32 The Respondents argued that s 25B should be applied in light of the Court of Appeal decision in Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333 which was decided after GPT No 2. All three decisions of the Court emphasise the wide application of Div 3 of the Court Act. Apart from the challenge in relation to the invalid delegation there is no separate challenge to the consideration of the Council up to and including 26 September 2006. The challenge in relation to ground 6 concerning the failure to take into account a further SIS provided by the Second Respondent in February 2007 does not suggest there has been a material failure by the Council's decision making. The Council had considered substantial material assessing the DA and received the review of the IHAP panel recommending approval subject to two matters of 13 September 2006 by 26 September 2006. It resolved on that day that approval ought be granted subject to two further matters, the DEC concurrence being one of them. The SIS lodged in relation to the application as required by the Council on 26 September 2006 was further assessed by officers of the Council and they recommended approval. The DEC also issued the concurrence requested by the Council. No issue is raised by the Applicant in relation to the other matter left for the General Manager under the delegation concerning conditions arising from the comments of the RTA.
Finding
33 Section 25E of the Court Act requires the Court to consider making an order under s 25B instead of declaring or determining that a development consent is invalid. None of the parties argued that the invalidity of a development consent based on the failure of the Council to properly delegate the power to issue a development consent was not a breach which could be the subject of an order under s 25B of the Court Act. The Court of Appeal decision in Kindimindi identified the wide scope of s 25B. The Applicant argued that as a matter of discretion however the order ought not be made given the reason for invalidity of the development consent.
34 A consideration of the three judgments delivered by the respective appellate judges emphasises the wide application of s 25B. In Kindimindi Hodgson JA held at [19] - [21]:
19 However, in my view the use of the word "extends" in subs.(2) is a strong indication that the subsection was not intended to be an exhaustive indication of the type or types of invalidity to which the Division applies. If the subsection had used the word "applies", or "applies only", then that may have been the intention disclosed.
20 There are other indications, in my opinion, of a legislative intention that the Division should not be limited to the particular kind of invalidity specified in subs.(2).
21 Firstly, there seems no logic in selecting that particular type of invalidity, rather than any type of invalidity that might affect a development consent or purported development consent. The general intention was that technical breaches should be capable of being rectified, and there can be technical breaches which are not matters arising from preliminary steps.
35 Tobias JA held at [31] - [32]:
31 Section 25B(2) sets out in a non-exclusive manner the type of terms which can be imposed for the purpose of validating the consent, and which include terms requiring the carrying out again of steps already carried out or the carrying out of steps not already carried out. But importantly, 25B(2) is not confined in any way to terms involving the carrying out of preliminary steps referred to in sub-paragraphs (a) and (b). It includes in sub-paragraph (c) terms requiring acts, matters or things to be done or omitted that are different to acts, matters or things required to be done or omitted by or under this Act or any other Act. Any other Act would include the Environmental Planning and Assessment Act .
32 It seems to me that s.25B(2)(c), for instance, would authorise the imposition of a term requiring a consent authority to reconsider if it has already considered the matter, or to consider for the first time if it has failed to consider the matter, any one or more of the matters required to be considered by, for instance, s.79C of the Environmental Planning and Assessment Act. That, of course, does not mean that in every case where a purported consent is invalid upon the basis that s.79C has not been complied with, that the court will exercise its discretion to suspend the consent and to require the consideration or reconsideration of a s.79C matter.
36 McColl JA held at [45] - [47]
45 In my view, the word "extends" in ss.25A(2) should be given its ordinary meaning. That is, that it is a word of expansion. Whether, as the presiding judge has said, for abundant caution or for other reasons, the Legislature has chosen to emphasise that s.25A(2) applies to all development consents or purported development consents and also to the sorts of invalidity referred to in subs.(2) and (3), neither of those subsections, in my view, detracts from the conclusion that the verb "extends" should be given that ordinary meaning.
46 This conclusion is also supported by the context in which s.25A appears.
47 Section 25E requires the court to consider making an order under Division 3 instead of declaring or determining that a development consent to which Division 3 applies is invalid, whether in whole or in part. That provision, in my view, emphasises the amplitude of the power conferred by Division 3. The Division creates a regime for suspending the operation of development consent pending the applicant for that consent being given an opportunity to remedy a breach which might otherwise render the development consent invalid. The duty which s.25E imposes on the court to consider making a Division 3 order emphasises the legislative concern that development consents not be frustrated by potential invalidities in respect of which the court may, as a matter of discretion, consider making a s.25B order.
37 These judgments confirm that s 25B can be applied to a wide range of steps taken up to the granting of development consent given the reference in s 25A(1) to the grant of a consent or a purported grant of consent. Whether an order should be made must be determined by the particular circumstances of a case in the exercise of judicial discretion. The Council's counsel referred to examples of where the Court has declined to make a s 25B order, as in Belmore Residents Action Group Inc v Canterbury Council (2006) 147 LGERA 226 and Centro Properties Limited v Hurstville City Council (2004) 135 LGERA 257, because matters were identified which required consideration for the first time. I agree with the Council's submissions that there is no new matter identified which will require a reconsideration of new matters by the Council if the matter is returned to it for consideration of particular matters concerning the SIS/DEC concurrence and the comments of the RTA. The circumstances are unlike those considered in GPT/Belmorgan. All of the Council's officer's reports and the IHAP report had resulted in a recommendation for approval. The Council officer's reports concerning the new SIS received subsequent to the resolution of the Council to delegate the decision to approve to the General Manager also recommended in favour of the development application.
38 The matters referred to by the Respondents at par 23 in relation to why declaratory relief should not be made at all are also relevant to consider in determining whether an order under s 25B ought be made.
39 The Applicant's counsel also submitted that as considerable time had elapsed since the grant of the purported development consent that there would be utility in the Council determining the matter afresh in light of any changes. One change referred to was that the Applicant had started trading on a nearby site. The passage of time alone and the possibility that changes have occurred in a particular locality do not support a refusal of a s 25B order.
40 While the failure to properly delegate functions under the EP&A Act is a significant matter I must consider that failure in the particular circumstances of this case. Orders under s 25B can be crafted which address the matters left outstanding at the time of the delegation to the General Manager on 26 September 2006 following the Council's own extensive consideration of the DA up to that point. The sixth ground of challenge raised by the Applicant in relation to the receipt of a new SIS in March 2007 does not suggest that in this case there has been such a failure to undertake a s 80 EP&A Act consideration by the Council that a s 25B order should not be considered.
41 Subject to further discussion on the precise wording of the draft orders handed up by the Council during submissions I consider an order pursuant to s 25B ought be made.