Gunning Sustainable Development Association Inc v Upper Lachlan Council and Another

Gunning Sustainable Development Association Inc v Upper Lachlan Council and Another - [2005] NSWLEC 23 - NSWLEC 1992 case summary — Zoe

[11]

12 The land the subject of the development application lodged by the second respondent is part of the land referred to in Schedule 3. The purpose specified in relation to the land in Schedule 3 is as follows:- - highway service centre, subject to the condition that consent to the carrying out of development is granted within five years from the day on which Gunning Local Environmental Plan 1997 (Amendment No 1) took effect or within such longer period as the Minister may, before the expiration of that period of five years, notify by order published in the Gazette. 13 On 10 November 2003 the second respondent lodged Development Application No. 41/034 with Gunning Shire Council. The development application was accompanied by a Statement of Environmental Effects ("SEE"). The development application was supported by site and survey plans and architectural drawings, development plans, a traffic report and a landscaping plan and report. 14 The development application form used was an Integrated Application Form and nominated a requirement for a deferred commencement approval and staged commencement. 15 The SEE states that the RTA is required to issue consent and release covenants under s 138 of the Roads Act 1938, as the proposed development includes access and connection to the Hume Highway, which is a controlled road. 16 Reference is also made to the period of five years referred to in Schedule 3 to the LEP which expires on 22 April 2004. It is not disputed that Gunning Shire Council, on 15 September 2003, resolved to amend cl 37, Schedule 3 of the LEP to extend the period within which development consent can be granted from five years, to seven years, although the amendment has not been made by the Minister to date. 17 The SEE proposed a staged development for the highway service centre incorporating four stages as follows:- Stage 1 - Subdivision and Land Amalgamations - North/Southbound sites Stage 2 - Northbound Service Centre and Northbound Ramp Stage 3 - Southbound Off Ramp Stage 4 - Southbound Site Development

[14]

20 At its meeting on 15 December 2003 the Council authorised the General Manager to convene a local planning focus meeting with the applicant for the development consent and affected parties. At the same meeting the public consultation period was extended by 21 days and the environmental planning staff were required to prepare a comprehensive report on the development application for Council determination, once all planning issues were addressed. 21 On 5 January 2004 the Council's Environmental Services Manager Elik Kloczko notified "15 affected parties" by letter that the planning focus meeting had been arranged for 7.30pm Thursday 8 January 2004 at the Gunning Shire Council chambers. 22 The Council received 133 submissions in the form of a pro forma base letter and 28 personal submissions in response to the exhibition of the development application. Mr Kloczko identified 38 distinct issues raised as a consequence of the receipt of the submissions. 23 The second respondent, Tinvest Pty Limited, reviewed the submissions made to Council and on 8 January 2004 provided a response to issues raised by the owners of properties neighbouring the site of the proposed development. These issues primarily relate to noise, security, signage, lighting, litter control and property damage during construction. 24 Between 90 and 100 people attended the planning focus meeting on 8 January 2004. It was chaired by Brian Crane who acted as the meeting facilitator. Mr Kloczko represented the Council with Narlisa Briggs the Environmental Services Assistant. The Council's consulting engineer Rodney Wallace was also in attendance at the meeting. The General Manager of the Council and Councillors were not required to attend the planning focus meeting. The applicant was represented by its consultant town planner Keith Burnham, who attended in the capacity of an observer. 25 The following summary of issues was included in the facilitators report subsequently presented to Council on 19 January 2004:-

Public advertising of the meeting a) Why were the invitations to the meeting restricted?

[28]

Social and Economic Impacts of the Development 38 No negative impacts in relation to the local economy are identified in the report other than the prospect that the local community could be expected to avail themselves of small convenience goods and retail services at the expense of established businesses. It is noted that the addition of a 300,000 litre reservoir to augment the town water supply will result in significant improvement as the applicant has agreed to meet significant portions of the capital costs of the new reservoir in lieu of s 94 Contributions.
Servicing and Infrastructure Issues (s 94 / s 64 Developer contributions) 39 Although the application was not accompanied by expert geotechnical, water balance, engineering and hydrological studies or design plans, Mr Kloczko advises that sufficient material has been provided to assist the Council to assess the impact of the proposed development on town water and sewerage infrastructure for the purposes of assessing contributions required pursuant to s 94 / s 64. Mr Kloczko further advises the Council that provision has been incorporated into the conditions of deferred commencement to require the submission of hydrologic engineer drawings for Council approval and dedication of a 300,000 litre static water supply in lieu of s94/s64 contributions.
Conclusion 40 The report concludes as follows:- The proposal as detailed in this Statement of Environmental Effects and on the development plans prepared by Maunsell Australia dated November 2003 are consistent with Council's planning controls and adequately address the impacts on the environment and suitability of the site. The subject site is presently underdeveloped land within the broad rural landscape character of the local area. Development of the Highway Service Centre provides an opportunity to create a new visual landmark in the Gunning Shire landscape. The service centre development is valued at $3.5 million. It will provide a necessary stimulus to the local economy. The proposed development of a Highway Service Centre and associated food and traveller facilities is permissible with the consent under the planning regulations with the site attributes justifying the nature of the development. The proposal satisfies the general objectives of Council's planning instruments in all respects. Whilst the proposal is worthy of support, specific conditions of consent need to be imposed in respect to construction to ensure the development meets all standards and community expectations. The applicant is keen to progress the development as staged development with deferred commencement and with the continued support of the Council, secure a Development Consent that conditionally allows for some latitude as to the final design and layout of the buildings. It is the applicant's intention to commence the first stages of the development as soon as practicable. 41 Mr Kloczko attached proposed deferred conditions of consent, a copy of the Planning Focus Meeting Report by the facilitator Brian Crane and a copy of a report arising from the planning focus meeting written by Tinvest's town planner, Keith Burnham, together with a site plan. Mr Burnham's report did little more than encourage the Council to approve the development with deferred commencement conditions to address outstanding issues and to point out the positive aspects of the development. However he did particularly refer to the applicant's letter dated 8 January 2004 regarding the mitigation of potential impacts on neighbouring properties. Mr Kloczko tabled a legal opinion from Council's solicitors, Minter Ellison.

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64 In his report to Council on 19 January 2004 Mr Kloczko made the following statement:- The Highway Service Centre site has available one licensed groundwater bore capable of drawing 1.1 litres/sec (95,000 litres per day). The average 24 hour demand by the service centre for water is stated to be 0.69 litres/sec.(60,000 litres per day). 65 No relevant licence has been produced and the foreshadowed "separate application" referred to in the SEE and quoted above, gives rise to the inference there was no relevant licence held in respect of any bore on the land either when the development application was lodged, or when the consent was granted. Mr Kloczko, however, in cross examination identified a reference to licence 70BL142589 in a work summary report of a bore provided by DIPNR. Mr Kloczko recalls that the work summary report by DIPNR was produced to him on behalf of the applicant for development consent. He understood from the report that there was an existing approved bore on the site. 66 The respondents' primary argument is that s 112 of the Water Act only prohibits the sinking of a bore or enlargement deepening or alteration of a bore unless it is done in pursuance of a licence issued under Part 5 of the Act. An application for a licence for any new bore or for enlarging, deepening or altering any existing bore shall be made pursuant to s 113. After compliance with administrative requirements a licence is issued pursuant to s 115. 67 Section 116 provides as follows:-

The Ministerial Corporation may, if, in its opinion such a course is necessary, grant a licence for a limited period, and any licence so granted shall (subject to the provisions of this Part with regard to the renewal of licences, and subject to such limitations and conditions as the Ministerial Corporation may think for to make) be renewed by the Ministerial Corporation from time to time on the application of the person holding the licence and on payment of the prescribed fee.
The Ministerial Corporation may limit the period of any renewal. The licence shall lapse if the sinking of the bore or the enlarging, deepening or altering the bore licensed be not commenced and completed within such times or extended times as may be notified by the Ministerial Corporation to the licensee.

[40]

68 It is not necessary for the purpose of the present argument to seek to determine whether the reference to s 116 in s 91(1) of the EP&A Act is a reference that is capable of having practical application because it is clear from s 112 of the Water Act that the category of licenses dealt with in Division 3 of Part 5 are only licenses that authorise the sinking of a bore or where a bore is to be enlarged, deepened or altered. The subject bores are already in place. There is no stated proposal to enlarge deepen or alter the existing bores. It is not altogether clear from the evidence whether technically there will be a change of the use of the water out of the bores from a former industrial purpose to a source of potable supply. Nevertheless in my opinion such a change would not necessarily mean that a bore will be altered as contemplated by s 112 of the Water Act 1912. Accordingly the proposed development did not require an approval under Division 3 of Part 5 of the Water Act in order for it to be carried out. It must follow therefore that the development was not integrated development requiring an approval under s 116 of the Water Act. 69 In Maule v Liporoni and Another (2002) 122 LGERA 140 at 172 and 174 Lloyd J observed that in his opinion a failure to conform with or follow the procedures for integrated development in accordance with s 91A of the EP&A Act does not involve jurisdictional error because the provisions of Part 4, Division 5 of the EP&A Act are beneficial and facultative. The applicant has urged the Court not to follow the line of reasoning adopted by Lloyd J and to find that the alleged failure to substantially comply with the integrated planning system rendered the subject development consent invalid. Although not expressly argued in Azzopardi and Others v Gosford City Council And Another (2001) 119 LGERA 132 and Azzopardi and Others v Gosford City Council and Another (2002) 123 LGERA 118 Sheahan J at first instance and subsequently the Court of Appeal appear to have proceeded on the basis that a development consent granted in respect of integrated development without first complying with the provisions of s 91A could lead to invalidity. 70 Having regard to my finding of fact in relation to the application of the integrated provisions of the EP&A Act in this case I need not take the legal issue any further except to note that Mr Clay, on behalf of the second respondent, has submitted that the decision in Maule should be followed as the provisions have no consequences adverse to the operation of the EP&A Act. Moreover he says the consideration of the development application is not hindered and under ss 91A and 93 of the EP&A Act the power of an approval body is not confined where the application is not referred to it. The submissions by Mr Clay are not without substance.

[44]

73 The applicant submits that on a proper reading of conditions 1 and 2 some significant aspects of the highway service centre and its operation have been left for later consideration. In other words the deferred commencement process became a substitute for consideration rather than a means by which the authority could stipulate for a state of affairs as Giles JA said in Weal at [94]:- 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. 74 Apart from the general submission about the improper use of a deferred commencement consent the applicant has identified a number of matters of important detail that were left unconsidered by the Council. 75 Before dealing with these matters it is appropriate to observe that notwithstanding the confinement of the application of the Carltona principle (Carltona Limited v Commissioner of Works (1943) 2 All ER 560) to circumstances where an officer exercises the decision making power of a council as the delegate of the consent authority, (see McClellan CJ in Centro Properties Limited v Hurstville City Council and Another [2004] NSWLEC 401, unreported) it is nevertheless appropriate to accept that material in the possession of the Council will generally be treated as being in the possession of the Councillors in the absence of evidence to the contrary (Schroders Australia Property Management Limited v Shoalhaven City Council and Another [2001] NSWCA 74, unreported, followed by Pain J in Gee v Council of the City of Sydney and Others [2004] NSWLEC 581, unreported). I have considered the evidence on the basis of the principles identified in Centro Properties and Schroders Australia. 76 The applicant has listed specific matters that it alleges the first respondent failed to consider during its consideration and determination of the development application. I propose to deal with the most significant of these in turn.

[48]

79 When Mr Kloczko first drafted the conditions of development consent for his report to Council he incorporated the following as part of a proposed deferred consent condition:- The fuel storage system shall be design (sic) in accordance with the expert advice and approvals of relevant agency (sic) shall be submitted (sic) Council with final design details. 80 Following advice from the Council's solicitors the specific reference to the fuel storage system was deleted. The Council did not adopt the conditions as originally drafted and presented to it by Mr Kloczko but instead determined to grant the consent subject to deferred commencement conditions revised in consultation with the Council's solicitors. The advice from the solicitors was remitted to Mr Kloczko by email at 5.07pm on the afternoon of the meeting on 19 January 2004 scheduled for 7.00pm. The legal opinion was tabled at the Council meeting as part of a late report in respect of the revised deferred conditions of consent. The advice of the solicitor makes pertinent reading in the present context:- I have reviewed the proposed deferred commencement conditions. Without having seen the DA, plans and your full report it is difficult to advise you fully on this issue. Our primary concern is that the deferred commencement conditions suggest that Council has not taken into consideration relevant matters and has deferred them for consideration by imposing the deferred commencement conditions. Council's obligation is to consider all relevant matters at the time the DA is determined (Weal v Bathurst CC). Accordingly, there is some risk that an objector will challenge the validity of the consent. Nevertheless, we have attempted to redraft the terms of the deferred commencement conditions to reduce this risk. We recommend the conditions be imposed as on the attached document rather than those already drafted. 81 It was suggested by Mr Kloczko in his oral evidence that the requirement in deferred consent condition 1(b) to submit for the approval of the Environmental Services Manager "details of services and mechanical/electrical systems" includes the details of fuel storage. In my view the connection is tenuous.

[51]

86 Whether or not the development could be classified as a hazardous or offensive industry is not strictly to the point of the applicant's claim in respect of this issue. Rather the question is whether the Council did, or was even in a position to, consider the impacts of fuel storage in the context of cl 12 of SEPP 33. The details of that aspect of the development were never provided and accordingly there can be no inference that the Council took them into account before determining the development application. 87 The lack of geotechnical details in relation to the site only compounds the error. That this aspect of the development was not considered is made clear by the original proposed deferred consent conditions proposed by Mr Kloczko, which required Council approval to a geotechnical investigation. I am entitled to infer, and I do so infer, that the storage of fuel would be in underground tanks and that the geotechnical details of the site would be relevant in that respect. Any reference to the geotechnical investigation was deleted from the deferred commencement conditions following the intervention of the solicitors. 88 Mr Kloczko's report specifically noted that the application was not accompanied by expert geotechnical water balance engineering and hydrological studies or design plans "at this stage". There is no evidence of any explanation provided to the Council to justify the absence of the requirement for geotechnical investigation as a deferred commencement condition. Mr Kloczko states provision has been incorporated into the conditions of deferred commencement to require the submission of hydrologic engineers drawings for Council approval. There was such a requirement at the time he wrote his report, but by the time the solicitors' amendments had been adopted that requirement had been removed. Although not directly relevant to the issue of a consideration of fuel storage arrangements, the deletion of the requirement to provide the submission of hydraulic engineers drawings for Council approval is once again indicative of the manner in which the application was dealt with by the Council. 89 An analysis of these issues relating to geotechnical details, fuel storage, SEPP 33 and hydrologic drawings alone is sufficient to show that prior to the meeting Mr Kloczko, at least, held the opinion that a number of matters needed to be addressed in the deferred commencement conditions. These requirements were deleted on the advice of the solicitors for the express purpose of seeking to obscure the fact that the Council had not considered them.

[53]

91 Although it is difficult to see how Mr Kloczko could become satisfied in respect of geotechnical matters as a consequence of his physical inspection of the site and his own expertise, experience and local knowledge, nevertheless there is no evidence that he communicated his abovementioned opinion to the Council. 92 Mr Robson SC submits on behalf of the Council, that it had no reason (nor warrant) to consider that geotechnical suitability was a matter of moment. It is difficult to reconcile this submission with the original conclusion by Mr Kloczko (before the advice of the solicitors was received) that geotechnical investigation was required and the ultimate reason for the decision to ignore the issue. Moreover it is disingenuous to say there was nothing in the material to warrant any further investigation when there was a dearth of any material, to enable a determination one way or another. 93 The applicant relies upon the decision of Lloyd J in Sell & Parker Pty Ltd v Blacktown Council [2001] NSWLEC 12, unreported, as reflecting the correct approach to the interpretation of SEPP 33. After noting the definitions of "potentially hazardous industry", "hazardous industry" and "potentially offensive industry" and "offensive industry" Lloyd J identified the relevant parts of SEPP 33 and in particular for present purposes Part 3 which applies to potentially hazardous and potentially offensive industries. Part 3 requires an applicant for such development to prepare, in accordance with the current circulars or guidelines published by the Department of Planning, a preliminary hazard analysis and to submit the analysis with the development application. 94 Lloyd J agreed with the finding in Rudman v Tweed Council Land and Environment Court of New South Wales No 10214 of 1993, 28 September 1993, unreported, where Bignold J held that the requirements of cl 12 of SEPP 33 are properly to be regarded as directory and not mandatory. Accordingly it follows that non compliance with the requirements of Part 3 of SEPP 33 does not necessarily produce invalidity in the resultant action. That is so if, at least, it can be shown that there has been substantial compliance with the requirements.

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98 Section 80(3) of the EP&A Act must not be regarded as a panacea that allows a Council to defer such essential matters for future consideration (see Remath Investments No.6 Pty Ltd v Botany Bay Council (No.2) unreported Land and Environment Court No.10649 of 1996, 11 December 1996 as adopted by the Court of Appeal in Weal v Bathurst City Council (2000) 111 LGERA 181 at 204). Accordingly the failure to take any of the steps required by SEPP 33 in respect of what is prima facie a potentially hazardous development is a significant omission on the part of the applicant for development consent and the Council respectively. 2. The suitability of bore water supply 99 The issue of the availability and use of bore water is discussed in the SEE. There is sufficient analysis and discussion of water servicing and infrastructure issues in the report by Mr Kloczko to Council on 19 January 2004 to enable proper consideration for the purpose of the development application. The approval of the development did not turn on whether bore water was available for any particular purpose. Notwithstanding several alternatives were put forward in that respect. In particular Mr Wallace dealt with the subject extensively in his report recommending that any final decision be deferred until Council resolves a number of outstanding policy issues. 100 I do not consider the issue of the bore as a matter of such paramount importance that it was essential for it to be finally resolved or dealt with at the time of determination of the development application. There were a number of possibilities as to the way in which the bore water could be utilised either directly onto the site or through the water reticulation system for the town of Gunning. In either case the development can proceed irrespective of the outcome of the deliberations in that respect. The Council was sufficiently alerted to the issues surrounding the use of the bore water by the summary of the planning focus meeting and the specific reference to the potential capability of the bore in Mr Kloczko's report to Council, as well as in Mr Wallace's report at its meeting on 19 January 2004. This is not a matter which could lead to a declaration of invalidity on the basis that the Council failed to properly consider the suitability of the bore water supply as a potable water supply.

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Lighting 101 The applicant's case in this respect relies primarily on the lack of any information in the SEE regarding the proposed lighting of the facility except in a minor respect. 102 At least three residents specifically made reference to concerns about the level of lighting and the potential to have an adverse impact on residential amenity. For some obscure reason described as a "commercial in confidence matter" a statement regarding the proposed use of specialist lighting with deflectors to ensure light spill is contained within the site was deleted from the reference documents placed before Council. However two Councillors expressed concern in respect of the lighting issue during the discussion at the Council meeting on 19 January 2004. 103 The deferred commencement conditions require that details of exterior lighting and advertisements be submitted for the approval of the Environmental Services Manager and further that the outdoor lighting design conforming to AS.NZ 1158.1.1:1997 or approved updated standards be submitted for the approval of the RTA in relation to the proposed interchange. Moreover, operating condition number 20 requires the applicant to monitor the impact of lighting from the site and make required modifications to the satisfaction of Council prior to occupation of the service centre. 104 It is apparent therefore that the issue of lighting was squarely raised before the Council as a consequence of submissions made by residents and observations by Councillors about their concerns at the crucial meeting on 19 January 2004. These concerns are properly reflected and dealt with in the deferred commencement conditions and condition 20. The conditions recognise that concerns about lighting need to be addressed in accordance with recognised performance standards and that both the Council and the RTA are required to be satisfied in that respect before the development consent operates. Even then monitoring to a specified standard is required before operations commence.
Economic impacts 105 The alleged failure of the Council to consider the possible economic impacts of the development is an issue which attracted significant attention from Mr Stewart-Richardson. 106 A number of residents supported their objections to Council by reference to the potential for the development to cause hardship to town traders and businesses that presently derive significant benefit from the flow of traffic through the town. 107 The applicant relies upon the purported assessment of the economic impacts appearing in the SEE and the references to economic matters in Mr Kloczko's report to support an ultimate submission that there is a strong inference the Council did not properly take into consideration the economic impact. It is suggested that the references are merely advertence to the subject unsupported by any statistical analysis or evidence in the form of a breakdown of expected jobs or the types of jobs that might become available. 108 The applicant's submission is riddled with assertions about a self evident likelihood of adverse impacts occurring. The Court is entitled to attribute an awareness of such likely self evident matters to local Councillors representing a small community. Moreover, there was ample material provided by the objectors to alert the Council to the prospect of adverse impacts. On the other hand, the second respondent's submissions to Council advocated and concentrated upon the potential economic benefits to the local community not only from the point of view of increasing job opportunities but also by offering additional convenience from the retail outlet within the highway service centre.

[57]

109 In the circumstances it cannot be said that the Council did not have sufficient relevant material to enable it to weigh up and balance the competing arguments in respect of the economic impact upon the town of Gunning. The complaint now made by the applicant is more in the nature of a challenge to the merits of the decision rather than an issue in respect of the validity of the decision. 110 The applicant relied upon the consideration by Pain J in Centro Properties v Warringah Council (2003) 128 LGERA 17 where the economic impact on the locality was never identified as a relevant issue for the Council. That case is clearly distinguishable on its facts. In my view it is not imperative for a Council to require the undertaking of independent inquiries and reports to assist it to make a decision in respect of a matter about which it is able to make a rational judgement for itself. The latter position prevails in respect of this issue, at least to an extent sufficient to meet the challenge by the applicant. 5. Noise 111 Once again the Council had the benefit of information in the SEE and numerous submissions from objectors who raised concerns about the potential impact of noise from the development. An acoustic study by an expert was provided. Mr Kloczko relied on it in his report and opined that the proposed noise levels and treatment are considered appropriate for the site and the conditions thereon. Condition 16 of the consent requires the developer to submit a report from an approved acoustic consultant confirming that the design of the centre includes noise attenuation measures sufficient to meet the requirement of a level of 50dB(A) measured at the boundaries of both nearest residential properties. 112 A primary complaint is that the noise study submitted by the applicant was patently inadequate. Moreover, changes were made to the location of truck access to the site following the completion of the expert's report so that the impact of these changes was not the subject of his advice to the Council. The Court is expected to reject the adequacy of the acoustic report on its face without any supporting evidence to assist the adjudication of that issue. I am asked to rely solely on the condemnation of the report in submissions. 113 Even if the Council was incorrect to adopt the acoustic report and to accept that the measures proposed would be adequate, that is not a basis for setting aside its decision unless the determination was so unreasonable that no consent authority properly advised could have come to the same conclusion. The report indicates that if the intrusive noise levels of less than 50dB(A) are maintained at the boundaries of the adjoining properties, the recommended maximum in order to prevent sleep arousal would be achieved. Condition 16 is a clear indication that the Council took cognisance of this advice when it made provision for confirmation that noise attenuation measures would enable that requirement to be met prior to occupation of the service centre. Furthermore condition 10 dictates ameliorative measures during the construction period in order to reduce noise nuisance

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114 The applicant submits that the first respondent failed to consider public submissions. The argument is based upon an inference that the collegiate mind overtly dismissed the submissions. Furthermore Mr Kloczko is alleged to have quarantined the consideration of submissions by giving a meaningless statistical summary in his report. 115 There is no critical weight of evidence that supports the suggestion that the Councillors effectively dismissed or failed to give sufficient weight to the public submissions by having a higher regard to alleged election promises or other extraneous matters regarding the future of the service centre, as Mr Stewart-Richardson alleges. 116 Not only did Mr Kloczko summarise the submissions for the convenience of the Councillors, but the submissions were available to be inspected in the Council's file, as one of the Councillors confirmed in his evidence. The report of the planning focus meeting was tabled. 117 Evidence in relation to some of the debate and the discussion at the meeting on 19 January 2004 has been recorded by witnesses. It shows that there was significant support from Councillors who spoke at the meeting and at least one of them reiterated a long standing historical commitment to the establishment of the highway service centre. Although some of the comments indicate a lack of understanding of the effect of a deferred commencement consent rather than "agreement in principle", the claim that the Council took no account of the public concerns and summarily dismissed them cannot be supported. 118 The evidence of the views expressed by some individual Councillors can be relevant evidence in certain circumstances (Emritus v South Sydney Council [1990] NSWLEC 8, unreported 1 February 1990). However the views expressed by individual Councillors will not generally be indicative of what motivated the collegiate decision. The evidence in this case does not rise to the point where I can find, on the balance of probabilities, that the Councillors chose to ignore the public submissions. 119 The fact that the ultimate decision of the Council was made contrary to and in the face of public submissions does not lead to an inference that the submissions were ignored. Indeed the opposite is the case as the Council took specific steps to exhibit the proposal over an extended period, arranged the planning focus meeting and allowed ample opportunity for there to be public participation in the debate at the meeting on 19 January 2004 to the point where the Councillors, in my opinion, would have been made acutely aware of the issues raised by the objectors.

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128 Even so, I set out below the ultimate findings of Mr Smith in relation to mitigation measures suggested by him to demonstrate the nature of the matters that the Council might have been expected to consider if it had fulfilled its obligations under the provisions of the LEP. These findings were as follows:- 4 . MITIGATIVE MEASURES As a result of the above findings, it is suggested that any development in the vicinity of the heritage listed property known as 22 Hume Street, Gunning (the Do Duck Inn) should: · Be cognisant of the heritage significance of the buildings at that place; · Not be intrusive to the place; and · Be sympathetic to the form and colour of the place, and to the form and colour of other heritage listed places within Gunning township. In this regard, it is suggested that: · Any development in the study should be screened from the adjacent heritage listed building(s) by some form of natural screening, such as, scrubs, trees and the like; and · The form and colour scheme utilised in any development should be sympathetic to that of the adjacent heritage listed building(s) and to other heritage listed places within Gunning township. 129 Although the Council may have indirectly dealt with some of the issues, nevertheless they were not conclusions reached as a consequence of fulfilling an obligation under the LEP. The specific heritage significance of the Do Duck Inn simply did not arise. 130 In Hill v Woollahra Municipal Council and Others (2003) 127 LGERA 25 the Court of Appeal, and in particular Hodgson JA, expressed the view that it was not necessary for a council to refer explicitly to the statute or instrument that poses a question for consideration. Although the Council may have accidentally addressed the substance of some of the questions that arose pursuant to the heritage provisions of the LEP, it did not cognisantly address the heritage significance itself. It is not the absence of a specific reference to the provisions of the LEP that leads to the conclusion that the Council did not fulfil its obligations but rather there is no evidence that it took any account of the heritage significance of the Do Duck Inn. Even despite the evidence of Mr Smith the specific significance of the Do Duck Inn still remains equivocal.

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134 Operational condition 11 in the development consent requires the incorporation of the use of AAA rated water saving devices throughout and conditions 24 and 25 deal with the collection of waste water and grey water effluent recycling. 135 It would have been preferable for the Council to have some greater understanding of how the site would be managed in this respect. However there is no evidence of any particular characteristic of waste water and stormwater that demands special consideration such that would place the Council under an obligation to be further appraised of the details in order to properly consider them as relevant matters before making a final determination of the development application. In the circumstances they were matters properly left to be dealt with by conditions. 9. Potential Pollution 136 Mr Stewart-Richardson submits that, as there was no information to inform the Council about the risks posed to users of the service centre or surrounding land occupiers by explosion, corrosion or contamination, the Council clearly failed to consider these matters. In the absence of the identification of any particular issue that should have been self evident to Council arising from its consideration the emission of potential pollutants in and from the site is not necessarily a matter that arises for independent appraisal. However this issue is largely subsumed by the failure to give proper attention to the provisions of SEPP 33 dealt with earlier. Conclusion 137 In summary, there were a number of matters that the Council failed to take into account prior to the determination of the development application. The lack of any information regarding the proposed fuel storage system raises the unanswered inference that the Council did not address the issues associated with that aspect of the development. In particular the Council made no effort to understand whether there were likely to be any geotechnical impacts, and then inappropriately, left for future consideration the requirements of SEPP 33. It is in this respect that the significance of the advice from the solicitors becomes manifest and points to overt steps taken by the Council to diffuse a potential challenge to the consent by deleting conditions that could suggest it failed to properly undertake its obligations pursuant to s 79C of the EP&A Act.

[64]

138 The failure of the Council to comply with cl 31 of its own LEP in relation to the heritage significance of the building known as 22 Hume St Gunning is a fundamental flaw in the process. 139 The above-mentioned two issues taken alone are sufficient grounds for the Court to declare that the development consent is invalid. However the other peripheral issues raised by the applicant, although not individually sufficiently significant to render the consent unlawful, nevertheless contribute to a finding that the Council was prepared to, and did, approach the proposal as a concept for a highway service centre worthy of an in principle approval. The in principle approval was given on the basis that the details of the design and operation of the development including some significant and fundamental aspects could be dealt with at some future time. The Council could have been in no doubt, after having the benefit of Mr Kloczko's report, that a number of matters were to be left for future consideration. Instead Mr Kloczko and the Council should have insisted that further information be provided by the applicant to enable it to properly and fully take account of all relevant matters during its consideration and if the information was not forthcoming to defer the determination or reject the application according to what was appropriate in the circumstances. 140 Discussions between Mr Kloczko and representatives of the second respondent and observations made by individual Councillors make it clear that as the window of opportunity for development consent to be obtained was shortly to expire in April 2004, the matter should be dealt with using the deferred commencement process so that an initial consent could be granted in respect of the conceptual idea leaving matters of detail to be addressed in due course. I am not satisfied that the Council was given a proper opportunity to have the degree of understanding of the state of affairs to enable it to make an evaluation of the relevant matters in the manner contemplated by the Court of Appeal in Weal. The Council was simply not in a position to weigh up the overall mass of matters calling for consideration before it determined the development application. A consent authority does not take relevant matters into account by merely averting to them in the conditions of consent and requiring them to be addressed and approved in a particular way after the consent is granted. 141 A consent authority cannot avoid its obligation to consider what impacts may arise as a consequence of carrying out development by remaining ignorant of those matters. It is obliged to inform itself or require an applicant for consent to inform it so that it can properly determine what likely impacts can arise. I consider that the proposed development was of a sufficiently unusual kind and sufficiently extensive in nature for the Council to take steps to properly inform itself in respect of all matters not within its own expertise or normal understanding. This did not occur in the several important respects identified above as well as a number of peripheral matters. Accordingly I find that the applicant has made out its case and is entitled to a declaration that the development consent granted by the first respondent to the second respondent on 19 January 2004 is invalid and of no effect. 142 The issue of discretion has been left for evidence and further argument at a continuation of the hearing in the event that I am otherwise prepared to make the abovementioned declaration. There is also a question whether the provisions of s 25B of the Court Act can be applied in the circumstances. Accordingly, I refrain from making any formal declaration or orders at this stage pending further evidence and argument. Appropriate directions will be made for the future conduct of the matter after the parties have had an opportunity to consider these reasons. 143 In the meantime the exhibits will be retained.

Parties

Applicant/Plaintiff:

Gunning Sustainable Development Association Inc

Respondent/Defendant:

Upper Lachlan Council and Another

Cases Cited (14)

CITATION : Gunning Sustainable Development Association Inc v Upper Lachlan Council and Another [2005] NSWLEC 23

Azzopardi and Others v Gosford City Council And Another (2001) 119 LGERA 132 ; Azzopardi and Others v Gosford City Council and Another (2002) 123 LGERA 118 ; Barooga Citizens Action Group Inc v The Council of Shire of Berrigan and Others [1992] NSWLEC 3, 4 February 1992, unreported; Bullivant and Others v Wollongong City Council (Land and Environment Court of New South Wales No. 40105 of 1983, 18 October 1983, unreported; Bullivant and Others v Wollongong City Council (1984) 54 LGRA 77; Carltona Limited v Commissioner of Works (1943) 2 All ER 560; Centro Properties Limited v Hurstville City Council and Another [2004] NSWLEC 401, unreported; Centro Properties v Warringah Council (2003) 128 LGERA 17 ; Emritus v South Sydney Council [1990] NSWLEC 8, unreported 1 February 1990; CASES CITED: Gee v Council of the City of Sydney and Others [2004] NSWLEC 581, unreported; Hill v Woollahra Municipal Council and Others (2003) 127 LGERA 25 ; Levenstrath Community Association Inc v Tomies Timber and Another (2000) 108 LGERA 176 ; Maule v Liporoni and Another (2002) 122 LGERA 140 ; Remath Investments No.6 Pty Ltd v Botany Bay Council (No.2) unreported Land and Environment Court No.10649 of 1996, 11 December 1996 ; Rudman v Tweed Council Land and Environment Court of New South Wales No 10214 of 1993, 28 September 1993, unreported; Schroders Australia Property Management Limited v Shoalhaven City Council and Another [2001] NSWCA 74, unreported; Sell & Parker Pty Ltd v Blacktown Council [2001] NSWLEC 12, unreported; Weal v Bathurst City Council (2000) 111 LGERA 181

[1990] NSWLEC 8

(2001) 119 LGERA 132

(2002) 123 LGERA 118

(2003) 128 LGERA 17

(2003) 127 LGERA 25

(2000) 108 LGERA 176

(2002) 122 LGERA 140

(2000) 111 LGERA 181