INL Group Limited v Director-General of the New South Wales Department of Planning

Industry and Investment NSW (Agriculture Division) [2011] NSWLEC 191 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 73 ALD 1 Shellharbour City Council v Minister for Planning (No 2) [2011] NSWLEC 107 Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 Category: Principal judgment Parties: INL Group Limited ACN 144 982 436 (Applicant) Director-General of the New South Wales Department of Planning (Respondent) Representation: Mr T J Morahan (Applicant) Mr J J Hutton (Respondent) Jade Lawyers (Applicant) Department of Planning (Respondent) File Number(s): 40978 of 2010

INL Challenges the Refusal to Issue a Site Compatibility Certificate 1On 6 October 2010, INL Group Limited ("INL"), the applicant in these proceedings, applied ("the application"), pursuant to cl 25 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ("the SEPP"), for a site compatibility certificate ("the certificate") in respect of the development of a proposed retirement village located on Lots 3 and 4 of DP 844371, Bonny View Drive, Bonny Hills ("the site"). 2A certificate was required because cl 50(2A) of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") states that a development application to which that clause applies to be accompanied by a site compatibility certificate. It was not in dispute that the proposed development was a development attracting the application of cl 50(2A). 3The Director-General of the New South Wales Department of Planning ("the DG") received formal written advice from the Port Macquarie Hastings Council ("the council") on 25 October 2010, stating that the council did not consider the land to be an appropriate site for the development proposed. This view was repeated verbally by Mr Dan Croft, a council officer. The council's primary concerns were that the proposed development would compromise the council's strategic planning work in the area; reticulated water and sewer infrastructure for the proposed development was not available to the site and had not been planned for; the site was not sufficiently proximate to the required social services and the potential adverse social impacts that could result; the remnant vegetation that existed on the site was of high conservation value and there could potentially be loss of habitat, including Koala habitat; and the proposal could result in adverse impacts on biodiversity. 4On 9 November 2010, the DG determined, under sub-cl 25(4)(a) of the SEPP, not to issue a certificate in respect of the site ("the determination") and notified INL in writing on that day of his decision. It is this determination that is the subject of challenge in these proceedings by INL. 5However, for the reasons that follow, the proceedings must be dismissed, INL having failed to establish any of its grounds of review challenging the decision of the DG not to issue the certificate.

A Retirement Village is Proposed for the Site 6The application was in respect of a proposed 16 stage retirement village development comprising 480 single storey dwellings of two and three bedroom design, administration buildings and recreation facilities consisting of a community centre, bistro, library, gym, tennis courts, bowling green and pool on the two adjoining lots described above ("the proposed development"). The total area of the proposed development was 154.76ha. 7The site is zoned 1(a1) Rural under Port Macquarie-Hastings Local Environmental Plan 2001 ("the LEP") and at the time of the application, and historically, had been used for cattle grazing. 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. The site is not identified as being within a designated Growth Area in the council's Mid North Coast Regional Strategy or the council's Port Macquarie-Hastings Urban Draft Growth Strategy . 8The proposed development covers the entirety of the site with the exception of land identified as an ecological endangered community of low lying sclerophyll forest ("the EEC"). The site is mostly vegetated with no dwellings on it. The site is mapped as having high conservation significance under the council's Draft Vegetation Management Plan .

The SEPP 9Chapter 3 of the SEPP allows development on land zoned primarily for urban purposes, or on land that adjoins such land, for "any form of seniors housing" (cl 15 of the SEPP). The development must be carried out with the consent of the relevant consent authority, which in this case is the council (cl 16). 10Relevantly, cl 24 of the SEPP applies to development applications made under Ch 3 if, as in the present case, the development is proposed to be carried out on "land that adjoins land zoned primarily for urban purposes" (cl 24(1)(a)(i)). As a consequence of the application of Ch 3 to the proposed development, it was therefore necessary for INL to obtain a certificate. 11Clause 24 of the SEPP states: 24 Site compatibility certificates required for certain development applications (1) This clause applies to a development application made pursuant to this Chapter in respect of development for the purposes of seniors housing (other than dual occupancy) if: (a) the development is proposed to be carried out on any of the following land to which this Policy applies: (i) land that adjoins land zoned primarily for urban purposes, (ii) land that is within a zone that is identified as "special uses" under another environmental planning instrument (other than land on which development for the purposes of hospitals is permitted), (iii) land that is used for the purposes of an existing registered club, or (b) the development application involves buildings having a floor space ratio that would require the consent authority to grant consent under clause 45. (1A) Despite subclause (1), this clause does not apply to a development application made pursuant to this Chapter in respect of development for the purposes of seniors housing if the proposed development is permissible with consent on the land concerned under the zoning of another environmental planning instrument. (2) A consent authority must not consent to a development application to which this clause applies unless the consent authority is satisfied that the Director-General has certified in a current site compatibility certificate that, in the Director-General's opinion: (a) the site of the proposed development is suitable for more intensive development, and (b) development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding environment having regard to (at least) the criteria specified in clause 25(5)(b). (3) Nothing in this clause: (a) prevents a consent authority from: (i) granting consent to a development application to which this clause applies to carry out development that is on a smaller (but not larger) scale than the kind of development in respect of which a site compatibility certificate was issued, or (ii) refusing to grant consent to a development application to which this clause applies by reference to the consent authority's own assessment of the compatibility of the proposed development with the surrounding environment, or (b) otherwise limits the matters to which a consent authority may or must have regard (or of which a consent authority must be satisfied under another provision of this Policy) in determining a development application to which this clause applies. 12Clause 25(1) of the SEPP provides for applications for certificates to be made to the DG, upon whom is conferred a discretion to issue or refuse a certificate. 13Although INL pleaded in its points of claim that the application to the DG for the certificate was made pursuant to cl 50(2) of the Regulation, this is cannot be correct because that provision states: (2) A development application that relates to development for which consent under the Wilderness Act 1987 is required must be accompanied by a copy of that consent. 14Nor was the application to the DG made pursuant to (which I infer was the clause intended to be pleaded in the points of claim) cl 50(2A) of the Regulation, which provides that: (2A) A development application that relates to development in respect of which a site compatibility certificate is required by a State Environmental Planning Policy must be accompanied by such a certificate. 15This regulation does no more than stipulate that a development application to which the clause applies must have a certificate. It does not state to which entity or person application for a certificate must be made. 16Rather, the application for the certificate was made to the DG pursuant to cl 25(1) of the SEPP. Clause 25 relevantly provides as follows: 25 Application for site compatibility certificate (1) An application for a site compatibility certificate for the purposes of clause 24 may be made to the Director-General: (a) by the owner of the land on which the development is proposed to be carried out, or (b) by any other person, with the consent of the owner of that land. (2) An application must be: (a) in writing, and (b) in the form (if any) approved by the Director-General from time to time, and (c) accompanied by such documents and information as the Director-General may require. (3) Subject to subclause (4) (b), the Director-General must provide a copy of the application to the General Manager of the council for the area in which the development concerned is proposed to be carried out (the relevant General Manager ) within the period of 7 days after the application is made. (4) Subject to subclause (5), the Director-General: (a) may determine the application by issuing a certificate or refusing to do so, and (b) if the Director-General refuses to issue a certificate at any time within the period of 7 days after the application is made-is not required to comply with subclause (3). (5) The Director-General must not issue a site compatibility certificate unless the Director-General: (a) has taken into account the written comments (if any) concerning the consistency of the proposed development with the criteria referred to in paragraph (b) that are received from the relevant General Manager within 21 days after the application for the certificate was made, and (b) is of the opinion that the proposed development is compatible with the surrounding land uses having regard to (at least) the following criteria: (i) the natural environment (including known significant environmental values, resources or hazards) and the existing uses and approved uses of land in the vicinity of the proposed development, (ii) the impact that the proposed development is likely to have on the uses that, in the opinion of the Director-General, are likely to be the future uses of that land, (iii) the services and infrastructure that are or will be available to meet the demands arising from the proposed development (particularly, retail, community, medical and transport services having regard to the location and access requirements set out in clause 26) and any proposed financial arrangements for infrastructure provision, (iv) in the case of applications in relation to land that is zoned open space or special uses-the impact that the proposed development is likely to have on the provision of land for open space and special uses in the vicinity of the development, (v) without limiting any other criteria, the impact that the bulk, scale, built form and character of the proposed development is likely to have on the existing uses, approved uses and future uses of land in the vicinity of the development, (vi) if the development may involve the clearing of native vegetation that is subject to the requirements of section 12 of the Native Vegetation Act 2003 -the impact that the proposed development is likely to have on the conservation and management of native vegetation. (6) Without limiting subclause (4) (a), the Director-General may refuse to issue a certificate if the Director-General considers that the development is likely to have an adverse effect on the environment. 17Clause 25(4)(a) of the SEPP confers on the DG a discretion to issue or refuse a certificate. The discretion is circumscribed by the subject-matter, scope and purpose of the SEPP, which includes the factors set out in sub-cl 25(5).

The DG's Determination 18In order to issue a certificate, pursuant to the SEPP the DG had to form the opinion: (a) first, that pursuant to cl 24(2)(a) the site of the proposed development is suitable for more intensive development; and (b) second, that pursuant to cl 24(2)(b) development for the purposes of seniors housing of the kind proposed in the development application is compatible with the surrounding environment, at least having regard to the criteria set out in cl 25(5)(b) of the SEPP. 19In addition, if the DG considered that the development was "likely to have an adverse effect on the environment" (cl 25(6) of the SEPP), then he could refuse to issue a certificate. 20The reasons given in the determination for the DG refusing to issue the certificate were as follows: (a) first, it was not considered that the proposed development was compatible with the natural environment of the site given the identified elevated environmental values of the land; (b)second, when assessed against the objectives of the 1(a1) Rural zone in the LEP, the impact of the development on the future use of the land would degrade its significant environmental values and the future development of the land for alternative agricultural purposes was unlikely due to its vegetated nature; (c)third, while the proposal generally met the requirements of the SEPP with regards to the provision of medical, transport and infrastructure services, the council had raised concerns over the proximity of the site to the likely necessary social services and the fact that water and sewer infrastructure was not available, and that therefore, the development would require a reticulated water supply and a suitable system for effluent disposal; (d)fourth, while it was considered possible that the proposed development could be designed and developed so that it conformed to the character of the adjacent land, in the absence of more detailed design plans or information, it was difficult to fully determine the impact of the development; (e)fifth, notwithstanding the furnishing by INL of a supplementary report to address the Department of Planning's concerns with respect to the clearing of native vegetation referable to the SEPP, insufficient information had been provided specifying the area of native vegetation to be cleared to support the proposed development on site; (f)sixth, with the exception of the retention of the majority of the EEC vegetation and a proposed 20m buffer between it and the development, insufficient details had been given of the potential impact of the clearing on the existing vegetation. It was envisaged that because of the dispersed nature of the proposed development across the site, a substantial amount of vegetation would be required to be cleared either for buildings and infrastructure, or for bush fire reduction, however, neither the amount to be cleared nor the potential impacts had been adequately discussed. In addition, neither the location nor the community types of vegetated areas proposed to be retained had been identified; (g)seventh, inadequate assessment of the vegetation corridors proposed to be maintained had been made. There had, for example, been no assessment of whether the vegetation had value as a corridor for relevant species or whether it effectively linked to other vegetation off site. Further, habitat requirements, particularly koala habitat, had not been addressed. Accordingly, the development was likely to result in fragmentation of ecosystem connectivity with the potential to adversely impact habitat integrity; (h)eighth, and closely allied to the reason above, the proposed development could adversely impact the condition of the EEC vegetation on the site and would result in habitat loss and adverse biodiversity impacts on the land, which was mapped as having a high conservation significance under the council's Draft Vegetation Management Plan ; and (i)ninth, the statement in the application that other vegetation on the site was considered to be of low significance was not supported by adequate surveying and assessment. Furthermore, potential impacts of the proposed development on other areas of conservation significance had not been addressed in the application and despite intended retention of some vegetation on the site, it was unlikely that the proposal would minimise impacts on other vegetation of conservation significance. 21The conclusion to the determination was stated in these terms: Conclusion While the proposal is permissible under the SEPP as the land adjoins urban-zoned land, the land is mostly vegetated and appears to have significant environmental value. The majority of the site is identified by DECCW Biodiversity Conservation Lands mapping as being of State significance. An Endangered Ecological Community occupies roughly a third of the site, while the remainder contains a mix of dry and wet sclerophyll forest and woodland, part of which have been partially cleared for grazing use. The application does not provide adequate consideration or indication of the extent of clearing required in association with the proposal or the potential impacts associated with this, including impacts to fauna such as the koala. It is not possible from the information provided with the application to conclude that the land is suitable for the proposed development. In addition Council has raised issues regarding the provision of water and sewer infrastructure to the site and state that water and sewer infrastructure is not available for the development and has not been planned for the site. In consideration of the above matters it is suggested that the subject site is not suitable for more intensive development. The proposed development is considered likely to have an adverse effect on the environment. 22Thus it was recommended that the certificate not be issued on the basis that the development was not suitable for more intensive development, that the development was not compatible with the surrounding environment having regard to the criteria in cl 25(5)(b) of the SEPP and that it was considered likely that the development would have an adverse impact on the environment.

The Grounds of Review 23INL pleaded seven principal grounds of review challenging the DG's decision to refuse to issue the certificate in its points of claim: (a) first, that as particularised, the DG took into account irrelevant matters, all of which were related to the conservation status of the site and the adverse impact of the proposed development on the biodiversity and habitat of the site, that according to INL, were "unsubstantiated and unknown"; (b) second, that the DG failed to take into account a mandatory relevant consideration, namely, the existing and approved land uses of the adjoining lands to the site; (c) third, that there was no evidence before the DG that the proposed use or development of the site would degrade the "significant environmental values" of the site; (d) fourth, that the DG failed to take into account whether services and infrastructure "are or will be available to meet the demands arising from the proposed development" pursuant to cl 25(5)(b)(iii) of the SEPP. In particular, the DG failed to consider: (i) that INL was prepared to install an on-site sewage holding tank if required and to upgrade the existing council sewer systems; (ii) that there would be on-site detention/reticulation system; and (iii) that there were currently installed reticulated water systems; (e) fifth, the DG took into account an irrelevant consideration in his consideration of cl 25(5)(b)(vi), namely, the lack of bush fire hazard reduction; (f) sixth, that the DG failed to take into account whether the "substantial amount of vegetation" that would need to be cleared was of a type referred to by s 12 of the Native Vegetation Act 2003; and (g) seventh, that the decision of the DG to refuse to issue the certificate was manifestly unreasonable and/or manifestly illogical. 24INL's submissions, however, both written and oral, did not specifically, or even in substance, address the grounds of review as pleaded. Instead, the submissions concentrated on asserted factual errors made in the report and materials considered by the DG and consisted of a concerted challenge to the merits of the DG's decision. 25In a judicial review application the limitations of such an approach are obvious ( Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at [36] per Brennan J quoted with approval in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [23]). 26Notwithstanding the unorthodox manner by which INL advanced its case, this judgment has proceeded to deal with the grounds of review as pleaded.

The Expert Evidence of Mr Garry Warnes is Rejected 27INL sought to rely on a expert report of Mr Garry Warnes, a town planner. Mr Warnes was instructed to undertake a review of the documents submitted to the DG and to "provide expert evidence on issues arising in this appeal as relate [sic] to matters in my area of expertise that is relating to Town Planning matters." 28The report comprised 38 pages including annexures and consisted almost exclusively of a merits based critique of the report to the DG by the Department of Planning recommending the refusal of the issuing of the certificate and the documents underlying that report. 29A single extract will suffice to illustrate both the tenor and substance of the report: 4.138 The Department repeats Council concerns that the proposal would result in habitat loss and adverse biodiversity impacts on the land yet neither the Department or the Council provide any basis for their assertions in the face of the detailed field work undertaken by RPS other than to rely on an outdated Draft Vegetation Management Plan originating from data collected in 1997 and with little or no ground truthing. 4.139 The Department relates how the majority of the site is identified by DECCW Biodiversity Conservation Lands mapping as being of State significance yet does not articulate what is the source of this significance rating or what investigations were undertaken to identify the lands as being of State significance and what strategies were being applied to protect these lands. The statement is generalised and cannot be interrogated. 4.140 The Department confirms that an Endangered Ecological Community occupies roughly a third of the site, while the remainder contains a mix of dry and wet sclerophyll forest and woodland, part of which have been partially cleared for grazing use which is all data taken from the application and the RPS Vegetation Report and is not questioned. 4.141 However the Department then launches back into their suppositions that the application does not provide adequate consideration or indication of the extent of clearing required in association with the proposal or the potential impacts associated with this, which the Department is not required to prove yet which is stated in the face of a targeted report prepared by RPS Ecologists to address the specific criteria identified in the Guidelines for Consideration of native vegetation under the Seniors Housing SEPP. 30The DG objected to the entirety of the report on the basis that it was irrelevant and opinion evidence. Alternatively, the DG sought to have the Court exercise its discretion to exclude the report under s 135 of the Evidence Act 1995 on the basis that it was likely to mislead, confuse or result in undue wasted time. 31The Court accepted the DG's submissions and refused to admit the report. This was because, first, ordinarily in judicial review proceedings evidence of material that was not before the decision-maker at the time the decision was made is irrelevant and therefore inadmissible ( McCormack v Commissioner of Taxation Large Business & International [2001] FCA 1700; (2001) 114 FCR 574 at [35]-[40] and [88], Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at [442] and [457] and Shellharbour City Council v Minister for Planning (No 2) [2011] NSWLEC 107 at [7]). 32While an exception to this rule may exist where the evidence supports a challenge on the grounds of Wednesbury unreasonableness ( Moolarben Coal Mines Pty Ltd v Director-General of the (former) Department of Industry and Investment NSW (Agriculture Division) [2011] NSWLEC 191 at [69]-[76] and the authorities cited thereat), even assuming that the report was admissible, the evidence within it must nevertheless establish that the decision is "so unreasonable that no reasonable [decision-maker], acting within jurisdiction and according to law, would have come to such a conclusion" ( Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [39] per Gleeson CJ and McHugh J), and not merely, as was the case in Mr Warnes' report, to seek to engage with the merits of the decision itself. 33Second, the report suffers from the vice that other than to review the documents submitted to the DG and provide "expert evidence on issues arising in this appeal", no issue was identified upon which Mr Warnes was asked to provide an opinion on. Accordingly, the report consists of no more than a series of observations made by Mr Warnes, a great deal of which he was unqualified to make - for example, the potential impact of the proposed development on the identified koala habitat - and all of which had little, if any relevance to the legality of the determination. 34Third, the language of the report was coloured by intemperate and inflammatory language, much of which was apt to mislead on critical matters of fact. For example, Mr Warnes observed that (at paragraph 4.40) "it is difficult to understand how the Department's report to the Director General could promote the view that the development would result in an ecological disaster " (emphasis added). The report to the DG said nothing of the sort. Similarly, Mr Warnes' report contained a number of assertions that the council, the Department of Planning and/or the DG had somehow acted improperly during the decision-making process (at paragraphs 4.47, 4.63, 4.65 and 4.118). No foundation was given for these scandalous allegations. They must be wholly rejected. 35Fourth, many of the opinions expressed by Mr Warnes derived from his own, and often incorrect, interpretation of the documents before the DG. They were to the effect that the DG ought not to have considered certain matters, or alternatively, was required to take other matters into account and that he did not do so. Not only is the task of identifying whether a matter is a mandatory relevant consideration, or an irrelevant consideration, one of statutory construction that cannot be the basis of specialised knowledge, it is, moreover, ultimately a question reserved for the Court on any judicial review application, and not an issue determined by adducing expert evidence. 36Fifth, many of the points sought to be made by Mr Warnes in his report depended on material not before the decision-maker. 37And sixth, read in its entirety, Mr Warnes' report may be reasonably and fairly characterised as amounting to a submission on behalf of INL. This is so notwithstanding that Mr Warnes stated that he had read, and was aware of, his responsibilities under the Uniform Civil Procedure Rules 2005 ("the UCPR") and had agreed to be bound by the Expert Witness Code of Conduct contained in Sch 7 to the UCPR ("the Expert Code"), including cl 2(3) that states that "an expert witness is not an advocate for a party". 38Indeed Mr Warnes' report transgressed the Expert Code in several other material respects: (a) it did not fully state the facts and assumptions of fact upon which the report was based (cl 5(1)(b)); (b) it did not state the reasons for the opinions Mr Warnes expressed (cl 5(1)(c)); (c) the report trespassed into fields that fell outside Mr Warnes' area of planning expertise (cl 5(1)(d)); and (d) the report, which was lengthy given its stated subject matter, did not contain a brief, or indeed any, summary as required (cl 5(1)(e)). 39In summary, the report by Mr Warnes did not, for all of the reasons discussed above, "assist the court impartially on matters relevant to the expert witness's area of expertise" (cl 2(1) of Sch 7 to the UCPR). It was therefore rejected.

The DG Did Not Take Into Account Any Irrelevant Considerations 40It is convenient to deal with the first and fifth grounds of review together. 41The taking into account of an irrelevant consideration, that is to say, a matter that the decision-maker is bound not to consider, can amount to an error of law vitiating the decision (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) [1986] HCA 40; 162 CLR 24 at 39-41, Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [195] and Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [75]). 42In the present case, the DG's discretion to issue or refuse a certificate is broad, he "may determine the application by issuing a certificate or refusing to do so" (cl 25(4) of the SEPP). Moreover, the DG may refuse to issue a certificate if he considers the development "is likely to" have an adverse effect on the environment (cl 25(6) of the SEPP). 43The discretion is confined only by the terms of the SEPP and the provisions of the enactment under which the decision was made ( Peko-Wallsend at 40-42). The discretion is also circumscribed, in a negative way, by cl 25(5) of the SEPP, which states that the DG "must not" issue a certificate unless he has taken into account any written comments of, in this case, the council (cl 25(5)(a)) and has formed the opinion that the proposed development is compatible with the surrounding land uses having regard to "(at least)" the criteria contained in cl 25(b)(i)-(vi) of the SEPP. 44The first purportedly irrelevant matter that the DG took into account was the "unsubstantiated opinion" that the EEC contained within the proposed development site "may" potentially comprise koala habitat. The matter is asserted to be irrelevant because the DG did not require or request INL to provide a habitat assessment with the application. 45Given that the information that the habitats within the site, including the EEC, were assessed as providing "abundant foraging resources...for...mammals such as possums, gliders, Koalas and bats" (emphasis added) came from INL's application for the certificate, it is difficult to understand how this matter can reasonably be described by INL as mere "unsubstantiated opinion" on behalf of the DG. There was, in any event, no obligation, statutory or otherwise, on the DG to request a separate koala habitat assessment to be provided with the application. 46Furthermore, there can be no doubt that the information was highly relevant when regard is had to the criteria in cl 25(5)(a) of the SEPP (the council was specifically concerned with the environmental value of the site, including the likely presence of the koala habitat), (b)(i) (the impact of the proposed development on the natural environment),(iv) (the impact of the proposed development on the conservation and management of native vegetation in so far as this affected the fauna potentially present on the site) and cl 25(6) (whether the development would have an adverse effect on the environment). 47The second allegedly irrelevant matter complained of by INL is the taking into account of the council's Draft Vegetation Management Plan . Under the Plan the site is mapped as having a high conservation significance. The application for the certificate was criticised in the report furnished to the DG for having inadequate assessment of the value of habitat on the site to native fauna and threatened species. INL submitted that the draft status of the Plan rendered it unsuitable for consideration by the DG. 48I do not agree that either the Plan itself was irrelevant having regard to the criteria referred to above in cl 25(5) and (6) or the fact it was only a draft rendered it so. At no point was the DG unaware of the fact that the Plan was only a draft and, more importantly, the fact that it was in draft form did not alter the mapping of the site and its identification as a site of high conservation significance. Even it did, and therefore the DG's consideration of the Plan was in error, at its highest this would, in my view, amount to no more than an error of fact by the DG, which is not amenable to judicial review in the absence of a marked departure from standards of rationality and reasonableness or unless it is unsupported by any evidence ( Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [62]-[63], approved in Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [35]). 49Further, and as discussed above, a study of the statutory framework giving rise to the exercise of the DG's broad discretion to issue a certificate reveals few, if any, matters that the DG cannot take into account. And even if there were any limiting factors derived from the subject-matter, scope and purpose of the SEPP, the regulation or the Environmental Planning and Assessment Act 1979, these would not preclude consideration of the Plan , even if in draft form. 50Furthermore, the assessment made in the Plan of the high conservation significance of the land was consistent with the majority of the site having been identified by DECCW Biodiversity Conservation Lands mapping as of State significance. 51The third irrelevant consideration raised by INL in this ground of review is the "unsubstantiated" and "unparticularised" "significant concerns" of the council over the potential habitat loss and the adverse biodiversity impacts resulting from the proposed development. 52For reasons not dissimilar to the first alleged irrelevant consideration, this was a matter that was also, in my opinion, highly relevant to the DG's determination not to issue the certificate (see, in particular, cl 25(5)(a) of the SEPP). As for the claim that the concerns of the council were not substantiated and not particularised, even if correct this criticism does not render the council's concerns irrelevant. 53Fourth, INL claimed that the DG's reliance on aerial mapping of the proposed development site in which a conclusion was drawn that conservation values over "almost" the entire site were affected was an irrelevant consideration given the fact that a significant proportion of the site was cleared. 54Framed in this way, the contention amounts to no more than an attack on the merits of the DG's decision to refuse to issue the certificate. At its highest, the complaint amounts to an error of fact in so far as it seeks to impugn the veracity of the information before the DG. However, as stated above, the correctness or incorrectness of the decision reached by the DG is generally not of concern in a judicial review application. 55In any event aerial mapping of the proposed development was contained in the application to the DG and was before the DG at the time he made his decision. This mapping, together with plans of the proposed development, and plans depicting the location of the EEC, all of which were found in INL's application, suggested that the area of the proposed development was extensive and that it covered the entire site with the exception of the EEC. It was the absence of information as to the precise amount of vegetation to be cleared in the application that was a matter of concern to the DG in light of cl 25(5)(b)(vi) of the SEPP. There was nothing irrelevant about either the aerial mapping or the manner in which the area of the proposed development and its impact on the environment was taken into account by the DG. 56Fifth, INL took issue with the DG's consideration of "key habitats" located on the site absent any identification of what these habitats were. But any contended failure to fully articulate these habitats did not make the DG's consideration of them irrelevant. Furthermore, a fair and reasonable reading of the report to the DG makes it, in my view, abundantly clear that the reference to the "key habitats" was a reference to the koala habitat and any other potential habitats that may exist given the high conservation value of the vegetation on the site. The impact of the proposed development on these habitats was clearly a relevant matter for the DG to consider in making his determination. 57Finally, INL argued that the consideration by the DG of the lack of bush fire hazard reduction was also an irrelevant matter vitiating his decision. Again, I do not agree, particularly when the reference to the lack of bush fire hazard reduction is read in its proper context. 58The report to the DG stated that "areas proposed for bush fire hazard reduction are also not identified". This statement, together with the observation that "given the scattered nature of the development across the site, it is anticipated that a substantial amount of vegetation would need to be cleared...for bush fire hazard reduction", was made in the context of a broader consideration of whether native vegetation would be retained in key locations on the site of the proposed development to avoid land and water degradation pursuant to the examination of the criterion contained in cl 25(5)(b)(vi) of the SEPP. 59It was patently relevant for the DG to take the amount of native vegetation INL anticipated would be cleared into account in assessing the application having regard to this clause of the SEPP. Because the amount of vegetation to be cleared was not specified in the application, in order to consider the impact of the development on the conservation and management of native vegetation on the site, the DG appropriately speculated as to the likely area to be cleared in light of the proposed retention of the EEC, the 20m buffer between the EEC and the development, the scattered nature of the development across the site, and the fact that accommodation would additionally need to be made for bush fire hazard reduction. It is in this context that the lack of bush fire hazard reduction was discussed by the DG. On any view it was a matter appropriately taken into account by the DG.

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.

There Was Evidence Before the DG that the Proposed Development Would Degrade the Significant Environmental Values of the Site 81INL complains that there was no evidence before the DG that the proposed use or development of the site would, as the DG concluded, degrade the significant environmental values of the site. 82A finding of fact made on no evidence whatsoever, as opposed to a finding of fact that is incorrect but is founded on some evidence, can and will amount to an error of law (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-356, Bruce v Cole (1998) 45 NSWLR 163 at 188, Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 at [75]-[76] and Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 241 CLR 390 at [90]-[91]. 83However, in the present case this ground must be rejected because there was, in my view, ample evidence upon which the DG concluded that the proposed development would degrade the significant environmental values of the site. As a fair reading of the DG's report reveals, and as the reasons expressed above demonstrate, the DG arrived at this conclusion based on the potential loss of habitat, including koala habitat; the fact that the proposal did not sufficiently address the impacts of the development on the existing native vegetation when it was "anticipated that a substantial amount of vegetation would need to be cleared", including the impact on the EEC (which although only occupying one third of the site in total "affects potential use of a much larger proportion of the site by the pattern of its distribution"); the fragmentation of the EEC vegetation; the likely fragmentation of ecosystem connectivity; and the fact that the proposal would result in adverse biodiversity impacts on land mapped as having a high conservation significance under the council's Draft Vegetation Management Plan . 84Ultimately it is the merits of the DG's conclusion in this regard with which INL takes issue, a matter not reviewable by this Court. Hence, this ground of review must also be rejected.

The DG's Decision Was Not Manifestly Unreasonable or Illogical 85This ground of challenge was argued three ways: first, that the decision to refuse to issue the certificate was so unreasonable that no reasonable decision-maker would have made it on the material before the DG (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, Eshetu at [39] and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611at [135]); second, or in the alternative, that the decision by the DG was manifestly irrational or illogical; and third, which was not pleaded in INL's points of claim, that the DG ought to have made further inquiries as to the environmental impact of the proposed development and his failure to do so was unreasonable. 86Turning to the first iteration of this ground of review, as Craig J recently observed in Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011] NSWLEC 217 (at [218]. See also Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [91]): 218 It is trite, but necessary, to observe the stringency with which the test is to be applied. The question is not one as to whether the decision-maker could reasonably have made the same decision had there been different or additional material before that decision-maker. Rather, the question is whether, on the material that was before the decision-maker, the decision was so unreasonable that no reasonable decision-maker could have come to it ( Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 84 ALJR 369 at [135]). 87It is a threshold that, on any view, INL has, as a proper analysis of the DG's reasons makes tolerably clear, failed to cross. There is nothing even remotely approaching an abuse of power in the discretion that was exercised by the DG that requires rectification by this Court. 88INL advanced the proposition that "if enough errors of fact are made then the decision is an unreasonable one". The problem, however, with this submission is that even if it is correct as a proposition of law, INL cannot point to a sufficiency of erroneous factual findings that could conceivably permit the characterisation of the decision as manifestly unreasonable. 89For similar reasons it cannot be said that the DG's refusal to issue a certificate was manifestly irrational or illogical. There is currently debate as to whether illogicality or irrationality constitutes a separate ground of review to that of manifest unreasonableness (cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 73 ALD 1 at [37], [52] and [173], Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALD 224 at [37]-[38] per Gummow and Hayne JJ and SZMDS at [122] and [128]-[131] per Crennan and Bell JJ). 90Suffice it for me to state that on the present state of High Court authority I remain unconvinced that illogicality or irrationality on the part of a decision-maker has emerged as a separate ground of judicial review wholly divorced from manifest unreasonableness (cf Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33; (2011) 182 LGERA 370 at [226] where the contrary view was expressed per Biscoe J). 91In any event, this is a controversy that does not require resolution by the Court for the purpose of determining the present proceedings. This is because, even if it were a separate ground of judicial review in the present case, it can be said that ( SZMDS at [131]): ...logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. 92In effect, INL contends that on the material before him, the DG should have issued the certificate. However, to use the language of SZMDS , this is no more than an assertion that the conclusions that the DG drew from the material before him ought to be rejected in favour of those urged upon him by INL. These are conclusions about which, as the material before the DG demonstrates, reasonable minds can, and have, differed. No reviewable illogical or irrational reasoning process on the part of the DG is evident that would warrant the Court's intervention. 93INL further complains that if the DG could not be satisfied on the material before him that the proposed development would not adversely impact the environmental values of the site, the DG should have made further inquiries and that his failure to do so was somehow perverse. 94But it is no part of a decision-maker's duty to make the applicant's case for it. Rather, the decision-maker is under a duty to review the material before him or her ( Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170 and Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15 at [25]). 95It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can, in some circumstances, be sufficient to give rise to a failure to review leading to error ( Prasad at 170 and SZIAI at [25]), but the fact must be both "critical" and "easily ascertainable". In the present case, INL could point to no such fact and could not articulate the inquiry that it asserted the DG ought to have made, but failed to do so. 96There is not, as INL suggested, some duty at large on a decision-maker to make further inquiries in circumstances where a proponent has, as in the present application, simply failed to present a sufficiency of material that would warrant a favourable decision. 97For these reasons this ground of review must fail.

Conclusion and Orders 98It follows that because these are proceedings in Class 4 of the Court's jurisdiction where costs follow the event and because INL has been unsuccessful in establishing any of its grounds of review, the amended summons must be dismissed with costs. 99The formal orders of the Court are therefore: (a) the amended summons is dismissed; (b) the applicant is to pay the respondent's costs of the proceedings; and (c) the exhibits are to be returned.

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: 23 December 2011