A conclusion by a court finding a breach of s. 90 [now s 79C] by way of inference is one to be come to only after anxious consideration, but when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has drawn.
100 The agenda papers for the meeting, including the Hansen report, were distributed on Monday 13 December 2004 and the attachments to the Hansen report were distributed on Tuesday 14 December 2004. A letter from Woolworths to the Council dated 16 December 2004 seeking amendments to the draft conditions recommended in the Hansen report was forwarded to Councillors on Friday 17 December 2004. The report and the attachments supporting the report were voluminous.
101 On the night of the meeting namely 20 December 2004, a summary of the amendments to the proposed conditions to the consent was provided to each Councillor. The summary largely reflected the changes sought by Woolworths in its letter dated 16 December 2004. The summary outlined proposed changes to several of the recommended conditions but generally did not describe the effect of the changes proposed.
102 Councillor Freedman testified that at the time she did not recognise the correlation between the summary of amendments and Woolworths letter of 16 December 2004. During the meeting she could not comprehend the substance of the changes which were proposed by the summary of amendments because of the need to refer to several different documents. Under cross-examination she said she had not formed a concluded view on the DA because of the lack of time. Councillor Freedman acknowledged that she did not ask any questions of the Mayor at the meeting, but instead made a statement.
103 The transcript of the Council meeting on 20 December 2004 records that Councillor Freedman expressed her opposition to the motion because of the inadequate time allowed in which to consider the material provided by the Hansen report, and the issues raised by it. She said she had forwarded a list of questions to a Council officer at 1 am on the day of the meeting but had received no response before the meeting. She urged the Councillors to defer the decision until February 2005.
104 Councillor Tudge deposed that he had no time to consider the content of the summary before the Council meeting and no real opportunity to ask questions in relation to it. Councillor Tudge also addressed the meeting on 20 December 2004 and said that he had tried to read the material, including 135 submissions, over the weekend, and that he had wished to ask a number of questions of various people concerning the Hansen report but had been denied the opportunity. He also questioned the Mayor's acceptance of the changes to the draft conditions proposed by Woolworths.
105 The transcript of the meeting also records that another Councillor supported a postponement of the Council resolution concerning the DA. The Councillor referred to having read approximately 750 pages of material but said that it had not been possible properly to assess the DA in the time allowed.
106 The Court considers that the provision to the Councillors of the agenda papers and the Hansen report provided little time for consideration of the DA. However, the development was not something new to the Council. A proposal had been considered over several years and the current Council had entered into the deed in July 2004, in anticipation of the DA being lodged. The SEE comprehensively described the development and was available for inspection by Councillors during the months preceding December. The Hansen report did not recommend any changes which made the development substantially different to that described in the SEE. A public meeting had also been held, which was attended by all Councillors except one. Accordingly the documentation in support of the DA received by the Councillors in the week preceding the meeting had already been the subject of discussion and debate. In view of this history, the Court finds that the time allowed for the consideration of the DA was adequate.
107 The summary of amendments was explained by the Mayor at the meeting, as recorded by the transcript. The proposed amendments contained in the summary of amendments included conditions relating to hours of trading and signage. Other amendments included the removal of a set back along the western elevation at the library level, the removal of a draft condition proposing a 1.5 m landscape strip along the western edge of Link Road, the removal of a draft condition which proposed the reconstruction of a portico and windows to outside the library building, provisions concerning the construction of a wombat crossing and the alteration of hours of access to the plaza and residential units. These changes to the proposed conditions were relatively minor and were not such as to substantially alter any aspect of the development. All but one of the changes accorded with the amendments proposed in Woolworths letter dated 16 December 2004.
108 Moffitt P in Parramatta City Council v Hale (at 347) considered that a council's decision may be impugned:-
… if there were some element of surprise, as where for some time there had been before council members, as such, a detailed recommendation involving a particular set of s 90(1) considerations and there were sprung on the meeting a resolution for consent on a basis which was fundamentally different and would involve different s 90(1) considerations. The consideration would not be that of the collegiate body, in passing the resolution on the ground that a majority may have known about what was to happen and it was only a minority who were kept in the dark.
109 Unlike the facts in Hale , the summary of amendments proposed only minor changes. Given the nature of the amendments proposed, the Court is not satisfied that the amendments required different s 79C considerations or proposed a fundamentally different development. Accordingly, this challenge fails.
The modified consent
110 Section 96(1A) of the EP&A Act empowers a consent authority, upon application, to modify a development consent if the consent authority is satisfied that the proposed modification is of minimal environmental impact (s 96(1A)(a)) and that the development under the modified consent is "substantially the same development" as the development under the original consent (s 96(1A)(b)). Section 96(4) of the Act provides:-
The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
111 By letter dated 23 May 2005 the Council notified Fabcot that the DA had been replaced by a modified consent of the same number, pursuant to s 96 of the EP&A Act.
Validity of the modification
112 There have been numerous decisions of this and other Courts which establish that a consent is valid until declared void: see Swadling and Anor v Sutherland Shire Council and Ors (1994) 82 LGERA 431; MLC Properties and Anor v Camden Council and Ors (1997) 96 LGERA 52; Hillpalm Pty Ltd v Tweed Shire Council and Anor (2002) 119 LGERA 86; see also the Court of Appeal decision in F Hannan v Electricity Commission of New South Wales [No 3] (1985) 66 LGRA 306 at 326 per McHugh J and the House of Lords decision in Smith v East Elloe Rural District Council and Ors [1956] AC 736.
113 The applicant, however, submits that the above cases are no longer good law, and challenges the validity of the modification of the original consent on the ground that the original consent was void, and therefore purported modifications under s 96 are ineffectual. The applicant relies upon Hollis v Shellharbour City Council [2002] NSWLEC 83.
114 In Hollis the Council had granted a consent on the basis that a development was not a designated development. As a result the decision-making process for the development consent was governed by different provisions than it would have been if the development had been properly classified as a designated development. Pain J found that as a question of fact, the development was a designated development. As this was a fundamental error with respect to a jurisdictional fact, her Honour found that there was no decision at law and accordingly, there was no decision to be modified under s 96 of the EP&A Act.
115 The decision in Hollis followed the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. In Bhardwaj, Gaudron and Gummow JJ said at [51]:
There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further there is a certain illogicality in the notion that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.
116 There is a distinction to be drawn between determinations made in the absence of jurisdiction and determinations which are made within jurisdiction, but which are challenged because of some failure of procedure or error of decision-making principle. This is consistent with Hollis , where the decision was impugned by reason of a jurisdictional fact.
117 The concept of jurisdictional fact was recognised by the High Court in Corporation of the City of Enfield v Development Assessment Commission and Anor (2000) 199 CLR 235. It has now been applied to development consents in cases such as Timbarra Protection Coalition Inc v Ross Mining NL and Ors (1999) 46 NSWLR 55. As a consequence earlier decisions of the Court of Appeal such as F Hannan v Electricity Commission can no longer be regarded as good law in respect of the consideration of facts going to jurisdiction.
118 The concept of jurisdictional fact, and the distinction between a jurisdictional error and a non-jurisdictional error, has now been comprehensively reviewed by the New South Wales Court of Appeal in Woolworths Ltd v Pallas Newco Pty Ltd and Anor (2004) 61 NSWLR 707. The issue in this case was whether a proposed development was of a type which was prohibited or permissible with consent under the local planning instrument. The trial judge had determined that the proposed development did not satisfy the requisite definition and was prohibited.
119 Handley JA at 734 said:
In my judgment … there is a fundamental distinction between a finding that a consent can be granted, and a finding that it should be. This consent could not lawfully be granted unless the proposed development was characterised as permissible with consent. This threshold enquiry is naturally and intrinsically jurisdictional. It is only if the proposed development is so characterised that the decision-maker can consider the application on its merits and exercise its discretionary power to grant consent with or without conditions.
120 Spigelman CJ considered indicators of jurisdictional fact and indicators against jurisdictional fact. His Honour said at 719:
... an environmental planning instrument may require the assessment of a wide range of matters of considerable complexity involving the formation of value judgments. Such a decision-making process is unlikely to involve a jurisdictional fact …
The decision to grant consent, which is based on a wide range of broadly stated considerations set out in s 79C of the [EP&A] Act, is a decision of that character.
121 In the present proceedings the challenge to the original consent is not predicated upon an alleged jurisdictional error. The challenges to the original consent are on the ground of uncertainty, based upon value judgments made by the Council in the assessment process under s 79C of the EP&A Act, rather than to a question of the power of the Council to grant the original consent. The failure of condition 1(a) to comply with s 80A(4) of the EP&A Act (see at [77] above In the present proceedings the challenge to the original consent is not predicated upon an alleged jurisdictional error. The challenges to the original consent are on the ground of uncertainty, based upon value judgments made by the Council in the assessment process under s 79C of the EP&A Act, rather than to a question of the power of the Council to grant the original consent. The failure of condition 1(a) to comply with s 80A(4) of the EP&A Act (see at [77] above) does not constitute a jurisdictional error. In the absence of a jurisdictional challenge to Council's decision of 20 December 2004, the consent remains valid until declared otherwise. It follows that at the time of the modification of the consent on 20 May 2005 there existed a valid consent which could be modified.
Challenge to the conditions of the modified consent
122 The applicant challenges the same conditions in the modified consent as in the original consent. All of the challenged conditions are identical to the conditions contained in the original consent, with the exception of condition 1(a) and condition 3 of the modified consent. It is unnecessary for the Court to consider the challenges to the corresponding conditions in the modified consent, as these have already been considered in relation to the original consent.
123 Condition 1(a) of the modified consent provides:-
(a) The CBD housing roof form shall be in accordance with drawing SK03A, dated 19 November 2004, prepared by BN Group Pty Ltd.
124 Drawing SK03A referred to in condition 1(a) of the modified consent is the same drawing which was before Council at the time the original consent was granted. It is apparent from the evidence that Hansen, between the date of the original consent and the modified consent, accepted that the modifications anticipated in the original condition 1(a) were unnecessary, and that the design as shown in drawing SK03A was appropriate. The modified consent specifically identifies the intended design and leaves no scope for uncertainty. The applicant's challenge to this condition therefore fails.
125 Condition 3 of the modified consent states:-
The development shall be completed strictly in accordance with the following drawings except as may be otherwise amended by this Notice:-