Hurstville City Council v Minister for Planning and Infrastructure

Catchwords

(2009) 239 CLR 27 Annetts v McCann [1990] HCA 57(1990) 170 CLR 596 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72(1994) 49 FCR 576 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26(1981) 147 CLR 297 Cranky Rock Road Action Group v Cowra Shire Council [2006] NSWCA 339(2006) 150 LGERA 81 Drake-Brockman v Minister for Planning [2007] NSWLEC 490(2007) 158 LGERA 349 FAI Insurances Ltd v Winneke [1982] HCA 26(1982) 151 CLR 342 Geelong Community for Good Life Inc v Environment Protection Authority (EPA) [2008] VSC 185(2009) 20 VR 338 Greengate Consulting (NSW) Pty Ltd t/as Greengate Property Group v Ashfield Municipal Council [2008] NSWLEC 253(2008) 162 LGERA 247 Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22(2002) 119 LGERA 86 IGS Enterprises Pty Ltd v Hornsby Shire Council [2008] NSWLEC 304(2008) 164 LGERA 424 IW v City of Perth [1997] HCA 30(1997) 191 CLR 1 Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99(2006) 144 LGERA 408 Kioa v West [1985] HCA 81(1985) 159 CLR 550 Mulyan Pty Ltd v Cowra Shire Council [1999] NSWLEC 212

Judgment (26 paragraphs)

[1]

ation and Citizenship [2010] HCA 23; (2010) 241 CLR 252 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 Texts Cited: DC Pearce and RS Geddes, Statutory Interpretation in Australia, 7th ed (2010) LexisNexis Butterworths Category: Principal judgment Parties: Hurstville City Council (Applicant) Minister for Planning and Infrastructure (First Respondent) Earljest Pty Limited (Second Respondent) Henlia No. 24 Pty Limited (Third Respondent) Representation: Mr R Lancaster SC (Applicant) Mr A Shearer (First Respondent) Mr J Doyle (Second Respondent) (submitting appearance) Mr T Robertson SC with Mr J Lazarus (Third Respondent) Norton Rose Australia (Applicant) Department of Planning and Infrastructure (First Respondent) Wilshire Webb Staunton Beattie (Second Respondent) (submitting appearance) Bartier Perry (Third Respondent) File Number(s): 40931 of 2011

[2]

Judgment 1These judicial review proceedings allege that an approval of the First Respondent (the Minister) by his delegate the Planning Assessment Commission (PAC) of a concept plan for land including 21 - 35 Treacy Street, Hurstville (the land) under s 75O of the Environmental Planning and Assessment Act 1979 (the EPA Act) on 1 July 2011 is invalid. The Second Respondent, Earljest Pty Limited (Earljest) the proponent, has filed a submitting appearance. 2By Amended Summons filed on 9 November 2011 and Amended Points of Claim, Hurstville City Council (the Council) seeks a declaration that the concept plan approval is invalid and of no effect, and an order that it be set aside on two grounds: (a)owner's consent in respect of 23 - 29 Treacy Street was not provided. The Minister did not have power to grant the approval because one of the requirements for a project application was not satisfied, namely cl 8F(1) of the Environmental Planning and Assessment Regulation 2000 (the Regulation), which requires the consent of the owner of land for a project application; (b)the PAC breached its obligation to give procedural fairness to the Council by not giving it the opportunity to respond to adverse information provided to the PAC by the proponent. 3There is no dispute that the Court has jurisdiction to determine the application for judicial review of the concept plan approval by the Council.

[3]

Environmental Planning and Assessment Act 1979 4At the time of lodgment (9 December 2010) and determination (1 July 2011) of the concept plan approval application, Pt 3A of the EPA Act was in force. Part 3A was repealed by the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011, the relevant parts of which commenced on 1 October 2011. 5In Div 1 "Preliminary" s 75A "Definitions" relevantly provides: major infrastructure development includes development, whether or not carried out by a public authority, for the purposes of roads, railways, pipelines, electricity generation, electricity or gas transmission or distribution, sewerage treatment facilities, dams or water reticulation works, desalination plants, trading ports or other public utility undertakings. project means development that is declared under section 75B to be a project to which this Part applies. 6Section 75B "Projects to which Part applies" relevantly provides: (1) General This Part applies to the carrying out of development that is declared under this section to be a project to which this Part applies: (a) by a State environmental planning policy, or (b) by order of the Minister published in the Gazette (including by an order that amends such a policy). The carrying out of particular or a class of development, or development for a program or plan of works or activities, may be so declared. 7In Div 2 "Environmental assessment and approval of projects" s 75F "Environmental assessment requirements for approval" provides: (1) The Minister may, after consultation with the Minister for the Environment, publish guidelines in the Gazette with respect to environmental assessment requirements for the purpose of the Minister approving projects under this Part (including levels of assessment and the public authorities and others to be consulted). (2) When an application is made for the Minister's approval for a project, the Director-General is to prepare environmental assessment requirements having regard to any such relevant guidelines in respect of the project. (3) The Director-General is to notify the proponent of the environmental assessment requirements. The Director-General may modify those requirements by further notice to the proponent. (4) In preparing the environmental assessment requirements, the Director-General is to consult relevant public authorities and have regard to the need for the requirements to assess any key issues raised by those public authorities. 8Section 75H "Environmental assessment and public consultation" provides: (1) The proponent is to submit to the Director-General the environmental assessment required under this Division for approval to carry out the project. (2) If the Director-General considers that the environmental assessment does not adequately address the environmental assessment requirements, the Director-General may require the proponent to submit a revised environmental assessment to address the matters notified to the proponent. (3) After the environmental assessment has been accepted by the Director-General, the Director-General must, in accordance with any guidelines published by the Minister in the Gazette, make the environmental assessment publicly available for at least 30 days. (4) During that period, any person (including a public authority) may make a written submission to the Director-General concerning the matter. (5) The Director-General is to provide copies of submissions received by the Director-General or a report of the issues raised in those submissions to: (a) the proponent, and (b) if the project will require an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997-the Department of Environment, Climate Change and Water, and (c) any other public authority the Director-General considers appropriate. (6) The Director-General may require the proponent to submit to the Director-General: (a) a response to the issues raised in those submissions, and (b) a preferred project report that outlines any proposed changes to the project to minimise its environmental impact, and (c) any revised statement of commitments. (7) If the Director-General considers that significant changes are proposed to the nature of the project, the Director-General may require the proponent to make the preferred project report available to the public. 9Section 75I "Director-General's environmental assessment report" provides: (1) The Director-General is to give a report on a project to the Minister for the purposes of the Minister's consideration of the application for approval to carry out the project. (2) The Director-General's report is to include: (a) a copy of the proponent's environmental assessment and any preferred project report, and (b) any advice provided by public authorities on the project, and (c) a copy of any report of the Planning Assessment Commission in respect of the project, and (d) a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and (e) except in the case of a critical infrastructure project-a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and (f) any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate, and (g) a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project. 10In Div 3 "Concept plans for certain projects" s 75M "Application for approval of concept plan for project" provides: (1) The Minister may authorise or require the proponent to apply for approval of a concept plan for a project. (2) The application is to: (a) outline the scope of the project and any development options, and (b) set out any proposal for the staged implementation of the project, and (c) contain any other matter required by the Director-General. A detailed description of the project is not required. (3) The application is to be lodged with the Director-General. ... 11Section 75N "Environmental assessment, public consultation and Director-General's report for concept plan" provides: Sections 75F (Environmental assessment requirements for approval), 75H (Environmental assessment and public consultation) and 75I (Director-General's environmental assessment report) apply, subject to the regulations, with respect to approval for the concept plan for a project in the same way as they apply with respect to approval to carry out a project. 12Section 75O "Giving of approval for concept plan" provides: (1) If: (a) the proponent makes an application for the approval of the Minister under this Part of a concept plan for a project, and (b) the Director-General has given his or her report on the project to the Minister, the Minister may give or refuse to give approval for the concept plan for the project. (2) The Minister, when deciding whether or not to give approval for the concept plan, is to consider: (a) the Director-General's report on the project and the reports and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and (b) if the proponent is a public authority-any advice provided by the Minister having portfolio responsibility for the proponent, and (c) any findings or recommendations of the Planning Assessment Commission following a review in respect of the project. (3) In deciding whether or not to give approval for the concept plan for a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for a concept plan for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit. (4) Approval for a concept plan may be given under this Division with such modifications of the concept plan as the Minister may determine. (5) Approval for the concept plan may be given under this Division subject to satisfactory arrangements being made, before final approval is given for the project or any stage of the project under this Part or under the other provisions of this Act, for the purpose of fulfilling the obligations in a statement of commitments made by the proponent (including by entering into a planning agreement referred to in section 93F). 13In Div 5 "Miscellaneous" s 75X "Miscellaneous provisions relating to approvals under this Part" provides: ... (2) The following documents under this Part in relation to a project are to be made publicly available by the Director-General: (a) applications to carry out projects, (b) environmental assessment requirements for a project determined by the Director-General or the Minister, (c) environmental assessment reports of the Director-General to the Minister, (d) approvals to carry out projects given by the Minister, (e) applications for the Minister's approval of concept plans (and approvals of concept plans), (f) requests for modifications of approvals given by the Minister and any modifications made by the Minister. ... (5) The only requirement of this Part that is mandatory in connection with the validity of an approval of a project or of a concept plan for a project is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H (or under that section as applied by section 75N). This subsection does not affect the operation of section 75T in relation to a critical infrastructure project. 14Section 75Z "Regulations for purposes of Part" provides: The regulations may make provision for or with respect to the approval of projects (and concept plans for projects) under this Part and to approved projects (and concept plans), including: (a) prescribing time limits for dealing with applications or other matters under this Part and deeming acceptance or rejection of applications or other matters if those time limits are not complied with, and (b) requiring owners of land on which projects are proposed to be carried out to consent to applications for approvals under this Part, and ...

[4]

Environmental Planning and Assessment Regulation 2000 15In the Environmental Planning and Assessment Regulation 2000 (the Regulation) cl 8A "Definitions" relevantly provides: (1) In this Part: ... project application means: ... (b) an application for the Minister's approval for a concept plan for a project under Part 3A of the Act, or ... 16Clause 8D "Rejection of applications if proponent fails to comply with requirements" provides: (1) This clause applies to project applications. (2) If: (a) any such application has not been duly made, and (b) the Director-General has notified the proponent of the action required to ensure that the application is duly made, and (c) the proponent has failed to take that action within 14 days after being so notified, the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires). (3) If: (a) the proponent has failed to comply with the Director-General's requirements under section 75H of the Act in connection with an application, and (b) the Director-General has notified the proponent of the requirements that have not been complied with, and (c) the proponent has failed to comply with those requirements within 21 days after being so notified, the Minister may decide to reject the application without determining whether to approve or disapprove of the carrying out of the project or to give or refuse to give approval for the concept plan (as the case requires). (4) An application is taken to be rejected and never to have been made when the proponent is given notice of the Minister's decision to reject the application under this clause. (5) The Director-General must refund to the proponent the whole of any fee paid in connection with an application that is rejected under this clause. 17Clause 8F "Owner's consent or notification" relevantly provides: (1) The consent of the owner of land on which a project is to be carried out is required for a project application or modification application unless: (a) the application is made by a public authority, or (b) the application relates to a critical infrastructure project, or (c) the application relates to a mining or petroleum production project, or (d) the application relates to a linear infrastructure project, or (e) the application relates to a project on land with multiple owners designated by the Director-General for the purposes of this clause. ... (2) Any such consent may be obtained at any time before the determination of the application. 18Part 4 of the EPA Act and the Regulation relating to owner's consent were also referred to in argument. Section 78A(1) provides: (1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development. 19Clause 49(1) of the Regulation provides: (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land.

[5]

Evidence 20An agreed bundle of documents was tendered (exhibit A). A letter from the Council's solicitor to the Department of Planning (the Department) dated 22 February 2012 asked the Department to admit that owner's consent for 23 - 29 Treacy Street dated 8 November 2010 was not provided prior to the determination of the concept plan approval application. This fact was admitted in a letter from the Department dated 29 February 2012 both letters were tendered (exhibit B). 21Clause 12 "Development Application" of the put and call option deed between FCS Holdings Pty Limited (the grantor) and Earljest (as trustee for Hurstville Unit Trust) (the grantee) dated 24 December 2008 (exhibit 3A) states: (a) The Grantee may at any time from the date of this deed prepare and lodge with the Consent Authority, one or more development applications in respect of the Property and rezoning applications (or otherwise seek the rezoning of the Property) on terms determined by the Grantee, at the Grantee's cost. (b) In relation to the Development Application, the Grantor must, as an essential term of this deed, promptly sign all consents and other forms in its capacity as owner of the Property, upon request from the Grantee. (c) The Grantor must on the date of this deed sign and deliver to the Grantee the letter of consent in the form provided, addressed to Hurstville City Council. (d) The Grantee will keep the Grantor informed as to the progress of such Development Application and will notify the Grantor as soon as possible after it receives the Development Consent, in terms acceptable to the Grantee. (e) The Grantee may in its discretion appeal to the Land & Environment Court in respect of the Development Application, or any term of a Development Consent issued by the Consent Authority. 22 "Consent Authority" is defined in the deed as the Council or other such authority including the Court that may have jurisdiction to determine the development application. "Development Application" is defined as the "proposed application by the Grantee for the development of the Property for a mixed use development on terms determined by the Grantee ..."

[6]

Relevant facts 23There is no dispute about the facts relevant to the matters in issue. On 6 September 2010, the Minister formed the opinion that a development proposal for a mixed use development on the land is development of a kind that is described in Sch 1 of the State Environmental Planning Policy (Major Development) 2005, namely Group 5, cl 13 "Residential, commercial or retail projects" and declared it to be a project to which Pt 3A of the Act applied for the purposes of s 75B of the Act (exhibit A tab 2 p 13). 24On 8 October 2010, the Department issued the Director-General's environmental assessment requirements (DGRs) to Economia PDS Pty Ltd, consultants acting on behalf of the proponent (exhibit A tab 3). The Department acknowledged in its letter that the Department had received an application for the project, although the only application that has been produced is the later-dated application referred to below. 25By major project application dated 9 December 2010, Earljest (as trustee for the Hurstville Unit Trust) applied for approval of a concept plan for a mixed use residential and retail development at 21 - 35 Treacy Street (exhibit A tab 4). The estimated capital investment value of the project was $134,000,000. 26Section 6 of the application form providing for landowner's consent (exhibit A p 25) has the words "See attached" written on it. Five pages are attached (exhibit A p 27 - 31). No issue arises in respect of four of those pages which appear to be properly executed owner's consents by the owners of 21, 31, 33 and 35 Treacy Street. One of the five pages concerns the land at 23 - 29 Treacy Street. It is in the form of a letter from FCS Holdings Pty Limited to the General Manager of the Council dated 23 December 2008 in which it is stated that "FCS Holdings Pty Limited as owner of the above property consents to Earljest Pty Limited lodging any development consents in respect of the above property" (exhibit A p 30). It is common ground that FCS Holdings was the owner of the land comprising 23 - 29 Treacy Street at all material times before 26 August 2011. On and after 26 August 2011, the Third Respondent (Henlia No 24 Pty Limited) became the registered proprietor of that land. 27An environmental assessment (EA) dated 10 December 2010 was prepared by Economia PDS on behalf of Earljest (exhibit A tab 5). Concept approval was sought for the demolition of the existing buildings on the land and the construction of a residential and retail building, consisting of three basement levels of car parking; a supermarket, food court and other retail on lower ground, ground and first levels; and 257 apartments on levels 1 to 15. The proposed maximum height of the tower elements was 55m and the proposed residential floor space ratio was approximately 7:1. 28A preferred project report (PPR) dated 15 March 2011 was prepared by Economia PDS on behalf of Earljest (exhibit A tab 6). It contains various design revisions to the proposal (in section 3), a response to key issues raised by parties making submissions about the application (in section 4), and provides a revised statement of commitments by Earljest in respect of environmental management, mitigation and monitoring measures that are to be implemented (in section 5). 29In March 2011, the DG issued an environmental assessment report (DG's report) under s 75I of the Act (which applies to a concept plan approval by force of s 75N) (exhibit A tab 7). The Department noted that the final proposed form of the scheme was a 16-storey development with three levels of basement parking, 257 apartments, retail uses at ground and lower ground levels, total gross floor area of 29,036sqm, a maximum height of 55m and a floor space ratio of 6.78:1 (exhibit A tab 7 p 111). 30As the DG's report notes (exhibit A p 127), the Council objected to the application on a number of grounds, including that the proposal would be significantly non-compliant with existing and proposed future Hurstville planning controls for the area. In particular, the proposal was very substantially in excess of the height and density controls that applied to the site by operation of Hurstville Development Control Plan 2 and the proposed Hurstville Local Environmental Plan (Hurstville City Centre) 2010 (exhibit A p 130). 31On 21 April 2011, in response to a request for advice from the DG the PAC (constituted by Professor Kevin Sproats, Mr Lindsay Kelly and Ms Gabrielle Kibble) provided advice and comment on the concept plan approval application (exhibit A tab 8 p 175, tab 40). 32The PAC concluded by advising that it was satisfied that the Department had appropriately considered all relevant aspects of the concept plan and that the recommendations in the DG's report were reasonable (section 6) (exhibit A p 179). 33On 1 July 2011, the PAC (constituted by Mr Garry Payne and Mr Richard Thorp), as delegate of the Minister, determined (exhibit A tab 8 p 161): (a)to approve the concept plan subject to the terms and modifications in Sch 2 and the statement of commitments in Sch 4 (pursuant to s 75O of the Act); (b)that further environmental assessment requirements for approval to carry out the mixed use development were as set out in Sch 3 (pursuant to s 75P(1)(a) and 75P(2)(c)); and (c)that all future stages of the concept plan approval are to be subject to Pt 4 of the Act (pursuant to s 75P(1)(b)). 34The PAC also issued, in addition to the instrument of approval described above, a five-page summary and explanation of the approval, an appendix containing a review of parking provisions, and a copy of the differently constituted PAC's advice to the Minister dated 21 April 2011 (exhibit A tab 8). 35On 7 September 2011, in relation to a modification application pursuant to s 75W, Earljest emailed the Department a number of owners' consents including a letter from FCS Holdings dated 8 November 2010.

[7]

A. Owner's consent not provided 36At issue in the first ground of appeal is whether owner's consent for 23 - 29 Treacy Street by FCS Holdings was provided in a letter dated 23 December 2008 accompanying the concept plan approval application and/or a letter dated 8 November 2010 in accordance with the requirements in Pt 3A. Further, while the 2010 consent letter was executed on 8 November well before the PAC's grant of approval on 1 July 2011, it is not in dispute that the document was sent to the Department on 7 September 2011, after the approval date.

[8]

Council's submissions 37Section 75O(1) of the EPA Act conferred power on the Minister to give or refuse to give approval for a concept plan for a project. That power was conditioned by the matters in s 75O(1)(a) and (b). The condition in s 75O(1)(a) was that the proponent make "an application". The necessary characteristics of an application include the explicit requirement in cl 8F(1) of the Regulation that "the consent of the owner of land on which a project is to be carried out is required for a project application or modification application" (except in certain circumstances not relevant in this case). The reference to a "project application" in that clause includes an application for the Minister's approval of a concept plan for a project under Pt 3A of the Act: see Regulation cl 8A(1). Further, cl 8F(2) of the Regulation provides that any such consent may be obtained at any time before the determination of the application. 38The purported consent of the owner of 23 - 29 Treacy Street dated 23 December 2008 attached to the major project application (exhibit A tab 4 p 30) does not constitute the owner's consent within the meaning of cl 8F because: (a)the purported consent does not refer (either directly or indirectly) to a project application (b)the purported consent is dated 23 December 2008 and is addressed only to the Council, which confirms that the purported consent was given at a time before any project application was formulated or made; and it was not directed to the authority that would determine the project application (namely, the Minister) (c)the purported consent is to Earljest lodging "any development consents" in respect of 23 - 29 Treacy Street. Even on the favourable assumption that the letter could be read as intending to grant consent to "any development applications" (because it is a misuse of language to refer to the lodging of a development consent), the words "development applications" would be apt to refer to applications under Pt 4, but not applications under Pt 3A of the Act: see the definitions in s 4. 39The letter dated 29 February 2012 in exhibit B from the Department confirms that the letter providing owner's consent for 23 - 29 Treacy Street dated 8 November 2010 was not provided before the PAC's determination date. Consequently, essential Pt 3A requirements were not satisfied. 40Provisions such as cl 8F requiring owner's consent are regarded by the courts as matters of substance rather than mere formal requirements. In other contexts, a provision for owner's consent has been described as a power of veto in respect of the development: North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20; (1996) 185 CLR 470 at 477; Mulyan Pty Ltd v Cowra Shire Council [1999] NSWLEC 212; (1999) 105 LGERA 26 at 35; Becton Corporation Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 197 at [7]; and IGS Enterprises Pty Ltd v Hornsby Shire Council [2008] NSWLEC 304; (2008) 164 LGERA 424 at [6]. 41The power of the Minister to give concept plan approval arises "If: (a) the proponent makes an application for the approval ...": s 75O(1)(a) of the Act. Since one of the requirements for a project application (namely, owner's consent) is missing, a condition for the conferral and exercise of the power to give approval was not satisfied at the time the decision was made.

[9]

Minister's submissions 42Contrary to the Council's submissions, s 75O(1)(a) does not stipulate any requirement for a concept plan approval application. An application made in accordance with the Regulation and the granting of approval to a concept plan (project application) under the Act are separate matters. The issue can be put in two ways. Either there was compliance with the requirement to provide consent or else there was substantial compliance with that requirement such that no invalidity results. Once an application is made, the statutory process under Pt 3A is engaged. Clause 8F(2) provides that owner's consent may be provided any time up to the determination date. It presupposes the making of an application. The owner's consent is separate to the application. This is confirmed by the chapeau in cl 8F(1). The Council's approach impermissibly construes the Act by the Regulation; see DC Pearce and RS Geddes, Statutory Interpretation in Australia, 7th ed (2010) LexisNexis Butterworths at [3.41].

[10]

Owner's consent was provided by letter dated 23 December 2008 43Clause 8F of the Regulation does not specify any form or the manner in which consent must be provided. The Council's contention in relation to the December 2008 letter proceeds on an assumption to the contrary. A consent is not a formal instrument, it is merely something to be signalled by a landowner. The variety of persons who may give consent are as wide as the variety of landowners; from large corporations with ready access to internal and external legal assistance to ordinary members of the public. There can be no justification for the superimposition of constraints as to form on the giving of consent for the purposes of the clause. What is plain is that the 2008 consent letter signals the clear intent of the owner. It consents to "any development consents in respect of the above property". In its terms, it does not say that it is limited to consents under Pt 4. It eschewed technicality and formality. That consent was given in respect of Earljest is a clear indication that what was being consented to was the pursuit of the project contemplated by that proponent. It is a matter of indifference, in those circumstances, to the landowner as to what legislative mechanism is utilised to seek planning approval to a project which they consent to. An ordinary landowner should not be expected to have to appreciate subtle and technical distinctions in language between different Parts in complicated legislation. It predated the concept plan approval application and so complies with cl 8F(2). 44Furthermore, the Council's reliance on the date of the 2008 consent is dependent on an implicit prohibition that consent could not be provided prior to the declaration of the project for the purposes of s 75B of the EPA Act. Nothing in the legislative language expresses such a prohibition. To the contrary, it uses permissive language as to when such a consent can be provided: Regulation cl 8F(2).

[11]

Owner's consent was provided by letter dated 8 November 2010 45The Council concedes that if communicated before the determination date this letter constitutes owner's consent. However, cl 8F does not stipulate any requirement as to the time by which a consent must be provided to the Department. Rather, it provides that "consent may be obtained at any time before the determination of the application": Regulation cl 8F(2). The 2010 consent was "obtained" from FCS Holdings prior to the determination of the application. The Council's contention again depends upon reading words into cl 8F that do not appear in the text of the clause and treating those additional words as a mandatory requirement the failure to comply with which leads to invalidity. There is no warrant for either of those two steps. The test for the implication of words into legislation is not satisfied and there is no need to treat any such implication as to the time for provision of a consent to a third party as mandatory (in the sense of a failure to comply leading to invalidity) given the uncertainty concerning the time at which an application may be determined and that the apparent benefit of the provision is for the landowner who has consented.

[12]

Owner's consent not mandatory requirement 46Failure to comply with a procedural requirement does not result in invalidity. The relevant approach is identified in Project Blue Sky Inc v Australian Broadcasting Tribunal [1998] HCA 28; (1998) 194 CLR 355 at 388 - 389 per McHugh, Gummow, Kirby and Hayne JJ. Assuming there is non-compliance, Project Blue Sky requires consideration of whether there is legislative intention as to the consequences of non-compliance. Section 75X(5) in Pt 3A stated that the only requirement that is mandatory in connection with the validity of an approval is the public releases of the relevant EA required by s 75H/75N. It is accepted that the section did not immunise an approval from challenge based on jurisdictional error or a failure to bona fide attempt to exercise the relevant power. It does express consequences for failing to comply with procedural requirements and must be given meaning and effect. 47Irrespective of s 75X(5), the legislative scheme in Pt 3A suggested an absence of legislative purpose to invalidate any act by reason of non-compliance with cl 8F of the Regulation: (a)the provision of consent was not a requirement of an application under s 75M of the EPA Act. That section stipulated what an application is to include in general terms and compliance with cl 8F was not one of those matters (b)the provision of consent was in no way necessary for the consideration of the application under the regime provided for by Pt 3A. Thus, the provision of consent did not have any relationship with, or impinge upon, the core aspects of the approval process, including: (i)the DGRs (s 75F/75N) (ii)the DG consulting with relevant public authorities in relation to the DGRs (s 75F(4)/75N) (iii)the proponent's preparation of the EA and the consideration of its adequacy (s 75H/75N) (iv)the public consultation process, and the preparation of any response (s 75H(3) - (7)/75N) (v)the preparation of the DG's report and consideration of the specific subject matter which it is to include (s 75I/75N) (vi)the making of the Minister's decision, including the matters required to be considered in making that decision (s 75J/75O/75P) (c)the requirement in cl 8F is procedural only; it has no significance given the objects of the EPA Act in s 5 (d)the landowner is not prejudiced if project approval is granted without his or her consent as that does not authorise the proponent to enter someone else's property and commence work (e)the landowner could participate in the statutory consultation processes provided in s 75H(3) - (7) (f)by contrast, the consequence of invalidity for failure to obtain owner's consent as a procedural requirement will put at nought an expensive approval process for a significant development (g)ownership of land may change after approval and the new landowner may be opposed to the project, suggesting owner's consent is irrelevant (h)there is ministerial discretion to reject an application not duly made under cl 8D of the Regulation 48Authorities supporting this approach include Cranky Rock Road Action Group v Cowra Shire Council [2006] NSWCA 339; (2006) 150 LGERA 81, the Court of Appeal holding the failure to provide a Statement of Environmental Effects with a development application required under the Regulation did not invalidate the application or the approval. The same reasoning can apply here where there is a similar power to provide the Minister with an express discretion to reject an application in cl 8D(2). If that discretion is exercised such an application is rejected and taken never to have been made. That conferral of discretion is inconsistent with a failure to provide a consent giving rise to invalidity. Lack of owner's consent does not prevent the Minister performing his duties. The objects of the EPA Act will not be seriously affected where the Minister has not considered that the absence of the document warrants discretionary rejection of the application. In Cranky Rock Road the failure to comply with more explicit requirements did not give rise to invalidity. The requirements in Pt 3A for owner's consent are not as firmly expressed. 49The authorities relied on by the Council, Ligon (1996) (then EPA Act s 77(1)), IGS Enterprises (2008) (s 78A, Regulation cl 49(1)) and Becton (2005) (s 78A, Regulation cl 49(1)), concern Pt 4 as in force from time to time, which provisions are markedly different to those in Pt 3A.

[13]

Third Respondent's submissions 50The owner's consent ground fails on the law. Owner's consent existed in the 2008 letter. Further the Council accepts that the 2010 letter contains owner's consent so that the issue is not whether owner's consent was obtained but whether it was communicated to the PAC. The Minister's case that owner's consent is not a mandatory requirement if not provided does not arise. The Council has to demonstrate that a provision of the Act has been breached and cannot. 51The Council relied on s 75O but that was not conferring a power to approve on the Minister, that comes later in the statutory scheme relating to concept plans. The Pt 3A scheme was markedly different from Pt 4. The application became irrelevant once made. Nothing in s 75M suggested that it was essential that owner's consent accompany the application. Nor does cl 8F of the Regulation so provide. The application had to be lodged with the DG not the Minister (s 75M(3)). Section 75N applied s 75F, s 75H, s 75I to concept plans. The DGRs were prepared under s 75F. The DG was not the decision-maker, that was the Minister under s 75O. Under s 75I there was no requirement to publicise the application. The DG's report to the Minister under s 75I did not include the application. The Minister was not required to consider the application under s 75O(2). Further on 28 May 2011 the Minister delegated the decision about the concept plan to the PAC and there was a new decision-maker. Only then did s 75O(2) come into play. 52Clause 8F(2) provides that owner's consent can be obtained up to the time of determination. After lodgment the application has no further statutory function and owner's consent can be given. In Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 Jagot J recognised the flexibility intended in Pt 3A in contrast to Pt 4 of the EPA Act. Applying a literal or purposive approach and considering textual matters, the Council's approach is not supported. 53Nothing in the language of the Act or Regulation suggested that owner's consent was an essential part of the application. In relation to a purposive construction the Council relied on Ligon where the veto right of the owner was recognised. Here, the right to veto was vindicated as owner's consent was given. Further the option deed (exhibit 3A) identifies that the owner was legally bound not to veto any proposals for development: cl 12(b). The Pt 4 scheme provides for mandatory provision of owner's consent in s 78A and cl 49 - 50 of the Regulation which specify what a development application is to contain. Part 3A did not contain the same requirements. Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349 rejected argument that concept plans had to be concrete, finding that these were designed to be flexible at [61]. 54Further, in the 2008 letter FCS Holdings provided owner's consent to any application for development and this letter can be interpreted in light of the deed between Earljest and FCS Holdings which provides that Earljest has complete control over what development FCS Holdings gives consent for. The word "development" had the same meaning in Pt 3A as it does in Pt 4 and a concept plan or a project approval can only be made for development. By stating "development of the property" it is not pigeonholing the development in Pt 4, it is using terminology which could have applied to Pt 3A. The deed makes clear that FCS Holdings was obliged to cede all decision-making about the future of the owner's land to Earljest, the developer.

[14]

Consideration of owner's consent 55It is necessary to construe certain provisions in Pt 3A as the parties' submissions apply different constructions. Section 33 of the Interpretation Act 1987 requires a construction which promotes the purpose or object of an Act over one which would not. Guidance on applying this approach was provided by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at 381 - 382. Their Honours stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision". Brennan CJ and McHugh J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 12 also referred to the necessity of applying a construction of a statute consistent with its purpose. Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, per Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] the joint judgment (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy. See also French CJ (in a separate judgment but agreeing with the orders of the joint judgment) at [4] - [5]. In Wilson v State Rail Authority of New South Wales [2010] NSWCA 198; (2010) 78 NSWLR 704 at [12] Allsop P stated that in construing an Act the legal and historical context must be considered at the outset. At [13] his Honour emphasised the principles in Project Blue Sky. 56In Tugun at [23] Jagot J stated in relation to the introduction of Pt 3A: The Minister said that the legislation "introduces new mechanisms to ensure that the Government delivers quickly and efficiently on its infrastructure programs". The legislation was to "cut red tape by reducing time, cost and complexity in the assessment of" projects of State significance and major projects, whilst strengthening "the rigour, transparency and independence of the process of assessment". The legislation was necessary as the " ... wellbeing of our economy depends on business being able to work with certainty, a minimum of risk, low transaction costs, and appropriate levels of regulation. This bill demonstrates the Government's determination to take decisive action to achieve these objectives". (Hansard, 27 May 2005, p 16322). The explanatory note that accompanied the bill also emphasised that the reforms were to apply to "major infrastructure and other projects of significance to the State". 57Under s 75B, Pt 3A applied to projects so declared under a State Environmental Planning Policy or which the Minister declared to be subject to Pt 3A in a gazette notice. Projects under the Part were subject to an assessment process. Under s 75M the Minister could authorise a proponent to apply for approval of a concept plan for a project. Subsection (2) stated what such an application was to contain. Owner's consent was not one of the matters specified. An application was to be lodged with the DG (s 75M(3)). Under s 75N, EA processes, public consultation and the requirement for the DG's report in s 75F, s 75H and s 75I, applied to concept plan applications. Under s 75O(1) the Minister, through his delegate, could give or refuse to give approval for the concept plan for a project provided the DG had given his or her report on the project to the Minister. Subsection (2) identified what the Minister had to consider when deciding whether to approve a concept plan. Section 75Z provided for the making of regulations in relation to requiring owner's consent for land to which applications under the Part apply. Clause 8F of the Regulation specifies that owner's consent is required for a project application (which includes concept plans). Under cl 8F(2) such consent can be obtained at any time before the determination of an application. Section 75X(2)(e) required that an application for a concept plan be made publicly available. 58Given the Respondents' arguments, it is logical to first consider the importance of the application made for concept plan approval in the statutory scheme. When considered as a whole, these provisions suggest that a proponent's application continued to be the foundation of the exercise of power by the Minister under s 75O(1), contrary to the Third Respondent's submission that once made the application became irrelevant to the decision-making process under Pt 3A. This construction reflects the plain meaning of the wording of s 75O(1) and there is not a purposive reason why that approach should not be adopted. Under s 75O(1) the Minister could give approval if he had an application for a concept plan approval from a proponent and the DG's report on the concept plan. These two requirements operated at the time of the Minister's determination under s 75O(2). Further, under s 75X(2)(a) an application for a project had to be made publicly available together with the DGRs (paragraph (b)) and the DG's report (paragraph (c)) and the Minister's approval of a project. Under subsection (2)(e) any applications and approvals of a concept plan had to be made publicly available. These statutory requirements further underscore the importance of the application to the exercise of the Minister's decision-making power. 59A simple way of testing the Third Respondent's argument is to assume the application was withdrawn after lodgment. It would be counter-intuitive if once an application was lodged and then withdrawn, the assessment process continued automatically to a final decision. That the concept plan could be changed by the DG requiring a PPR under s 75H(6)(b) and by the Minister under s 75O(4) when granting approval, did not cause the application to become irrelevant. If no application was before the Minister then he could not approve a concept plan under s 75O(1)(a). The Council correctly argued that the making of the application in accordance with the requirements of Pt 3A was a precondition to the exercise of the Minister's approval power under s 75O. The Council's case in relation to owner's consent is not addressed by that conclusion however. The Council's submission that an owner's consent had to be part of a concept plan approval application under Pt 3A at the time an approval was granted by the Minister raises a separate question.

[15]

Letter dated 23 December 2008 60Before proceeding to determine that issue, if the letter dated 23 December 2008 signed by FCS Holdings accompanying the concept plan approval application to the DG provides owner's consent within the meaning of Pt 3A that answers this ground of appeal. Owner's consent was communicated to the decision-maker before the date of determination (which I find below at par 70 was a requirement of Pt 3A). As the Respondents emphasised, no form of owner's consent is specified in the Act or Regulation. 61The text of the letter dated 23 December 2008 is set out above at par 26. The letter is addressed to the General Manager of the Council, refers to the making of a development application and makes no reference to a concept plan approval or any other application in the terms identified in Pt 3A. The letter does not in its terms refer to or relate to an application for concept plan approval made to the DG or the Minister under Pt 3A. On its face the 23 December 2008 letter does not appear to be an owner's consent for an application for approval under Pt 3A, the wording in s 75Z(b) which provided power for a regulation to be made on that issue. Clause 8F states that owner's consent for land on which a project (which includes a concept plan) is to be carried out is required for an application. 62The deed between Earljest and FCS Holdings dated 24 December 2008, relied on by the Third Respondent in particular, refers in cl 12(c) (set out in par 21 above) to the obligation placed on the owner (the grantor) to give owner's consent in a form of letter provided, addressed to the Council. The clause refers to a development application to the consent authority, defined to include the Council or the Court, see cl 12(a), (b) and (d). This clause cannot assist in the interpretation of the letter dated 23 December 2008 as the deed did not accompany Earljest's application for concept plan approval. In any event, the deed was directed to an application under Pt 4 of the EPA Act given the reference to a development application to the Council. Its terms were not directed to a Pt 3A application but to a development application under Pt 4. That development is referred to in Pt 3A and Pt 4 cannot overcome this context. The Third Respondent's submission that development of the property is not specific to Pt 4 is not open given the clear terms of the deed. 63Further, the deed can play no role in informing the context of the letter as there is no evidence that the Department or PAC were provided with a copy and they could not therefore gain any assistance from it. I hold below in par 70 that it is a Pt 3A requirement that owner's consent must be provided to the decision-maker before a determination is made. 64The Respondents' other arguments that projects considered under Pt 3A are generally large complicated developments, the proponents of which cannot be expected to distinguish between Pt 4 and Pt 3A processes does not assist in resolving this issue, given the clear terms of the letter dated 23 December 2008 in contrast to the requirements in Pt 3A and the accompanying Regulation. I further note that developers utilising Pt 3A, given the size and complexity of such projects, were likely to be sophisticated proponents who could be expected to be aware of the requirements in Pt 3A in contrast to Pt 4. 65Clause 8F(1) states the consent of the owner of land on which a project is to be carried out is required for a project application, which includes a concept plan under the definition in cl 8A(1)(b). Contrary to the effect of the Minister's submissions an application under Pt 4 is not synonymous with an application under Pt 3A. While accepting greater flexibility was inherent in the statutory scheme in Pt 3A compared to Pt 4, as the Respondents emphasised relying on general findings in Tugun at [23] - [24], flexibility can take compliance with a legal requirement only so far. The letter of 23 December 2008 does not constitute owner's consent for the purposes of cl 8F(1) of the Regulation.

[16]

Letter dated 8 November 2010 66The issue identified above in par 59 of whether owner's consent had to be before the PAC as part of an application when it approved the concept plan in order for Pt 3A to have been complied with now arises. The letter dated 8 November 2010, which was not received by the PAC until after its determination of the concept plan approval application, comprised owner's consent. The Council accepted that fact. The Council also accepted, as it had to, that owner's consent could be obtained any time until determination as that is specifically provided for in cl 8F(2) of the Regulation. As the Third Respondent submitted, the Minister's submission that owner's consent was not a compulsory requirement for a proponent making an application under Pt 3A does not need to be directly resolved given these facts. I will not therefore be dealing in detail with the Minister's submissions summarised at par 47 - 48 above. The only issue outstanding is whether that consent had to be notified to the PAC before it gave approval to the concept plan under s 75O. If so, does its absence give rise to invalidity of the concept plan approval? The Minister's submissions summarised at par 46 above refer to this separate question. 67Section 75M which specifies what was required in an application under Pt 3A did not expressly state that a concept plan approval application had to include an owner's consent. Given the timing under cl 8F(2) that owner's consent could be obtained up to the date of determination, owner's consent need not literally be part of the application to which s 75M refers. Owner's consent is nevertheless expressed to be a requirement under cl 8F of the Regulation. The matters raised by the Council must therefore be considered. Clause 8F(2) does not specify who is to obtain owner's consent and whether it has to be communicated to the Minister before the final decision. The Council submitted the decision-maker under Pt 3A had to obtain owner's consent meaning effectively that the Minister or his delegate had to be aware of the provision of consent before determination. As the Respondents submitted, that is not required by the explicit terms of the Regulation. The Respondents submitted that cl 8F required the proponent to obtain owner's consent but it need not be communicated to the Minister or his delegate before the date of determination. 68The statutory provisions of Pt 3A and Pt 4 are different, as the Respondents emphasised, and this is useful context in which to consider the obligation imposed under cl 8F of the Regulation. Part 4 s 78A (previously s 77) and cl 49(1)(b) are prescriptive in requiring that an application for development consent must include owner's consent in writing. The Council submitted that owner's consent was mandatory, relying on Ligon, Mulyan, Becton and IGS, all of which considered Pt 4 of the EPA Act. All these cases held that owner's consent in a development application made under Pt 4 was required. Ligon was adopted in Becton where Lloyd J stated at [7] that: it is settled law that a development application which is not accompanied by landowner's consent is not made within the meaning of cl 49(1) of the EP&A Regulation; and the requirement for the landowner's consent is jurisdictional because it is a right of veto. (citations omitted) Mulyan at [32] and IGS at [6] held to similar effect. No case concerning this issue in the context of Pt 3A was referred to by the parties. 69The flexibility in Pt 3A and the Regulation in relation to the timing of the provision of owner's consent contrasted with the provisions of Pt 4 and the relevant regulation. The Respondents sought to distinguish these cases for that reason and submitted that the greater flexibility in the Pt 3A process, recognised in Tugun and Drake-Brockman informed consideration of the requirement for owner's consent. The circumstances in which these findings were made in Tugun (considering whether various pre-conditions to the Minister's approval power under Pt 3A were not met) and Drake-Brockman (considering the nature of the statement of compliance required in a DG's report) did not consider the provision of owner's consent in Pt 3A. As identified above in par 67, the Respondents submitted that as the obligation in cl 8F to obtain consent is not specified to be the Minister's, this need not be communicated to the Minister before the determination of a concept plan approval application. While Pt 4 requires that owner's consent accompany a development application, it is also silent on who is to obtain that consent. By implication it must be the proponent for development who is lodging the development application. 70The significance of owner's consent given the ability of an owner to veto an application over his or her land recognised in Ligon and subsequent cases is also applicable to Pt 3A, contrary to the Minister's submissions. The rights of owners to manage their properties is the same regardless of whether a project was pursued through Pt 4 or Pt 3A. Further, efficient government decision-making suggests that applications for approval of concept plans and projects (both project applications under the Regulation) should have owner's consent. Absence of owner's consent potentially results in the waste of public money on a fruitless EA process. To so conclude does not impermissibly interpret Pt 3A of the Act according to a subordinate instrument, the Regulation. While Pearce and Geddes at [3.41] was relied on by the Minister, I note that an exception to the general rule is where regulations form part of a legislative scheme together with a principal Act, it can be useful to refer to them to ascertain the nature of the legislative scheme. Numerous examples are provided. This suggests that notification of owner's consent to the PAC before its determination was both necessary and required under the statutory scheme. It did not occur in this case. The issue arises of whether that failure should lead to invalidity of the approval. 71The seminal decision on whether a breach of an Act results in invalidity of an administrative decision, Project Blue Sky, is relevant to the question of whether failure to communicate owner's consent to the PAC before its determination resulted in invalidity of its decision. At 388 - 389 (McHugh, Gummow, Kirby and Hayne JJ) stated: An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. 72This case was referred to by the Minister (par 46 above) in the context of stating that a procedural requirement does not give rise to invalidity. Project Blue Sky stated at 390 that the terms mandatory and directory (procedural) are not useful to construing whether a breach of a statute gives rise to invalidity. Section 75X(5) stated that the only mandatory requirement of Pt 3A in relation to the validity of a concept plan approval was the requirement that an EA be made publicly available according to s 75H as applied by s 75N. In Tugun Jagot J said of s 75X at [184]: ... the section is to be construed as an expression of Parliament's intention that the only provision breach of which will necessarily lead to invalidity is s 75H(3). The consequences of breach of all other provisions, however, are left at large. A far clearer expression of Parliamentary intention than an implied negative corollary arising from the word "only" would be required to effect any other meaning. As such, the consequences of breach of all other provisions will be determined in the ordinary course consistent with the principles laid down in Project Blue Sky. As I have not found breach of any provision and was not provided with submissions on the application of the Project Blue Sky ... 73It therefore remains to be considered whether the breach of obtaining owner's consent but failing to notify it to the PAC before determination of the application does give rise to invalidity in these circumstances. The Respondents identified correctly the greater flexibility of the process under Pt 3A compared to that under Pt 4, as reflected in the different provisions relating to the timing of the provision of owner's consent. These aspects of the statutory scheme suggest that the circumstance whereby owner's consent to the Pt 3A application was provided in fact to a proponent but not notified to the PAC until after the date of determination do not give rise to invalidity of the concept plan approval. 74Other sections of Pt 3A were referred to by the Minister (par 47 above) as supportive of his case that owner's consent was not a necessary pre-condition to the approval. While I am not required to directly address that question in the circumstances of this case it is relevant to consider two matters referred to as part of the statutory context in Pt 3A. Pursuant to s 75Z(a), which provided for the making of regulations concerning validity of applications under Pt 3A, cl 8D provides for the rejection of an application if it was not duly made and the proponent fails to take action specified by the DG as necessary in order to render the application duly made. I also take into account that a purported owner's consent was provided in the letter dated 23 December 2008 with the application for approval of the concept plan and that no correction was required by the DG under cl 8D in relation to owner's consent. 75An additional matter referred to by the Minister (par 47(f) above) is the consequence that invalidity for failure to notify owner's consent will render ineffective an expansive assessment process. An extensive assessment process has been undertaken in accordance with Pt 3A as outlined above at par 23 - 34. Taking into account these matters, while the Council has established a breach of the EPA Act, I do not consider that this results in invalidity of the PAC's approval of Earljest's concept plan. The Council has not in effect succeeded in establishing a breach which gives rise to invalidity of the concept plan approval in this ground of review.

[17]

B. Denial of procedural fairness 76Additional facts relevant to this second ground are now identified. These events follow the constitution of membership of the PAC by the Minister for the determination of the concept plan on 28 May 2011 but before the decision of the PAC to approve the concept plan on 1 July 2011. There is no dispute about these events and the relevant emails were tendered. 77On 1 June 2011, PAC members Mr Richard Thorp and Mr Garry Payne went on a site visit (exhibit A tab 43). On 6 June 2011, there was a meeting between the proponent and members of the PAC. The PAC's notes of the meeting record that Mr Gary Punch, solicitor for the proponent, alleged political bias within the Council and that Mr Payne advised the parties that the PAC would consider the application on the merits (exhibit A tab 44). On 10 June 2011, Mr Punch sent an email to PAC's secretary Ms Paula Poon stating he had heard from a Councillor who had been in contact with Mr Brett Daintry (the Council's former Director of Planning and Development) (exhibit A tab 46). Mr Punch stated that the Councillor alleged that Mr Daintry made "startling comments" about five issues including "the noted discriminatory treatment of any greater height standards for the Treacy Street precinct because of [Mr Punch's] involvement in this proposal" and Mr Daintry's "professional views about high density development for Treacy Street". Mr Punch further states the proponent has "suspicions that there is an agenda to delay our application by a person or persons inside Hurstville Council". As it was close to the end of the option period which could not be extended, Mr Punch stated that "any further delay will result in huge losses to all investors ... any further delay in the assessment of our application will achieve the desired end that we suspect of one or more at Hurstville Council." He also requested that Mr Daintry be contacted to discuss these matters and "to gain an insight into the Hurstville City Council's now, albeit repudiated position". On 14 June 2011, Ms Poon forwarded the email from Mr Punch to Mr Payne and Mr Thorpe (exhibit A tab 47). 78On 16 June 2011, Mr Payne and Mr Thorpe PAC members met with Council officers Mr Victor Lampe (General Manager) and Ms Carina Gregory (exhibit A tab 45). The handwritten notes of Ms Poon record that the PAC advised it had met with the proponent and that there was a discussion of the Council's development controls and concerns with the application including building height, density and traffic impact. On 17 June 2011, Ms Poon emailed the Independent Commission Against Corruption (ICAC) informing it that in the meeting with the proponent on 6 June 2011 Mr Punch told the PAC that he had referred a case to ICAC for investigation. Ms Poon asked for any comments on the relevance of the concept plan approval application to ICAC's investigation before a determination was made on the application (exhibit A tab 48). On 20 June 2011, ICAC wrote advising the PAC to proceed to determine the concept plan approval application (exhibit A tab 49). 79On 29 June 2011, Mr Punch sent an email to Ms Poon (exhibit A tab 51) stating that he learnt the Council was given permission for a draft suburban LEP on the undertaking that it would provide for significant residential density in the city centre area through rezoning when submitting a new draft LEP for the city centre. He asserted that this made a "mockery of Council's opposition to the Earljest rezoning" and highlights the evidence Mr Daintry is willing to give about the Council's planning conduct including in relation to the proponent's site. In view of the Council's undertaking Mr Punch submitted that the Council's opinion on the proponent's application was "both inconsistent as well as unsoundly based, and therefore should be discounted accordingly". He further submitted that someone acting for the Council approached the proponent for a bribe to change the Council's opinion on its application and subsequently the proponent's finance broker to prevent him underwriting the development. He reasserted that one or more persons in the Council was acting for corrupt purposes to delay the final assessment of the proponent's application so that the option period expired. On the same day Ms Poon forwarded this email to the PAC members (exhibit 1). On 1 July 2011 the PAC approved the concept plan approval application (exhibit A tab 8). 80The executive summary of the PAC's determination report states (exhibit A p 153): The concept plan application for a mixed residential and retail development at 21-35 Treacy Street Hurstville was referred to the Planning Assessment Commission for determination under delegation by the Minister for Planning and Infrastructure. The Commission was aware of the background, publicity and lobbying in relation to the development of this site. It should be made very clear that the Commission's sole criteria for making its decision related purely to planning issues both at a specific and strategic level. Its consideration relied entirely on the merits of this site to provide residential and retail floor space in a highly convenient location in a major centre identified in the Metropolitan Plan for Sydney 2036. It is not the Commission's role to take into account matters other than proper and reasonable planning outcomes that are consistent with strategies endorsed by the NSW Government and local planning instruments and policies. The Commission was also informed by the Proponent that the ICAC had been asked to investigate matters relating to the proposed development. The Commission did not enter into discussions on those issues nor did it take any of those matters into consideration in making its determination. The Commission did, however, advise the ICAC that it was in the process of determining an application to develop this site. The ICAC response was to the effect that the Commission should proceed as it saw fit. The Commission inspected the site and surrounding areas prior to meeting with the Proponent and Hurstville City Council. 81In relation to the meeting on 6 June 2011 the executive summary states that in response to Mr Punch informing the PAC that he had referred matters to ICAC, the PAC advised that "it would not enter into any discussion on matters of that nature and its determination of the proposal would be on merit only" (exhibit A p 155).

[18]

Council's submissions 82In this ground the Council does not rely on the statement by Mr Punch on 6 June 2011 at the meeting with the PAC as its members specifically said that they did not take that into account. In the weeks immediately preceding the determination of the application by the PAC on 1 July 2011, there was email correspondence (received by the PAC members on 14 June 2011 and 29 June 2011) about the application between the PAC and Mr Punch to which the Council was not a party and of which it was not aware at the time. That correspondence included allegations on the part of the proponent that: (a)specific adverse admissions had been made by the Council's immediate past Chief Town Planner in relation to the application (exhibit A tab 47, p 816) (b)the proponent suspected that "there is an agenda to delay our application by a person or person inside Hurstville Council" and that delay and "huge losses to all investors" was the "desired end that we suspect of one or more at Hurstville Council" (exhibit A tab 47 p 816 - 817) (c)"as we reported to the PAC and previously to ICAC, that we were previously approached by a third party purporting to represent a Council figure for a bribe to change opinion in respect to the Earljest development application" - that "that purported Council figure" had subsequently attempted to prevent financing for the project - that the proponent was preparing materials to submit to ICAC and the police - and that "in our view a clear intent by a person or persons acting for corrupt purposes is to delay the final assessment of our application so that the options exhaust" (exhibit A tab 51 p 821 - 822), the clear inference conveyed to the PAC being that the corrupt person was acting for or on behalf of the Council 83The PAC did not provide those emails, or the substance or gist of the allegations contained in them, to the Council before the determination of the application on 1 July 2011, so that Council might respond to (and deny) the serious explicit and implicit suggestions being advanced to the PAC. 84There are no universal rules of what constitutes procedural fairness. Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 considered whether a duty was owed to third party objectors in relation to the conduct of a public hearing and held not. Rivers SOS identified that the applicant there had statutory rights to make submissions. Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [75] confirms that the obligation to afford procedural fairness is not limited to cases where the exercise of power affects rights in the strict sense but extends to an interest or privilege. Here, the Council had a right, interest or privilege in making a submission (under s 75H(4)) and have it taken into account as a mandatory consideration (under s 75I). This right, interest or privilege was liable to be adversely affected or prejudiced by information provided by Mr Punch. Mr Punch's assertions that the Council had a bad faith objective based on corruption and bribery impugned the Council's motives, placed them in the worst possible light and could have resulted in its submissions being discounted. In the circumstances, the Council's right, interest or privilege was sufficient to give rise to an obligation of procedural fairness. The Council accepted that it does not have a right to constantly respond to others' submissions on the merits, described as an "impermissible tennis match" by Biscoe J in Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [180]. 85The Council was affected distinctly from the public at large. The scheme in Pt 3A makes particular reference to a local authority in s 75I. The Council's substantial submissions were a mandatory consideration of the decision-maker as the Council's response had to be in the DG's report (s 75I) which went to the PAC. The PAC consulted with the Council on the DGRs and met with the Council on 16 June 2011. In reply, the Council argued that the case was different to Botany Bay City Council v Minister of State for Transport & Regional Development [1996] FCA 1507; (1996) 66 FCR 537, referred to by the Minister, as that involved circumstances where the councils sought to protect the interests of the residents from the noise of aircraft flying over them across multiple local government areas. This case concerned a site specific decision, affecting land in the Hurstville Local Government area in the city centre. This case was also different from Geelong Community for Good Life Inc v Environment Protection Authority (EPA) [2008] VSC 185; (2009) 20 VR 338 also referred to by the Minister as the applicant in that case was a voluntary community group which argued that there was a legitimate expectation based on a practice or course of conduct that the decision-maker would act in a certain way and any deviation from that practice breached the hearing rule. 86Procedural fairness requires the person affected by a decision to be given an opportunity to respond to any adverse information that is "credible, relevant and significant": Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [19] citing Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629. The failure to provide the Council with an opportunity to respond to the adverse information in Mr Punch's emails was a denial of procedural fairness: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 95 - 97. Applicant VEAL at [17] makes clear the there must be a determination before the final decision reached that an adverse matter provided to a decision-maker will not be taken into account. Such matters cannot be dismissed from further consideration unless the information is evidently not credible, not relevant or of little or no significance to the decision that is to be made. The material in Mr Punch's emails was apparently credible in that he was a representative of the proponent. The comments could undermine the statutory process. Unlike allegations made in the 6 June 2011 meeting which the PAC stated were immaterial to its consideration, the later emails were not specifically disavowed by the PAC. Following emails in mid-June and late June there is no record that the PAC discarded those assertions as not credible. This can be tested by considering whether the proponent would be allowed to respond if such assertions were made about it. Procedural fairness is not satisfied by the statements in the executive summary of the PAC's determination report as that is the final decision.

[19]

Minister's submissions 87Firstly, there was no obligation to afford procedural fairness overall as Council's rights or interests were not affected. Secondly, assuming there was some right or interest, no obligation of the scope argued by the Council arose. Thirdly, any obligation that might have existed was discharged. Fourthly, there is no credible, relevant or significant matter as identified in Kioa v West in Mr Punch's emails which suggests the PAC had to advise the Council. The Council's case did not address questions one or two. 88In order to trigger a duty of procedural fairness, there must be an exercise of statutory power apt to have some direct or substantial adverse effect on a right, interest or privilege: FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598; Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 653; Saeed at [11], [19]; Plaintiff M61 at [72] - [79]. Moreover, the decision must affect the rights, interests or legitimate expectations of a person in his or her individual capacity: Kioa v West at 582, 584 per Mason J and at 619, 620 and 628 per Brennan J; Haoucher at 653 per Deane J. See also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [32] quoting Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 590 - 591. The Council's alleged right, interest or privilege was not one affected by the PAC's decision in the relevant sense. 89The Council relied on a broad notion of rights and interests. Although the obligation to provide procedural fairness extends beyond proprietary rights and interests it does not attach to any interest. The Council relied on FAI Insurances at 360 per Mason J but that case concerned a renewal of a licence, which is not a right or interest in the strict proprietary sense: see Mason J in Kioa v West at 583. Plaintiff M61 identifies that the obligation can arise in relation to the right to liberty. These cases do not support the Council's submission that its alleged right, interest or privilege is sufficient to give rise to the obligation of procedural fairness. The Council had a right to make a submission (under s 75H(4)) within the exhibition period. Section 75I(2)(b) meant there was no right of rejoinder for the Council. By contrast under s 75H(6) the DG can require the proponent to respond to specified matters. In any case, the Council made a submission and it was considered. There is no relevant point of distinction in the Council's submissions that it accepted it did not have right of reply on merit material (Biscoe's J's "tennis match" analogy in Calardu) but that the content of this material suggested that its rights were affected. 90Contrary to the Council's case, in Geelong Community at [22] the Court found that the principles of natural justice did not apply in favour of the applicant objector in respect of the EPA's decision to amend the proponent's licence. The Council's interests cannot be equated with those of the proponent. The position of councils was considered in Botany Bay City Council where Lehane J in the Federal Court stated (at 555) that an exercise of power which affected a council's residents in a manner different to other residents or the public at large was not itself sufficient to give rise to an obligation of procedural fairness to a council. In Rivers SOS, concerning a Pt 3A project, at [157] - [162] it was held that the applicant objector had no right which was affected by the PAC not holding a public hearing in relation to the PPR and no interest which was affected in a direct and immediate way. Similarly in Calardu, concerning a development consent under Pt 4 of the EPA Act, Biscoe J at [180] rejected the argument that the applicant objector had a right to respond to submissions responsive to its submissions stating that procedural fairness did not require a potentially endless "tennis match" of views being exchanged. 91The second contention is similar to the first and is supported by the same arguments. The scope of the obligation must be assessed against the relevant scheme. The express intention of Pt 3A was to provide a more efficient and streamlined assessment for major projects. Sections 75J, 75I, 75M, and 75O provide a clear statutory process requiring public consultation during which the parties had the opportunity to make submissions. There was no suggestion the submission process was not followed. There is no provision for the proponent's submissions to be given to an objector for comment and to require that would undermine the efficiency of the process. The Council only had rights to make submissions under that process, limited to the exhibition period. There was reasoning to similar effect in Rivers SOS at [156] - [162] which is consistent with High Court authority and any assertion of a broader right than the statutory rights is inconsistent with that reasoning. 92Thirdly, assuming it existed, any obligation to afford procedural fairness was discharged. The Council had multiple opportunities to make submissions on the project and did so. It had the opportunity which it availed itself of to comment on the DGRs on issues such as height, built form, the Hurstville town centre context: see exhibit A tab 10, a letter from the Department to the Council; tab 11, a telephone communications between the Department and the Council; tab 13, email communications between the Department and the Council; tab 17, email from the Department to the Council attaching a draft copy of the DGRs and the Council's email response to the DGRs; tab 21, letter from the Department to the Council notifying it of the intended exhibition and requesting a submission; and tab 25, the Council's submission which includes a request that the matter be referred to the PAC. The issues raised by the Council were considered in the DG's report: exhibit A tab 7. The Council communicated its concerns to the Department several times before and in the lead up to its meeting in April 2011 with a differently constituted PAC which was requested to provide advice only (tab 26, 35, 37, 38, 39). In relation to Mr Punch's allegations in the email of 10 June 2011 on height, density and the draft LEP, the PAC discussed these issues with Council officers on 16 June 2011: exhibit A tab 45, tab 8 p 155. 93Fourthly, the information was not "credible, relevant or significant" to the statutory process at issue and the relevant exercise of statutory power: Kioa v West at 628 - 629; Applicant VEAL at [15] - [17]. The Council does not have to be given an opportunity to comment on allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Contrary to the Council's written submissions at par 44, such allegations, according to Applicant VEAL at [17], need not be disclosed. Here, the material was dismissed as irrelevant prior to the making of the final decision. The PAC immediately refused to engage at all with any of the matters raised by Mr Punch in relation to the conduct of staff of the Council. This is evidenced by the file note of the meeting of 6 June 2011 (exhibit A tab 45) and corroborated by the executive summary of the PAC's determination report (exhibit A p 155) which states that the PAC advised "it would not enter into any discussion on matters of that nature and its determination of the proposal would be on its merit only." As a matter of prudence, the PAC checked with ICAC as to whether there was any impediment to it deciding the matter and ICAC confirmed there was not. No criticism was made by the Council of the making of that check. Although the Council does not rely on the allegations made in the meeting of 6 June 2011 as they were dismissed before the decision, the matters raised in the email of 29 June 2011 are essentially the same, so relying on that email takes the Council's case no further. The PAC does not need to make the same statement dismissing the allegations three times.

[20]

Third Respondent's submissions 94This ground fails on the facts. The identity of an applicant for development is irrelevant as planning decision-making is concerned with the use of the land: Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99; (2006) 144 LGERA 408 at [34] and Greengate Consulting (NSW) Pty Ltd t/as Greengate Property Group v Ashfield Municipal Council [2008] NSWLEC 253; (2008) 162 LGERA 247 at [28]. The PAC material identifies the key issues which were to be the focus of its consideration. The PAC would eschew matters personal to the proponent or the objectors and took steps to ensure that it did so, such as writing to ICAC. The reference to lobbying in the PAC's determination report is clearly a reference to Mr Punch's emails which were identified as immaterial. The Court can utilise the PAC's statement in the executive summary of its determination report as evidence of its conduct of the matter. 95Saaed is authority that the obligation to afford procedural fairness attaches to an issue critical to the decision or factor on which the ultimate decision turns, see [19]. There is no allegation that the matter raised by Mr Punch was a critical factor in the PAC's decision. The PAC stated that it did not take these matters into account and there is no evidence suggesting otherwise. The PAC did not contact Mr Daintry as requested in Mr Punch's email of 10 June 2011. 96In any event, there was no duty to afford procedural fairness to the Council because the exercise of power by the PAC did not affect the Council's rights, interests or expectations "in a direct and immediate way": see Kioa v West at 584; Harvey v Minister Administering the Water Management Act 2000 (2008) 160 LGERA 50 at [99] - [104]. There is no evidence that the consequences to Council of the decision to approve the concept plan were "extremely grave": Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWLEC 17; (2002) 119 LGERA 86 at [114]. On the contrary, upon the Minister's analysis of the structure of Pt 3A which the Third Respondent adopts, councils are relegated by Pt 3A to the position of an onlooker, with a right to make submissions and to have these considered under s 75I by the DG but not to have them accepted. 97Even assuming that a duty to afford procedural issues was enlivened, there was no obligation on the PAC to give notice of the allegations as the information was not credible, relevant or significant to the decision: Applicant VEAL at [17]. The allegations did not concern the merits of the project. Had the PAC invited the Council to comment on matters not material to its decision it would have been embarking on a frolic of its own. Further the chronology of events shows that PAC provided every opportunity to the Council to present its submissions on the merits. The PAC was delegated the power to approve the concept plan under s 75O(2) and it went out of its way to consult the Council on key issues (see exhibit A tab 45). There is no evidence from that note that the PAC discounted the Council's submissions as urged in Mr Punch's emails. The DG's report (exhibit A tab 7) contained a lengthy discussion of the Council's issues.

[21]

Consideration of procedural fairness 98The duty to afford procedural fairness was identified in Kioa v West (1985) (at 582 - 584) by Mason J to the effect that a common law duty to act fairly applies to the making of administrative decisions which affect the rights, interests and legitimate expectations of an affected person unless a statute provides to the contrary. What is appropriate depends on the circumstances of the case. His Honour continued at 585 that the critical question in most cases is not whether the principles of natural justice apply but what they require in the particular circumstances. Brennan J in Kioa v West (at 609, 615) identified the manner in which the principles apply, namely as a creature of the statute under which the principle was claimed. There is no dispute by the Respondents that procedural fairness principles apply in theory to administrative decisions made under the EPA Act whether they be common law or statute based. Unless expressly excluded the rules of natural justice apply to administrative actions in accordance with the majority (Mason CJ, Deane and McHugh JJ) in Annetts v McCann at 598. The minority (Brennan and Toohey JJ) made similar statements in separate dissenting judgments at 609 and 617. 99The rights, interests and privileges to be protected are not closed as can be seen in the numerous authorities cited by the parties. In FAI Insurances at 360 Mason J stated that principles of procedural fairness extended to an exercise of power affecting an "interest or privilege" such as in the case of a renewal of a licence. In Kioa v West at 582 - 583 Mason J stated "right or interest" meant not only proprietary rights or interests but also those relating to personal liberty and that "legitimate expectations" extends the doctrine beyond legal rights or interests. Kioa v West concerned the right of appellants subject to a deportation order and the legitimate expectations of an Australian citizen infant in her enjoyment of the privileges of her citizenship and continued residence in Australia. The Council does not rely on legitimate expectations. Annetts v McCann considered whether the coroner was justified, in a coronial inquiry into the deaths of two boys, in refusing to allow counsel for the boys' parents to make closing submissions on the evidence. The majority considered (at 599) that the appellants had a legitimate expectation that the coroner would not make any finding adverse to their or their sons' interests. Their Honours held (at 599 - 603) that the appellants were denied their common law right to be heard in opposition to any potential adverse finding in relation to themselves and the deceased. In Plaintiff M61, which concerned rights or interests of detained persons to liberty, the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) at [75] cited Mason J in FAI Insurances at 360 with approval and held (at [91 and [98]) that procedural fairness was denied to both plaintiffs. Applicant VEAL also concerned an exercise of statutory power that directly affected the appellant, whose visa application was rejected by the relevant Minister's delegate. The issue in that case was whether there was a breach of the obligation to afford procedural fairness given the nature of the adverse information. 100In Kioa v West Mason J stated that the decision must affect the rights, interests or legitimate expectations of individual citizens "in a direct and immediate way" (at 583). Brennan J said the legislature was likely to intend an exercise of statutory power which "singles out individuals by affecting their interests in a manner substantially different from the manner in which the interest of the public at large are affected" to be conditioned on the observances of natural justice principles (at 628). There is no dispute that, broadly, the principles identified in these authorities, which are focussed on individuals' rights, can apply to an elected council as a collegiate body.

[22]

Was the Council owed a duty of procedural fairness?

[23]

Nature of Council's right, interest or privilege 101Whether the duty to afford procedural fairness has been breached in the exercise of statutory power must depend on the particular circumstances of the statutory scheme and the facts before the Court. Firstly, as identified most acutely in the Minister's submissions relying on Plaintiff M61 at [75] inter alia, the asserted rights, interests or privileges said to give rise to a requirement of procedural fairness must be identified. The Council argued it had a right, interest or privilege to make statutory submissions and objections and have them taken into account as a mandatory consideration in the Pt 3A process. 102The case considering the application of the principles of procedural fairness in broadly similar circumstances of a project application under Pt 3A of the EPA Act is Rivers SOS. The right or interest asserted by the applicant objector, an environmental protection non-government organisation, concerned whether the absence of a public hearing in relation to a PPR at which the applicant could appear and make submissions was a breach of the principles of procedural fairness. Preston J held that the PAC did not have the statutory duty or power to hold such a public hearing. Alternatively, if it did, no duty of procedural fairness was owed to the applicant to hold such a public hearing. Further, no right, interest or legitimate expectation of the applicant was affected by the PAC not conducting a public hearing. Preston J at [156] - [163] held that the objector had no statutory rights apart from the right to make submissions to the DG and to the PAC in relation to a public hearing, as limited by the Act and Regulation. No interest of the applicant as an incorporated association of numerous environmental groups concerned about the impacts of mining across NSW was affected "in a direct or immediate way", applying Mason J in Kioa v West (at 583). Preston J at [160] noted that no statutory right existed for a person who made a submission to make a further submission in response to submissions made by other persons or public authorities. His Honour further noted that no procedure was established for persons to comment on other persons' submissions or to ask questions of other persons who made submissions. 103Other cases considering procedural fairness obligations in a statutory development approval process were referred to in argument. In Geelong Community a claim of legitimate expectation of a more fulsome hearing in a licence application to the Environment Protection Authority (EPA) (Vic) was raised by the objector plaintiff. That case was not considering whether a right or interest giving rise to the principles of procedural fairness arose. Reference was made at [21] to the doctrine of legitimate expectation (and impliedly other principles of procedural fairness) where statutory processes are not directed towards individuals or distinct bodies of persons. Referring to Botany Bay City Council, Cavanough J at [22] considered that the decision of the EPA in question was directed to the applicant for the licence alone. No right, interest or substantive expectation of the plaintiff was held to be affected. 104In Calardu, which considered a development assessment process under Pt 4, the applicant company objector owned land adjacent to a proposed development site. It contended that the development consent was invalid because the applicant was denied procedural fairness in not being provided with the opportunity to comment upon the proponent's amended plans lodged after the close of the objection period. Biscoe J rejected this submission stating that the effect of it was to impermissibly liken procedural fairness to a potentially endless tennis match whereby parties repeatedly commented on each other's submissions (at [180] - [181]). 105In this case the Council had a right to make a submission under s 75H(4) on the proponent's EA when placed on public exhibition. The Council availed itself of its statutory right over and beyond the Pt 3A requirements, as the Minister's submissions identify at par 92 above. The Council corresponded with the Department, commented on the DGRs, and made submissions on the EA including requesting the matter be referred to the PAC. This was done. The Council's issues were considered in the DG's report and Council's representatives met with the PAC on 16 June 2011 to discuss the Council's concerns with the project. If the reasoning in Rivers SOS at [157] - [160] that no other substantive right existed, including no right to comment on other submissions made, is applied here, that is the end of the matter. The right to make submissions, which the Council was afforded under the Act and Regulation, was exercised and no further obligation of procedural fairness arises. 106The nature of the right to be heard asserted by the Council varies from that raised in Rivers SOS and Calardu. The Council submitted that it had a particular role under Pt 3A which amounted to a right, interest or privilege, with emphasis on interest or privilege, arising from the right to make a submission. This required that it be informed of any matter which might be perceived as undermining its credibility in the view of the PAC. To support its submission of a particular role under Pt 3A, the Council relied on s 75I(2) which requires the DG to include any advice from public authorities in the report to the Minister. The Act defines "public authority" as including a local authority constituted by or under an Act, thereby including local councils. I do not consider there is any relevant distinction between the words "submission" and "advice" for the purposes of s 75I(2). The DG's report contained a summary of the Council's submission (advice) and link to the Department's website containing the full submission, as required by s 75I(2): exhibit A p 127 - 128, 144. 107The term "public authority" appears in s 75H(4), which provides that any person (including a public authority) can make a written submission to the DG during the public exhibition of the proponent's EA. "Public authority" is not limited to a local council. The report of a public authority as a mandatory inclusion in the DG's report to the Minister in s 75I(2)(b) is not determinative. The structure of Pt 3A does not suggest that the Parliament singled out local councils by providing a role for them that is different from other members of the public. 108To support its argument, the Council also relied on s 75O which identifies mandatory considerations for the Minister or his delegate PAC in deciding to approve or refuse a concept plan application. These include the DG's report and the reports and recommendations contained therein (s 75O(2)(a)), and the (earlier differently constituted) PAC's findings and recommendations after a review (s 75O(c)). Subsection (2)(b) is not relevant for present purposes. The submission that the Council's role is different to the public under Pt 3A is somewhat undermined in s 75O(2) which states that the Minister does not have to take into account the provisions of any environmental planning instruments, including any local environmental plan, as s 75R exempts approved projects from them. There is otherwise no support in Pt 3A for identifying a particular role for a local council beyond any other member or section of the public. 109The cases relied on such as Kioa v West, SZBEL at [32], Haoucher at 653 emphasise that the rights, interests and privileges affected must be particular to the individual (or entity) or a particular section of the public rather than the public at large. Whether local councils represent interests not equated to those of the public at large was considered in Botany Bay City Council, a case the Minister relied on. Several elected local councils sought to argue before Lehane J in the Federal Court that they had a legitimate expectation that the respondents would give them notice and an opportunity to consider and make submissions before the respondents made decisions affecting the interests of their constituents in relation to aircraft noise from Sydney Airport's operations. The councils argued that they represented the residents whose interests were affected by the decisions and not the public at large. In rejecting that submission, Lehane J found (at 555) that each applicant council represented the interests of a section of the public within which section the individuals were indiscriminately affected. Therefore the residents within the applicants' areas were not affected in an individual capacity. 110The Council sought to distinguish Botany Bay City Council by arguing that this case concerned site specific development in the Hurstville city centre which is within the Council's local government area (see par 85 above). I am not bound by Lehane J's decision, but his reasoning is persuasive. Here the Council represents that section of the public within the local government area for which it has responsibility. Within that section of the public the residents are indiscriminately affected by any development in the Hurstville city centre. Given that the residents and ratepayers must number in the thousands and, unlike in Botany Bay, are indiscriminately affected across that local government area, at that scale I cannot conclude that the residents are individually affected over and above the general public. The legislature did not "single out individuals by affecting their interests in a manner substantially different from the manner in which the interests of the public at large are affected": Kioa v West at 620; see also Haoucher at 652. No particular interest or privilege of the Council arises in these circumstances. 111In this statutory planning context the position of the Council is not similar to the position of the proponent, whose concept plan approval application was the subject of the PAC's consideration and whose interests are directly affected by the statutory exercise of power. Whether the individual rights, interests or privileges of an objector to development, whether a local council or someone else, are affected, will depend on the circumstances. Here, the Council's right to make a submission during the exhibition process was not prejudiced by the PAC's exercise of statutory power to approve the concept plan. The cases referred to by the Minister involving objectors to development (Geelong Community, Calardu, and Rivers SOS) found that they did not have rights, interests or legitimate expectations that were affected by the decision to approve development.

[24]

Information not credible, relevant or significant 112Although not strictly necessary to be answered in light of my finding above, a further consideration raised by the parties' arguments is that in order to give rise to an obligation of procedural fairness the adverse information must be credible, relevant and significant. Brennan J in Kioa v West at 628 - 629 stated: A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. (footnotes omitted) This passage was cited by the High Court (unanimously) at [15] in Applicant VEAL and by the majority (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) in Saeed at [19], both of which were relied on by the Council. 113In Applicant VEAL the High Court stated at [17]: It follows that what is "credible, relevant and significant" information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J [in Kioa v West] prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. "Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached. 114SZBEL (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) at [29] referred to the Full Court of the Federal Court in Alphaone which stated at 591 - 592 that: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added) 115In considering Applicant VEAL, the evidence does not suggest that the PAC considered the material was credible, relevant, or significant to its decision on Earljest's application. In particular it was not critical to the decision of the PAC, to draw on Alphaone. While the Council submitted that Applicant VEAL required the disavowal by the PAC of negative material as irrelevant to its consideration before final determination, the particular circumstances of a matter must be considered. The Council did not rely on the allegations made by Mr Punch in the meeting of 6 June 2011 as the PAC members dismissed this information by stating they would only consider the merits of the application as relevant. The later emails to the PAC which the Council did rely on in its case contained similar allegations by Mr Punch. That it was not necessary for the emails to have been disclosed to the Council because they contained information which the PAC members could dismiss from further consideration by PAC members is evidenced by PAC's response to Mr Punch's allegations during the meeting of 6 June 2011. 116That the PAC met with two representatives from the Council, including the General Manager Mr Lampe, on 16 June 2011 to discuss the application after receiving the first of Mr Punch's emails on 14 June 2011, made no reference to Mr Punch's allegations or that it contacted the ICAC on 17 June 2011 is evidence that it did not consider Mr Punch's allegations credible, relevant and significant to its decision on the merits. PAC wrote to ICAC to inquire if there was any matter which should concern them and were told no. 117The PAC's general attitude to Mr Punch's allegations continued in the same vein after the meeting of 6 June 2011, as confirmed by the statements to that effect in the second paragraph of the executive summary of the PAC's determination report dated 1 July 2011 set out at par 80 above. The PAC stated that the sole criterion for its decision was planning issues at both a specific and strategic level. The PAC's determination report discussed relevant planning issues. No criticism was made that extraneous and irrelevant issues are considered in that report. The allegations raised by Mr Punch had no significance to the PAC's decision. 118The Council has not established that it was denied procedural fairness in the PAC not expressly making a statement of disavowal in relation to the two later emails from Mr Punch, as it did in the meeting on 6 June 2011, or not drawing these to the Council's attention to provide it with an opportunity to comment. None of the PAC's actions suggest that it considered the information/allegation of Mr Punch to be credible, relevant or significant. The Council is not successful in establishing this ground of review. Accordingly it is unsuccessful in relation to its summons and this should be dismissed.

[25]

Costs 119The parties have yet to make submissions on costs and should be given the opportunity to do so before final costs orders are made.

[26]

Orders 120The Court makes the following orders: 1.The Applicant's amended summons filed on 9 November 2011 is dismissed. 2.Costs are reserved. 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. Decision last updated: 18 June 2012

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