See also Morris v. Kanssen [1946] AC 459 at 475; Western Stores Ltd. v. Orange City Council [1971] 2 NSWLR 36 at 46-7.
52 I do not accept Mr. Walker's submission that this does no more than identify where the onus of proof lies. The presumption is a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs: see McLean Brothers & Rigg Ltd. v. Grice (1906) 4 CLR 835 at 849-51 per Griffiths CJ. 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 a 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 as to 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. In any event, the questions posed by cl.18 were squarely raised in a document submitted with a development application, and there was discussion in subsequent documents relevant to those questions.
56 I accept Mr. Preston's submission that the express reference to cl.18 by Mr. Keys was not supported by any argument relevant to cl.18 matters, and that the objection expressed by Mr. Keys concerning excavation was on town planning considerations, not considerations relevant to cl.18. I also accept Mr. Preston's submission that the disclaimer by Ms. Hansen concerning specialist expertise did not mean that she was not able to assess and evaluate competing submissions of experts.
57 In those circumstances, leaving aside for the moment any inference that might arise from the inclusion of Conditions 50 and 51, I do not think that the primary judge was in error in not inferring that the Council did not have regard to the matters required by cl.18 of the LEP. Accordingly, even if I proceed on the basis that the primary judge was adequately asked to draw that inference, and on the basis that the proposed amendment to the appeal grounds is permitted, I would not find error in that respect.
58 Turning to the insertion of Conditions 50 and 51, in my opinion this does not require or suggest a different result. In my opinion, the insertion of those conditions has to be evaluated having regard to the two stages of approval for a development involving the erection of a building. First, there is the obtaining of development consent from the Council, under s.80 of the Act, at which stage there need not be detailed plans and specifications of the proposed building. Second, there is the obtaining of a construction certificate from the Council or accredited certifier under s.81A of the Act, this being a certificate to the effect that work completed in accordance with certain plans and specifications will comply with the requirement of regulations referred to in s.81A(5) (see s.109C(1)(b)). At the stage of giving development consent, the Council could make the assessment that, consistently with the requirements of cl.18, provided certain guidelines are followed and provided the Council or an accredited certifier is satisfied by a subsequent report by a qualified engineer that construction in accordance with detailed plans and specifications would not adversely affect the neighbourhood, then the development approval could be given. In my opinion, this is in substance what happened here, and no failure to address the cl.18 questions is shown.
59 These views do not involve any application of the Carltona principle. I do not need to rule on whether detailed consideration by a Council officer absolves individual members of the Council from addressing questions, in cases where it is the Council itself rather than some delegated person or body that makes the relevant decision. I would comment, however, that members of a local council are not required individually to pursue every possible aspect of questions such as those raised by cl.18, but can rely on conclusions drawn by qualified officers such as engineers like Ms. Hansen and town planners like Mr. Keys, and it is open to members of a council to accept or reject such conclusions.
60 In relation to the question of traffic safety, the appellant is on weaker ground. There is no specific requirement concerning traffic safety like cl.18, and no condition of approval like Conditions 50 and 51. It is true that the Council's Traffic Committee advised that the development was unsatisfactory in this respect, but there were contrary views before the Council, and the Council members inspected the site themselves. Traffic safety is a matter on which Council members could, to some extent, rely on their own observations and opinions. In my opinion, there is no basis for drawing an inference that the Council did not take this matter into account.
61 In those circumstances, there is no need to rule on the amendment application. The appeal should be dismissed with costs.
62 IPP JA: I agree with Hodgson JA.
63 DAVIES AJA: I agree with Hodgson JA.
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