Hoyts Cinemas Ltd - v - Penrith City Council & Anor - [1999] NSWLEC 187 - NSWLEC 1999 case summary

Land and Environment Court (NSW)|1999-06-21|Before: Lloyd J

The applicant, Hoyts Cinemas Limited ("Hoyts"), claims a declaration to the effect that a development consent granted by the first respondent, Penrith City Council ("the Council") to the second respondent, Penrith Rugby League Club Limited ("the Club") for a thirteen-screen cinema complex at the Club's premises in Mulgoa Road, Penrith (known as "Penrith Panthers") is void.

It must be emphasised at the outset that the decision of the Council to grant development consent cannot be reviewed unless it involves jurisdictional error or Wednesbury unreasonableness (cf Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 233-234; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41). The Council was the body entrusted with the task of determining the development application. If it acted lawfully, bona fide and reasonably its decision cannot be challenged, even if some other body on the same material might legitimately have reached a different view. The other preliminary observation to be noted is that in a challenge to the validity of a development consent, the proof of invalidity rests on the challenger ( Danis Hotels Pty Ltd v Dubbo City Council (1991) 72 LGRA 35 at 37).

Penrith Panthers is about 1.5 kilometres from the Penrith central business district. It is on land which is partly zoned Open Space 6(c), partly Residential 2(d) and partly Rural 1(d) under the relevant environmental planning instruments, being Penrith Local Environmental Plan No 43 (as amended) ("LEP 43") and Penrith Interim Development Order No 93 (as amended). Penrith Panthers is outside the boundary of Penrith City Centre as defined in Penrith Local Environmental Plan (Penrith City Centre) ("Penrith LEP 1997").

On 23 June 1998 the Club lodged a development application for the following development at Penrith Panthers: (i) 12 cinemas;

(vi) a 20 metre covered pedestrian link to the existing Penrith Panthers club building;

(xi) the construction of a second access road to the existing Panthers Club building opposite Ransley Street. The proposed cinema complex is to have seating for a total of 3316 people.

On 7 December 1998 the Council resolved to grant consent to the development application subject to a number of conditions. The Council also resolved to support variations to clauses 2(2)(b)(i), 16(2) and 18(2) of LEP 43, pursuant to the provisions of State Environmental Planning Policy No 1 ("SEPP No 1").

The grounds relied upon by the applicant, as I understand them, are as follows: (a) the Council failed to take into consideration, or to adequately or properly take into consideration, the social and economic effect of the development in the locality as required by s 90(1)(d) of the Environmental Planning & Assessment Act 1979 ("the Act") (now s 79C(1)(b));

(b) the Council failed to take into consideration the objectives of Penrith LEP 1997;

(d) the Council failed to take into consideration clause 2(2)(b)(i) of LEP 43 relating to the provision of vehicular access;

(e) the Council granted consent to a development which was in breach of clause 16(2) of LEP 43 relating to the provision of vehicular access. Moreover, it was not open to the Council to resolve to support the variations to clauses 2(2)(b)(i) and clause 16(2) of LEP 43 pursuant to SEPP No 1 because neither of those clauses is a development standard which is subject to SEPP No 1;

(f) the resolution of the Council to grant the consent was manifestly unreasonable. Consideration of the social and economic impact

It is convenient to examine under this heading the first two grounds relied upon by the applicant, since they overlap.

Penrith LEP 1997 applies to the Penrith city centre, which is the Penrith central business district. As I have noted above, Penrith Panthers is not within the Penrith central business district. Clause 2 of Penrith LEP 1997 relevantly provides: (1) The aims of this plan are: (a) to encourage the development of the Penrith City Centre as the principal retail, commercial, cultural and social centre in the local government area of Penrith with an environment which responds to the needs of those who will use it.; and

... (3) The Council must consider the aims and objectives of this plan in determining development applications .... ."

Mr W R Davison SC, who (with Mr D T Miller) appears for the applicant, submits that the granting of consent to the development application will detract from the Penrith City Centre contrary to the aims set out in clause 2(1)(a) of the Penrith LEP 1997 and the Council must therefore have failed to consider those aims in granting the consent.

Cinemas are permissible with the consent of the Council on the land occupied by Penrith Panthers: LEP 43, clause 19(3), as amended by Penrith LEP No 160. Subclause 19(7) of LEP 43 provides that before granting consent to development under subclause (3) the Council must consult with the Director of the Department of Environment & Planning.

The Council consulted as required by subclause 19(7) following the submission to it of a previous development application for a cinema complex and an IMAX cinema at Penrith Panthers, which had been lodged in November 1997 but which had then been withdrawn on 23 June 1998 (the same date on which the present development application was lodged). On 30 January 1998 the Regional Manager of the Department furnished an advice as follows: I refer to your letter of 25 November, 1997 requesting the Department's comments in relation to the above development application, particularly in relation to Metropolitan Planning Policies.

The Metropolitan Strategy adopts the strategic direction of achieving a compact city, with increased emphasis on public transport, in order to address declining air quality and to improve access to facilities and services. Concentrating high transport generating uses in commercially viable centres with investment in public and private infrastructure has a key role in reducing the growth of car dependency.

The Retail Policy for the Greater Metropolitan Region, which at this stage has been released in draft form, addresses the importance of concentrating commercial facilities and services in existing centres which are well supported by public transport. The policy specifically discusses cinema complexes, and the benefit of locating such development in major business centres.

Whether or not the proposal is consistent with these policies can be determined by testing it against the desired policy outcomes. Council therefore needs to satisfy itself that the proposed cinema development: 1. will not impact upon the viability or vitality of the Penrith CBD; and

will be able to manage transport demand (limit VKT growth) to the same extent that a centre location would be able to, both now and in the future.

The November 1997 development application was accompanied by a report prepared by Thomas Consultants Pty Ltd ("Thomas") dated October 1997 entitled " Panthers Cinemas Economic Impact Assessment ". That development application was also accompanied by an additional report prepared by BIS Shrapnel Pty Ltd ("BIS Shrapnel") dated October 1997 entitled " The Net Economic Benefit to the Penrith Region of Panthers Cinema Development ". The Council commissioned an independent report on the social and economic impact of the cinema complex associated with the development. That independent report was furnished to the Council by Leyshon Consulting ("Leyshon") in March 1998.

The development application which was lodged on 23 June 1998 was accompanied by a report by Thomas dated June 1998 entitled " Panthers Cinemas Economic Assessment " and a report by BIS Shrapnel dated May 1998 entitled " The Net Economic Benefit to the Penrith Region of Panthers Cinema Development ".

On 7 July 1998 the Council advised the Department of Urban Affairs & Planning that the Club had withdrawn its current development application and had submitted a new application to carry out modified but similar development. On 30 September 1998 the Department replied and stated: " The Department's comments in relation to transport demand and impact on the viability of the Penrith CBD apply equally to the current proposal ".

On 7 August 1998 BBC Consulting Planners sent a lengthy submission to the Council on behalf of the present applicant (Hoyts) on the new development application to erect cinemas at Penrith Panthers. Attached to the submission was a report by Jebb Holland Dimasi dated 7 August 1998 which includes a critical analysis of the Thomas and BIS Shrapnel reports which accompanied the development application.

On 2 October 1998 JBA Urban Planning Consultants, who had also prepared the statement of environmental effects which accompanied the development application, sent a letter to the Council referring, inter alia , to the absence of any adverse economic impact following the opening of the Penrith Plaza Cinemas a few months previously (operated by Hoyts).

On 8 October 1998 the Council's independent consultant, Leyshon, provided the Council with a supplementary report on the economic impact of the new development application and saw no reason to alter substantially the conclusion made in the previous report of March 1998.

On 9 October 1998 the Council's Works Inspection Committee received a report by its senior environmental planner. Annexed to the report was a copy of an advice furnished to the Council by Mr S B Austin QC. That advice had been furnished in 1996 in relation to the development application for the Penrith Plaza Cinema Complex which has since been approved and erected and is now operated by Hoyts. The advice specifically draws attention to the Council's obligation to consider the social and economic effect of the development in the locality as required by s 90(1)(d) of the Act. The report of 9 October 1998 states ( inter alia ): Council is required to assess the social and economic effect of the proposal. Of primary importance is the impact of the proposal on the social and economic vitality and viability of the City Centre. This impact can be gauged by assessing the impact the proposal has on the availability of services in the City Centre.

The application is accompanied by reports from BIS Shrapnel and Thomas Consultants Pty Limited indicating the proposal would generate net economic benefits to the region, not unreasonably impact on the viability of Hoyts operation and provide the necessary support to enable Panthers to compete in the entertainment and tourist market.

Submissions, supported by a [ sic ] economic analysis prepared by Jebb Holland Dimasi, have been received from Hoyts and Lend Lease stating that Council should question the need for such a high provision of screens in Penrith, especially where the proposed complex will compete directly with cinemas in the City Centre, which is likely to detract from the vitality, function and strength of the City Centre.

Council engaged the services of Leyshon Consulting to assist in assessing the social and economic aspects of the previous proposal to establish cinemas on the Panthers site. That report concludes that Council is clearly faced with a difficult political problem in relation to this application. On the one hand Panthers is a very important economic asset for the Penrith community and we accept the view of BIS Shrapnel that Panthers is facing an increasingly competitive environment as far as the provision of entertainment services is concerned. On the other hand, however, there is substantial public and private investment in the CBD which will be compromised to some extent if this application is approved.

On 26 October 1998 the Council considered a lengthy report on the development application prepared by its senior environmental planner and which canvases ( inter alia ) the social and economic effect of the development. Attached to the report were copies of the executive summaries/conclusions of the Thomas report of June 1998, the BIS Shrapnel report of May 1998, the BBC Consulting Planners submission of 7 August 1998, the Jebb Holland Dimasi report of 7 August 1998, the full text of the Leyson supplementary report of 8 October 1998, the full text of the Leyshon report of March 1998 (both having been commissioned by the Council), the advice of Mr Austin QC and the letter of JBA Urban Planning Consultants of 2 October 1998.

A number of persons were permitted by the Council to address the meeting held on 26 October 1998, including Mr W R Davison SC representing Hoyts. After debate the Council resolved that the application be deferred pending consideration of further issues and the provision of additional information including ( inter alia ) from the Penrith Chamber of Commerce.

On 30 October 1998 the Council requested Leyshon to provide it with a further report on the following topics arising out of the proposal: (1) Economic impact on Hoyts Plaza Cinema, Plaza businesses and businesses in proximity to the Plaza; (2) economic impact on businesses in the Lawson Street locality; (3) credibility of Thomas Consulting information; (4) fringe area retail study; and (5) job creation. As to the first of these topics the Council request states: In addition, what has not been clearly discussed to date is whether or not there are any implications for any other businesses in the vicinity of the Plaza development which may be affected by a down-turn in patronage to Hoyts Plaza Cinemas, in the same way that analysis has been made of that effect in the Lawson Street area related to Haydens.

Also on 30 October 1998 the Council received a letter from the Executive Director of the Penrith Chamber of Commerce. The letter includes the following statement: The Chamber believes that cinemas are an entertainment use and are appropriate for the Panthers site .

The letter states that the Chamber has consciously made a formal decision not to raise any objection to the proposal.

On 3 December 1998 Leyshon provided the Council with the requested additional advice. The report notes that Penrith Plaza ranks tenth amongst the top 73 shopping centres in Australia, that it is well placed to accommodate any impact on retail spending and together with the continuing population growth in the trade area the retail impact on Penrith Plaza on the Penrith Panthers proposal would be generally negligible. As to the impact on retailers outside Penrith Plaza but adjacent to it, the report states: The same comment applies with respect to retailers outside but adjacent to Penrith Plaza. In our opinion, the flow-on benefit of visitation to Hoyts on retailers located outside the Plaza would be less than that associated with visits to the Hayden cinema. This is primarily because Penrith Plaza is more of a 'fortress' than the Hayden complex. Given the substantial parking within Penrith Plaza and adjacent to Hoyts it is possible for a high proportion of Hoyts patrons to drive to the centre and not interact at all with businesses located outside Penrith Plaza. In our opinion, therefore, a downturn of anywhere between -15% and -25% on visitation to Hoyts resulting from the Panthers proposal is likely to have negligible effects on retailers situated outside but adjacent to Penrith Plaza

The Leyshon report indicates that 13 business operators close to Hayden Cinemas in Lawson Street (which, although in the Penrith central business district is not part of Penrith Plaza) were interviewed. Leyshon was able to draw the inference that the downturn in business at the Hayden Cinemas as a consequence of the opening of the Hoyts Cinemas in Penrith Plaza has had an adverse effect on businesses, particularly food businesses, in the immediate surrounding area, contributing to a decline in retail activity at the eastern end of the central business district. This decline has been exacerbated by the closure of the post office. The report also notes that a number of those interviewed believe that the impact of the Panthers proposal could not be significant as " the damage has already been done " at the eastern end of the central business district (by the opening of the Hoyts Cinemas).

As to the credibility of the Thomas material, the Leyshon report concludes as follows: On balance, it is our opinion that the Thomas analysis in this instance under-estimates the likely impact of the Panthers proposal on Hoyts with the true impact likely to be (based on the revised position with respect to Hayden) in the order of -18% to -20%. While such an impact is nonetheless significant, in our view it is highly unlikely to lead to the closure of Hoyts at Penrith Plaza. This is particularly so if Hoyts are, in fact, currently enjoying a visitation level well above that previously forecast by JHD and others.

Finally, the Leyshon report states that the Panthers proposal is unrelated to the fringe area retail study and the number of employment positions which the proposal is likely to generate has been over-estimated by BIS Shrapnel (on behalf of the Club) and under-estimated by Hoyts.

On 7 December 1998 the Council considered a further lengthy report on the development application prepared by its senior environmental planner. As to the social and economic impact of the development the report summarises the advice of Mr Austin QC, summarises the various experts' reports on this issue and expressly refers to the principal aim of the Penrith LEP 1997, namely: (a) to encourage the development of the Penrith city centre as the principal retail, commercial, cultural and social centre in the local government area of Penrith with an environment which responds to the needs of those who use it ...

The Senior Environmental Planner's report refers to the response from the Penrith Chamber of Commerce (to which I have referred and annexes a copy of that response) and refers extensively to the further report commissioned from Leyshon (and annexes a copy of it). The report also contains as annexures a summary of all submissions received by the Council, the relevant sections of the Thomas report, the executive summary of the BIS Shrapnel report, the executive summary of the BBC Consulting Planners report, the relevant section of the Jebb Holland Dimasi report, the further Leyshon report of 8 October 1998, the full text of the Leyshon report of March 1998, the report of JBA Urban Planning Consultants of 2 October 1998 and the additional advice of Leyshon of 3 December 1998.

The report of the Senior Environmental Planner contains an extensive discussion of the social and economic impact of the development, after which it contains the following statement: The proposal will impact on the substantial private and public investment in the city centre, but that impact is not considered to be of such extent as to interfere with the continued viability and vitality of the city centre. In our view, the proposal is considered to promote the social and economic welfare of the community and is accordingly in the public interest.

At the Council's meeting of 7 December 1998 a representative of the Penrith Plaza retailers, a further Penrith Plaza retailer and the Chief Executive Officer of the Club addressed the meeting. After debate the Council resolved unanimously to approve the development application.

Section 90(1)(d) of the Act as it then relevantly stood required the consent authority in determining a development application to take into consideration: " the social effect and the economic effect of that development in the locality ".

The Council was clearly conscious of its duty to take into consideration the social and economic effect of the development in the locality. It was expressly reminded of the requirements of s 90(1)(d) in Mr Austin's advice, which each member of the Council had as an annexure to the Senior Environmental Planner's report. The requirement was also expressly referred to in the two reports of the Council's Senior Environmental Planner. The Council's appreciation of its duty is evidenced by its commissioning of its own independent expert advice on the topic, the first Leyshon report. The Council's appreciation of its duty was reinforced by its commissioning of the second Leyshon report. It is further evidenced by the debate at the two Council meetings at which the development application was considered, which is described in some detail in the evidence and which I have read, at which the issue was extensively discussed.

Notwithstanding the voluminous amount of material, both expert and non-expert (the latter including the many objections received by the Council to the proposed development) which was before the Council, Mr Davison submits that there was a failure to take into consideration the social and economic effect of the development. Mr Davison's submission, as I understood it, is as follows: (1) the Council failed to identify the "locality" for the purpose of its s 90(1)(d) consideration; (2) the Council failed to consider in any real sense the relevant matter of the probable economic impact of the development on the Penrith central business district; and (3) the Council consequently failed to acquaint itself with such material as would permit it to consider the question raised by the Department of Urban Affairs & Planning and accepted by the Council as being relevant, namely whether the proposed development would impact on the viability or vitality of the Penrith central business district. In particular, Mr Davison submits that the response by Leyshon to the Council's request for additional advice, noted above, was in reality non-responsive. Mr Davison was particularly critical of the fact that no business survey data was sought or obtained. In the absence of base data the impact was never quantified. In support of his submission Mr Davison referred to Parramatta City Council v Hale (1982) 47 LGRA 319, particularly at 340, for the proposition that if the Council is to consider an impact it must be aware of what is the impact, which carries with it an obligation upon the Council to acquaint itself with the material which, in this case, it did not have.

I do not agree with the submission. The material on the issue of the social and economic impact which was before the Council was voluminous. The written material comprised not only the various experts' reports to which I have referred and the two reports of the Council's Senior Environmental Planner but also the many objections to the proposal which the Council had received. At the two Council meetings at which the development application was considered, a number of people were permitted to address the Council and these included not only the proponents' representatives but also a number of objectors including Mr Davison himself (on behalf of Hoyts). The discussion on the topic at each of the two meetings was extensive.

In order to give an indication of the extent of the material which was before the Council, it took me about two full days to sit down and read all the material that was tendered in evidence and which was before the Council. (I do not know if there was any other documentary material before the Council which was not tendered in evidence.) Seldom is a Council provided with so much information on a particular issue on a development application. The examination of the social and information impact was the major issue. There was no need, in my opinion, for the Council to engage an independent consultant to examine it. The Council could have simply relied upon the reports of the proponent's experts and of the objectors. Nevertheless, it went further than it needed to in engaging an independent expert. It fully complied with the terms of the letter from the Department of Urban Affairs and Planning, referred to in paragraphs 11 and 14 above.

It was in my view not necessary to insist, as Mr Davison submits, on going behind the Leyshon reports to the base data. That is to insist on a standard of perfection. No matter how extensive or how thorough be an investigation into an issue, there will always be someone to come along and say that more could and should have been done. The Council was entitled to rely upon the opinions of its independent expert as presented, whose reports are largely a commentary on the reports furnished by the proponent and the report furnished on behalf of Hoyts. The Council was entitled to accept the opinions expressed in the Leyshon reports and conclude that the proposal will not impact on the viability or vitality of the Penrith central business district. In my view the Council satisfied the obligation described in Hale . It was told of what the extent of the impact was likely to be and was thus aware of it. It may be that not all the base data was not before the Council but the conclusions of all the relevant experts were. By no means can it be suggested that the Council's consideration of this issue was either cursory or superficial. It was, on the contrary, exhaustive, thorough and was fully and carefully considered. Mr Davison is unable to point to any additional material which was available to the Council and which was not taken into account. There was no failure to take the matter into consideration.

It is also clear that the Council, in considering the social and economic impact of the proposal, identified the " locality " for the purpose of s 90(1)(d) as including the Penrith central business district as well as the subject site. This is clear from the focus of the Council's consideration on the question of whether the proposal would impact upon the viability or vitality of the Penrith central business district, identified by the Department of Urban Affairs & Planning in its letter. It is also clear from the many references in the various experts' reports, in the two reports of the Senior Environmental Planner and in the objections to the proposal which go to the impact upon the Penrith central business district. It is also clear from the references in the reports by the Senior Environmental Planner to be a relevant aim of the Penrith LEP 1997, to which I have referred in paragraphs 8 and 27 above. In my view none of the bases for the first ground relied upon by the applicant are made out.

It is convenient to deal with this issue next, since it is related to the first issue. The test is whether the Council has " come to a conclusion so unreasonable that no reasonable authority could ever have come to it " ( Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234, per Lord Green MR). The test has long been embraced in Australia ( Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41). Importantly, it is not the function of the Court to substitute its own decision for that of the Council by exercising a discretion which the legislature has vested in the Council ( Peko-Wallsend , at 40).

Mr Davison's submission on this issue, as I understood it, appears to be based on a contention that the Council had no information before it which quantified the economic effect of the development on the Penrith central business district. The evidence, however, is to the contrary. I have referred above to the various reports which the Council had before it and in particular, to the further Leyshon report of 3 December 1998 in which the impact is stated as being negligible. It is an opinion which is in turn based upon the estimated impact of the proposed development on the Hoyts Cinemas at Penrith Plaza, within the central business district and which is quantified by Leyshon in percentage terms. The Council was, in my view, entitled to rely upon this expert opinion. The Council determination does not come near to infringing the Wednesbury test. This is particularly so in view of the support for the development from the Penrith Chamber of Commerce, a body whose members otherwise would be expected to be adversely affected by the development.

Mr Davison submits that the whole of the advice of Mr Austin QC was placed before the Council at its two meetings held on 26 October 1998 and 7 December 1998 and that the advice was irrelevant because it was furnished in relation to a previous development application for a cinema complex within the central business district. The advice was directed to a consideration of the economic effect of that development within Penrith Plaza at the western end of the central business district, upon the existing cinemas in the eastern end of the central business district and upon the flow-on effect on other businesses in the eastern end of the central business district. Mr Davison submits that the advice was of no relevance to a consideration of the proposed development at Penrith Panthers, neither did it relate to the viability or vitality of the Penrith central business district, which was the issue arising under the present application.

The context of the advice was, however, expressly brought to the attention of the members of the Council. In the two reports of the Senior Environmental Planner of 26 October 1998 and 7 December 1998, the text of a letter from the Council's solicitors is set out. The text of the letter relevantly states: It should be noted that the advice given by Mr Austin QC related to the Lend Lease development application for a Multiplex cinema complex at Penrith Plaza - subsequently approved by Council in October 1996 - and, as such, related to different facts from the present circumstances. Nevertheless we believe that Mr Austin's advice is a useful guide to the obligations of the Council in considering s 90(1)(d) of the EP&A Act. ...

Moreover, the text of Mr Austin's advice makes it abundantly clear that it was furnished in relation to a development application for a cinema complex at Penrith Plaza. Whilst the advice does not relate to the specific issue of the viability or vitality of the Penrith central business district, it does draw attention to the provisions of s 90(1)(d) of the Act and to the general nature of the Council's duty thereunder. That is not and was not an irrelevant consideration in relation to the present development application. No member of the Council could have been misled by a reading of the advice. No member of the Council was called to say that he or she had been misled by the advice.

The advice furnished by Mr Austin QC is an accurate and useful guide to the general obligations of the Council which arise under s 90(1)(d) of the Act. If the Council had failed to take into consideration its general obligations under that provision then Mr Davison would have a sound cause for complaint. Yet he submits that the Council failed in its duty because it did take into consideration its general obligations. To say that this is a bold submission is an understatement. It is true that the advice was not concerned with the issue of the effect of the development on the viability or vitality of the Penrith central business district. That is an issue which is extensively canvassed elsewhere in the material that was before the Council. But the submission, that it is an irrelevant consideration to have an advice which explains the Council's general obligations under the provision, must be rejected.

Clause 2(2) of LEP 43 relevantly provides: The aims and objectives of this plan with respect to the part of the land to which the plan applies having frontage to Mulgoa Road and Jamison Street are to -

(b) maintain safe and efficient traffic movements along Mulgoa Road by - (i) the provision of only one point of vehicular access and egress (from Mulgoa Road) to the Club, motel and recreation development and of only one point of vehicular access and egress from Mulgoa Road to the medium density housing development;

Clause 16(2) of LEP 43 relevantly provides: (2) A person shall not develop land within Zone No 6(c) or 2(d) unless arrangements satisfactory to the Council are made respectively for the provision of - (a) one intersection with Mulgoa Road for the purposes of access to development within Zone No 6(c);

(b) one intersection with Mulgoa Road for the purposes of access to development within Zone No 2(d); and

There have hitherto been two vehicular intersections providing access to Penrith Panthers from Mulgoa Road. The proposed development involves the closing of the northernmost intersection known as Retreat Drive and replacing it with a new intersection slightly further south and directly opposite Ransley Street. No change is proposed to the southernmost intersection.

The proposed cinema complex straddles the boundary of the 2(d) zone and the 6(c) zone. The proposed new intersection will provide access to the proposed development as well as to the existing medium density housing development within the 2(d) zone presently accessed by Retreat Drive. That is to say, the proposed new intersection will provide access to development within both zones, contrary to both clauses 2(2)(b)(i) and 16(2) of LEP 43.

In granting its consent to the development application the Council resolved to support the variation to clauses 2(2)(b)(i), 16(2) and 18(2) of LEP 43 under the provisions of SEPP No 1. (Clause 18(2) is not relevant for present purposes.)

Mr Davison SC submits that in making the resolution and granting the consent the Council failed to consider clause 2(2) of LEP 434, being a clause which it was required to take into account in determining the development application. Mr Davison further submits that the Council characterised clause 2(2) as a development standard amenable to objection pursuant to SEPP No 1 that clause 2(2) is not a development standard and accordingly it was not open to the Council to make the resolution to vary clause 2(2).

The submission that the Council failed to consider clauses 2(2) and 16(2) is not supported by the evidence. There is express reference to each of those provisions in the two reports of the Council's Senior Environmental Planner and to the Club's objection thereto under SEPP No 1. The reports note that in its previous consideration of the November 1997 development application the Council considered and endorsed the provision of the new intersection for the purpose of access from Mulgoa Road. There is discussion in the reports of the objection under SEPP No 1 to clauses 2(2) and 16(2) and of the merits thereof. I reject the submission that the Council failed to take these clauses into consideration.

It is also necessary to consider the provisions of SEPP No 1 itself. It states its aim is to provide flexibility in the application of planning controls operating by virtue of " development standards " in circumstances where strict compliance therewith would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects in s 5(a)(i) and (ii) of the Act (clause 3). It provides that where a development could, but for any " development standard " be carried out, the person intending to carry out that development may make a development application for that development supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case and specifying the grounds of that objection (clause 6). Where the consent authority is satisfied that the objection is well founded and also is of the opinion that granting of consent to that development application is consistent with the aims set out in clause 3 it may, with the concurrence of the director of the Department of Urban Affairs & Planning, grant consent to that development application notwithstanding the development standard in question (clause 7).

SEPP No 1 adopts the definition of " development standard " in s 4(1) of the Act. That definition is relevantly as follows: "Development standards" means provisions of an environmental planning instrument in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:

The words " without limiting the generality of the foregoing " in the definition mean that the matters detailed in the various subparagraphs of the definition are conferred by way of illustration in order to dispel any doubt as to the extent of the general power; and the width of the general power is not to be restricted by reference to the more specific character of that which follows ( Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672, 53 ALJR 522, 24 ALR 672).

The question of what is and what is not a development standard for the purpose of the definition was comprehensively considered by the Court of Appeal in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) (1970) 71 LGRA 222. In that case, Mahoney JA noted (at 232-233) three things that may be said about the definition. First, the definition applies only to provisions in relation to the carrying out of development, so that it deals with provisions relating, not to whether the development may be carried out at all, but to what occurs in the carrying out of the development and whether, when it is being carried out, particular things are required to be done or particular standards are to be observed. Secondly, that with which the definition deals is the details of the development which is to be carried out or the standards to be observed in the carrying out of it and not whether the development may be carried out at all. Thirdly, the matters detailed in the various subparagraphs of the definition assume that development of a particular kind can be carried out.

In Mayoh , Mahoney JA also said (at 234): There is, in my opinion, a distinction in the provisions between a provision which in form provides: on land of characteristic X no development may be carried out and a provision which in form provides: on such land development may be carried out in a particular way or to a particular extent.

In Mayoh , Clarke JA said (at 236): There is, in my view, a great difference between a clause which prohibits the carrying out of a development on identified land and one fixing requirements to be complied with in carrying out that development.

In Bell v Shellharbour Municipal Council (1993) 78 LGERA 429, Cripps JA said (at 433): There is, self-evidently, a difference between a clause absolutely prohibiting development on the one hand and a clause regulating development by specifying requirements or fixing standards on the other. Whether a particular clause in a local environmental planning instrument has the effect of regulating or prohibiting development is a matter of construction. In some cases the Court has held that the relevant clause was an absolute prohibition - in others it was held that the clause is regulatory. But, as was pointed out in Mayoh , the obligation of the Court is to interpret the clause in the instrument before it.

Counsel referred to a number of cases in which a clause in an environmental planning instrument was found to be either a development standard or a prohibition. I do not find any of these cases to be helpful since each provision is different and must be interpreted individually having regard to its language.

In the present case the proposed development is permissible with consent in both the 2(d) zone and the 6(c) zone. Neither clauses 2(2)(b) or 16(2) prohibit the proposed use. It seems to me that all those clauses do is to fix the number of access points from Mulgoa Road (in the case of clause 2(2)(b)) or the number of intersections with Mulgoa Road (in the case of clause 16(2)) in the carrying out of any permitted development. That seems to me to amount in each case to a provision which fixes requirements to be complied with in carrying out that development. That is to say, each is a provision which deals with the details of a permitted development or a standard to be observed in the carrying out of a permitted development. It thus seems to me, in the absence of express authority to the contrary, that a provision which fixes the number of access points from a road or the number of intersections with a road are relevantly development standards. They are provisions " in relation to the carrying out of development ".

The view to which I have come is reinforced by the language of clause 16(2), which is the operative provision, as was pointed out in submissions by Mr B A J Coles QC who appears for the Club. Clause 16(2) contemplates the " making of arrangements " as opposed to a fixed description of the quality of the land in question; the relevant " arrangements " are to be " satisfactory to the Council "; the subject matter of clause 16(2) (the intersection) is itself physically separate from and adjectival to the site and is thus external to the proposed development itself; and the purpose of clause 16(2) is " to maintain safe and efficient traffic movements along Mulgoa Road " (clause 2(2)(b)), which is a concept which necessarily demands flexible responses to varying conditions.

I thus conclude that clause 16(2) is a development standard which may be the subject of an objection under SEPP No 1. I have already concluded that there is nothing in the Council's consideration of the social and economic impact of the proposed development which suggests that the determination to grant consent thereto is manifestly unreasonable. Similarly there is nothing in the Council's consideration of the provision for access to the proposed development, including its consideration of the objection under SEPP No 1, which suggests that its determination is manifestly unreasonable. In particular, there will be only two means of access to Penrith Panthers, being the same number as at present. The proposed development merely involves relocating one of the existing access points to a better location for traffic management reasons. There is nothing even remotely unreasonable in that.

Each ground of challenge to the Council's determination is not established. It follows that the proceedings must be dismissed. I therefore make the following orders: 1. The application is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Land and Environment Court of New South Wales CITATION: Hoyts Cinemas Ltd - v - Penrith City Council & Anor [1999] NSWLEC 187

Hoyts Cinemas Ltd - v - Penrith City Council & Anor

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