Deferral of consideration of a fundamental matter
32Section 80(3) of the Environmental Planning and Assessment Act 1979 allows the consent authority to issue a consent subject to a condition that it is not to operate until the applicant satisfies it as to any matter specified in the conditions.
33The consent in the present case has such a deferred commencement condition, which reads as follows:
Deferred Commencement Matter
Prior to this consent becoming operational, and as provided for by section 80(3) of the Environmental Planning and Assessment Act 1979, the consent shall not operate until a detailed Infrastructure Servicing Strategy is endorsed by Liverpool Plains Shire Council. Such a Strategy shall address all infrastructure servicing requirements for the site and be prepared in accordance with Best Practice Guidelines. Such a Plan shall include, but not be limited to the following matters:
(i) Hydraulic analysis;
(ii) Nutrient and salt balance modelling;
(iii) Compliance with applicable Australian Standards;
(iv) An assessment of the implications on the Werris Creek Water and Sewerage Infrasctructure;
(v) Provision of gas, electricity and telecommunications services;
(vi) Compliance with Council's Engineering Guidelines and Specification for Subdivisons and Development Works; and
(vii) Compliance with section 68 of the Local Government Act 1993;
(viii) Provision of details of proposed staging of works.
In accordance with clause 95(3) of the Regulation, a period of two (2) years from the date of the development consent is allowed for the satisfaction of the "deferred commencement" matters.
(The reference to s 68 of the Local Government Act 1993 is to a requirement for an application under that Act for works of water supply, sewerage, stormwater drainage and management of wastes inter alia.)
34GrainCorp contends that in granting consent with the deferred commencement condition, the Planning Panel deferred consideration of a fundamental matter that it was required to determine before granting consent. That is, as I understand it, it alleges that the Panel failed to take into consideration matters which it was required to do under s 79C of the Act. Although GrainCorp did not expressly identify the relevant matters in s 79C, I infer that the relevant matters are "the likely impacts of that development, including environmental impacts on both the natural and built environments" (sub-s (1)(b)) and "the suitability of the site for the development" (sub-s (1)(c)).
35GrainCorp relies upon part of the assessment report prepared for the Planning Panel by the Council's Director of Environmental Services. The report identifies three options for the provision of sewage - option 1 being an on-site system, option 2 being delivery to the existing Werris Creek sewerage treatment plant and option 3 being delivery to the existing town sewer main in Werris Creek. The report then states:
The submitted preliminary servicing strategy report recommends that further hydraulic analysis be conducted to ascertain water supply infrastructure upgrade requirements to ensure the provision of an adequate water supply.
36In relation to stormwater the report states:
The final design of the stormwater system is dependent on which sewer servicing option is ultimately pursued.
The report then relevantly states:
Planning Commentary:
It is apparent from the information provided in support of the SEE via the submitted preliminary Site Servicing strategy that detailed additional analysis of the servicing requirements of the development is required. It is noted that Option 1 detailed in the preceding section is preferred by the proponent in terms of the management of sewage generated from the site. However, the Office of Environment and Heritage (OEH) and Council's Works Department has raised concerns that insufficient information has been provided in the SEE to sufficiently demonstrate that the increased hydraulic, nutrient and salt loadings associated with on-site reuse can be sustainably and effectively managed onsite without creating groundwater contamination (via runoff or leaching), or over-accumulation of nutrients or salt in the site soils.
Whilst Council is of the opinion that suitable mechanisms are available to the proponent for the effective management of sewage, the provision of water supply to the site and the corresponding management of stormwater, additional detailed analysis needs to be undertaken in this regard. Such issues are, however, not considered to be insurmountable. Consequently, a detailed Site Servicing Strategy will be required to be undertaken by the proponent which is underpinned by detailed hydraulic analysis, details compliance with s 68 of the Local Government Act 1993, demonstrates compliance with applicable Australian Standards, Council's Engineering Guidelines, an assessment of implications on existing Werris Creek Water and Sewer Infrastructure and nutrient and salt balance modelling.
It is therefore considered appropriate that a 'Deferred Commencement' condition be imposed requiring the submission of a detailed Servicing Strategy for the site. Such a Strategy must be prepared in conjunction with Council's Works Department, to the satisfaction of Council and at the full cost of the proponent.
37GrainCorp submits that the condition leaves for later consideration all issues concerning infrastructure servicing, including the need to provide details of gas, electricity and telecommunications services. GrainCorp submits that this includes whether these services could be provided and not just how they were to be provided, which was not known to the Panel when it granted the consent.
38In reviewing the evidence, however, I find that it does not support GrainCorp's contentions. In relation to electricity, telecommunications and gas the assessment report notes that all those services are available, apart from gas which will require the installation of an LPG gas tank, the physical siting of which "will need to be identified and clearly delineated on the final construction drawings prior to the issue of the Construction Certificate".
39The Planning Commentary, noted above, shows that the provision of sewerage was considered and that the Council "is of the opinion that suitable mechanisms are available to the proponent for the effective management of sewage". That is, the issue is identified and a conclusion follows the assessment of the issue - that the matter can be dealt with as a matter of detail in a specific design. However, the "final design" of the stormwater system is noted as being dependent on which sewer servicing option is ultimately pursued. All of this demonstrates consideration of a relevant matter.
40It is not uncommon for conditions of consent to refer to the need to obtain further consents under other statutes. Thus, condition 7 states:
Pursuant to section 68 of the Local Government Act 1993, the following approvals must be obtained from Council prior to the issue of a Construction Certificate:
(i) Carry out water supply works;
(ii) Carry out sewerage works (if applicable);
(iii) Carry out onsite sewage management works (if applicable);
(iv) Carry out stormwater drainage work; and
(v) Dispose of trade waste into a sewer of the Council (if applicable).
Reason: To ensure compliance with statutory requirements.
41Similarly, condition 9 states that a compliance certificate under s 306 of the Water Management Act 2000 will be obtained prior to the issue of a construction certificate. Condition 10 states that prior to the release of the construction certificate there must be the payment by the developer of water supply headworks contributions, calculated on an equivalent tenement basis pursuant to s 68 of the Local Government Act and Chapter 6 of the Water Management Act. Condition 11 requires the payment, prior to the release of the construction certificate, of sewer services headworks contributions, calculated on an equivalent tenement basis pursuant to s 64 of the Local Government Act and chapter 6 of the Water Management Act.
42Accordingly, I accept that in those circumstances it was both within power and a proper exercise of power to impose the deferred commencement condition.
43It is not as if there was no material in the development application to support those conclusions. The statement of environmental effects was accompanied by supplementary reports including a traffic assessment report (by TPK & Associates), a Flora and Fauna Study (by Mitchel Hanlon Consulting) and a series of Infrastructure Servicing Strategies for sewerage, storm water and water (by Bath Stewart & Associates). The latter report describes the various options for those services which the report states "are either available or can be made available to service the proposed development". The purpose of a hydraulic study and a sewer capacity study is explained in the concluding paragraph of the report:
These studies should then enable calculation of associated costs resulting from, but not limited to, the upfront infrastructure costs, construction costs, headwork charges, maintenance costs and recurring annual charges, thereby enabling comparisons to be made between the proposed options. These comparisons will provide a much clearer direction in the selection of the preferred servicing options.
44In addition to the statement of environmental effects and its accompanying reports there was submitted a series of plans dealing with the infrastructure components of each of the options showing the layout of the various services and their components.
45The evidence shows that there was a "MAC DA Assessment Meeting" at the Council on 28 August 2011 by officers of the Council. The record of the meeting shows that various aspects of the development were considered, including the infrastructure servicing such as storm water treatment, section 94A contributions, water and sewage, and which concludes with a final comment:
Can handle issues with conditions and deferred commencement.
This meeting was then followed by the assessment report noted above.
46I conclude, therefore, that the evidence shows that the decision maker in this case did not fail to take into consideration any relevant matters, neither did it defer any such matter for later consideration. Rather, it was satisfied that the relevant infrastructure could be provided and would and should be dealt with by way of a deferred commencement condition. As the report of Bath Stewart & Associates noted above shows, the further studies were necessary to enable calculation of associated costs of the provision of the infrastructure, thereby enabling comparisons to be made between the proposed options which would in turn provide a much clearer direction in the selection of the preferred options.
47GrainCorp relies upon a number of authorities in support of its contention that there has been in this case a deferral of consideration of an essential or fundamental matter. The difficulty with this is that the facts in each case are different and the cases cited turn on their own facts. The real question is whether the deferred matter will have the effect of altering the manner in which the consent operates. This was the reason behind the Court of Appeal's decision in Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349. In that case the Council granted development consent for a house subject to a condition that the overall height of the house be reduced to the satisfaction of the Council's Chief Town Planner. Priestley JA held, at 351, that if the effect of the imposed condition left open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application is made then the consent has not be granted to the application made. Clarke JA held, at 354, that where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent is final. That is, his Honour rested his decision on the lack of finality in the consent. Meagher JA held, at 355, that the consent granted was to a development which was actually or potentially significantly different from that for which application was made and it was also lacking in finality or certainty.
48By way of further example, in Farah v Warringah Council [2006] NSWLEC 191 the Council had granted a deferred commencement consent which was not to operate until a traffic management plan was prepared. Talbot J found, at [61], that access arrangements were critical in that case and that a final determination of some satisfactory means of controlling access to the land was outstanding. In particular, the matters to be included in the traffic management plan could have the effect of changing the manner in which the development operates.
49The facts in these cases may be distinguished from the present case. The deferred commencement condition here will not result in a development which is significantly different from the development for which the application is made, it will not alter the development in a fundamental respect, and it will not have the effect of changing the manner in which the consent operates.
50The leading authority in this issue is that of the Court of Appeal in Weal v Bathurst City Council [2000] NSWCA 88; 111 LGERA 181. In that case the Council had granted a deferred commencement consent for an inter-modal transport terminal subject to certain conditions. One of the conditions which had to be satisfied before the consent could operate related to the noise impact of the development, relevantly:
This consent shall not operate until the applicant satisfies the Council that the relevant approvals by the Environment Protection Authority have been obtained.
Mason P held that this did not constitute a failure to take noise into consideration. Giles JA (Priestley JA concurring) held that the Council did not take the noise impact into consideration, which his Honour found to be a critical issue. His Honour said at [95]:
The Council had to weigh up all relevant matters calling for consideration and, having done so, determine the development application.
51Again, the essential facts in the present case differ from those in Weal. Giles JA accepted the proposition that it was open to the consent authority to impose a condition that necessary approvals be obtained from another authority (such as the Environment Protection Authority) provided that the consent authority itself gave proper consideration to the relevant environmental impact. That was not done in Weal, but as the evidence shows, this was done in the present case.
52The onus is, of course, on GrainCorp to show that there was a failure to consider a relevant matter. Moreover, as Basten JA observed in Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [51]:
As Spigelman CJ noted in Bruce v Cole (1998) 45 NSWLR 163 at 186D-E, the scope for assessing whether the decision-maker has given proper, genuine and realistic consideration to a mandatory matter must be approached with caution, so as to avoid the Court impermissibly reconsidering the merits of the decision.
53I conclude that on this issue GrainCorp has not established that the consent authority either failed to consider or deferred consideration of a fundamental matter that it was required to determine before granting consent.