW), s 33 provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred. The Local Government Act 1993, s 7 provides that one of its purposes is: "to provide the legal framework for an effective, efficient, environmentally responsible and open system of local government in New South Wales". Belmorgan submits that an effective, efficient system of local government depends upon councillors being able to delegate their functions to council employees without restrictions and with maximum flexibility. I do not accept the submission. All principles of judicial review are restrictive. Part of the legal framework, as I have held, is that under the EP&A Act s 80, the function of determining a development application, by consent or refusal, is indivisible.

58 Next, Belmorgan submits that there should be taken into account the Local Government Act 1993 s 355(c) which provides that a function of a council may, subject to Chapter 12 of the Act (which includes s 377), be exercised "partly or jointly by the council and another person or persons". It argues that this is a recognition that a council's function may be split or exercised in part. I do not accept the submission for three reasons:

(a) first, the whole of s 355 is expressed to be "subject to" Chapter 12 of the Act, including s 377, which empowers a council to delegate to the general manager any of the functions of the council. Section 22 provides that a council has the functions conferred or imposed on it by any other Act. The relevant function for the purposes of these proceedings of determining a development application is found in s 80(1) of the EP&A Act. This function (as I have held) is indivisible. Since s 355 is expressed to be "subject to" section 377, where a function referred to in s 377 is indivisible, as in the present case, s 355(c) does not permit that indivisible function to be divided.

(b) second, I think, as the applicant submits, that it is assumed in s 355(c) that the other person independently has authority to exercise the function. An example of a sensible application of s 355(c) is to a divisible function such as that found in s 24 whereby a council may provide goods, services and facilities.

(c) third, s 355(c) is an alternative to s 355(e) which provides that a function of council may be exercised "by a delegate of the council", with no provision for it to be exercised partly or jointly by the delegate and council. I consider that, within s 355, the position of a delegate is covered exclusively by s 355(e).

59 Next, Belmorgan submits that a restriction of a council's delegation powers in accordance with the applicant's submissions would have a serious effect on council operations. In particular, it says, a council should have power to delegate the power to approve, but not refuse, development applications under a particular monetary value in circumstances where the development is not contentious or complies with all relevant conditions. Belmorgan argues that such a delegation allows for the expeditious processing of simple applications without wasting the resources of a council meeting. Belmorgan argues that it does not disadvantage the applicant for development approval because if the delegate is of the view that development consent ought not to be granted, the development application is referred to the councillors for determination. Two judgments, it is said, refer to delegations of this nature: Lyons v Sutherland Shire Council [2000] NSWLEC 214; (2000) 110 LGERA 441 at [66] and [67] (Sheahan J), and Wyong Shire Council v MCC Energy [2005] NSWCA 86; (2005) 139 LGERA 296 at [13] (CA). I note that the decision in Lyons was reversed by the Court of Appeal: (2001) 117 LGERA.

60 Lyons and Wyong are, I think, distinguishable. In the first place, the question of invalidity of the delegation instruments was not in issue in those cases, except that in Wyong there was a limited challenge to the validity of the delegation on the ground that the delegated authority had expired by effluxion of time. Second, in both cases there was delegation to a council officer of a power to "determine" development applications. They were not concerned with delegation of only one part of an indivisible function, as in the present case, but with delegation of the whole function subject to conditions. Thus, in Wyong at 301 [17], Tobias JA said that a general manager's power pursuant to the Local Government Act 1993ss 378(1) and (2) to delegate or sub delegate any of his functions "included the power to delegate those functions subject to conditions". Similarly there was reference to the "exclusionary provisions of the delegation" by Ipp AJA in Lyons at [340]. If such an exclusionary provision (condition) applies, then the "delegation does not run": Lyons at [338] per Stein JA, with whom Rolfe AJA agreed. In Lyons a limitation on the determination delegation was that there was power to grant approval where there was a relevant and well-founded objection. The Court of Appeal at 338 [23] - [26] held that this was a limitation on the whole delegated power of determination (ie determination either way) such that the delegation did not run at all where there was such an objection. It appears that the reference to "grant approval" in the limitation was construed as including the words "or to refuse approval".

61 The distinction between impermissible delegation of part of the s 80(1) determination function and delegation of the whole function subject to conditions (for example as to subject matter, amount or whether there are any objections) is consistent with the "general or limited" delegation referred to in s 49(2)(a) of the Interpretation Act 1987 (NSW) which I have considered earlier, and with Lyons and Wyong. In the present case, the council did not delegate its function to determine the subject development application subject to conditions. It purported to delegate only the approval limb of that determination function which, I have held, was indivisible. The type of scenario to which Belmorgan referred in its lastmentioned submission may be substantially dealt with by delegation of the whole function subject to exclusionary conditions.

62 Next, Belmorgan submits that even if the challenged resolution granting delegated authority was invalid, it did not invalidate the consent granted by council because the general manager had another source of power to grant development consent. This was an earlier resolution of council of 7 April 2004 "that in accordance with the provisions of Section 377 of the Local Government Act 1993, Council delegate to the General Manager all of the functions of Council as provided in the Act, subject to any policies and procedures that may be determined from time to time". (Exhibit 1 tab 6.1). Belmorgan submits that this necessarily included deciding all development applications submitted to council and that the challenged resolution of 1 August 2005 did not alter this earlier resolution. If the latter was intended to alter the former, Belmorgan says, it would have had to comply with the Local Government Act 1993 s 372(1) which provides that a "resolution passed by a council may not be altered or rescinded except by a motion to that effect of which notice has been duly given in accordance with" the regulations. The relevant regulation was the Local Government (Meetings) Regulation 1999 cl 35 (which was repealed on 1 September 2005), which provided that notice of the time, place and business proposed at a meeting was to be provided three days before the meeting. That notice was duly given, but does not refer to a motion to alter the general manager's delegated authority (Exhibit A folder 3 tab 60). Belmorgan argues that if councillors had intended to vary the general manager's earlier delegated authority, they would have given notice in accordance with the statutory requirements.

63 Belmorgan refers to two cases which considered a situation where there were two sources of power for an administrative act and there was a mistake in one of these sources, and which stand for the general principle that an act is valid even if the incorrect source of power was mistakenly invoked. The first case is Sumar Produce Pty Ltd v Griffith City Council [2000] NSWLEC 27. There, the council had resolved to authorise its Director of Environmental Services to issue a pollution notice pursuant to a resolution in August 1999. A pollution notice was issued in September 1999. The general manager had ongoing authority to issue such a notice pursuant to a general delegation granted to him in 1996. Talbot J held at [27] that even if the resolution to the Director of Environmental Services was invalid, the general manager had authority to issue such a notice. The second case is Canada Bay City Council v Optus Mobile Pty Ltd [2004] NSWLEC 611. In that case, a mayor, purporting to act under a delegated authority which had in fact expired, resolved to list certain properties as heritage items. Lloyd J held that the mayor's resolution was valid because he also had a general delegated authority to exercise the council's functions. Belmorgan also referred to Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd [1996] NSWSC 348; (1996) 91 LGERA 31 at 85-89 where Cole JA, with whom Handley and Sheller JJA agreed, accepted that a mistake in the source of power works no invalidity.

64 I consider that these cases are distinguishable. The question of implied rescission or amendment of an earlier authority was not there in issue. Also, unlike those cases, in the present case the earlier general resolution was expressed to be "subject to any policies and procedures that may be determined from time to time". I think that the challenged resolution comes within the ambit of this qualification. In any event, in the present case there is an inconsistency between the earlier general delegation and the subsequent specific challenged delegation, which suggests that the latter was intended to partially rescind the former. There was no such inconsistency in Sumar and Canada Bay. In Sumar, the general delegation was to issue a pollution notice and the subsequent specific resolution authorised the issue of a pollution notice in a particular case. In Canada Bay, the general delegation was to exercise the council's functions and the subsequent specific resolution authorised the mayor to list certain properties as heritage items (this authority had actually expired when the mayor listed the properties).

65 A resolution dealing with the same subject matter as an earlier resolution may impliedly rescind that earlier resolution. In Attorney-General (Ex rel Goddard) v North Sydney Municipal Council [1971] 2 NSWLR 373 at 379, Hope J said: "No doubt in appropriate circumstances a second resolution dealing with the same subject matter as an earlier resolution may impliedly rescind that earlier resolution without expressly referring to it". In Everall v Ku-Ring-Gai Municipal Council (1991) 72 LGERA 369 at 375, Hemmings J considered cl 25(a) of Ordinance 1 under the Local Government Act 1919 (NSW) (which has since been repealed) which was in similar terms to Local Government Act 1993 s 372 on which Belmorgan relies in the present case. His Honour held that cl 25(a) related solely to procedural matters and did not prevent a council from rescinding its decision on the same subject matter by duly made resolution at a properly convened meeting. Hemmings J said at 376:

However, in appropriate circumstances a resolution dealing with the same matter as an earlier resolution may impliedly rescind it without expressly referring to it: Attorney-General ex rel Goddard v North Sydney Municipal City Council [1971] 2 NSWLR 373 at 379. Whilst obiter, I understand Hope J to be also saying that strict compliance with cl 25 as a procedural matter was not necessarily essential to the validity of the resolution having the effect of 'negativing' an earlier decision.

66 In my opinion, the challenged resolution carried with it an implied partial rescission of the earlier inconsistent general authority limited to the subject development application, it being a later and specific purported exercise of power under the Local Government Act 1993 s 377(1).

67 Accordingly, in my opinion, the challenged council resolution of 1 August 2005 was invalid.

68 The development consent was a deferred development consent because of its deferred commencement conditions. The applicant pleads that it was invalid because the delegate left for future determination material matters within the EP&A Act ss 79C(1)(b)(c) and (e) which were required to be determined at the time of the granting of consent. In submissions, the applicant also relied on s 79C(1)(a). The pleaded particulars are that:

(a) deferred commencement conditions (i)A and (i)B produce the result that council has granted consent without having before it sufficient evidence to understand the extent of contamination on the site and what remediation works are required to be undertaken to ensure that the site is suitable for development in accordance with the consent;

(b) deferred commencement conditions (i)C produces the result that council has granted consent without having the final design of the development.

69 This seems to raise two issues. First, whether the delegate gave consideration to the contamination issue as he was bound to do under s 79C(1). Second, the so called finality principle associated with the leading case of Mison v Randwick Municipal Council (1991) 23 NSWLR 734.

70 Before addressing these matters specifically, it is convenient to identify the relevant legislation and general principles. These general principles are also applicable to the remaining grounds of validity for which the applicant contends.

71 A deferred commencement consent is permitted under the EP&A Act s 80(3) which provides that:

A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

72 A deferred commencement consent is regulated by clause 95 of the Environmental Planning and Assessment Regulation 2000:

95(1) A "deferred commencement" consent must be clearly identified as a "deferred commencement" consent (whether by the use of that expression or by reference to section 80 (3) of the Act or otherwise).

(2) A "deferred commencement" consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions.

(3) A consent authority may specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters.

(4) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period.

(5) If the applicant produces evidence in accordance with this clause, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters.

(6) If the consent authority has not notified the applicant within the period of 28 days after the applicant's evidence is produced to it, the consent authority is, for the purposes only of section 97 of the Act, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.

73 The imposition of deferred commencement conditions does not free a consent authority from its obligation to consider all relevant matters required by s 79C. In Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275, Talbot J said: "Section 91AA [the precursor to s 80(3)] does not enable the consent authority to defer consideration of any matter it is required to take into consideration pursuant to s 90 [the precursor to s 79C]. It is only after s 90 matters have been properly considered that the consent authority is in a position to nominate the matters as to which the applicant must satisfy the consent authority before the consent may operate". In Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 (CA), Mason P at [5] and Giles JA at 204 [94] agreed. In Weal the principles which govern the approach that a court should take in the event of a challenge of this kind were the subject of substantial agreement. But the Court of Appeal divided over the application of the principles to the facts of the case. Giles JA concluded that there was not the proper consideration required by s 90(1): at 204 [94]. Priestley JA at 188 to 189 [33] agreed with that conclusion, while agreeing with the general approach of the dissentient, Mason P. As to the principles, Giles JA said at 204 [94]: "I respectfully agree with Talbot J that s 91AA did not free the consent authority from the obligation to consider all relevant matters as required by s 90(1). Section 91AA enabled the consent authority to stipulate for a state of affairs on the basis of which it decided to grant consent, but its consideration had to include an understanding of the state of affairs and an evaluation of the relevant matters with that understanding. The consideration would be given effect in part by a condition of the deferred commencement consent, if that could be done reasonably and consistently with proper consideration". Mason P said at 186 [17]:

I agree that, for this project, proper consideration required an adequate understanding of the state of affairs involving noise and the evaluation of the relevant s 90 matters consistent with that understanding. Generally speaking, understanding the scope of a problem is a prerequisite to addressing its solution (by imposing a condition or, in an extreme case, rejecting the development application). But I respectfully part company with Giles JA at his conclusion that the council's understanding was so deficient as to vitiate the particular consent. In my view, a problem can be recognised and addressed without precise determination of its scope, at least so long as the decision is made in the light of an understanding of the outer limits of the problem and so long as the chosen means 'take into consideration' a fair assessment of their potential impact. This is what happened here, for the reasons stated above.

74 The difficulty of proving that a consent authority has failed to take into account a relevant matter was noted in Weal at [83] by Giles JA:

Where there is no direct evidence of the consent authority's consideration of the development application, it may not be easy for a person in the position of Mr Weal to establish that it failed to take into consideration a relevant matter or took into consideration an irrelevant matter. That will often be established only by inference, and the inference should be drawn only after anxious consideration by the Court.

75 The principles in Weal were conveniently summarised by McClellan CJ in Centro Properties Ltd v Hurstville City Council (2004) 135 LGRA 257 at 266:

[36] In Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181, the Court of Appeal divided over a challenge to a development consent granted with respect to a proposed rail freight terminal. At issue was whether the council had considered the impacts of noise from the proposal.

[37] Giles and Priestley JJA came to the view that the council's discretion had miscarried. Mason P came to the contrary view. However, as Priestley JA makes plain, the principles which govern the approach that a court should take in the event of a challenge were the subject of substantial agreement. A summary of those principles is useful and would include the following:

· 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... Mere advertence to a matter may not be sufficient;

· a failure to take matters into consideration may be demonstrated where it can be shown that the decision-maker had inadequate personal acquaintance with the facts and issues;

· 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;

· when a challenge is based upon Wednesbury unreasonableness a stringent test is applied;

· when it comes to a consideration of whether the decision-maker has properly weighed up relevant considerations which it has itself identified, a court must proceed with caution 'lest it exceed its supervisory role by reviewing the decision on its merits';

· where there is no direct evidence of a consent authority's consideration of a matter, it may be difficult for a challenger to establish a failure to consider a relevant matter or consideration of an irrelevant matter. Confined to drawing an inference, that inference should only be drawn after anxious consideration;

· although the decision-maker 'can take account of a relevant consideration by reference to a previous decision ... this does not mean that it does not have to address the issue itself' and the previous decision must 'be enlivened in the consideration of the application before it for decision'.

76 Insofar as Weal and Centro referred to "proper, genuine and realistic consideration", a note of caution was sounded in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [79] by Basten JA, with whom Handley JA and Hunt AJA agreed:

The danger is that adoption of the epithets such as 'proper, genuine and realistic' consideration, may be understood to qualify the statutory terminology in a manner inconsistent with accepted principles in relation to judicial review. As noted in Bruce v Cole_, they risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review. Adoption of the principles set out by McClellan CJ in the Land and Environment Court in_ Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 at [37], to which this Court was referred by the Appellant, should be applied subject to a similar caution.

77 The onus is upon a challenger to show that the determination is unlawful and should be declared to be invalid. Where proof of a state of mind is a basis for the challenge (eg failure to consider matters referred to in s 79C(1)), proof of the state of mind may be a matter of difficulty. The challenger must show the mind of the decision-maker by inference and not by suspicion. A finding of breach of a state of mind provision such as s 79C(1) by way of inference should only be come to after anxious consideration. See Parramatta City Council v Hale and Others (1982) 47 LGRA 319 at 345. It has been held in relation to the predecessor to s 79C(1), that the consent authority is invested with the power of determining which of the matters mentioned in the subsection are relevant to the determination of the development application, and is entitled to accord to the matters found to be relevant such weight as it considers appropriate: Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 335 per Clarke JA with whom Hope and McHugh JJA agreed. In Currey v Sutherland Shire Council [2002] NSWLEC 195, Lloyd J considered a challenge made to the decision by a delegate to grant approval for a development on a number of grounds, including a failure to take into account relevant considerations. His Honour at [75] dismissed arguments that the delegate had not considered the provisions of a draft LEP because "the applicant has not established any fact from which an inference can be safely drawn that the Director of Environmental Services failed to give consideration to the relevant provisions of the 2000 LEP". In Fuller v Bellingen Shire Council (Hemmings J, NSWLEC, 16 June 1988, unreported), Hemmings J said: "Consideration and determination of a development application is not necessarily confined to one act or occasion and may involve a lengthy 'process'... It may extend from the date of the application, including site inspections, discussions and the formulation of conditions or reasons for determination". In Marnal Pty Ltd v Cessnock City Council (1989) 68 LGRA 135 Hemmings J held that when "the Court is asked to infer from available written material that the Council did not properly address matters said to be relevant to each determination", it will do so "by way of inference only after 'anxious consideration': Parramatta City Council v Hale ( 1982) 47 LGRA 319 and Boulton v Burwood Municipal Council (1988) 66 LGRA 131 at 134-5. In my opinion, the Council or the Minister was under no duty to set out in writing all that which was taken into account when making any of the relevant determinations".

78 For a successful challenge to be made on the basis of failure to take into account a relevant matter, two factual determinations must be made. First, that a mandatory consideration was not taken into account. Second, that the error was material: see Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277at 295 [66].

79 The presumption of regularity may have a role to play. The Interpretation Act 1987 (NSW) s 49(5) provides that: "A delegated function that purports to have been exercised by a delegate shall, until the contrary is proved, be taken to have been duly exercised by the delegate". The presumption of regularity was stated by McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 as follows: "Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office...And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit". In Hill v Woollahra Municipal Council (2002) 127 LGERA 7 at 23 - 24 [50 - 55] Hodgson JA, with whom Ipp JA and Davies AJA agreed, said:

50. The cases of North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 and Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 are authority for the proposition that, where a body such as a local council is required by statute to address a question posed by that statute or by an instrument referred to by the statute, it must address that very question. If it does not do so, it will be in breach of the statute, even though it may have adverted to the topic of the question.

51. However, when a court comes to consider whether or not such a breach has occurred, the court will have regard to the presumption of regularity. This presumption was relevantly stated as follows by McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council [1987] 9 NSWLR 154 at 164 as follows:

Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.

52. ...The presumption is a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs... In deciding whether the presumption of regularity is rebutted, this inference from the ordinary course of human affairs carries some weight, which may vary according to the proved circumstances.

53. Another consideration relevant to this question is that, so long as the body in question does address the question it is required to address, it does not have to refer explicitly to the statute or instrument that poses the question: the body is required to address the substance of the question, not the fact that the question is posed by particular statute or instrument. Explicit reference to the statute or instrument will help confirm that the body did address the right question, but absence of such reference does not of itself indicate that it did not.

54. Ligon 302 and Zhang were cases where the questions to be addressed were detailed and quite specific. In Ligon 302_, they were detailed provisions such as privacy, sunlight, daylight and views, building line, maximum size, landscaping and number of storeys. In_ Zhang_, what was required to be considered was a standard that a brothel should not be located within 200 metres of a church or school. In those cases, it was inferred that the body in question had done no more than advert in general terms to the impact of the development, and this was held to be insufficient._

55. By contrast, in the present case, what had to be taken into account was how excavation may affect certain matters, and advertence in general terms to the impact of the excavation in respect to those matters is substantially in accordance with that requirement.

80 However, it has been held that the presumption of regularity does not apply where the court is determining a question of power, for example where a local environment plan requires a council to be satisfied as to a prescribed matter before it grants consent: Franklins Ltd v Penrith City Council [1999] NSWCA 134 at [18]. In Franklins at [26] Stein JA, with whom Powell and Giles JJA agreed, cited with apparent approval the dictum in Somerville v Dalby (1990) 69 LGRA 422 at 429 of Hemmings J who said that a consent authority is under "no duty to refer specifically 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". Hemmings J added: "Nor is the consideration of the application by council or its individual members limited to that which occurs at a meeting, or that contained in written reports". In Everall v Ku-Ring-Gai Municipal Council (1991) 72 LGRA 369 Hemmings J said: at 374 "...the failure to take a relevant matter into account in breach of a statutory duty will not necessarily justify the intervention of the Court. Whether the decision will be set aside will depend upon the seriousness of the breach in relation to the totality of relevant factors which were considered in the determination of the application."

81 Against the background of these principles, I turn to consider the deferred commencement conditions on which the applicant founds its invalidity case.

82 Deferred commencement conditions (i) A and B provided:

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