There Was No Failure by the DG to Take Into Account a Mandatory Consideration
60Grounds two, four and six plead that the DG failed to take into account mandatory relevant considerations in refusing to issue the certificate.
61Of course the decision of the DG can only be impugned on this ground if the matters upon which INL relies are matters that the DG was either expressly or implicitly bound to consider pursuant to the statutory framework under which the decision was made and in fact the DG failed to do so.
62A matter is not a mandatory relevant consideration unless it is expressed to be so in the statute conferring power or unless a necessary implication to this effect can be derived from the subject-matter, scope and purpose of the statute ( Peko-Wallsend at 39-41 and 55).
63In Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83 Biscoe J usefully reviewed various formulations of the statutory duty to take into account a relevant consideration (at [98]-[100]):
98 The content of a statutory duty to "have regard to" or "to consider" something has been expressed in various ways. In Tickner v Chapman (1995) 57 FCR 451 at 462 Black CJ said that a duty to "consider" required an "active intellectual process" directed at the matter required to be considered. In Tobacco Institute of Australia Ltd v National Health and Medical Research Council (1996) 71 FCR 265 at 277 Finn J said:
...the "have regard to" formula has been interpreted consistently as requiring that the decision-maker subject to the formula must "take into account" the matter or consideration to which regard is to be had, and must "give weight to" that matter or consideration "as a fundamental element in making his determination": R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 328-330 per Mason J; see also R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333, 338; Queensland Medical Laboratory v Blewett [1988] FCA 423; (1988) 84 ALR 615 at 623.
99 In Zhang v Canterbury City Council [2001] NSWCA 167, 51 NSWLR 589 Spigelman CJ, who delivered the leading judgment, held that a matter which a statute required the decision-maker "to take into consideration" must be considered as a fundamental element in, or focal point of his deliberatons. A "mere formalistic reference" does not satisfy a statutory requirement to have regard to a matter: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493, 240 ALR 135 per Lindgren J at [29].
100 The High Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, 85 ALJR 306 at [26] approved the formula of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457, 14 ALD 291 that the statutory duty to "consider" means to "give proper, genuine and realistic consideration to the merits of the case", whilst noting the caution in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] that those words should not be permitted to encourage a slide into impermissible merits review. No reference was made to a view earlier expressed by the Court of Appeal that it is preferable to avoid using that formula or similar descriptive formulae, but that the relevant matter must be more than merely adverted to or given mere lip-service: Anderson v Director-General Department of Environment and Climate Change [2008] NSWCA 337, 163 LGERA 400 at [51] - [58] ....
64In summary, the obligation of a decision-maker to consider mandatory relevant matters requires the decision-maker to engage in an active intellectual process in which each relevant matter receives his or her genuine consideration (see also Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [105]; Bat Advocacy NSW Inc v Minister for Environment Protection Heritage and the Arts [2011] 180 FCAFC 59; (2011) 180 LGERA 99 at [44]).
65Generally, in the absence of any statutory or contextual indication of the weight to be given to a particular mandatory consideration it is for the decision-maker to make this determination. The failure, however, to give any weight to a factor to which the decision-maker is bound to have regard to, especially where that factor is of central importance to the case, or where the decision-maker simply dismisses the factor as irrelevant, may more readily support the inference that there was a failure to take the matter into account (Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; (2010) 190 FCR 248 at [59] and Bat Advocacy at [44]). This does not mean, however, that a decision-maker who considers a matter and then dismisses it commits error. Moreover, merely because a decision-maker fails to expressly refer to a mandatory matter in the reasons for the decision does not mean that he or she has failed to consider it and this ought not be the immediate inference drawn by a court on review ( Bat Advocacy at [44]).
66The express mandatory considerations to which the DG must have regard in determining whether or not to issue a certificate are contained in cl 25(5) and (6) of the SEPP. Additional criteria to which the DG must have regard are contained in cl 24(2) of the SEPP.
67INL stated that, first, the DG failed to take into account, as he was required to do under cl 25(5)(b)(i) of the SEPP, the existing uses and approved uses of the land in the vicinity of the site, such as Lake Cathie and Bonny Hills Village, which adjoin the site to the east and to the north; the large residential lands adjoining and adjacent to the site to the north and to the west; and the rural properties adjoining the southern boundary of the proposed development site.
68There can be no real dispute that the consideration identified by INL is one that the DG was bound to consider. There can also be no real dispute that a detailed review of the report to the DG establishes that this is precisely what the DG did. For example, the report states that:
(a) "the site adjoins land to the east zoned for general residential development and land to the north-west zoned for large lot (or rural residential) development";
(b) "land to the south-east of the subject site has been approved for a retirement village development, which is not yet completed";
(c) "the Lake Cathie town centre, located 4 km to the north-east, provides access to some shopping, postal and banking facilities";
(d) "Laurieton, located 11.5 km to the south, also provides shopping and banking services...";
(e) "the regional centre of Port Macquarie is located approximately 20km north of the site..."; and
(f) "Bonny Hills is serviced daily by Busways Bus Services...".
69The report also discusses the "considerable strategic planning for the Bonny Hills area". In addition, the report references the Mid North Coast Regional Strategy , the council's Hastings Urban Growth Strategy , the council's Area 14 Master Plan, and the council's Lake Cathie and Bonny Hills Urban Design Master Plan and Environmental Study for Stage 1A Urban Land Release (the latter of which was relied upon by INL in its application to the DG) in its conclusion that the site had not been identified for future urban use and that the proposed development would compromise the council's strategic planning work in the area. The Lake Cathie-Bonny Hills Urban Design Mater Plan and Environmental Study for Stage 1A Urban Land Release , for example, is replete with references, descriptions and discussion of the land in the vicinity of the site.
70Accordingly, it cannot, in my opinion, be seriously advanced that the DG did not engage in an active intellectual process of considering the existing and approved uses of the land in the vicinity of the site.
71The second mandatory matter that INL asserts that the DG failed to consider consists of a triumvirate of factors that may be compendiously described as relating to the water and sewage system. These are that:
(a) INL was prepared to install an on-site sewage holding tank if required, as well as upgrade the existing council sewer system;
(b) there would be onsite detention/reticulation systems; and
(c) there were currently installed reticulated water systems.
72The DG submitted that consideration of these factors was not, when regard was had to the subject-matter, scope and purpose of the relevant clauses of the SEPP, required to be taken into account by him in deciding to refuse to issue the certificate.
73While consideration of these specific facts was not, in my opinion, mandatory by the DG, he was nevertheless required to have regard to the services and infrastructure that are, or will be, available to meet the demands arising from the proposed development (cl 25(5)(b)(iii) of the SEPP), and such services and infrastructure included those relating to water and sewage.
74But the application for the certificate that was before the DG discussed in detail the water and sewage infrastructure and service requirements of the proposed development. It was this material that, together with material from the council, that was considered in the report to the DG. For example:
The application states that sewer, water, electricity and telecommunications are locally available, as the site is adjacent to an existing urban area. Written advice from Council ( Tag CC ), however, states that reticulated water and sewer infrastructure for such a development is not available to the site and has not been planned for. The application notes that on-site sewage treatment is an option should Council's reticulation service be unavailable.
...
The proposal appears to generally meet the requirements under the SEPP regarding location and/or access to services. However, concern is raised as Council has indicated that water and sewer infrastructure is not available for this development. It is considered the development of this site, as proposed, would require reticulated water supply and a suitable system for effluent disposal.
75It cannot, therefore, be said that the DG failed to have regard to the water and sewage infrastructure and services relating to the proposed development.
76It appears that the real gravamen of INL's complaint is that the written advice from the council stating that reticulated water and sewer infrastructure for the proposed development was not available to the site and had not been planned for, was factually incorrect. However, not only could this error not be attributed to the DG, as discussed above, an error of fact of this nature will not result in the decision's invalidity.
77Third, INL submits that in concluding in the report before the DG that a "substantial amount of vegetation would need to be cleared", the DG failed to consider whether the term "vegetation" was "native vegetation", to which s 12 of the Native Vegetation Act applied.
78I do not agree. A fair reading of this section of the report makes it plain that the "vegetation" referred to by the author of the report was "native vegetation" within the meaning of s 12 of the Native Vegetation Act . That is to say, the inference may be readily drawn, given the textual context of the report's conclusion as to the amount of vegetation required to be cleared consequent upon the proposed development, particularly the express reference in the report to cl 25(5)(b)(vi) of the SEPP, that consideration was given to whether the "vegetation" referred to was "native vegetation" for the purpose of s 12 of that Act.
79Finally, there was, contrary to the contention by INL, no obligation on the DG to particularise what was meant by the term "vegetation" in this regard. A decision-maker is not required to set out every step in his or her decision-making process.
80For the reasons above, it follows that there was no failure by the DG to have regard to a mandatory matter and this ground of appeal must be dismissed.