Marshall Rural Pty Limited v Hawkesbury City Council and Ors - [2015] NSWLEC 197 - NSWLEC 2015 case summary — Zoe

NSWNSWLEC

Marshall Rural Pty Limited v Hawkesbury City Council and Ors

[2015] NSWLEC 197

Land and Environment Court (NSW)|2015-11-20|Before: Moore AJ, Ms J

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2015-11-20

Before

Moore AJ, Ms J

Catchwords

111 LGERA 446 Dibbins v Dibbins [1896] 2 Ch 348 Ireland v Cessnock (1999) NSWLEC 153

Source

Original judgment source is linked above.

Catchwords

111 LGERA 446 Dibbins v Dibbins [1896] 2 Ch 348 Ireland v Cessnock (1999) NSWLEC 153

Judgment (49 paragraphs)

[1]

Contents Introduction The approved developments The nature of these proceedings The civil enforcement proceedings The bases for the challenge to the development consents Chronology Hawkesbury Local Environmental Plan 2012 The Council's process Marshall Rural's evidence Basscave's evidence Ground 1: Term of the development consents Ground 2: Incorrect consideration of a mandatory requirement The acoustic information supplied to the Council The acoustic conditions The Council's acoustic testing and assessment Objections to the Polo Barn application Objections to the Sunnybrook Barn application The material put to the Council and the assessment reports The Sunnybrook Barn application Acoustic impacts raised at the Council meeting Legal submissions to the Council meeting The nature of the cl 2.8 tests The fundamental fault in the Council process An additional comment concerning the Sunnybrook Barn determination Ground 5: Having regard to an impermissible consideration Ground 6: Denial of procedural fairness Introduction Was the councillor briefing "a meeting" within the meaning of Local Government Act 1993? Marshall Rural was not excluded from the briefing Was it a quorate gathering? Conclusion on Ground 6 Ground 7: The building certificate issue Additional ground - Owner's consent Introduction The next steps Leave to amend should be granted The terms of the letters The matters arising concerning validity of owner's consent The Higgins' evidence on signing The Sunnybrook Barn owner's consent consequence The basis asserted to the Council of authority to sign for Basscave Retrospective validation? Conclusion on owner's consent Conclusion Form of proposed orders

[6]

The bases for the challenge to the development consents

Each development consent is challenged by Marshall Rural on the same range of grounds. Those grounds are: 1. The development consents are not authorised under the LEP because use of land as a "function centre" is prohibited in Zone RU2 Rural Landscape, and the consents were for a period exceeding the maximum allowed by sub-cl 2.8(2) of the LEP. 2. In granting the development consents, the Council failed to consider, properly, preconditions to the exercise of the power under sub-cl 2.8(3) of the LEP, specifically the issue of whether or not there was any adverse impact on adjoining land or the amenity of the neighbourhood. 3. In the alternative to (2), if the Council was satisfied in respect of the matters referred to in (2), that satisfaction was unreasonable in the circumstances. 4. In the further alternative to (2), if the Council was satisfied in respect of the matters in (2), that satisfaction was invalidly reached by taking into account conditions of the grant of consent, which were not aspects of the development applications, or were matters of which the Council had no knowledge. 5. The Council took into account an irrelevant consideration, being a purported and/or possible future planning proposal. 6. The Council failed to accord procedural fairness to Marshall Rural by receiving a briefing in camera without public notice, in the absence of a resolution pursuant to s 10 of the Local Government Act 1993 (the Local Government Act), and taking into account that briefing without advising objectors of the matters briefed; and 7. The Council invalidly deferred a matter that should have been determined prior to the development applications being considered by instead imposing a condition requiring a building certificate pursuant to s 149D of the Planning Act before the issuing of an occupation certificate for each barn.
Marshall Rural also sought leave to add a further ground (discussed later). This ground concerned the terms of the "owner's consent" provided for each application.
I later address Grounds (1), (2), (5), (6), (7) and the terms of the "owner's consent" ground in detail. Given that Marshall Rural has succeeded on Ground (2), it is not necessary to deal with Grounds (3) and (4) as they were pleaded as alternatives to Ground (2).

[7]

Chronology

To understand what follows, it is appropriate to reproduce a short chronology of relevant matters. This chronology is adapted from the chronologies provided by Marshall Rural and Basscave. The relevant dates/time periods are: Date Event May 2014 Marshall Rural lodged a complaint to Council concerning noise from functions held on the Land, and raised issues in respect of the unauthorised use of the Land as a function centre. September 2014 Council issued "Stop Orders", and Basscave requested that Council hold the "Stop Orders" in abeyance until 1 March 2015, referring to planning applications that had been made that would make functions permissible, and the fact that 36 specific functions were booked prior to the issuance of the orders. November 2014 Council commenced noise monitoring of events on Basscave's land. 22 March 2015 On 22 March 2015, Development Applications for the temporary use of the Polo Barn and the Sunnybrook Barn for the purpose of function centres were lodged by Montgomery Planning Solutions on behalf of Basscave. DA156/15 relates to the use of the Polo Barn. DA 157/15 relates to the use of the Sunnybrook Barn. 31 March 2015 Council resolved to seek amendment of the LEP to modify cl.2.8 so as to increase the number of days a property can be used for a "temporary use" in any one year (from 28 to 52), and to alter the permissible uses under the LEP, including to allow for "function centres" to be approved in Zone RU2 Rural Landscape. April 2015 The DAs were publicly notified between 8 April 2015 and 22 April 2015 (Polo Barn) and 7 April 2015 and 21 April 2015 (Sunnybrook Barn). 22 April 2015 On 22 April 2015, Marshall Rural lodged objections to the DAs. There were 5 objections received in relation to the Polo Barn DA and 3 objections received in relation to the Sunnybrook Barn DA. 12 May 2015 A meeting of Council was scheduled at which the DAs were on the agenda, and a Business Paper was published recommending their approval. However, discussion of the DAs was referred to a "Councillor Briefing Session", with consideration of the DAs deferred to a later Council meeting. 2 June 2015 On 2 June 2015, the DAs were discussed at a Councillor briefing session. 10 June 2015 A revised consolidated joint acoustic report lodged 30 June 2015 The DAs were again considered at a meeting of Council. Updated Development Assessment Reports were prepared for this meeting. The DAs were again recommended for approval and the Council resolved to approve the DAs with conditions. 3 July 2015 The operative date for the two Development Consents under challenge.

[8]

Hawkesbury Local Environmental Plan 2012

The LEP is a modern local environmental plan founded on the standard instrument template. Only a limited range of its provisions are relevant in these proceedings. They are: 1. The relevant extract from the Land Use Table for the zone within which both Marshall Rural's and Basscave's landholdings are located primarily (and within which are located the buildings for which Basscave has been granted development consent); and 2. The terms of cl 2.8 - Temporary use of land - pursuant to which these consents have been granted.
The relevant zone is the RU2 Rural Landscape Zone - the fact that a portion of Basscave's landholding in the immediate riparian zone of the river is in an environmental zone plays no part in these proceedings.
The relevant extract from the LEP's Land Use Table for the RU2 Rural Landscape Zone is in the following terms: Zone RU2 Rural Landscape Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses in the zone and land uses in adjoining zones. • To ensure that development occurs in a way that does not have a significant adverse effect on water catchments, including surface and groundwater quality and flows, land surface conditions and important ecosystems such as waterways. • To ensure that development retains or enhances existing landscape values including a distinctive agricultural component. • To preserve the river valley systems, scenic corridors, wooded ridges, escarpments, environmentally sensitive areas and other features of scenic quality. • To ensure that development does not detract from the existing rural character or create unreasonable demands for the provision or extension of public amenities and services. 2 Permitted without consent Bed and breakfast accommodation; Environmental protection works; Extensive agriculture; Home occupations 3 Permitted with consent Agriculture; Animal boarding or training establishments; Boat sheds; Building identification signs; Business identification signs; Cemeteries; Charter and tourism boating facilities; Crematoria; Dual occupancies (attached); Dwelling houses; Educational establishments; Entertainment facilities; Environmental facilities; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Funeral homes; Helipads; Home-based child care; Home industries; Jetties; Landscaping material supplies; Moorings; Places of public worship; Plant nurseries; Recreation areas; Restaurants or cafes; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers' dwellings; Water recreation structures; Water storage facilities 4 Prohibited Any development not specified in item 2 or 3
As can be seen from (4) of the land use table for the zone, as "function centres" are not permitted by either (2) or (3), they are a prohibited use in this zone.
The second provision in the LEP that has a prominent role in these proceedings is that contained in cl 2.8, the provision that permits development consents to be granted for a temporary use when that use would otherwise be prohibited as a consequence of the Land Use Table for the particular zone for which an application might be made. That clause is in the following terms: Clause 2.8 Temporary use of land (1) the objective of this clause to provide for the temporary use of land if the use does not compromise future development of the land, or have detrimental economic, social, amenity or environmental effects on the land. (2) Despite any other provision of this Plan, development consent may be granted for development on land in any zone for a temporary use for a maximum period of 28 days (whether or not consecutive days) in any period of 12 months. (3) Development consent must not be granted unless the consent authority is satisfied that: (a) the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument, and (b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and (c) the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land, and (d) at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use.
In each of the development consents subject to these challenges, the temporary use for which approval has been given is as a "function centre", a term that is defined in the dictionary to the LEP. The definition is in the following terms: Dictionary … function centre means a building or place used for the holding of events, functions, conferences and the like, and includes convention centres, exhibition centres and reception centres, but does not include an entertainment facility.

[9]

The Council's process

The process by which the Council considered each development application is sought to be impugned by Marshall Rural on the bases earlier set out.
Before turning to consider those grounds of challenge, it is appropriate to amplify, a little, on the Council process skeletally outlined in the earlier set out chronology.
Each of the development applications was reported to an Ordinary Meeting of the Council held on 12 May 2015.
Each development application was the subject of an assessment report prepared by Council staff and, in each instance, there was a recommendation made for approval subject to conditions set out as part of the assessment report.
The assessment reports are, in general terms, similar in content. Each dealt with the fact that a building certificate would be required pursuant to s 149D of the Planning Act before consent could be granted for temporary use of the Polo Barn or Sunnybrook Barn as a "function centre". The requirement for such a certificate was proposed to be dealt with by way of a condition imposed pursuant to s 80A of the Planning Act in each consent.
This meeting of the Council did not, however, determine either development application at this May meeting. Each development application was deferred, with the deferral being recorded in the minutes of the meeting (Exhibit 2, tab 12, folio 111) in the following terms: In the absence of the Mayor, the Deputy Mayor, Councillor Porter, in accordance with Section 369(1) of the Local government Act 1993, acted as Chairperson. The Deputy Mayor advised that items 67 and 68 were to be dealt with concurrently and requested the General Manager read to the meeting a letter that had been received from the applicant requesting that the applications be deferred. … 111 Resolution RESOLVED on the motion of Councillor Rasmussen, seconded by Councillor Creed. That items 67 and 68 be deferred to a Councillor Briefing Session.
A briefing for councillors was subsequently held, as noted at the May Council meeting would be the case. It was held on 2 June.
The nature of this briefing of councillors (in both a statutory and functional sense) is a matter of controversy pressed by Marshall Rural and requiring subsequent, more detailed consideration. It is sufficient, at this time, merely to note that the briefing took place.
The matter next came before the Council at its Ordinary Meeting on 30 June 2015. A further assessment report prepared by the officers was submitted for each application. The relevant significant difference between the May and June assessment reports arose as a consequence of a revised, combined acoustic report being submitted on behalf of Basscave in substitution for the individual acoustic reports that had been discussed in the earlier assessment reports. This acoustic report, prepared by Mr Stephen Cooper of The Acoustic Group, was dated 10 June 2015. This report will need to be considered in some detail later. The replaced reports had also been prepared by Mr Cooper.
The assessment reports presented to the 30 June meeting each recommended that consent be given although, as in May, there were some differences in the assessment and in the recommended outcomes.
A transcript of the meeting on 30 June was prepared for Marshall Rural from a recording of what occurred at the meeting. It will be necessary to quote from or refer to that transcript in the context of understanding several of the issues pleaded by Marshall Rural as warranting declarations of invalidity of the development consents granted following the Council meeting on 30 June. The transcript came into evidence as an annexure to the affidavit of Ms Cheryl Fender, an affidavit read on behalf of Marshall Rural without objection.
The minutes of the Council for that meeting record that the first motion (it concerning the Polo Barn application) put to the meeting was in the following terms (Exhibit 1 Tab 12 folios 326/1 and 326/2): That Council as the consent authority pursuant to Clause 80(1)(b) of the Environmental Planning and Assessment Act 1979 refuse development application No. DA0156/15 for the temporary use of the land for functions on Lot 25 DP 663770, known as 1 Powells Lane, Richmond Lowlands, for the following reasons: 1 There is insufficient noise control/mitigation measures to the existing buildings to control the noise from the proposed use to a satisfactory level that will not create an adverse impact on adjoining and surrounding residents. 2 The existing road system in the Lowlands is inadequate to cater for the proposed traffic generated from the proposed temporary uses. 3 The proposed temporary uses in this locality are not in the public interest.
This motion was defeated. It plays no further part in this narrative. A further resolution was then put to the meeting proposing approval and this resolution was adopted. The terms of this resolution were: That Council as the consent authority pursuant to Clause 80(1)(b) of the Environmental Planning and Assessment Act 1979 approve Development Application No. DA0156/15 for the temporary use of the land for functions on Lot 25 DP 663770, known as 1 Powells Lane, Richmond Lowlands, subject to the following conditions:
The conditions are not here set out but the process for adopting and terms of the conditions require later examination.
After further discussion giving rise to amendments to the proposed resolution concerning the Sunnybrook Barn application, a resolution was carried approving that development application. This resolution was in the following terms: That Council as the consent authority pursuant to Clause 80(1)(b) of the Environmental Planning and Assessment Act 1979 approve Development Application No. DA0157/15 for the temporary use of the land for functions on Lot 27 DP 566434 and Lot 1 DP 797310, known as 106 Ridges Lane, Richmond Lowlands, subject to the following conditions:
This resolution was also accompanied by conditions that are not now set out but, as with the Polo Barn approval, the process for adopting and terms of the conditions also require examination.
As is ordinarily the case when there is a vigorously contested development application before a council, those opposing and those supporting the development (being who had expressed a wish to be heard by the councillors before a decision was made) were afforded an opportunity so to speak either for or against the proposal.

[13]

Ground 1: Term of the development consents

Marshall Rural says that the term for which each of the development consents has been granted is in breach of the maximum period permitted by cl 2.8(2) of the LEP. This provision is in the following terms: 2.8 Temporary use of land … (2) Despite any other provision of this Plan, development consent may be granted for development on land in any zone for a temporary use for a maximum period of 28 days (whether or not consecutive days) in any period of 12 months.
The alleged breach was pleaded by Marshall Rural in its Points of Claim in the following terms: 31 In granting the consents, the First Respondent acted beyond the terms of the power permitted by clause 2.8(2) of the HLEP 2012. Particulars (a) The grant of consents was for a period exceeding the maximum period set out in Clause 2.8 of the HLEP 2012.
In essence, the position advanced by Mr Galasso in his written and oral submissions was, effectively, that if a consent were to be granted for such a temporary use as the Council resolved to do on 30 June 2015, that temporary use could only validly be permitted to run for 12 months from the operative date of the issued consent (3 July, in each current instance).
As a matter of fact, as earlier observed, each of the temporary use consents challenged in these proceedings have operative periods that extend well beyond the expiry of 12 months from that first operative date. In the case of the Polo Barn, the temporary use consent runs until 31 December 2016, whilst that for the Sunnybrook Barn extends until 30 June 2017.
The initial written submissions for Marshall Rural supported this approach in the following terms: Consents exceed the maximum period of temporary use under cl.2.8(2) of the HLEP 17. As noted above, use of the Land as a function centre is prohibited under the HLEP, and it is only by the operation of sub-clause 2.8(2) of the HLEP that the Council can allow an otherwise prohibited use of land. However, such use must be limited to "temporary use for a maximum period of 28 days (whether or not consecutive days) in any period of 12 months". In purported reliance on that provision, the Council granted Consents which operate for 18 and 24 months respectively and allow the "holding of functions on the land" on "[n]o more than 28 days within a 12 month period" (see Condition 32 of each of the Consents). 18. The Applicant submits that the terms of the Consents exceed the scope of the exception to prohibited development under sub-clause 2.8(2) of the HLEP, and are therefore invalid and should be set aside. 19. By its terms, sub-cl.2.8(2) of the HLEP can only provide "for a temporary use … in any period of twelve months" (emphasis added). The Consents, although providing for a per annum quote ("[n]o more than 28 days within a 12 month period"), extend beyond 12 months from their grant on 30 June 2015 - the Consent for the "Polo Barn" was for 18 months (until 31 December 2016), and that for the "Sunnybrook Barn" was for 24 months (until 30 June 2017). The Consents therefore do not comply with sub-cl.2.8(2) of the HLEP; they grant permission for than a "12 month period". 20. In addition, there is the issue that the Consents do not provide for "a … period" of use that would otherwise be prohibited. Rather, the Consents provide a license to use the Land for an otherwise prohibited purpose on 28 individual days. True it is that the sub-cl.2.8(2) for the temporary use period to comprise "not consecutive days", however there must still be "a" defined "period" of temporary use, not an allowance for 28 separate "periods" scattered across a 12 month term. No "temporary use … period" has in fact been defined in the Consents. Rather, Council has provided the landowner with a discretion to use the Land for the otherwise prohibited purpose of holding functions on 28 days of its own choosing. (Alternatively, the Consents should be construed to impermissibly provide for temporary use periods of 18 and 24 months respectively during which the Respondents are able to conduct business on their own terms, with the limited constraint as to the number of functions that can be held). 21. As a practical matter, the effect of the Consents is to re-zone the Land to permit use as a function centre for their durations (contrary to Part 2 of the HLEP). Allowing up to 28 days on which functions can be held (which can mean more than one function per day, per site) at each of the "Polo Barn" and the "Sunnybrook Barn" allows for disruption to the amenity of neighbouring properties every weekend day of the spring and summer months (the obvious peak seasons for wedding events). Or, when the effect of the two Consents is combined, the Polo Barn and Sunnybrook Barn can be operated as a year-round weekend function facility. That is not "temporary use" as properly understood under the HLEP.
The written submissions on Basscave's part resisting this approach dealt with this ground as follows: Ground 1: Construction of Clause 2.8 of HLEP 36. The Applicant's first ground of challenge relates to the proper construction of clause 2.8 of the HLEP, which provides: 2.8 Temporary use of land (1) The objective of this clause is to provide for the temporary use of land if the use does not compromise future development of the land, or have detrimental economic, social, amenity or environmental effects on the land. (2) Despite any other provision of this Plan, development consent may be granted for development on land in any zone for a temporary use for a maximum period of 28 days (whether or not consecutive days) in any period of 12 months. (3) Development consent must not be granted unless the consent authority is satisfied that: (a) the temporary use will not prejudice the subsequent carrying out of development on the land in accordance with this Plan and any other applicable environmental planning instrument, and (b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and (c) the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land, and (d) at the end of the temporary use period the land will, as far as is practicable, be restored to the condition in which it was before the commencement of the use. (4) Despite subclause (2), the temporary use of a dwelling as a sales office for a new release area or a new housing estate may exceed the maximum number of days specified in that subclause. (5) Subclause (3) (d) does not apply to the temporary use of a dwelling as a sales office mentioned in subclause (4). 37. The Applicant contends that the Consents are not authorised under the HLEP because the Consents were for a period exceeding the maximum allowed by subclause 2.8(2) of the HLEP 38. This ground ought to be rejected on the basis that the Applicant has misconstrued the constraints on Council set by clause 2.8. 39. The High Court held in Federal Commissioner of Taxation v Consolidated Media holdings (2012) 250 CLR 503 that the exercise of statutory construction starts and ends with a consideration of the text and takes into account the text in its context (at [39]). This has also been described as "literal in total concept": per Spigelman in R v Young (1999) 46 NSWLR 681 at [13]. 40. The Respondents agree with the Applicant's submission that part of the context in which clause 2.8 of the HLEP must be construed is that it is an exception to a prohibition that would otherwise apply on the Basscave Land by virtue of the zoning table. However, the Applicant has disregarded the context provided by clause 2.8 itself in the construction exercise, and has, as a result, misinterpreted the language of the clause. 41. The context here includes the expressive objective of clause 2.8(1). The objective is to "provide for the temporary use of land" on the proviso that the land the subject of the temporary use is not compromised for future use or otherwise detrimentally effected. It makes no reference to other land, time limits or what might otherwise be considered to be the "temporary use of the land". Rather it suggests that clause 2.8 is to be interpreted as beneficial and facultative. 42. Clause 2.8(2) permits development that is: a) a temporary use; b) for a maximum period of 28 days (whether or not consecutive days) c) in any period of 12 months. The Applicant (at [4] of its Reply) accepts these three requirements must be met but differs on their application. 43. "Temporary use" is not defined. The Macquarie dictionary (Fifth Edition) relevantly defines "temporary" as "Lasting, existing, serving, or effective for a time only; not permanent". This definition suggests but does not fix as temporal limit to the thing being described. Whether a use is temporary is a matter [of] fact and degree in all the circumstances. 44. Relevant factors determining whether a use is a "temporary use" will include the nature of the temporary use, the nature of the permanent underlying use and the nature of a permissible subsequent use (see subclause 2.8(3)(a)). For example, a development site that is used temporarily for car parking while redevelopment for a permanent use (home units to a shopping centre, etc.) is being pursued could be in place for 6 months or 2 years and still maintain its temporary quality. 45. Condition 2 of the Polo Barn Consent provides: The temporary use is limited in time and shall expire on 30 June 2016 (Council Bundle, Vol. 1, p. 331) As a consequence, the Polo Barn Consent has a maximum operating time of 18 months from the date of consent. 46. Condition 2 of the Sunnybrook Barn Consent provides: The temporary use is limited in time and shall expire on 30 June 2017 (Council Bundle, Vol. 2, p. 146) As a consequence the Sunnybrook Barn Consent has a maximum operating time of two years from the date of consent. 47. The limitation imposed demonstrates that the use is not permanent. The Consents will be operative "for a time only" to use the language of the Dictionary definition. In the Respondent's submission, the shortness of time is relevant to the determination that the use proposed in the DAs is a temporary one. 48. The Applicant contends that a logical extension of this argument is that a use could be authorised for 100 years so long as the use was "limited to a maximum of no more than 28 days within any 12 month period". The Respondents do not accept that this is a logical extension of the argument at all but rather submits that the argument by the Applicant is a logical fallacy and ought to be rejected. The Applicant's argument ignores the requirement of clause 2.8(2) that a use have a temporary character first. Clause 2.8(2) then prescribes the maximum frequency of the temporary use, it does not define whether the use itself is temporary but has the effect of ensuring that the use is limited. Any use that is proposed to occur, even if limited in frequency, for a period of 100 years could not be said to be temporary and the Respondents do not suggest otherwise in the application of clause 2.8(2) of the HLEP. 49. The temporary uses permitted by the Consents are also limited in frequency and, as a consequence, meet the remaining criteria established in clause 2.8(2) of the HLEP. Condition 32 of the Consents each provide that: No more than 28 days within a 12 month period shall be issued for the holding of functions on the land. 50. It is said against the Respondents that the Consents do not authorise "a…period" as required by clause 2.8(2). The Applicant suggests that the subclause requires the identification or nomination of particular times that a temporary use will be used. Such a submission should be rejected. The Respondents reiterate their submission that language of the subclause does not require such a nomination, it merely sets a maximum number of days when the temporary use may be carried out. The Applicant (in [6] of its reply submissions) has suggested that this submission "seeks to write out of the subclause most of its terms, and reverse the role of the consent authority and applicant". With respect, The Applicant's submission seeks to insert words into the subclause that are simply not there and to impose a gloss on the provision that neither the words, nor their context, warrants. 51. The primary submission of the Applicant relates to the third criterion in 42(b) above. The Applicant submits that clause 2.8(2) limits the period for which consent may be given to 12 months. Again, the plain reading of the subclause does not lead to such a construction. Had the intention been to limit the length of any consent in the way suggested, it would be expected that the word "a" would have been used rather than the word "any". The word "any" clearly contemplates circumstances where a consent may be for multiple years but the use would nonetheless be limited to a maximum of 28 days within each 12 month period. Further there is nothing in the words of the objective in clause 2.8(1) that supports the Applicant's construction. 52. The Applicant's construction leads to the absurd consequence that if two development applications for temporary is are lodged simultaneously, one for temporary use in 2015 and one for temporary use in 2016 then consent can be granted validly, but if one development application is brought for the same temporary use in 2015 and 2016 then consent cannot be granted validly. Further, the Applicant's construction ignores the requirement for the use for which consent is sought to be a temporary use in the first place. 53. Ground 1 ought to be rejected.
The written submissions were rounded out by those in reply for Marshall Rural, dealing with this point as follows: Construction of sub-cl.2.8(2) of the HLEP 2. At RS [28], the Respondent argues a ground not raised by the Applicant. As stated in AS [14], a "temporary" exception applies to the prohibition on the grant of approval to uses not otherwise provided for Zone RU2 Rural Landscape. However, that exception must be applied on its terms, and its nature as an exception should inform its construction. That is, part of the "context" in which the "literal" interpretation of a sub-cl.2.8(2) resides is a scheme by which operation of a function centre was prohibited on the Land, and the constraints imposed on a consent authority's ability to depart from that position should therefore be strictly constructed (cf RS [31]). 3. As to those constraints, RS [32] proposes a construction of sub-cl.2.8(2) of the HLEP by which three "requirements" must be met. The Applicant accepts that position but differs on the application of those requirements. 4. As to the length of the periods for which the Consents were granted 18 and 24 months respectively), the Applicant maintains (for the reasons stated in AS [19]) that consents for periods longer than 12 months were not authorised under sub-cl.2.8(2) of the HLEP. 5. By logical extension of the Respondent's contrary argument, a "temporary use" could be authorised for 100 years, so long as the use was "limited to a maximum of no more than 28 days within each 12 month period" (see RS [39]). That is plainly not within the proper understanding of "temporary use" under sub-cl.2.8(2) of the HLEP. The role of the expression "in any period of 12 months" is to define the outer limited of the length of the period which qualifies as "temporary". That interpretation is, contrary to the submission at RS [39], entirely consistent with (and indeed supportive of) the objective stated in sub-cl.2.8(1)) to "not compromise future development of the land". 6. The Applicant also maintains its emphasis on the fact that under sub-cl.2.8(2) it is for the consent authority to provide approval of a temporary use for "a temporary use…period" within the "12 months", and not for the landowner to select for itself when it will exercise its 28 days' worth of permission to engage in otherwise prohibited use (AS [20]). The Respondent's only submission in support of its position on that issue is that "[t]he language of the subclause does not require such a nomination, it merely sets a maximum number of days when the temporary use may be carried out" (RS [38]). That, with respect, seeks to write out of the subclause most of its terms, and reverse the role of consent authority and applicant. 7. This ground should be upheld.
The oral submission for the parties reflected those submissions set out above.
In essence, the position advanced by Marshall Rural may be summarised as saying that not only is a limited continuous use able to be countenanced by the provision (that being the reason for the limitation imposing a maximum of 28 operational days) but that the overall span during which the use may be undertaken must also be understood to be temporary - that being limited to a consent which runs for a maximum of a 12-month period.
The proper way to approach such a statutory construction issue was set out by the High Court in Project Blue Sky Limited v The Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 where the plurality said, at [69]: The primary object of statutory construction is to construe the relevant provision so that is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that: The context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
I now turn to consider the relevant elements in cl 2.8(2) of the LEP.
First, the interpretation advanced by Mr Galasso concerning the operative effect of the words "maximum period of 28 days" is not contested by Mr Leggat. The proposition that these 28 days of temporary use can be taken in a fashion and at a frequency to suit the convenience of the person who has the benefit of the temporary use consent is, as accepted, clear from its terms.
The controversy arises from the approach to be taken to the words "in any period of 12 months".
The contest, here, lies between the interpretation advanced by Mr Galasso that, in effect, the words "in any" should be construed as if they meant "for a" (thus imposing a second-step limitation in the provision) and that advanced by Mr Leggat that there is no ambiguity in the words "in any" and that, as a consequence, subject to the 28-day restriction, a consent granted pursuant to cl 2.8 could be either for any nominated limiting period (as is here the position for each consent) or, indeed, be open-ended.
The position advanced by Mr Galasso is simply untenable. I am not here considering a provision of such "fuliginous obscurity" (to use the expression adopted by MacKinnon LJ in Bismag Limited v Amblins (Chemists) Limited [1940] 1 Ch 667 at 687) so as to render the provision incapable of an ordinary coherent meaning from the terms of its clear and unambiguous language.
An ordinary reading of the expression makes it clear that there is no such hidden, second limitation to be found from a reading of the entrails of the provision. Consistent with the instructions the High Court has given for such interpretation, the ordinary, obvious reading of a provision is to prevail over anything where the language of a provision needs to be strained in order to accommodate the alternative meaning advanced for it.
Mr Galasso's submission is contrary to the ordinary, unstrained reading of the provision and is to be rejected.
This ground fails.

[14]

Ground 2: Incorrect consideration of a mandatory requirement

Marshall Rural complains that, in its merit assessment of these two development applications, the Council's consideration of the requirements of cl 2.8(3)(b) miscarried so as to render the consents invalid. The provision upon which this complaint is founded is in the terms repeated below.
Marshall Rural's ground can be understood to be: In granting the development consents, the Council failed to consider, properly, preconditions to the exercise of the power under sub-cl 2.8(3) of the LEP, specifically the adverse impact on adjoining land or the amenity of the neighbourhood.
It was pleaded as: 32 In granting the consents, the First Respondent failed to take into account considerations which operate as a precondition to the exercise of the power in clause 2.8 of the HLEP 2012. Particulars (a) Detrimental social, amenity and environmental effects as reflected in material before the First Respondent. 33 In granting the consents, the First Respondent failed to be satisfied that the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood in accordance with the terms of Clause 2.8. 34 In granting the consents, the First Respondent failed to be satisfied that the temporary use and location of any structures related to the use will not adversely impact on environmental attributes or features of the land, or increase the risk of natural hazards that may affect the land.
Marshall Rural says that the Council's consideration of the acoustic impacts of each development application was undertaken by applying the wrong test (whether there was an unacceptable acoustic impact on nearby properties and how any impact might be ameliorated to be made acceptable) and, in doing so, failed to address the correct test - this being the test mandated by cl 2.8(3)(b) of the LEP (requiring that there be no adverse impact on any adjoining land or the amenity of the neighbourhood).
Marshall Rural says that such acoustic assessments as have been either provided to or undertaken by the Council are based on the wrong technical assessment basis, that being criteria that do not deal with an absolute issue, namely, that there be no adverse impact, but rather with a more evaluative process, namely, that where there is an impact, is that impact acceptable or not within the regulatory criteria applied to the assessment.

[15]

The acoustic information supplied to the Council

Separate acoustic assessments prepared by Mr Stephen Cooper of The Acoustic Group were originally provided to the Council - one with each development application.
After the Council meeting on 12 May deferred the two applications, Mr Cooper prepared a revised consolidated acoustic report dealing with both proposed developments. This document, dated 10 June 2015, was provided to the Council and proposed, for each of the two locations, separate conditions of consent which Mr Cooper considered would be adequate to address the noise levels he had measured during occasions when functions were being conducted in one or both of the barns. The conditions he recommended are set out later.
This ground raises the proposition where Marshall Rural says that these two development consents should be set aside because the Council's consideration of cl 2.8(3)(b) of the LEP miscarried. Although I have earlier set out the whole of the terms of cl 2.8, it is convenient to repeat the element that requires consideration in dealing with this ground of invalidity pressed by Marshall Rural. The provision is in the following terms: Clause 2.8 Temporary use of land … (3) Development consent must not be granted unless the consent authority is satisfied that: … (b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and …
I have added emphasis to the particular words in the provision that are said by Marshall Rural to be the foundational point for my consideration of whether or not this ground is made out.
In essence, the proposition advanced by Marshall Rural is that Mr Cooper's acoustic assessments do not address the test about which the Council was required to be satisfied before it could validly grant consent.
Further, Marshall Rural says that the assessment report put to the Council on 30 June also provided advice to the councillors based on its own acoustic testing in a fashion that caused the councillors to turn their minds to the incorrect question and did not inform them in a fashion that would have caused them to turn their minds to the correct question.
It is, therefore, necessary to set out extracts from Mr Cooper's 10 June report and a range of extracts from the assessment reports submitted to the June meeting.
The relevant material contained in Mr Cooper's report was: 60 In relation to noise emission from Licensed Premises the former NSW Liquor Administration Board ("LAB") imposed a more stringent set of noise criteria to that normally imposed by the EPA. Compliance with the OLGR noise criteria will automatically mean compliance with the EPA noise criteria. 61 The same noise criteria (as the LAB) have been adopted by the Office of Liquor, Gaming and Racing, being the government department that replaced the LAB. … 84 On viewing the objections that have been submitted to Council it would appear that in the majority of cases the objections relate to the audibility of noise from the Sunnybrook Barn and not the matter of acoustic compliance. 85 It is necessary to note that the EPA criteria, the Council noise criteria, and the OLGR criteria for the period before midnight, permit measurable increases above the ambient background level whether recorded by way of the A-weighted value or individual octave bands. The concept of inaudibility from licensed premises does not come into effect until after midnight. 86 The objectors may take the view that inaudibility should be the appropriate criteria but that is not the case in terms of policies and limits issued by the subject Council, the EPA and the Officer of Liquor, Gaming and Racing. 87 With respect to the Sunnybrook Barn that has been identified as the source of disturbance to a resident in proximity to location 3, the restriction of the music to that set out in the Day Design report would easily achieve compliance with the relevant criteria, or even changing the 80 dB(A) limit to a sound pressure level rather than a sound power level. Conclusion 88 An acoustic assessment provided by Day Design with respect to the operation of the Polo Barn and the Sunnybrook Barn as restaurants indicated acoustic compliance would be achieved by restricting the level of music that would occur in both spaces. 89 In my view the use of 80 dB(A) as a sound pressure level in the Sunnybrook Barn is satisfactory for acoustic compliance.
Marshall Rural's position is that, by employing the criteria for acceptable noise impacts described above, Mr Cooper was applying a more permissive test based on the concept of "acceptable impact" rather than the test that Marshall Rural says is required by the terms of cl 2.8(3)(b) of the LEP.
There was also some disagreement as to what should be regarded as the appropriate background noise for the purposes of assessing noise impacts (at whatever might be the standard to be applied). However, in light of the discussion below and the reasons that follow from it, this disagreement needs no further discussion.

[16]

The acoustic conditions

Mr Cooper's report of 10 June proposed a series of conditions that he recommended were appropriate to be imposed in order to address the question of potential acoustic impacts of each of the proposed uses. The conditions were in differing terms, being tailored to reflect the differing spatial relationships between the two sources of potential noise and the possibly impacted receivers of such noise. The conditions he proposed (Exhibit 1, tab 9, folio 14) were in the following terms: 94 As a result of testing using functions occurring on site the following acoustic controls/restrictions should apply: Sunnybrook Barn • The provision of entertainment is to be restricted to inside the barn • All amplification of music should utilise an in-house sound system with a noise limiter to restrict the level to 80 dB(A) inside the barn when assessed as an average maximum sound level. • Farewells to bridge and groom should occur inside the barn or on the eastern side of the barn. Polo Barn • The provision of entertainment is to be restricted to inside the barn • All amplification of music should be via power points under the control of a sound cut out limiter (similar to the Technology, Sound & Vision Sound Monitor - http://www.technologysoundandvision.com.au/assets/sound-monitor-brochure.pdf) with the sensing microphone inside the barn near the southern entrance door. • When the entertainment is provided the eastern and northern doors on the Polo Barn are to be closed. Under that scenario the limiter shall be set for a limit of 98 dB(A) 1 metre inside the southern door opening. • Contactors shall be installed on the northern and eastern doors of the Polo Barn such that if the doors are open the threshold level on the monitor is to be reduced by 10 dB(A). • If entertainment is to be provided at a higher level than 98 dB(A) the northern operable doors to the Polo Barn are to be acoustically upgraded. For the provision of 13mm plasterboard over studs fixed to the inner face of the northern doors the limiter threshold level could be increased to 101 dB(A).
It is unnecessary to set out, in detail, the relevant acoustic conditions incorporated in the Council's development consent granted to either the Polo Barn or Sunnybrook Barn. Detailed consideration of the conditions would only arise if Marshall Rural were to have been unsuccessful on this, its second primary ground. As a consequence, as Grounds 3 and 4 (pleaded as alternatives to Ground 2) were those requiring specific consideration of the conditions of consent, it is unnecessary to address them further. It is sufficient, in my assessment, to note that these conditions were based on advice to the Council about (and the Council's consideration of) the incorrect question requiring to be addressed by cl 2.8(3)(b).

[17]

The Council's acoustic testing and assessment

Mr Isbester gave oral evidence in addition to providing a short affidavit. Mr Isbester is an environmental health officer and building surveyor employed by the Council. He had had responsibility, under supervision by his direct manager (who did not give evidence in the proceedings) and Mr Owens, the Director of City Planning, for acoustic testing near Basscave's land (at a Marshall Rural dwelling) on a number of occasions over the period between November 2014 and March 2015 to enable the Council to have an understanding of noise levels arising from functions held at Basscave's premises.
There are two observations to be made. First, although Mr Isbester's formal professional qualifications for his role are a bachelor's degree in environmental science, he had been provided with short-course training by the Council (using qualified external presenters) in acoustic matters (including operation of the data-logging monitoring device utilised in this instance) to a sufficient level to render him competent to conduct those activities and give evidence about what he had done in the field; how he had used his computer and software to prepare analytical material derived from the logged data; and, then, to interpret the outcomes of that computer analysis.
Second, his evidence was given clearly and concisely and, I am satisfied, in an entirely truthful fashion.
Mr Isbester understood that the initial impetus for the testing arose as a result of complaints made to the Council (transcript, 11 November 2015, page 30, lines 32-39). After the first testing (between 6 and 10 November 2015), Mr Isbester was instructed to prepare a formal compliance direction that was given to Basscave (affidavit of Peter Matthew Owens, 19 October 2015, Annexure F, folios 39-41). That direction was given despite the fact that his initial testing had not revealed any breaches of what he considered to be the applicable sound power limits (not more than five decibels above the background noise level at the boundary of the receiver or, after midnight, no audible function noise in any habitable room of the dwelling) (transcript, 11 November 2015, page 39, lines 21-28).
Analysis by him of the further testing undertaken on five separate occasions over subsequent months until March 2015 did not disclose, after his consideration of the data taken by the sound logger, any exceedances of these criteria (transcript, 11 November 2015, page 54, lines 21-25 ).
Mr Isbester confirmed that these criteria had been adopted by him as being derived from the requirements of the Office of Liquor, Gaming and Racing and from the Environment Protection Authority's (the EPA) Industrial Noise Policy. The only other document to which he had had regard for this purpose was an EPA guide to neighbourhood noise issues (transcript, 11 November 2015, page 67, lines 18-23).
Mr Isbester was the author of a condition, common to the two development consents in these proceedings, imposing requirements based on these criteria. That condition was in the following terms: 36 The noise emitted from the development must not exceed more than 5 dB(A) above background noise levels in any Octave Band Centre Frequency (31.5Hz-8kHz inclusive) prior to midnight at the boundary of any affected residence. The noise from the development shall not be audible within any habitable room in any residential premises after midnight.
It was Mr Isbester's evidence that this was an idiosyncratic condition in form rather than one which was part of the Council's standard suite of conditions of consent ordinarily applied to development applications where noise was an issue (transcript, 11 November 2015, page 60, lines 7-40). It was his evidence that he had particularly included the specific details of the noise ban encompassed by the condition in order to make it clear that the condition covered the full range of potentially emitted sounds from heavy bass music to cheering and clapping (transcript, 11 November 2015, page 60, lines 22-28).
The Council's consideration of this aspect of each development application needs to be noted in four separate contexts. These are: 1. The material submitted to the Council in each assessment report dealing with acoustic impacts of the proposed developments and the test posed by cl 2.8(3)(b) of the LEP; 2. the extent to which the Council was made aware of acoustic concerns by objectors through the material contained in the assessment reports; 3. the extent to which acoustic impacts were raised by objectors speaking against the development applications during the course of the Council meeting on 30 June 2015; and 4. submissions made to the councillors during the meeting on 30 June 2015 by the legal representatives of Basscave and Marshall Rural.

[18]

Objections to the Polo Barn application

The written objections lodged with the Council were tendered in Exhibit 1 behind Tab 11. There were objections from five individuals (in varying degrees of detail - unnecessary to be further explored) where the issue of acoustic impact was specifically raised in each objection. For the purposes of this discussion, noting this position is sufficient to transition to considering that which was set out in the assessment report concerning this aspect of the objections. This material, set out in Exhibit 1 Tab 12 folio 313, was in the following terms: • The use of the 'Polo Barn' building for functions will adversely impact adjoining land with particular respect to noise generation. • The application does not propose any sound proofing measure to the building. • Two versions of the acoustic review were submitted with the application, and these reports contradict each other. Comment: As previously discussed, it has been demonstrated that the activity can be operated to comply with the relevant requirements. Conditions have been included within the Recommendation of this Report to monitor the development to ensure this compliance. As mentioned previously in this report, the applicant submitted a consolidated acoustic report that clarifies the apparent discrepancies in the previous reports and clarifies the recommendations. The revised report does not appear to contain any new information or measurements and as such was considered to be clarification as part of the application assessment and did not require to be renotified. It is considered that noise generated by increased traffic within the locality can be managed via the proposed consent conditions and would be short lived. However, noise associated with the arrival and departure of guests has the potential to cause a nuisance. Management practices can be employed to minimise noise resulting from patrons. In this regard a Patron Management Plan will be required as a condition of any consent.
Amongst the five written submissions earlier noted, one of them, from W Advisers Pty Limited on behalf of Marshall Rural, sets out, at folio 283/4, matters concerning cl 2.8(3)(b) with respect to noise (attaching affidavits from Mr Van Gestel and Mr Bloore raising such matters).
There is no mention in the assessment report dealing with these objections that specifically addresses the "not adversely impact" test in the provision of the LEP.

[20]

The material put to the Council and the assessment reports

It is appropriate to commence the setting out of the material put to the Council in the assessment report for the Polo Barn by quoting from the relevant portion of the executive summary. These comments (Exhibit 1, Tab 12, folio 299 and 300) were in the following terms: Since the report to Council, the Applicant has provided an amended Acoustic Report prepared by The Acoustic Group, to clarify and consolidate the previous information submitted with the application. In addition a request has been received for the reconsideration of proposed conditions in relation to the construction of car parking areas and certificateion from public authorities. Council has also received an application for a Building Certificate. Clause 2.8 of Hawkesbury Local Environmental Plan 2012 permits land to be used for any purpose as a temporary use subject to certain requirements, including Council's satisfaction that the use will not adversely impact on the environment or the amenityof the neighbourhood. This Clause only allows the use to be carried out for a maxcimum of 28 days within any 12 month period. The application was publicly notified from 8 April 2015 to 22 April 2015. Five submissions were received objecting to the development. A summary of the matters raised in the submissions are as follows: • the 'Polo Barn' building has been modified without development consent, and no Building Certificate has been obtained. • the use of the 'Polo Barn' building for functions will adversely impact adjoining land with particular respect to noise generation; • The building is not compliant with the Building Code of Australia; • The application does not propose any sound proofing measure to the building; • Two versions of the acoustic review were submitted with the application, and these reports contradict each other. • The application does not provide event details; • The proposed development will have an adverse impact from increased traffic From the assessment of the application there is no objection, in principle, to the proposed use of the building for functions if that use does not adversely impact on the environment and the amenity of surrounding properties, especially in respect to noise. In this regard the matters raised in the submissions are relevant. However, these matters can be resolved through conditions of consent.
The assessment report then dealt with acoustic issues in some detail at a number of locations within the assessment report. These are set out below: Exhibit 1 Tab 12 folios 306-307 An amended Acoustic Report prepared by The Acoustic Group and dated 10 June 2015 was received at Council on 11 June 2015. The amended Acoustic Report does not contain any additional information or measurements and provides clarified recommendations for the operation of the development. In this regard the following recommendations are supported and will be ensured through conditions of consent: • The provision of entertainment is to be restricted to inside the barn • All amplification of music should be via power points under the control of a sound cut out limiter … … with the sensing microphone inside the barn near the southern entrance door. • When entertainment is provided the eastern and northern doors on the Polo Barn are to be closed. Under that scenario the limiter shall be set for a limit of 98 dB(A) 1 metre inside the southern door opening. It is considered reasonable that monitoring of the activity be undertaken to confirm that the above measures will ensure that noise levels meet the relevant legislative requirements. In this respect Condition 6 has been included in the Recommendation of this Report. The recent monitoring of events by Council officers has demonstrated that the premises can be operated so that the noise emitted from the development does not exceed more than 5 dB(A) above background noise levels in any Octave Band Centre Frequency (31.5Hz-8kHz inclusive) prior to midnight at the boundary of any affected residence. It is also acknowledged that the management of the activity will also play a role in mitigating any adverse impacts on the amenity of the locality. The success of management of the activity is event since the issue of the Direction to Take Preventative Action issued for the site in November 2014. Since the issue of that Direction Council's noise monitoring has not identified any non-compliances with that Direction. In this regard, an operation management plan will also be required as a condition of any consent. Exhibit 1 Tab 12 folios 311-312 (b) The likely impacts of that development, including environmental impacts on both the natural and built environments and the social and economic impacts in the locality Context and Setting Surrounding development within the Richmond Lowlands generally comprises of agricultural land, polo fields and limited numbers of rural residential properties. Land on the opposite side of the Hawkesbury River comprises a steep escarpment with residential properties located at the top of that escarpment along Terrace Road. It is considered that the proposed development will have no unreasonable impacts on the locality in respect to overshadowing, loss of views or vistas, or loss of visual or acoustic privacy given the size of the property, the location of the development on the land, and the presence of existing vegetation and landscaping. As previously discussed, noise generated by the development has the potential to adversely impact the locality, however it has been demonstrated that the activity can be operated to comply with the relevant requirements. These requirements will be enforced via appropriate consent conditions should the application be approved. Exhibit 1 Tab 12 folio 312 (c) Suitability of the site for the development … The site is located within a rural area subject to low background noise levels. However, this is not considered to be prohibitive to the development as mitigation measures (as has been demonstrated in recent months via Council's noise monitoring) can be undertaken to achieve compliance with relevant noise controls.
The conclusion of the assessment report dealt with cl 2.8 of the LEP in the following terms relating to the test in cl 2.8(3)(b) at Exhibit 1 Tab 12 folios 314/315: Conclusion … In relation to the permissibility of the Temporary use, Clause 2.8 of the HLEP 2012 permits the use for a 'maximum period of 28 days (whether or not consecutive days) in any period of 12 months." Clause 2.8(3)(a-d) outlines the matters to which Council must be satisfied prior to approval. In this regard, whilst the unapproved use of the land may have adversely impacted on adjoining land, the approved use as proposed and conditioned, meets the provisions of this Clause as follows: a) The temporary use will not prejudice the subsequent carrying out of development on the land as permitted by the LEP, b) For the reasons outlined previously in this report and the imposition and enforcement of the proposed consent conditions, the approved temporary use will not adversely impact on adjoining land or the amenity of the neighbourhood, … It is further considered that potential noise impacts from the development can be mitigated by management practices in the short term rather that physical mitigation measures. This is demonstrated by pervious noise monitoring of the site by Council. In this regard conditions can be imposed in any consent requiring submission of a patron management plan for approval and regular noise monitoring as directed by Council at the expense of the applicant (see proposed condition No.6 of the recommendation of this report).
It is to be noted that the final paragraph quoted above refers to "mitigation measures" for acoustic impacts not to their elimination.
For completeness, I should note that the proposed conditions 6 and 36 (condition 36 being adverted to in condition 6) were set out at Exhibit 1 Tab 12 folio 315 and 318.

[22]

Acoustic impacts raised at the Council meeting

A number of people spoke for and against the two development applications during the course of the Council meeting. Prior to the determination of the Polo Barn application, an objector, Mr Ron Knott, spoke concerning noise impacts (Council meeting transcript page 7, line 28 to page 8 line 12). Councillor Paine also spoke during the course of the Polo Barn discussion, recounting the comments made to him during door-knocking along Terrace Road where people had pressed concerns about noise. These comments were at Council meeting transcript page 15 lines 1 to 24.
The amendments to the Polo Barn resolution (raised by Councillor Lyons-Buckett and discussed in the context of Ground 5) then proceeded prior to the resolution to approve the Polo Barn application subject to amendments. The Council meeting then moved to the Sunnybrook Barn application, with Mr Knott repeating his noise concerns and, in this instance, Mr Van Gestel speaking against the recommendation for approval of the Sunnybrook Barn application. Mr Van Gestel addressed cl 2.8 of the LEP in the context, amongst other things, of the noise impact. Mr Van Gestel said (Council meeting transcript, page 36 line 42 to page 37 line 11): MR VAN GESTEL: I need to speak against the recommendation for Sunnybrook. What I said earlier for item 87 applies equally to Sunnybrook, and I would like to take the opportunity to clarify and re-affirm what the previous speaker just said. You should read the clause 2.8 very careful. It says any impact. Any impact. And, if you look at the report, there's heaps and heaps of admittance that they - there is an impact or may be an impact, so why this debate can even go forward and why the amendment was carried, I got no idea. In any court of law, you're going to get laughed out of a court because it says "any". And on the basis of noise it says here ..... that's interesting. It is noting of the compliance with the directions ..... has not identified any non-compliance. Well, let me tell you, I was there 90 per cent of the times they had a function on. I walked every night between 8 and 9 and I saw nobody there and on every time - every occasion they were ..... the noise level. Sometimes it's slamming door; sometime it's blowing the horns, sometimes it's - you have cars revving up. So any condition and I invite anybody ..... come and measure it where I stand on the corner next - on Powells Lane there. It's - it can't be done.
Mr Van Gestel's speech followed on from the address by Marshall Rural's solicitor, Mr Kondilios, discussed below.

[23]

Legal submissions to the Council meeting

There were two submissions made by legal representatives of the parties to the Council meeting on 30 June. The first was made by Mr Doyle, solicitor for Basscave. His submission was followed by one from Mr Kondilios on behalf of Marshall Rural. To the extent that either of them addressed the question of cl 2.8 of the LEP, it is necessary to set out the relevant matters shown in the transcript of the Council's meeting.
First, Mr Doyle addressed the Council saying, relevantly, as follows (Council meeting transcript, page 28 line 7 to page 29 line 13): MR DOYLE: Good evening, again, Councillors. The - at the risk of being repetitive, a lot of what I've got to say will be similar to what I said in relation to the last application because they are the same. They are to be determined on the same sorts of legal parameters as the last application. It's an application for consent for temporary use of land as a function centre and the purpose of my speaking is to assist Council in arriving at a legally correct decision having regard for the relevant provisions of the Hawkesbury Local Environmental Plan concerning temporary use, and that provision is found in section - in clause 2.8. In this clause, subsection (3)(b) and (c), it is stated that: The consent authority must be satisfied, amongst other things, that the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and the temporary use and location of any structures related to the use will not adversely impact the environmental attributes and features of the land or increase the risk of natural hazards that may affect the land. In the report, the Council's town planner's report, there are references dealing to the merits which, for example: In relation to portable toilets to minimise any impacts on the amenity of the locality in relation to traffic the proposed development is unlikely to result in unreasonable traffic, transport or access impacts. There's nothing wrong with Council considering the merits of the proposal in these ways. However, Council needs to also consider the application of the way in which it's required that clause 2.8 of the LEP be considered, the main requirement of which is that the proposals will have no adverse impact on adjoining land or the amenity of the neighbourhood. The report before Council addresses both expressly and unequivocally in its conclusion that this has been the case where it states: For the reasons outlined previously in this report and the imposition and enforcement of the proposed consent conditions, the approved temporary use will not adversely impact on adjoining land or the amenity of the neighbourhood and, as outlined previously in this report, the temporary use will not adversely impact on the environmental attributes or features of the land or increase the risk of natural hazards that affect the land. For the reasons stated in the report, we say the conclusions have been properly reached by Council staff and are obviously correct. The Council can and should therefore be satisfied, having considered these matters, that the provisions of clause 2.8(3)(a), (b), (c) and (d) of the Hawkesbury Local Environmental Plan have been made out. Again, this is about - this is not about what has happened in the past; it's about the future and whether the uses to be conducted will be acceptable in planning terms. The Council staff have recommended a detailed suite of conditions of consent to be imposed so that what happens in the future will create no adverse impacts on adjoining land and the amenity of the locality. My client supports this approach and accepts the conditions. The Council can and should be satisfied that it can lawfully grant consent to the temporary use development application.
I here observe that Basscave's town planner, Mr Montgomery, also addressed the Council, including on the issue of noise, but did not address cl 2.8 of the LEP in that context.
The Council was also addressed by Marshall Rural's solicitor, Mr Kondilios. He dealt with a number of matters including cl 2.8. On this topic he said (Council meeting transcript, page 34 line 46 to page 35 line 10): … The aspect of the LEP that my professional colleague has taken you to, Mr Doyle, at 2.8 accurately discusses that there must not be any adverse impact. That's a very high threshold. If we are there on the spectrum, it must not be anything above that. The planning assessment reports that are before you discuss impact and ameliorative measures by condition so as to be able to tolerate the impact in a reasonable way. Now, in planning parlance, that's acceptable when dealing with usual planning matters that are permitted in the zone, but what you have here, Councillors, through you, Chair, Deputy Mayor, is a use that is only permitted in a peculiar way for a particular period of time.
A short time afterwards, Mr Kondilios was asked a question pertinent to cl 2.8 where the following exchange (meeting transcript, page 36 line 11 to line 20) occurred: COUNCILLOR CALVERT: Am I right in assuming what you're saying is that no conditions would be good enough for this proposal? We can't impose conditions that are - that meet that benchmark? MR KONDILIOS: It is my position to you on merit. So, on merit, the suite of conditions that are recommended on merit, are in themselves not capable of dealing the measures and outcome of the very high - very high threshold of no adverse impact. You need to take that into account. Then I move on and talk about the law and the process, and then there's a further extension about that but I will have to discuss that in another forum.

[24]

The nature of the cl 2.8 tests

Before turning to consider whether or not the Council failed to consider, in a material and fundamental way, what is in cl 2.8 of the LEP and, particularly, whether it was led into error with respect to cl 2.8(3)(b), it is appropriate to repeat the terms of that provision and to make some brief observations concerning the nature of the test contained therein. The provision reads: 2.8 Temporary use of land … (3) Development consent must not be granted unless the consent authority is satisfied that: … (b) the temporary use will not adversely impact on any adjoining land or the amenity of the neighbourhood, and …
The nature of the activities that are capable of being permitted by an application invoking cl 2.8 are, I remind myself, activities that are otherwise prohibited in a zone.
That any application that is sought to be approved for such a prohibited use seeks a significant indulgence for such a substantial departure from the planning controls applicable to a zone is reflected in two aspects of the clause.
The first arises with respect to the temporal limitation mandated by the clause if such an otherwise prohibited use is to be permitted. This aspect of the clause was the subject of Marshall Rural's first complaint, a complaint dealt with and dismissed in my rejection of Ground 1.
The second element engaged by these proceedings is the requirement that the proposal will "not adversely impact" in the fashion specified in cl 2.8(3)(b). This test, cast in absolute terms reflecting the seriousness with which an application of this nature is required to be assessed, puts a very high hurdle in the path of any such application. The placing of such a hurdle requires that the Council must approach the consideration and determination of any such application with a marked degree of precision and caution.
For the reasons set out below, I am satisfied that the Council was led into the error of misdirecting itself on the application of the correct test and, in making a decision on this basis, did so by failing to have regard to the correct, materially relevant consideration contained in the provision. This conclusion, arising out of the staff assessment reports and the Council's consideration of them, is compounded, in the case of the Sunnybrook Barn application, by the fact that, as set out in the second of the extracts from the submissions made by Mr Kondilios to the Council on behalf of Marshall Rural drawing their attention to the nature of the test to be applied, the councillors were reminded of the nature of the proper test to be applied.

[25]

The fundamental fault in the Council process

Although the material in the assessment reports refer to cl 2.8 in terms in a number of relevant elements and purport to analyse the acoustic impacts in light of: 1. the matters raised by the objectors to the applications; and 2. the technical assessments submitted by Basscave prepared by Mr Cooper and the technical testing by Mr Isbester and his contribution to the preparation of the assessment reports, this was done in terms that do not reflect what is required by this element of the clause.
The commencement of the path leading to error commences with Mr Cooper and Mr Isbester both assuming that the appropriate technical lens through which each application should be viewed is whether or not an approved development for either the Polo Barn or Sunnybrook Barn could be rendered compliant with technical standards derived from those applied by an external regulator, the Office of Liquor, Gaming and Racing. Those standards envisage merely an acceptable impact rather than absence of adverse impact.
It is clear that, in considering the application in this fashion, Mr Cooper and Mr Isbester both failed to appreciate the fundamental nature of the test required to be applied by this provision of cl 2.8 of the LEP.
This approach, in turn, was transmitted into the overall nature of the assessment report in each instance and the nature of the way the Council's approach was framed, as a consequence, in each instance. Although, in form, each assessment report purported to deal with cl 2.8(3)(b) by reference to it in a number of instances, the nature of the analysis was not framed by a correct understanding of the absolute nature of the threshold test posed by the provision.
Nowhere in the analysis in either assessment report is there set out any cautionary warning to the Council that the test posed is in absolute terms nor is there any advice that specifically draws the attention of the councillors to the fact that the test posed differs from that which would be conventionally applicable to an ordinary development application (because the uses for which approval is sought by these two development applications is the same prohibited use in each instance).
It is clear from a complete reading of the transcript of the Council meeting dealing with these two applications on 30 June 2015 that the approach taken was that which might be expected to be undertaken of conventional development applications for such uses in circumstances where they were not prohibited.
Although the debate was vigorous and several of the councillors, particularly Councillors Lyons-Buckett and Paine, expressed significant concern about aspects of the proposals (including acoustic impacts), they, too, did so in what might be regarded as a conventional development application approach. These comments should not be taken to be critical of the extent to which the councillors engaged with the development applications, it is clear that there was, particularly during debate about the Polo Barn application, a considerable attention to and engagement with the merits of the applications.
However, the councillors started from the wrong presumption, a presumption that mandating remedial acoustic measures (such as those in the proposed conditions but not in the same terms as those proposed by Mr Cooper) would be sufficiently ameliorative to render the acoustic impact of the proposed development "acceptable".
In considering each application in this fashion, the councillors applied the wrong test and, because of the fundamentally prohibitory nature of the terms of cl 2.8(3)(b), in failing to consider the correct test, fell into impermissible error in resolving to determine to approve these two development applications.

[27]

Ground 5: Having regard to an impermissible consideration

As earlier set out, the two development consents that are under challenge are for a use ("function centre") which is otherwise prohibited on the portions of the Basscave lands where the Polo Barn and the Sunnybrook Barn are located.
In March 2015, the Council resolved to undertake a process that, if successful, would result in amendments being made to the LEP. It adopted, a resolution (Exhibit A, tab 8, folio 49) that included, amongst other things, the proposal that "function centre" be added as a permissible use subject to consent in a number of zones (including the zone relevant in these proceedings).
The portion of the minutes of this Council meeting dealing with this topic (Exhibit A, tab 8, folios 39-40, 49) were in the following terms: Item 3.1 - Permit function centres within certain zones Permit function centres with consent in the following zones: - RU1 Primary Production Proposed Amendment - RU2 Rural Landscape - RU4 Primary Production Small lots - RU5 Village - E4 Environmental Living During the preparation of LEP 2012 Council did not consider the permissibility of function centres because this was a new land use within the standard instrument and was considered to be outside the scope of the like for like conversion of LEP 1989 land uses to LEP 2012 land [uses]. Explanation It is however noted that LEP 2012 permits restaurants with consent in the RU1, RU2, RU4, RU5 and E4 zones. Council has become aware of circumstances whereby restaurants are also being used [as] function centres e.g. wedding receptions. This is particularly the case in localities such as Bilpin, Kurrajong Hills and Richmond. To rectify this inconsistency it is recommended that function centres be permitted with consent in the RU1, RU2, RU4, RU5 and E4 zones. This change will only make those uses permissible with development consent and does not allow operation. A development consent must be obtained, after consideration of the merits of that application, prior to those uses being allowed to operate,

[28]

The process by which such a proposal can be advanced to result in an amendment to a local environmental plan requires: 1. preparation by a council of a planning proposal setting out the changes sought to be made to the applicable local environmental plan; 2. submission of that proposal to the Minister and the Minister making a gateway determination that the proposal should be permitted to proceed further; 3. a public display and comment period of the draft changes to the applicable local environmental plan; 4. further submission to the Minister of the proposed amendments incorporating any changes that may have arisen out of the public consultation process; 5. the Minister determining whether to make the amendments proposed in the local environmental plan and, if so determining, whether they should be made in the precise form sought by the Council; and 6. publication of such amendments as are made by the Minister on the New South Wales legislation website thus bringing those amendments into force.
It was Mr Owens' oral evidence that, as the date of the Council meeting that approved these two challenged development consents, the first stage of the above process had not been finalised and that the planning proposal arising from the March meeting was not, in fact, forwarded to the Minister for consideration until sometime in mid-July 2015 (transcript, 11 November 2015, page 85, lines 15-26).
Marshall Rural complains that, at the Council meeting on 30 June, an expectation that the changes to the LEP were to come into effect (and incorporate the relevant "function centre" permissibility change for the zone within which the Basscave lands are relevantly located) was relied upon as a basis for approving the two applications.
Before turning to the transcript of what occurred at the Council meeting that is said to demonstrate that the Council decision was infected by impermissible reliance on this expectation, it is necessary to set out that which can be gleaned from the formal minutes of the Council relevant to this ground. The relevant sequence (Exhibit 1, tab 12, folio 326/1-17) was: 1. a revised assessment report recommending approval of the Polo Barn application subject to conditions was before the meeting; 2. a resolution to refuse the application was moved and defeated; 3. a further resolution was moved to adopt the recommendation of the staff in the terms that it had been advanced in the report; 4. an amendment was moved to the resolution that proposed approval but with changes to the conditions to which the consent would be subject. These changes, relevant to this submission, included a change to the proposed period of operation of the consent for temporary use abbreviating it from the staff's proposed 30 June 2017 to 31 December 2016; 5. the amendments to the motion were adopted with the vote recorded in the minutes (Exhibit 1, tab 12, folio 326/12) as being five votes to four; and 6. the amended resolution was then adopted with the vote recorded as 8 votes to one (Exhibit 1, tab 12, folio 326/17).
A notice of determination in the terms of the adopted, amended resolution was issued by the Council with an operative date of 3 July 2015.
Marshall Rural submits that the abbreviation of the proposed operative period for the consent in the amendment arose as a consequence of the majority who had voted to adopt the amendment having regard to the impermissible expectation that the LEP would be amended to render the presently prohibited use the subject of the application into a permissible one by the time of the expiry of the development consent that was proposed to be granted for that temporary (but otherwise prohibited) use.
The proposition that this was the case has its foundation in the transcript of the 30 June Council meeting. In speaking to the first resolution (that is that the Polo Barn application should be refused, Councillor Lyons-Buckett said, amongst other things, the following (transcript, page 22 lines 1 to 27): It's not that I don't support this happening, but I've just got really major, major concerns. I think temporary does not equate to three years. If there's a planning proposal which now apparently hasn't gone in, but I have - I had read there was a planning proposal, and I thought it was voted through here - that means it hasn't gone in. This is all very slow. If it was on the ball, the proposal would have gone in, and this could have been sorted and then it would either be determined as having to be a permanent thing that was allowable or not, but what we've got is this interim sort of limbo of having a three-year temporary, but things aren't being done because it's temporary. So even little things like the fact that for three years, then, the only potable water supply is going to be bottled water. That is the most non-sustainable thing I can even imagine. There should be a condition for a potable water tank to be there, because it just doesn't add up. I mean you could have all those people, all those cars, all those people going there and needing water, and there's not even a drinkable water supply on site. Those sort of things are what concern me, because they're not too hard to impose those, and yet they're not being imposed because of this word "temporary" and temporary being, as it is in this, is not what I would define, and I'm sure it's not what would be interpreted as temporary by many people. I think that, if it were for a much shorter period of time, if it were for definitely shorter hours through the week because I think that that's - those times are too late and, you know, you might say everyone off the premises by 11, but you get the dawdlers, and you get the people who won't go, and then all those cars have to actually leave. So, I mean, I think it needs to be much earlier, if you really want to make a genuine, you know, move towards not impacting on those neighbouring people.
After some further debate, the resolution to refuse the Polo Barn application was defeated by four votes in favour and five votes against (Council meeting transcript, page 25, lines 6 to 8).
The Council then moved on to consider the motion that the Polo Barn development application be approved subject to conditions. Councillor Lyons-Buckett then moved a number of other amendments during the course of which she made a further brief comment concerning the operative period she proposed for the Polo Barn consent. She said (Council meeting transcript page 26 lines 1 to 3): I had proposed that the consent is limited and shall expire on 31 December 2016. That still gives 18 months for the changes to the LEP to be brought in, but it also makes temporary more temporary then three years.
Councillor Lyons-Buckett also addressed a number of other amendments to conditions that had been proposed by the staff and to which she had handed up proposed amendments (Council meeting transcript, page 26 line 4 to line 46). The amendments were put to the vote and carried with the amended motion subsequently being carried immediately without further debate (Council meeting transcript, page 27 lines 31 to 37).
It is to be observed that:

no other councillor spoke to the amendments (whether for or against them); and
the amendments, when adopted by the vote earlier noted, were adopted globally and were not considered sequentially with adoption recorded, separately, for each proposed amendment. They were, in the colloquial, put as a package on a "take it or leave it" basis.

The amendments were, as can be seen from Councillor Lyons-Buckett's comments, not confined merely to the amendment proposing truncation of the operative period of the consent. There were other amendments adopted by the amending resolution. The table below sets out the nature of the changes to the proposed conditions in the original staff recommendation that were amended and then adopted for the Polo Barn application. It is unnecessary to repeat the substance of the amendments, merely to record them for the reasons discussed below. Condition Amendment 2 Consent expiration date moved from 30 June 2018 to 31 December 2016. 5 Provision of portable water amended to specify that water is to be from an on-site tank suitable for drinking water. 6 "All noise assessments are to be made publicly available" added to condition. 31 Amended to state that the register (as to use of the development) must be submitted weekly to Council, rather than on request of council officers. 35 Operating hours in respect of (1) what time music must cease and (2) when patrons must leave premises all amended to be 1 hour earlier than original times. 44 Requirement of portable toilets and amenities amended in relation to the rate of facilities provided. The effect of the amendment is that more facilities are provided for both male and female patrons.

[29]

Mr Galasso submits that the nomination by Councillor Lyons-Buckett that the use to be approved might be rendered permissible by the end of the operative period of the consent, as one of the two reasons given for this proposed change to the recommendation, impermissibly tainted the totality of this decision-making process.
I am unable to accept that that conclusion should be drawn with respect to her vote on the proposed amendments. She gave two reasons, in the alternative, as to why the operative period of the consent should be abbreviated. There is no suggestion in her remarks that one was more important than the other, nor that both were necessary as foundations for this aspect of the amendments that she moved.
The position with respect to those other councillors who supported the amending resolution is even clearer as lacking foundation in the context now proposed. As earlier observed, the amendments were put as a package and there was no debate, let alone vote, on individual elements. It is not appropriate, in my view, to cherry-pick one element in the amendments (with two reasons put by the mover in the alternative for proposing it) as being the reason why the other councillors supporting the amendments incorporating the change relied upon by Marshall Rural did so.
The suggestion that the abbreviation of the time of the consent for the Polo Barn adopted by the Council in the amended resolution was motivated, for Councillor Lyons-Buckett (let alone for any of the other councillors), by possible changes to the LEP is further undermined by consideration of the Council process concerning the Sunnybrook Barn resolution.
When the Council adopted a resolution to grant approval for the temporary use for the Sunnybrook Barn, whilst adopting the recommendation for approval, the motion carried by the councillors did not adopt, in their entirety, the recommended suite of conditions proposed in the assessment report.
However, in this instance, there was no resolution to which an amendment was moved to incorporate amendments departing from the staff's recommendations. Amendments were incorporated in the original motion (the transcript revealing that they were ones inspired by those moved by Councillor Lyons-Buckett to the Polo Barn resolution) but they were not spelt out during the course of the Council's discussions.
The Council meeting transcript reveals (page 39 line 17 to page 44 line 3) what can only be described, charitably, as a high degree of procedural flexibility and informality in the evolution of the resolution that was adopted at the final page of this transcript.
However, as with the Polo Barn, a limited range of amendments were adopted. They dealt with the same topics as were encompassed by the Polo Barn amendments but, in one critical respect relevant to this submission by Mr Galasso, they differed from the Polo Barn amendments.
A table summarising the effect of the Sunnybrook Barn amendments compared to the staff recommendations (Exhibit 2, tab 13, folios 128-133) adopted by the Council resolution (Exhibit 2, tab 14, folios 139-145) is reproduced below: Condition Amendments as adopted 2 Consent expiration date moved from 30 June 2018 to 30 June 2017. 5 Provision of portable water amended to specify that water is to be from an on-site tank suitable for drinking water. 6 "All noise assessments are to be made publicly available" added to condition. 31 Amended to state that the register (as to use of the development) must be submitted weekly to Council, rather than on request of council officers. 35 Operating hours in respect of (1) what time music must case and (2) when patrons must leave premises all amended to be 1 hour earlier than original times. 44 Requirement of portable toilets and amenities amended in relation to the rate of facilities provided. The effect of the amendment is that more facilities are provided for both male and female patrons.

[30]

This table makes it clear that the amendment adopted to condition 2 as originally proposed by the staff abbreviated the proposed operative period for the temporary use by 12 months, an abbreviation to the same extent as the abbreviation effected by the amendment adopted in the Council's consideration of the Polo Barn application. This abbreviation was confined to the cutting back by 12 months of the staff's recommended operative period.
However, for Sunnybrook Barn, the adopted terminating date for its temporary use consent was 30 June 2017 and not 31 December 2016, the position adopted in the Polo Barn resolution.
Had there been some dominant motive to align the outcome of a temporary use consent with a terminating date that was postulated to permit the amendment to the LEP to have been effected to make "function centres" a permissible use within the zone where the land relevant to each development application is located, then there would have been no reason to extend the Sunnybrook Barn temporary use beyond 31 December 2016.
Given the fragmentary and confused nature of the exchanges that took place during the Council meeting concerning changes to, and adoption of, the resolution concerning the Sunnybrook Barn consent, it seems to me that, if one were to seek to draw any conclusion from the Sunnybrook Barn process, it might be that the collective intention of the Council was to adopt a resolution for the second development application that merely effected changes reflecting the nature of the changes to the original outcome proposed for the Polo Barn.
The Council did not adopt a resolution reflecting, with precision, the outcome with respect to the operative period, merely commonality of the extent of the abbreviation of the operative period. However, even that is not a conclusion that I would be prepared to adopt with the necessary degree of comfortable satisfaction given the singular lack of clarity concerning the Council's processes on this resolution revealed by the transcript of the meeting.
However, I am satisfied that it is appropriate to draw a negative inference from the Sunnybrook Barn resolution, namely, that the abbreviation of its operative period was not motivated, solely or dominantly, to accommodate the anticipated operation of amendments to the LEP (or perhaps not at all - this latter possible finding being unnecessary in these circumstances),
As a consequence, the Sunnybrook Barn outcome further undermines the already flimsy basis for proposing that the possible coming into effect of amendments to the LEP by the end of 2016 materially influenced the Council's decision-making process in any impermissible fashion.
This ground fails.

[31]

Introduction

Marshall Rural's complaint based on the denial of procedural fairness arises from a briefing provided to councillors concerning these two development applications. This complaint can be summarised as being: The Council failed to accord procedural fairness to Marshall Rural by receiving a briefing in camera without public notice, in the absence of a resolution pursuant to s 10 of the Local Government Act 1993 (the Local Government Act), and taking into account that briefing without advising objectors of the matters briefed.
Marshall Rural pleaded this point as: 44 In granting the consents, the First Respondent failed to accord procedural fairness to persons to whom notice of the consents had been granted. Particulars (a) On 2 June 2015, the elected representatives (comprising the consent authority) met in camera, without public notice, for a briefing and a consideration of matters in the absence of a resolution pursuant to s10 of the Local Government Act 1993. (b) In taking matters submitted to the First Respondent in the private meeting into account without advising the objectors of the nature of such matters, the First Respondent failed to accord those persons adequate procedural fairness in the circumstances of the consideration of the development application.
When these two development applications first came before the Council on 12 May 2015, it was resolved that consideration of them would be deferred and that they would be referred to a councillor briefing (Exhibit 2, tab 13, folio 113). The briefing was subsequently held on 2 June. It was a briefing attended by at least two councillors (as this inference is available to be drawn from a comment made by Councillor Lyons-Buckett at the subsequent Council meeting on 30 June - transcript, 30 June 2015, page 32, lines 23-24).
Councillor Lyons-Buckett said, with respect to what took place at that councillor briefing (transcript, 30 June 2015, page 32, lines 23-33): COUNCILLOR LYONS-BUCKETT: I understand that, but we were all given out something that was given by the applicant. DEPUTY MAYOR: Yes, Mr Owens. MR OWENS: Sorry. I'm not sure what you're referring to. COUNCILLOR LYONS-BUCKETT: Well, I was given - and I'm sure - I may be wrong, whoever else was here, but I thought we were given [a] list of things from the applicant at the briefing session. Not in person. Mine was here on my desk when I came in.
Mr Owens gave written and oral evidence concerning the briefing on 2 June. I consider it appropriate to set out the entirety of that evidence. First, from his affidavit of 19 October 2015, he said: Observations from briefing session on 2 June 2015 8 Council holds regular informal Councillor briefing sessions between senior staff and Councillors. These are usually monthly with additional sessions as required. These briefing sessions are not compulsory for Councillors to attend, do not consider information that is not generally publically available, do not make any formal or binding decisions for Council and as such are not minuted. These sessions are similar to an internal staff meeting and are not attended by members of the public specifically invited to present 9 I attended at a briefing session of the Council on 2 June 2015 ("The Briefing Session"). It had the following matters on the agenda: • Growth Centre Structure Planning and Vineyard Precinct Planning (presentation by Department of Planning & Environment staff) • Hawkesbury River Dredging Business Case (Presentation by Council's Consultant) • Richmond Lowlands (presentation by Matthew Owens) 10 The temporary Use Applications were discussed at this Briefing Session as there was confusion between the Councillors on the legislation/controls that applied, and also because of the material in respect of the Class 1 proceedings which had been supplied to them by John Marshall. I gave an overview of the Temporary use Applications as per the Council report and did not introduce any additional information to the councillors relating to the Temporary Use Applications. Councillors asked questions about the email they received from John Marshall and the relevance of that Class 1 proceedings to the consideration of the Temporary Use Applications. I am not aware if either the applicant, or Basscave sent information to, or approached the Councillors directly before or after the Briefing Session.
He was cross-examined by Mr Galasso on this topic during the course of his oral evidence. The relevant portion of his evidence (transcript, 11 November 2015, page 79, line 20 to page 84, line 20) was: GALASSO Q. I want to ask you about paragraph 10 of your affidavit. At the foot of page of your affidavit you talk about the 2 June briefing session; do you see that? A. Yes. Q. You've told us in the earlier paragraph that there was an agenda for that session; tell us what was on the agenda. And you say in the second paragraph of paragraph 10 that that part of your affidavit where you say, "I gave an overview as per the council report. It did not introduce any additional information the councillors relating to the temporary use application", do you see that? A. Yes. Q. Now, later in your affidavit in paragraph 11 when you're responding to Mr Condelios' affidavit, you tell his Honour in paragraph B of subparagraph 11 that you listened to the tape recording, and then you are effectively are transcribing which you heard in the discussion on 30 June, correct? A. There's a transcript there, I believe it was 30 June, I don't think I've actually mentioned which date it was. It's referring to another document that doesn't have the date. Q. But you're talking about listening to a tape recording in 11(b)? A. Yes. Q. What you put in the balance of the paragraph by reference to the bolded words, comprises your acknowledgement of who you recall as the speaker from that part of the tape that you were listening to A. Yes, that's right. Q. and what they said, correct? A. Yes. Q. Do you see at the top of page 5, you ascribe to yourself of having said in relation to the briefing sessions, that you prepared a couple of slides for comments and some diagrams, that was it; see that? A. Yes. Q. Can I suggest to you that when you said earlier in paragraph 10 that you did not introduce any additional material to the councillors relating to the temporary use applications, that was incorrect at least insofar as these slides and diagrams were concerned? A. No, I don't agree with that. Q. Well, where are the slides, Mr Owens? A. The slides were an aerial photo, and just a cadastral map showing the location of the two barns, and where the objectors lived. Q. You gave a presentation to the councillors about what you understood the application to be about, and what you understood the issues to be about, correct? A. I gave a verbal overview of the council reports. Q. Yes, but the proposition I put to you, the answer to that is correct; is it not? A. There was no new information there. In the reports, attached to the reports is a locality plan, and I projected the locality plan in showing just the cadastre, and then another locality plan showing an aerial photo on that, and then the actual plans that were attached to the reports. Q. But you gave a presentation to the councillors about what you understood the development application was about, and what you and your officers have assessed are the issues in relation to it, correct? A. It was as per the assessment report, yes. Q. But you gave a presentation, Mr Owens, didn't you; you spoke to it? A. I spoke to it. Q. And you did not read it out verbatim, did you? A. No, I didn't read it out, no. Q. Members of the public weren't invited to that meeting, were they? A. It's a councillor briefing. Q. Could you answer my question, please. Members of the public were neither advised or permitted to attend that meeting, were they? A. As I've stated in my affidavit, members of the public aren't invited to those briefings. Q. By the time of that briefing, you had sanctioned the sending of letters of notification of the development application to many people, correct? A. Advising of the council meeting; is that what you Q. Advising of the development applications; there's a whole tab of them in exhibit 1. A. We had notified Q. See tab 10, there are scores of letters of notification of the development applications? A. Yes, that's correct. Q. Folios 188 through to 192 is a list of persons to whom notifications were sent, correct? A. That's correct, yes. Q. And persons to whom the notification was sent would be able to access what the development applications were; that is the documents in support of the applications, correct? A. Yes. Q. They could go to the internet, or they could visit the council, correct? A. That's right. Q. On the night of the meeting of 30 June, there was a report presented to the council, correct? A. That was a council meeting you're referring to? Q. 30 June council meeting. There was a report prepared and presented for the council, correct? A. Yes. Q. It was made publically available before the meeting, correct? A. Yes. Q. To the extent that you, as director of City Planning, said any in relation to that at the meeting of 30 June, persons in the public gallery had an opportunity to hear what you might say about that, correct? A. They would be able to hear my responses to questions from the councillors, yes. Q. Or anything else you might say in relation to it? A. If I can just clarify the situation; I can't speak in a council meeting unless I'm being asked a question. Q. But certainly, persons sitting in the gallery on 30 June would have no idea what you said and what you presented to the councillors at the briefing session, correct? A. They wouldn't know word for word what I said, but they have the information from the report that I was referring to. Q. Answer my question, please. They would not have any idea what you said in the briefing session, correct? A. That's not entirely correct. The information that I had presented is the information that was in the report. The word for word of what I said at the briefing session, no they wouldn't. Q. Tell me this; at the briefing session, do councillors have an opportunity to ask you questions? A. Yes. Q. Do you give those answers? A. If I can, yes. Q. So to the extent that a question may be asked about an application at the briefing session, and you give an answer, if a councillor was satisfied about the answer given, then you would agree, would you not, that there's the possibility that they may not ask the same question again at the formal council meeting? A. From experience, there's a possibility, but it's an unlikely event. Q. There's no minutes recorded at that meeting, is there? A. It's not a meeting so we don't record minutes, no. Q. I know you say it's not a meeting, but it's a place at which more than one person accumulates, to pick a neutral term, that may not be appropriate. The councillors and you get together in a room, do you not? A. Yes. Q. There's no recording of what is said at the gathering, no recording? A. There's no recording, no. Q. There's no minutes? A. No. Q. But there's an agenda? A. Only advise councillors what's being discussed. Q. And councillors get to ask you questions about whatever's presented at the gathering? A. That's right. Q. And you answer those questions? A. If I can, yes. Q. When it comes to the formal council meeting on 30 June, councillors may or may not ask you questions, correct? A. That's correct. Q. If a councillor does ask you a question, members of the gallery get the opportunity to hear what the question and hear the answer, correct? A. If all you did was present at the briefing session what was in the report at the meeting, and a councillor asked you a question at the briefing session, and you gave an answer, you would agree, would you not, that there's no need, potentially for HIS HONOUR: Try to remember my university philosophy about illicit majors and things of that nature in syllogisms; I keep providing the witnesses with exercise, it might be best if he left the room while I put something to you, Mr Galasso. IN THE ABSENCE OF THE WITNESS It goes to the question of identicality of documents earlier. The briefing session took place prior to the arrival of the 10 June document from Mr Cooper. So to the extent that your questions are predicated on him discussing a document with the councillors in this briefing gathering, it can't have been the document that went to the meeting on 30 June. GALASSO: Your Honour, the document is not material to the submissions we make about the meeting. HIS HONOUR: That's fine. I'm just wanting to be clear about GALASSO: I'm indebted to your Honour. HIS HONOUR: My understanding I also need to say this to you, which I can say, I think, safely in his absence, is that we've done a comparison of the assessment reports that went to the council. There are some places where the differences are merely, a person got bored with writing the same stuff the first time, and changed a couple of words, but there are some beloved by our profession, double negatives not immaterial differences. I'm not sure they go anywhere, but I'm just simply making that observation. GALASSO: Can I say, for our purposes, we've made that observation as well, but the differences don't relate to matters that we say my recollection is they don't HIS HONOUR: A number of them I've specifically had them looked at in the context of noise, and there are a number of differences. Whether they're material or not, I don't know, but I'm must simply flagging it to you because if I feel the need to discuss it in a decision, I don't want you to feel you may feel ambushed for a whole lot of other reasons, but I don't want you to feel ambushed for that reason. GALASSO: Sorry, it's inappropriate for counsel to ask the bench a question; the differences that your Honour is HIS HONOUR: It may well be inappropriate for me to answer it. GALASSO: The difference that your Honour is referring to is a difference between 12 May report, and 30 June report, or a difference HIS HONOUR: No, between the two 30 June reports. GALASSO: Right. Please the Court. HIS HONOUR: I mean, there are differences obviously between the two stages, I'm now talking about on the same topic between the two locations. Some of them are ones that are necessarily different, because they relate to building certificate matters and the like, building there are others where there are it struck me differing, I suppose, flavours on particular in a particular paragraph that differ marginally to the other document, that's all. GALASSO: Please the Court. IN THE PRESENCE OF THE WITNESS Q. Mr Owens, the reports to which you made reference in the briefing sessions, that is from the basis of your answer, of course were not the reports prepared for the council for the meeting of 30 June 2015, were they? A. No, they would've been the earlier reports. Q. To the extent that anything may have been said at briefing session, amongst other things, that was potentially affected by the subsequent receipt of the cumulative or the single acoustic report, correct? A. That's correct, yes.
No document to which she refers as being distributed at the meeting is in evidence. (Mr Owens was not questioned by Mr Galasso on this point.)
The complaint by Marshall Rural about this meeting is pleaded in the Points of Claim in the following terms: 44 In granting the consents, the First Respondent failed to accord procedural fairness to persons to whom notice of the consents had been granted. Particulars (a) On 2 June 2015, the elected representatives (comprising the consent authority) met in camera, without public notice, for a briefing and a consideration of matters in the absence of a resolution pursuant to s10 of the Local Government Act 1993. (b) In taking matters submitted to the First Respondent in the private meeting into account without advising the objectors of the nature of such matters, the First Respondent failed to accord those persons adequate procedural fairness in the circumstances of the consideration of the development application.
In Marshall Rural's opening submissions, this was said on that point: Procedural fairness 39 The Applicant submits that it was denied procedural fairness in relation to the opportunity to address material that was before Council in its consideration of the DAs. 40 Mr Kondilios' affidavit [2]-[3] deposes to an exchange between Clr Lyons-Buckett and Mr Owens (Council's Director of Planning) at the Council meeting held on 30 June 2015 in relation to written submissions that were provided by the Second respondent and tabled at a "briefing" of Council on 2 June 2015. That Councillors received written material from the Respondents at the 2 June 2015 "briefing" is confirmed by the transcript of the 30 June 2015 meeting. Councillor Lyons-Buckett stated: "[W]e were all given out something that was given by the [Second Respondent]" (Tr 18: 6-7). 41 Neither the Applicant nor other objectors to the DAs know what that material was. In those circumstances it is clear that there was a denial of procedural fairness in that the proponent had an opportunity to address Council 'behind closed doors', and objectors were not given an opportunity to respond to matters that were put to Council in writing as the content of written submissions for the "briefing" was not made available to them prior to the grant of the Consents on 30 June 2015 (and indeed it has not been provided since, notwithstanding requests made on behalf of the Applicant). In that respect, it is not clear the basis on which the briefing was not open to the public in accordance with Chapter 4, Part 1 of the Local Government Act 1993 (NSW)
Basscave's written submissions on this point were in the following terms: GROUND 6: DENIAL OF PROCEDURAL FAIRNESS 99 The Applicant contends that the Applicant (and other objectors) were denied procedural fairness in relation to the opportunity to address material that was before the Council in its consideration of the DAs. 100 The Applicant's submissions assume that, first, the Council was not entitled to have a briefing session for the Councillors. To that end, the Applicant relies on s. 10 of the Local Government Act 1993 (LGA) WHICH REGULATES Council meetings. The Applicant contends that any accumulation of Councillors discussing Council business is a "meeting" for the purpose of s. 10 of the LGA. 101 In the Respondents' submission a briefing session is not a "meeting". First, there is no evidence that any decision was made (or intended to be made) at the briefing session - decisions or resolutions being a primary purpose of a Council meeting. Second, there is no evidence that a quorum of Councillors (as required by s.368 of the LGA) was present so as for it to constitute a meeting (although the Applicant has asked the Court to infer that there was despite an absence of evidence and despite it not having asked Mr Owens who gave evidence in these proceedings and who was in attendance at the briefing session). Third, no minutes are kept nor business papers published, both being expected and regular features of a "meeting" of Council. 102 There is an allegation that material was provided to the briefing session on behalf of the Respondents. Assuming that there was a document, there is no evidence as to what the document was and whether it was not otherwise available as part of the DAs. There is no evidence that the alleged material was even made available to all of the Councillors at the briefing session. At the June Meeting, Councillor Lyons-Buckett equivocated as to who was provided with what stating: Well, I was given - and I'm sure - I may be wrong, whoever else was here, but I thought we were given at (sic) list of things from the applicant at the briefing session. Not in person. Mine was here on my desk when I came in. Mr Owens deposes that he "did not introduce any additional information to the Councillors relating to the Temporary Use Applications". 103 The Applicant has not discharged its evidentiary onus in relation to this ground. 104 Further, the Applicant's submissions assume that an objector was owed the procedural fairness the Applicant claims to have been denied. The Applicant has not provided a legal basis for its claim. Further, and in any event, as a matter of fact, the Applicant made submissions to Council in relation to each to the DAs. It also had legal representatives in attendance at both the May Meeting and June Meeting. It knew that the DAs had been referred to a briefing session via a resolution publicly made at the May Meeting at which it was represented and it raised no objection nor made any application to be present at the briefing session. 105 In addition, the Applicant's solicitor spoke against the DAs at the June Meeting. During his address to the June Meeting, Mr Kondilios said the following: I will move on because I need to speak quickly. As a part of statutory compliance, on the last occasion that you met, you deferred for no reasons given and particularly and particularly I note without reference to section 10 of the Act, I read in the report that you met - and this isn't said as a criticism, but I'm stating facts - for what's terms a "Councillor briefing" to discuss matters of statutory interpretation and application of mind of an application that is before you. 106 Mr Kondilios, as legal representative of the Applicant and speaking on behalf of the Applicant at the June Meeting, has waived the Applicant's right to complain in the terms that it now does on issues of procedural fairness. 107 In addition, there is a threshold issue which arises from cases such as ABT v Bond (1990) 170 CLR 321, Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 68 to 74, and Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah [2001] HCA 22 as to whether a briefing session at which no relevant decision is made gives rise to a duty to observe procedural fairness. The Respondents submit, if a duty did arise, the practical content of the obligations of procedural fairness were reduced to virtually nothing: see Seiffert v Prisoners Review Board [2011] WASCA 148 at [73]. This is particularly so where twenty-eight days after the briefing session (at which no decision was made) there was a Council meeting (at the June Meeting) where a decision was made and prior to the decision being made the Applicant's solicitor addressed the meeting: see Heatley v Racing & Gaming Commission (Tas) (1977) 137 CLR 487 at 513-516; Smith v Royal NSW Canine Council Ltd [2010] NSWSC 1134 at [55]; Edelsten at 72 to 73 per Davies J. 108 Ground 6 ought to be rejected.
Marshall Rural's written submissions in reply said on this point: Procedural fairness 24 As to the existence of a written document provided on behalf of the Respondents that was before Council at the 2 June 2015 "briefing session", Mr Owens' evidence is both inconclusive and irrelevant (cf RS [72] citing Mr Owens' affidavit at [40]). 25 It is not submitted by the Applicant that Mr Owens presented material on behalf of the Respondents to Council. However, the uncontradicted evidence of Mr Kondilios and the statement of Clr Lyons-Buckett recorded in the transcript of the 30 June 2015 Council meeting support the inference that someone did (AS [40]). 26 The relevance of that matter is obvious, as is the requisite content of the duty to accord procedural fairness that arises (cf RS [76]). As previously submitted at AS [41]), since neither the Applicant nor other objectors to the DAs know what that material was, they were not able (nor were they invited or given a comparable opportunity) to provide a responsive "briefing" to Council. The assertion (notably by a Council employee, not a relevant decision maker) that no decision was made at the "briefing" (see RS [71] citing Mr Owens' affidavit at [39]) should be given no weight. It is also wrong, if not absurd, to say if there is no decision at a gathering of councillors it is not a meeting. It is impossible to know what impact that "briefing" and the Respondent's material that was discussed at it had on the ultimate outcome in respect of the DAs. This is precisely why there is a requirement to accord procedural fairness, and an obligation to conduct meetings of council in public under s. 10 of the Local Government Act 1993 (NSW). 27 As to the supposed "waiver" by the Applicant of a challenge on procedural fairness grounds (RS [75]), the response is threefold. 28 First, the passage from the 30 June 2015 Council meeting cited at RS [74] cannot be construed to amount to a waiver in respect of a challenge to the Councils failure to accord procedural fairness. On its terms the matter with respect to which Mr Kondilios withheld criticism was the occurrence of the 2 June 2015 briefing session, not the presentation to that meeting of written material on behalf of the Respondents which objectors to the DA were not shown, or given an opportunity to respond to. 29 Additionally, further within Mr Kondilios' presentation the fact of the meeting being non compliant was made abundantly plain: Tr. 9:39-44. 30 Second, the obligation to accord procedural fairness is a fundamental one, attaching to the proper administration of Council affairs, and not susceptible of waiver (especially not by one objector where numerous parties had written to Council and spoke against the DAs at the 30 June 2015 meeting). 31 Third, it is axiomatic that no waiver can be made without full knowledge of the right being waived. In this case there is an absence of full information about what material had been provided to Council by the Respondents without the Applicant and other objectors having been allowed to comment. 32 This ground should be upheld.
In his closing submissions on this point, Mr Galasso said (transcript, 20 November 2015, page 40, line 38 - page 41, line 43) GALASSO: That hence brings me to ground 6, because we know - there's a disconnect in this case between what we know and what we don't know, but can I say this. To the extent that one is trying to present a picture of what occurred, at least as far as we're aware, we know what occurred on 12 May, both in the meeting and the report on 12 May, and we note what occurred on 30 June because there was a meeting, there was a report, and there was discussion recorded by a transcript. In addition, what we know is that there was this thing that occurred in between those two dates on 2 June. The councillors were there, the general manager was there, and the general manager on his evidence gave a presentation and presented slides. HIS HONOUR: The Director of City Planning. GALASSO: Yes. HIS HONOUR: You've given him an unwarranted promotion I think. GALASSO: The fact is there was an interaction. One is entitled to infer there was a discussion. There was certainly an interaction concerning the development applications, and that may well explain the osmosis that your Honour described as what occurred on 30 June, because if it's the case that by 30 June views were formed on the basis of that - I'll call it what the council and my friends want to call it, the briefing session, then it matters not that the topic of procedural fairness, that is the document that was not provided, or the thing that was not said, or the thing that was said, didn't occur on 30 June, as part of the procedural fairness to be afforded to persons such as my client and other objectors, that's an important aspect in this case. It's not just my client whose rights were apt to being affected, but a broader but not a genera amorphous class of persons, one simply does not know. In our submission things such as the absence of minutes may only be demonstrative of another breach of another section of the Act, but not necessarily excuse it. My friend refers to no evidence of an absence of a Coram. HIS HONOUR: Don't you have a don't ask don't tell problem? Your client never asked to attend on 2 June. GALASSO: That's not material. The evidence from Mr Owens is members of the public are not invited and the fact that-- HIS HONOUR: A difference between the invitation and asking, isn't there? GALASSO: No. We have not been told what was there. The onus was not on us to ask. The onus was on the council to comply with the relevant section of the Act. The failure to comply with the relevant section of the Local Government Act has meant that there's a hole in the information line, or the information timeline, and in our submission that's sufficient to establish the breach of the procedural fairness requirement Can I finally say this, in paras 105 and 106 there's some claim of waiver by Mr Kondilios. We thought we dealt with this in the written reply. At p 19 of the transcript at line 39, it is clear - these are just a few lines on from where the respondents have stopped the citation in 105, it's as plain as it can be that there was a complaint about the process on 30 June, that is the process that occurred before that.
As can be seen, I put a number of propositions to Mr Galasso seeking to test him on this ground advanced for Marshall Rural.
It is unnecessary to set out Mr Leggat's closing submissions on this point or Mr Galasso's closing submissions in reply, as it is clear that there are three separate reasons (each of which is sufficient) why this ground is not made out. I deal with each of them, in turn, below.

[32]

Was the councillor briefing "a meeting" within the meaning of Local Government Act 1993?

The relevant provisions of the Local Government Act dealing with meetings of councils are contained in ss 9, 10 and 11 of that Act. Those provisions are in the following terms: Public notice of meetings 9 Public notice of meetings (1) A council must give notice to the public of the times and places of its meetings and meetings of those of its committees of which all the members are councillors. (2) A council and each such committee must have available for the public at its offices and at each meeting copies (for inspection or taking away by any person) of the agenda and the associated business papers (such as correspondence and reports) for the meeting. (2A) In the case of a meeting whose agenda includes the receipt of information or discussion of other matters that, in the opinion of the general manager, is likely to take place when the meeting is closed to the public: (a) the agenda for the meeting must indicate that the relevant item of business is of such a nature (but must not give details of that item), and (b) the requirements of subsection (2) with respect to the availability of business papers do not apply to the business papers for that item of business. (3) The copies are to be available to the public as nearly as possible to the time they are available to councillors. (4) The copies are to be available free of charge. (5) A notice given under this section or a copy of an agenda or of a business paper made available under this section may in addition be given or made available in electronic form. Who is entitled to attend meetings? 10 Who is entitled to attend meetings? (1) Except as provided by this Part: (a) everyone is entitled to attend a meeting of the council and those of its committees of which all the members are councillors, and (b) a council must ensure that all meetings of the council and of such committees are open to the public. (2) However, a person (whether a councillor or another person) is not entitled to be present at a meeting of the council or of such a committee if expelled from the meeting: (a) by a resolution of the meeting, or (b) by the person presiding at the meeting if the council has, by resolution, authorised the person presiding to exercise the power of expulsion. (3) A person may be expelled from a meeting only on the grounds specified in, or in the circumstances prescribed by, the regulations. 10A-10B … Public access to correspondence and reports 11 Public access to correspondence and reports (1) A council and a committee of which all the members are councillors must, during or at the close of a meeting, or during the business day following the meeting, give reasonable access to any person to inspect correspondence and reports laid on the table at, or submitted to, the meeting. (2) This section does not apply if the correspondence or reports: (a) relate to a matter that was received or discussed, or (b) were laid on the table at, or submitted to, the meeting, when the meeting was closed to the public. (3) This section does not apply if the council or committee resolves at the meeting, when open to the public, that the correspondence or reports, because they relate to a matter specified in section 10A (2), are to be treated as confidential.
Sections 10A and 10B have been omitted as they have no role play in this consideration.
The term "meeting" is not defined in the dictionary to the Local Government Act.
However, the flaw in Marshall Rural's proposition that this councillor briefing session should be regarded as a meeting falling within the scope of the statutory provisions is that, it seems to me, the statutory provisions necessarily are intended to apply to those gatherings of the councillors (whether in open council, closed council or in committee) where matters are capable of being dealt with, either by a decision to determine a matter or by a decision made in committee to put a recommendation from the committee on the agenda of the Council for consideration of adoption.
Such circumstances did not here arise on the uncontradicted evidence of Mr Owens that, although there was an agenda, no decisions were made and no minutes or other records kept of such meetings.
It is also clear from the transcript of the subsequent Council meeting on 30 June that there is no inference to be drawn that any decisions or recommendations were made at the councillor briefing as there remained matters in contention (including amendments proposed to the recommendations in the assessment report presented to that Council meeting - in circumstances where that assessment report was not finalised until after the provision of the consolidated acoustic report from The Acoustic Group dated 10 June 2015).
To adopt the more expansive view advanced by Mr Galasso of what might constitute a meeting for the purposes of the Local Government Act would mean that any informal gathering of sufficient number of the councillors to constitute a statutory quorum would constitute a meeting provided some aspect of the operation of the Council (no matter how briefly discussed or trifling in its importance) would trigger engagement of the statutory provisions. This is an absurdity and clearly contrary to any purposive consideration of the provisions of the statute earlier set out.

[33]

Marshall Rural was not excluded from the briefing

The second reason for rejecting this basis of challenge by Marshall Rural arises from Marshall Rural's own conduct. The proposal to hold a councillor briefing was disclosed in open council on 12 May when the Council resolved to defer consideration of the Basscave development applications to permit such a briefing to occur (Exhibit 2, tab 13, folio 113).
Although the date of the proposed councillor briefing was not disclosed at the time of the 12 May meeting, it would have been open to Marshall Rural's representatives, who were at the meeting, to have communicated to the Council that they wished to attend the councillor briefing and provide material in opposition to the development applications.
They did not seek such an opportunity.
Whilst it was Mr Owens' evidence that it was not the practice of the Council to have external participants, there is no evidence on behalf of Marshall Rural that its representatives were aware that such briefings were closed. Even if I were to accept that they might have assumed such meetings were closed in the ordinary course of events, it would have been open to Marshall Rural to make contact with the Council seeking to be permitted to address and/or provide material to that councillor briefing.
There is no transcript of the Council meeting of 12 May but Mr Kondilios' affidavit (affidavit of Stan Kondilios, 10 September 2015, page 2, at [2]-[3]) says, with respect to this meeting: 1) On 30 June 2015, I attended a meeting of Hawkesbury City Council, the First respondent, as a representative of the Applicant in these proceedings, to make oral submissions in respect of DA0157/15 (Council Meeting). 2) During the Council Meeting, I overheard an exchange to the following effect between Mr Matt Owens, Director of Planning for the Respondent, and Councillor Mary Lyons-Buckett in relation to written submissions by the Second Respondent tabled at a meeting held on 2 June 2015: Clr Lyons-Buckett "The submissions were laid out before every Councillor when we came to sit at the meeting". Mr Owens: "I don't know anything about it or how it got there".
Although the outcome of doing so might well have been a refusal, absent the making of the request, speculation on the outcome provides no basis for complaint in these proceedings.

[36]

Ground 7: The building certificate issue

All buildings are classified under the National Construction Code (formerly known as the Building Code of Australia) (the Code). The class within which a building is classified depends on the use to which the building is proposed to be put. For a building to be permitted to be used for a particular purpose, it must meet the standards in the Code for the relevant class of building.
Neither the Polo Barn nor Sunnybrook Barn then met the relevant standards for the class of building within which "function centre" would fall. At the time of the Council's consideration of the development applications on 30 June 2015, each of the buildings required works to be undertaken to them to make them compliant with the standards for the relevant class of building under the Code, such compliance being necessary before either building could be used as a "function centre".
The process that has been followed, conventionally, in such circumstances is that which was discussed by Bignold J in Ireland v Cessnock (1999) NSWLEC 153; 103 LGERA 285. This process involves obtaining a building certificate through the process provided for in s 149D of the Planning Act and making a development application for the use of the structure. This two-step process has, in the ordinary course of events, involved a determination that the structure is fit to be used for the proposed purpose and, once that is established, then consideration is given to whether, having undertaken a conventional planning assessment (now, relevantly, pursuant to s 79C of the Planning Act), the proposed use of the certified compliant structure should be permitted.
In this instance, the Council adopted a different approach to the two steps. The approach adopted was to consider whether or not the use (in this case the temporary use as a "function centre" pursuant to cl 2.8 of the LEP) was acceptable in a planning sense, but to require that a building certificate to guarantee building compliance was obtained prior to the commencement of the use.
Council did not impose such a requirement as a deferred commencement condition but did provide, to identical effect in each development consent, that a building certificate had to be obtained prior to the issue of an occupation certificate for either barn. The issuing of an occupation certificate (Polo Barn at Exhibit 1, tab 12, folio 337, condition 3, Sunnybrook Barn at Exhibit 2, tab 13, folio 140, condition 3) is a necessary prerequisite for each barn prior to the commencement of use of that barn as a "function centre" pursuant to its development consent.
As earlier set out in the summary of the grounds of challenge mounted by Marshall Rural, the complaint with respect to the process adopted in each of these development applications can be summarised - as earlier set out: (7) The Council invalidly deferred a matter that should have been determined prior to the development applications being considered by instead imposing a condition requiring a building certificate pursuant to s 149D of the Planning Act before the issuing of an occupation certificate for each barn.
This ground was pleaded as: 45 In imposing conditions requiring a s149D Certificate for certain structures on the land, the First Respondent invalidly deferred a matter that should have been determined prior to the DA's being considered and determined. Particulars (a) Condition 24 of the development consent for the Sunnybrook barn (b) Condition 7 of the development consent for the Polo barn
This basis for complaint can be dealt with comparatively briefly.
The complaint made by Marshall Rural, as I understand it, is that the Council could not have been certain that the buildings were capable of being used as "function centres" at the time when the Council resolved to approve those uses on 30 June 2015. By failing to be satisfied on this point, it is said that it was not permissible for the Council to grant consent under those circumstances.
On the other hand, Basscave's position, as I understand it, was that, if consent for the use as a "function centre", in each instance, was not to be given, works that would otherwise be required to be carried out to make either barn compliant for the relevant class of building under the Code would be not only unnecessary but, if required to be carried out prior to consideration of permitting the use and the use were to be refused, the costs of carrying out the works would have been incurred unnecessarily.
Ms McKelvey submitted for Basscave that the prohibition on occupying either building and using it as a "function centre" was, in effect, a process achieving the same outcome as that which would have arisen had the Ireland process been followed.
Both buildings were subsequently issued with building certificates (Sunnybrook Barn at Exhibit 3 and Polo Barn at Exhibit 4).
In each instance, the process followed was that recommended by the staff in the assessment report (Polo Barn at Exhibit 1, tab 12, folios 315-320 and Sunnybrook Barn at Exhibit 2, tab 13, folios 128-133). The reasons advanced by the staff in the assessment report for this course of action were, in the case of Polo Barn: It is acknowledged that unauthorised works have been undertaken within the building as has occurred on some adjoining properties. However, if required this may be addressed through the Building Certificate process that would be addressed via consent conditions should the development be approved. A building Code of Australia (BCA) compliance report was submitted for a previous application for the site and that report concluded that the building required relatively minor upgrades to make compliant. Obviously those upgrades would depend on the use that is approved for the site and the ultimate BCA classification. In this regard, an upgraded report demonstrating compliance or otherwise with the National Construction Code/Building Code of Australia would be required, including matters relating to fire safety and disabled access. Should significant works be required to upgrade the building, a separate development application may, but not definitely, need to be lodged. The Applicant has requested that draft conditions of consent relating to obtaining a Building Certificate be deleted as an application for a Building Certificate for the Polo Barn was lodged with Council on 25 May 2015. However, the issue of that Certificate is dependent on the approval, or otherwise, of this application. In this regard, the classification of the building under the BCA will be different if the application is approved for the proposed temporary use. As such, these Building Certificate applications are on hold pending the determination of this development application.
Similar reasons were set out by the staff in the Sunnybrook Barn assessment report.
Whilst the process adopted in each Council resolution may be unconventional, and might be regarded by some as not being best practice, nonetheless the protective position that the use of either building as a "function centre" could not lawfully commence until an occupation certificate was obtained and such occupation certificate would not be available until after a building certificate had been obtained achieved the same outcome to practical effect as the process adopted in Ireland.
This ground fails.

[37]

Introduction

Each of the development applications lodged with the Council was accompanied by a letter purporting to give owner's consent for that application. The details in and form of the letters are entirely uncontroversial for the purpose they sought to serve. However, each of the letters is signed by Mrs Higgins in what each letter describes as her capacity as the "owner of Basscave".
During the course of his oral evidence, Mr Higgins said that he was the sole director of Basscave. This is confirmed by paragraph 1 of his affidavit sworn 18 November 2015. During the course of my earlier examination of the two bundles of documents provided by the Council (they becoming Exhibits 1 and 2), I had observed that, in the Sunnybrook Barn folder (Exhibit 2), there was no letter of owner's consent. I had, therefore, at the commencement of proceedings, asked that a copy of this document be provided for completeness of the relevant and necessary documents for that development application. It was subsequently provided and added to Exhibit 2.
As a consequence of it being provided, I had examined it and observed the capacity in which Mrs Higgins said that she had signed the document.
After Mr Higgins had concluded his oral evidence, I indicated to the advocates that, when Mrs Higgins gave her oral evidence, I wish to clarify with her the precise capacity in which she had executed the two owner's consent documents.
As a consequence of my proposing to do that, Mr Galasso sought an adjournment to consider whether or not Marshall Rural would seek leave to amend the pleadings to raise an additional ground, that ground being that there had been no valid owner's consent provided to the Council prior to the Council's determination of the development applications on 30 June 2015. After that short adjournment, Mr Galasso handed up a proposed Amended Points of Claim, a document seeking to plead matters concerning owner's consent in the following terms: 29A The development applications were not made by the owner of the land or with the consent in writing of the owner of the land. Particulars (a) Letter from Rebecca Higgins to the General Manager of the Hawkesbury City Council dated 19 March 2015. (b) ASIC Company Report for Basscave Pty Ltd CAN 082 992 998 29B In the absence of the consent in writing of the owner of the land the development applications did not comply with cl.49(1) of the Environmental Planning and Assessment Regulation. 29C In the premises the grants of consent were invalid.
Unsurprisingly, Mr Leggat indicated that leave was opposed and that he considered it appropriate to permit the Basscave parties and their legal advisers to have time to consider the matter prior to dealing with either the question of leave and, if leave were to be granted, the substantive issues. As I considered that this was a reasonable approach, that aspect of the proceedings was adjourned for a week with provision made for evidence to be filed and served on behalf of Basscave on that point. Mr Galasso then proceeded to his closing address on all matters other than that of owner's consent.

[38]

The next steps

When the hearing resumed after the adjournment to permit the Basscave interests the opportunity to respond on both the leave and merit aspects of owner's consent, I indicated that I would deal with the question of leave in this written decision and, if I determined that leave should be granted, I would then deal with the substance of the owner's consent issue. Mr Leggat provided written submissions on the question of leave and, contingently, on the substantive aspect.
These submissions did not deal with a matter I considered to be of substantive relevance, namely the engagement, if any, of the provisions of the Corporations Act 2001 (Cth), legislation which sets out, in s 127, matters dealing with the authority to execute documents on behalf the company.
As the relevance (if any) of this provision in these circumstances had not been considered by either side, at the conclusion of the hearing on all other aspects of the proceedings, a timetable was agreed to permit the parties to make submissions on this point. For the reasons set out below, I do not consider that granting leave to amend would be a futility as submitted by Mr Leggat in his written submissions on this point. For the reasons set out below, I am satisfied that leave to amend should be granted and that, on a proper consideration of all the material on this point, I should conclude that: 1. no valid owner's consent was provided to the Council for either of the development applications; but 2. if I am wrong in this conclusion for the reasons set out, there is a separate basis upon which I conclude that no valid owner's consent was given to the development application for the Sunnybrook Barn.
Marshall Rural's written submissions on the question of granting leave to amend were in the following terms: Futility and discretion 7 The Respondents submit that the proposed amendment should be refused because it was futile, and because of the delay in making the application for leave. 8 First, the Applicant rejects the suggestion that the proposed amendment is futile. It is uncontroversial that the sole director of the Second Defendant did not sign the relevant consents, and the absence of landowner's consent is fatal to the DAs. The only thing that can save the DAs is the existence of a valid authority from Mr Higgins to Mrs Higgins in respect of the documents the Second Defendant submitted to Council. 9 When that issue was put squarely into focus, it was met with evidence from Mr and Mrs Higgins that is uncorroborated by any document or any independent witness. The Court should have pause in accepting that position, particularly given: a. the absence of any evidence from Mr Montgomery, who is said to have been privy to the arrangement and could have given evidence in support of the Second Respondent (his client); and b. the need to give the Higgins' evidence a generous interpretation that would cover the consents signed by Mrs Higgins on both 13 and 19 March 2015. 10 Second, as to the discretionary question of delay (which, as the Respondent notes, was frankly conceded by the Applicant: see RFS [15]), that delay has not occasioned any prejudice to the Respondents. 11 Since the issue of the absence of landowner's consent was raised in the proceedings, the Second Respondent has: a. Had the benefit of an adjournment of the hearing to prepare its evidence on the issue in the form of the affidavits of Mr and Mrs Higgins; b. Had an opportunity to re-call Mrs Higgins to supplement her affidavit evidence orally; c. Had the opportunity to address the issue in oral submissions before the Court; and d. Taken the opportunity to make further submissions in writing. 12 Delay unaccompanied by any uncured or incurable prejudice is of little moment.

[39]

Leave to amend should be granted

I have concluded that leave to amend should be granted and I set out, in the following section, my reasons for reaching this conclusion.
The requirement for owner's consent to be provided to a body determining a development application arises from the requirements contained in cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Planning Regulation), a provision in the following terms: 49 Persons who can make development applications (cf clause 46 of EP&A Regulation 1994) (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. (2)-(5) …
The position that has consistently been adopted (see list of cases cited by Stein JA at [5] in Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; 111 LGERA 446 at 449) is that such consent must be provided to the consent authority prior to its determination to grant approval to a development proposal. If a consent authority purports to grant approval to a development and there is no valid owner's consent at that time, the consequence is that there is no valid development consent granted to the proposal (as explained by Stein JA in Botany Bay v Remath at [6]).
This is a fundamental element in the statutory process for granting development consent.
Mr Galasso candidly admitted that the Marshall Rural interests had been aware that Mr Higgins was the sole director of Basscave since at least the date (11 November 2015) that Mr Wilson, Marshall Rural's then legal representative had written to Mr Higgins in that capacity (Wilson Affidavit at [23]). He also acknowledged that Marshall Rural's legal representatives had had access to the Council's files for each development application since at least 16 July 2015 and that, in the case of Polo Barn, the letter from Mrs Higgins purporting to provide owner's consent to the Polo Barn application had been served on Marshall Rural's current solicitors as part of the Council's bundle of documents that had become Exhibit 1 (Tab 5).
It is clear that, although a consent authority has a discretion to process a development application up to but not including the stage of determining to approve the application in the absence of owner's consent (see Rose Bay Marina Pty Ltd v Minister for Urban Affairs & Planning [2002] NSWLEC 123; 122 LGERA 255 per Pearlman CJ at [24]), such process cannot proceed to the final step of approval absent consent pursuant to cl 49 of the Planning Regulation. The final step of determination cannot be taken in favour of an application unless and until such valid owner's consent is available.
Because a failure to have such owner's consent is so fundamental and its absence renders any purported development consent invalid, I am satisfied that it is appropriate to grant leave to amend. However, as will later need to be dealt with, such leave is subject to the usual costs requirement to compensate Basscave for being put to additional work as a consequence of dealing with such leave being sought.

[42]

The Higgins' evidence on signing

Mr and Mrs Higgins each provided an additional affidavit on the issue of the owner's consent documents. The affidavits were read without objection and Mr Higgins was not required for cross-examination on this topic.
Before turning to Mrs Higgins' oral evidence on the issue of owner's consent, it is convenient to set out the terms of each of their affidavits concerning the circumstances giving rise to Mrs Higgins signing the documents purporting to give owner's consent.
Mr Higgins' affidavit (dated 18 November) said, relevantly to this point: 3 On Monday, 9 March 2015 my wife Rebecca and I had a meeting with our legal team and our town planners regarding the Development Applications the subject of these proceedings. One matter discussed at that meeting was getting the Development Applications lodged. 4 After the meeting on Monday I had a conversation with Rob Montgomery, one of our town planners during which I said to him words to the effect: "Rob these development applications must be lodged as soon as possible. Get Rebecca to sign them she is authorised to sign them."
Mrs Higgins' affidavit (also dated 18 November) said, relevantly to this point: 2 I understood from a meeting with the lawyers and town planners on Monday 9 March 2015 that the development applications by Basscave Pty Ltd for temporary use of The Premises for function centres were to be lodged soon. During that week I had a conversation with my husband Peter, a director of Basscave Pty Ltd, in which he said to me words to the effect "please sign the documents that Rob Montgomery gives you for the DA's. I won't be around on Friday". Rob Montgomery is our town planner. 3 I did not regard this as being unusual nor did I have any concern about it as I sign a lot of documents for Peter including documents for Basscave Pty Ltd, Argosy Agricultural Group Pty Ltd and Sydney Polo Club Pty Ltd. I have authority to operate two of Basscave's bank accounts with National Australia Bank. I regularly have dealings with tradesmen and architects regarding Basscave's properties and have signed contracts and other documents for work to be done on these properties, all of which have been with Peter's authority. 4 On 13 March 2015 and on 19 March 2015, as authorised by Peter, I signed the letters e-mailed to me by Rob Montgomery, on behalf of Basscave Pty Ltd. Copies of the letters are annexed and marked "A".
The letter signed by Mrs Higgins concerning the Polo Barn was dated 13 March 2015, that being the Friday upon which her husband was absent from the property. The second letter, for Sunnybrook Barn, however, was dated 19 March 2015. Mrs Higgins gave an explanation for this (an explanation based on an electronic transmission malfunction) during the course of her oral evidence. Although this evidence was recorded as being on a voire dire basis, the parties have subsequently confirmed that it should be treated as evidence in the proceedings proper.
Mrs Higgins' oral evidence was in the following terms (transcript 20 November 2015 page 9 line 18-page 10 line 22): LEGGAT Q. I provide you with a copy of your affidavit sworn 18 November 2015. A. Thank you. Q. Can I direct your attention to the annexure which refers in the second paragraph to lot 25 DP663770, do you see that copy of a letter? A. What page are you referring to? Q. This is one which has - HIS HONOUR Q. The second last page. LEGGAT Q. The second last page. It has your signature - A. That's correct. Q. --and a date, 13 March 2015, and do you see next to it there's a copy of another letter dealing with lot 27, and we see that from the first paragraph of that letter. A. Yes. Q. It bears the date 19 March 2015. A. Yes. Q. Can you describe to his Honour the circumstances in which you signed those letters, in particular the date when each of those letters were signed please. A. Certainly. On the 13th I signed both these letters, and I scanned them back to Rob Montgomery, who was going to lodge the DAs. I scanned them from our office. I then went back to my computer and sent the forms to him. I thought that I had actually sent them both back to him because that went in the same file. However, they didn't seem to go in the same file and I was unaware of that. I didn't pay any more attention to it until the 19th, and I'm not quite sure, it might have been the day before or the 19th, he said, "We need to get that second DA lodged, we're lodging it tomorrow, and would you re-sign", or no, he didn't say re-sign, he said, "Would you sign the paperwork." Now, I was confused because I'd actually signed them both on the same day, however obviously I didn't email those attachments through to him. So what I did, rather than having to go back through all my emails, because going back through all the scanned list in my computer is laborious, I just downloaded the document again, went to - signed it, went to the scanner, scanned it and then flipped it straight to him. Q. The last two pages of your affidavit comprise the two landowners' consents, the ones that Mr Leggat just asked you about? A. Yeah. Q. As I understand your evidence, the very last page of your affidavit, that is the landowner's consent that has the date 19 March 2015 is a document that you signed on 19 March 2015, correct? A. That's correct.
Mr Leggat's submission in reply to Marshall Rural's further submissions on this point said: At paragraph 9 of its further submissions the applicant asserts that the evidence of Mr and Mrs Higgins "is uncorroborated by any document or any independent witness". The submission about documentary corroboration is wrong in fact - the fact of signed letters of owner's consent is evidenced by the documents signed by Mrs Higgins and contained on Council's files; and the fact of ratification is evidenced by written resolution by Basscave. The submission about an independent witness is also wrong in law - it carries the unstated premise that such evidence must be corroborated by every person who may be able to give evidence on an event. Such premise misunderstands an important aspect of the Jones v. Dunkel principle. It is not the case that it is necessary for a party to call every available witness: Manly Council v. Byrne [2004] NSWCA 123 at [60]-[67] (Campbell JA). Here there is consistent evidence from both the donor and donee of an authority. No occasion arises where it is necessary for Mr Montgomery to also be called, and no inference could or should be drawn from him not being called. (There was also nothing to prevent the applicant calling Mr Montgomery).
I accept Mr Leggat's submission on the issue of this evidence. I certainly do not draw any inference of a Jones v Dunkel (1959) 101 CLR 298 nature in connection with the issue.
Mr Galasso's written submissions concerning the two documents executed by Mrs Higgins are set out below. In effect, these submissions propose that, even if I am satisfied that Mrs Higgins purported to sign the letters as agent for Basscave, that agency was limited in time so that the document executed on 19 March was ineffective. Although, in [9] of Mr Galasso's written submissions earlier quoted, there is an inference that I should be cautious in accepting the evidence of Mr and Mrs Higgins, I am satisfied that, accepting this evidence as given, there is a sufficient and proper basis to consider whether or not valid owner's consent was given for both development applications or, as proposed by Mr Galasso, in the alternative, whether the Sunnybrook Barn application was invalid as lacking owner's consent. Authority 3 The Respondents submit that "the evidence does not support the (illogical) finding that the authority to sign on behalf of Basscave was limited as to the time of its exercise or only in respect of one development application, but not the other" (RFS [10]). The premise for that submission is the clear evidence that the two owners consent letters that were submitted to Council were signed on different days: a. The documents bear the dates 13 and 19 March 2015 for the Polo Barn and Sunnybrook Barn, respectively (see Annexure "A" to Mrs Higgins' 18 November 2015 affidavit); and b. Mr Higgins confirmed that those were the dates on which she signed the two documents (Tr. 20 November 2015 at 9:44-10:11). 4 Contrary to the Respondents' submission quoted above, the evidence extracted at RFS [9] clearly establishes the narrow scope and purpose of the alleged authority, specifically for Mrs Higgins to execute documents in circumstances where Mr Higgins (the sole director, and otherwise the only person able to bind the Second Respondent) "won't be around on Friday" March 13th (in Mrs Higgins' words) because he was "in meetings with lawyers in the city" (in Mr Higgins' words). That is, the authority was provided to deal with the specific occasion of Mr Higgins' unavailability on Friday, 13 March 2015. 5 There is nothing illogical about the Applicant's position that the authority was limited in time. In circumstances where Mrs Higgins does not have a power of attorney or other general authority to deal with the business of the Second Defendant, the inference to be drawn is that Mr Higgins had not previously, and would not on this occasion have, given an open-ended authority for Mrs Higgins to execute documents on behalf of the company. 6 In that regard, there was no evidence (either in the affidavits filed or in Mrs Higgins' further oral evidence on 20 November 2015) to the effect that the period of the authority was extended by Mr Higgins to deal with the circumstance that one of the letters did not make it to Mr Montgomery on 13 March 2015. The Respondents' strained construction of the evidence should be rejected with the effect that, at a minimum, the DA for the Sunnybrook Barn should be found to be defective.
There is no dispute between the parties that "a properly authorised agent can provide consent on the part of a landowner seeking development approval" (Marshall Rural's further submissions at [2]).
However, to the extent that the question of agency is relevant, I am satisfied on a correct understanding of the evidence of Mr and Mrs Higgins earlier set out that the authority to sign an owner's consent as an agent of Basscave was given on a temporally limited basis as Mr Higgins would not be available to execute such a document on Friday 13 March 2015. There is nothing in either affidavit nor in Mrs Higgins' oral evidence that suggests that, either at the time of making the request initially or at any subsequent time, Mr Higgins extended the authority either for a further specific period of time or generally.
I am satisfied that Mr Higgins appointed Mrs Higgins with authority to act as Basscave's agent for 13 March 2015 to enable her, as Basscave's agent, to give owner's consent to the two development applications.

[44]

The basis asserted to the Council of authority to sign for Basscave

Although the terms of each letter addressed to the General Manager of the Council differed (in that each dealt with the necessary property descriptors for the relevant application and the letters were differentially dated as elsewhere discussed), the signature elements and descriptors are identical for each letter. An image of the relevant portion of the Polo Barn letter appears below:
I now turn to consider whether or not Mrs Higgins' letters to the General Manager of the Council were properly understood to be letters executed as agent for Basscave when, in terms, that status is not claimed in the letter and a different status is asserted (entirely without foundation) as being the basis pursuant to which each of the documents was executed.
As can be seen from the image, Mrs Higgins asserts that she is the owner of Basscave, when she has no such status. In this context, I need to consider whether this is a deficiency of substance or one of form. Had Mrs Higgins signed as agent for Basscave, this issue would not arise. However, there is no issue of any representation being made by either Mr or Mrs Higgins of actual or ostensible authority as an agent, merely the assertion by Mrs Higgins that she is the owner of the Basscave.
It is self-evident that the Council has accepted, at face value, this assertion and has not made any enquiry of the basis upon which Mrs Higgins has purported to give owner's consent. The fact that it is uncontroversial in the proceedings that, despite her absence of formal status with Basscave, Mrs Higgins acts in a variety of important functional roles for the company does not invest her with the right, in any general and unalloyed sense, to exercise plenitentiary functions as the "owner" of the company. Whilst this may be a convenient intrafamilial arrangement, it provides no basis for holding out to the world, generally, or to the Council in particular in the circumstances arising in these proceedings, that Mrs Higgins has such a legal status with respect to the company when, in fact, she does not have such status.
Given the specific requirement in cl 49 of the Planning Regulation that the consent has to be given by the owner of the land, Mrs Higgins holding herself out to have that status, when in circumstances she did not but could have, accurately, described herself as an agent on behalf of the owner, is not merely a slip in terminology but is holding herself out as having a status which she knew that she did not have.
This has the effect, in my view, of rendering the two letters ineffective to give owner's consent to the two development applications.
In such circumstances, I am satisfied that each of the documents purporting to be owner's consent executed by Mrs Higgins describing herself as the owner of Basscave do not effectively give owner's consent for the purposes of cl 49 of the Planning Regulation and, as a consequence, neither of the development applications had been completely and validly made as at the date the Council purported to determine them by the granting of development consent as "function centres" for each of the Polo Barn and Sunnybrook Barn.

[45]

Retrospective validation?

In Mr Higgins' affidavit of 18 November 2015, in addition to setting out the circumstances under which he had requested Mrs Higgins to execute owner's consent documents in March 2015, he also described the steps he had taken since becoming aware of matters relating to the owner's consent letters. He said, in his affidavit, at [7]: I was recently made aware by Basscave's lawyers of an issue about the letter consenting to the lodgement of the Development Applications. To resolve any doubt about the issue, on 18 November 2015, in my capacity as sole director of Basscave, I resolved to ratify Rebecca's authority to sign the letter of owner's consent. Annexed and marked "A" is a copy of the resolution.
The minutes of the meeting of Basscave that he held on 18 November 2015 record him convening the meeting of directors, with he being present as the sole director. The minutes have appended to them an initialled copy of the letters of 13 and 19 March 2015 earlier described. The resolutions of the meeting are recorded as being in the following terms: Resolved: 1 To ratify the authority for Rebecca Meta Higgins to execute and to ratify the execution of letters, providing owner's consent dated 13 March 2015 and 19 March 2015 on behalf of Basscave. 2 For the purposes of identification a copy of the letters providing owner's consent dated 13 March 2015 and 19 March 2015, initialled by me are annexed to these minutes.
I have earlier referred to the submissions made on behalf of Basscave that there was a common law entitlement in agency that would permit me to regard the owner's consent as being validly given. For the reasons earlier explained, I do accept the proposition that such documents can be executed by agents but not that the "consents" in either instance here were so executed.
However, in Basscave's further submissions, I was referred to the decision in Prime Constructions Pty Ltd v Westbridge Investments Pty Ltd (2004) 22 ACLC 1390. In his decision, Young CJ in Equity said, at [25]: 25 Ordinarily, ratification relates back to the time when the original act was done. There is an exception where what is to be done has to be done within a limited time; see Dibbins v Dibbins [1896] 2 Ch 348. However, that line of cases only seems to apply where time is of the essence. Here, although it may well be argued that there was only a reasonable time in which the deed could be signed and proffered, time was not of the essence, and the acts of the defendant precluded the formal document being proffered, and as the defendant never saw it, it never realised that the deed was not properly executed.
A reading of Dibbins does not lead to the conclusion that it stands for the proposition that a time limitation only applies where "time is of the essence". It is clear from the discussion by Chitty J that it was not an issue of "time being of the essence" in that decision but merely that there had been an express temporal limitation on the exercising of a right set out in the document that gave rise to the right and the attempt to ratify, after the expiration of the time limitation, the action that had earlier invalidly been carried out within time (purporting to exercise of an option to purchase an interest in a partnership).
Whilst the circumstances of this case concern a differing type of exercise of authority, I am of the view that the principle in Dibbins is relevant and applicable. In this case, the temporal limitation arose from the operative date of the document issued by the Council purporting to grant development consent in each of the instance of the Polo Barn and Sunnybrook Barn. If there was no valid owner's consent on that date, I am satisfied, applying Dibbins, once that time has passed, any attempted ratification of the earlier invalid purported owner's consent is a futility.

[48]

Form of proposed orders

The orders that I propose should be made would be in the following form: 1. Declare that the First Respondent, by granting development consent for the use of the Polo Barn located at 1 Powells Lane, Richmond Lowlands (Lot 25 DP 663770) for the purposes of a "function centre" did so in breach of the Environmental Planning and Assessment Act 1979; 2. Order that, from [date to be inserted], the Second and Third Respondents and their servants or agents are restrained from using the Polo Barn for the purposes of a "function centre"; 3. Declare that the First Respondent, by granting development consent for the use of the Sunnybrook Barn located at 106 Ridges Lane, Richmond Lowlands (being Lot 27 DP 566434 and Lot 1 DP 797310) for the purposes of a "function centre" did so in breach of the Environmental Planning and Assessment Act 1979; 4. Order that, from [date to be inserted], the Second and Third Respondents and their servants or agents are restrained from using Sunnybrook Barn for the purposes of a "function centre"; 5. The exhibits, other than Exhibit A, are returned; and 6. Costs are reserved.
As can be observed, I have not incorporated any operative date in proposed orders (2) and (4). These have been left blank as it is now appropriate that the parties have the opportunity to address me on whether or not I should exercise discretion pursuant to s 25B of the Court Act in setting the dates for cessation of use (whether or not differentially framed for the two facilities) and, if I should do so, on what basis and for how long.
It is appropriate that this occur prior to the end of the law term as holding over would effect a de facto moratorium on cessation of activities of one or both facilities without any exploration by me of whether such a moratorium was appropriate or not for either facility.
In light of the success by Marshall Rural being on only one of the grounds originally pleaded coupled with the ground of owner's consent permitted to be pleaded by amendment during the course of the proceedings, costs will be reserved. I will hear the parties on any costs application in the new law term.

Marshall Rural Pty Limited v Hawkesbury City Council and Ors

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (49 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (13)

Cited By (7)