The applicant, Ms S J Maule owns a property known as No. 99 Woy Woy Bay Road, Woy Woy Bay. The first respondent, Mr M Liporoni, owns the adjoining property known as No. 97 Woy Woy Bay Road, Woy Woy Bay. On 30 July 1999 the second respondent, Gosford City Council (which I shall call "the council") granted consent to a development application made by Mr Liporoni to erect a house at No. 97 Woy Woy Bay Road, subject to conditions.
Ms Maule has brought the present proceeding in which she claims the following relief:
As against the First Respondent declarations and/or orders that the First Respondent in respect of development application No. 2830/99 ("the development application"):-
Failed to provide to the Second Respondent material in compliance with Section 5A of the Environmental Planning and Assessment Act in respect of the development application.
Failed to comply with the requirements of Section 5A of the Environmental Planning and Assessment Act in respect of the development application.
Failed to set out material so as to permit Council to give proper consideration to the requirements of Section 79C(1) of the Environmental Planning and Assessment Act in respect of the development application.
Failed to inform the Second Respondent that the development application attracted the provisions of Part 3A of the Rivers and Foreshores Improvement Act.
Failed to inform Council that the development application is an integrated development as defined in Section 91 of the Environmental Planning and Assessment Act.
Failed to consider the requirements of Section 91 of the Environmental Planning and Assessment Act in respect of his land at 97 Woy Woy Bay Road, Woy Woy Bay ("the land").
Failed to consider the provisions of Section 90 of the National Parks and Wildlife Act 1974 as these apply to his land.
Failed to inform the Council of the impact of Section 90 of National Parks and Wildlife Act 1974 on the land.
Failed to consider the provisions of Clause 10 of the Local Environmental Plan 381 or inform Council of the impact.
Failed to consider that he was not, at the time of the filling [sic] of the application, the owner of the land the subject of the development application such that he was not lawfully entitled to make the application and that at the time of the filling [sic] of the development application there was no accompanying consent from the owner of the land in writing as required pursuant to Clause 46 (1)(b) of the Environmental Planning and Assessment Regulation 1994.
Failed to ensure that a statement of environmental effects was provided as required by Note 9 of Form 1 of the Environmental Planning and Assessment Regulation 1994 in respect of the land.
Failed to obtain a permit under the provisions Part 3A of the Rivers and Foreshores Improvement Act 1948.
Failed to give proper considerations to the provisions of the Gosford Scheme Planning Ordinance.
Failed to give proper consideration to the provisions of Clause 9 of State Environmental Planning Policy 19.
Failed to give any and/or proper consideration to the development consent policies which have been put in place and adopted by the Council either formally or informally at the material times.
Failed to provide a detailed erosion and sedimentation plan.
Failed to consider that the proposed development work would take place within the drip line of the two large angophora castata trees situated upon the land the subject of the development application.
Failed to provide a detailed geotechnical and engineering plan to ensure the proper and safe development of the land the subject of development application including but to limited to the erection of appropriate retaining walls and other land stabilisation measures.
That the clearing and excavation work which was commenced by the First Respondent was other than in accordance with the consent given by the Council, was contrary to law and/or to failed to comply with statutory law in as much as the First Respondent by himself, his servants, employees and/or agents:
(a) failed to remove fill or spoil material generated by excavating the site works from the site and/or store it in such approved manner to the satisfaction of the Council so as not to constitute a siltation/erosion problem or have the potential to cause such a problem;
(b) strictly adhere to Council siltation/erosion control policy which was not observed before the commencement of the clearing and excavation work;
(c) erosion and sedimentation control was not in accordance with Council Policy of Erosion and Sedimentation Control E5.04;
(d) erosion and sedimentation control was not in place prior to commencement of work;
(e) excavation and back filling associated with the approval was not adequately retained and details from a practicing engineer were not submitted prior to commencement of work of retaining walls in excess of one (1) metre in height;
(f) filling on site and placing of filling and debris within a water course;
(g) failure to comply with the Clean Waters Act and failure to implement and maintain appropriate erosion/sedimentation control measures in breach of the Clean Waters Act;
(h) failure to comply with any measures approved or any erosion/sedimentation control plans submitted in accordance with the Council's Code of practice for erosion and sedimentation control being implemented prior to the commencement of the work on the site;
(i) failure to construct a driveway in a manner such that vehicles could enter the property without having to travel beyond the driveway, such that any such vehicles would not need to proceed beyond the driveway and then reverse to gain access? or similarly would not have to proceed further up the Plaintiff's driveway before departing the site.
(j) the clearing and excavation work which was commenced and/or continued by the First Respondent was undertaken by him when he knew or ought to have know that the Council had negligently breached the Environmental Planning and Assessment Act when undertaking the considerations of issuing the consent;
(k) that the excavation and clearing work undertaken by the First Defendant involved:
(a) the removal of earth;
(b) the digging of trenches;
(c) the drilling of holes;
(d) the breaking up of rocks;
(e) the cutting down of trees;
(f) the undermining of rock formations by excavation and;
(g) damage to the root systems of trees situated upon the land, which trees and their root system act to stabilise the land and as a consequence of these matters the First Respondent caused the land to become unstable such that the land could slide and/or slip onto the Applicant's land at 99 Woy Woy Bay Road, Woy Woy Bay ("the Applicant's land") or undermine the stability of part of the Applicant's land ("the clearing and excavation work");
That on or about the 30th of July 1999 the First Respondent wrongfully and contrary to law obtained the issue to the First Respondent by the Second Respondent of a consent to the development application ("the Consent")
A declaration that the First Respondent is bound to perform the obligations contained in paragraph 5, and/or 6, and/or 7, and/or 8 or the instrument setting out term of easement and restriction on use created pursuant to Section 88B instrument (Conveyancing Act 1919 NSW) lodged with Deposited Plan No.625723 in respect of the development of the land.
A declaration that the First Respondent is bound by the terms of the instruments setting out terms of easements and restrictions as to user intended to be created pursuant to Section 88B Conveyancing Act 1919 NSW in Deposited Plan No.805703 and the instrument setting out terms of easements and restrictions as to user intended to be created pursuant to Section 88B Conveyancing Act 1919 in Deposited Plan No.625723,
A declaration that the Consent issued in breach of the Environmental Planning and Assessment Act 1979.
An order restraining the First Respondent from acting on the Consent.
An order restraining the Second Respondent from issuing any certificates in respect of any work done pursuant to the Consent,
An order that the First and Second Respondent restore the land, so far as possible to the condition existing prior to the commencement of the clearing and excavation work.
An order that the First Respondent erect, conduct and install all systems and structures necessary to prevent destabilisation of any part of the Applicant's land put at risk as a result of the First Respondent's actions.
An order that the First Respondent not cause or permit any vehicles, men, machinery, materials, implements, tools, debris, boulders, rocks or soil from standing, entering, being deposited or entering upon the Applicant's land.
An order that the easement for right of carriageway burdening the Applicant's land be used by the First Respondent strictly in accordance with the provisions of Part C of Schedule VI of the Conveyancing Act, 1919.
An order for costs.
As against the Second Respondent the Applicant seeks declarations that the Second Respondent contrary to the law and/or in breach of the Environmental Planning and Assessment Act in respect of the development application:
Failed to observe compliance with Section 5A of the Environmental Planning and Assessment Act.
Failed to require the First Respondent to comply with Section 5A of the Environmental Planning and Assessment Act.
Failed to give proper consideration to the provisions of Section 79C(1) of the Environmental Planning and Assessment Act.
Failed to consider that the First Respondent's land attracted the provisions of Part 3A of the Rivers and Foreshores Improvement Act.
Failed to consider that the development application is an integrated development.
Failed to consider the requirements of Section 91 of the Environmental Planning and Assessment Act.
Failed to consider the provisions of Section 90 of the National Parks and Wildlife Act 1974.
Failed to consider the provisions of Clause 10 of the Local Environmental Plan 381.
Failed to consider that the First Respondent was not, at the time of the filling [sic] of the application, the owner of the land the subject of the development application such that he was not lawfully entitled to make the application and that at the time of the filling [sic] of the development application there was no accompanying consent from the owner of the land in writing as required pursuant to Clause 46(1)(b) of the Environmental Planning and Assessment Regulation 1994.
Failed to ensure that a statement of environmental effects was provided by the First Respondent as required by Note 9 of Form 1 of the Environmental Planning and Assessment Regulation.
Failed to consider that the development application form did not indicate that development approval had been applied for and obtained by the First Respondent.
Erred in finding that the proposed development would:
(i) not affect the quality and/or quantity of a natural water body;
(ii) would not affect the drainage pattern or water course of a creek, stream, river or other body of water;
(iii) would not affect the ground water.
13. Failed to require that the First Respondent obtain a permit under the provisions of Part 3A of the Rivers and Foreshores Improvement Act 1948.
Failed to give proper considerations to the provisions of the Gosford Scheme Planning Ordinance.
Failed to give proper consideration to the provisions of Clause 9 of State Environmental Planning Policy 19.
Failed to give any and/or proper consideration to the development consent policies which have been put in place and adopted by the Council either formally or informally at the material times.
Failed to enforced provisions of Section 79C (1)(b) of the Environmental Planning and Assessment Act in that:
(i) there was a failure to require strict compliance with the geotechnical report prepared by Shirley Consulting Engineers Pty Ltd Ref No. RN89037/1/QP37/5 ("the report");
(ii) did not require geotechnical site investigation of sufficient detail and probity to demonstrate conclusively that the report should not be complied with;
(iii) did not commission an independent geotechnical report relating to the development application;
(iv) Approved the development application notwithstanding that the detail in the development application and the geotechnical report prepared by Brink Geotechnical was inadequate to permit a full and proper assessment of the development application;
(v) did not ensure that there would be proper vehicular access on and off the land the subject of the development application;
(vi) did not ensure that there would be proper parking upon the land the subject of the development application;
(vii) did not require the First Respondent to submit adequate evidence or information to demonstrate conclusively that the large angophora costata trees and their root systems would not be adversely affected by any works undertaken pursuant to any development consent given in respect of the development application;
(viii) did not give proper consideration to or require information about or take precautions about the following matters:
(a) the clearing and modifying of natural vegetation,
(b) the displacement, disturbance and habitat modification or habitat destruction of native animals,
(c) the presence of threatened species protected under the provisions of the Threatened Species Conservation Act 1995,
(d) consult, deliberate, confer and keep fully informed and obtain the concurrence of NSW National Park and Wildlife Services and the Department of Land and Water Conservation,
(e) failed to give full and proper consideration to the guidelines for development adjoining National Parks and Wildlife Service's land ("NPWS land"), in that inter alia Council did not consider and where necessary require appropriate expert reports in respect of the following matters:
(i) corridor values,
(ii) erosion and sedimentation,
(iv) storm water run off to NPWS land,
(v) management implications and impact,
(vi) boundary encroachments,
(vi) fire - in particular the provision of the Department of Urban Affairs and Planning circular "C 1 0 Planning in Fire Prone Areas",
(vii) visual impacts,
(viii) the provisions of the draft Fire Management Plan for Brisbane Waters and National Parks.
(f) a detailed erosion/sedimentation plan to be provided by the First Respondent or else to have been provided independently by the Second Respondent;
(g) that development work would take place within the drip of the two large angophora costata trees situated upon the land the subject of the development application;
(h) detailed geotechnical and engineering plans to be submitted by the First Defendant to ensure the proper and safe development of the land the subject of the development application, including but not limited to, the erection of appropriate retaining walls and other land stabilisation measures;
That on or before the 30th July 1999 the Council wrongfully and contrary to law issued to the First Respondent the Consent;
That the Second Respondent issued the Consent wrongfully and/or contrary to law in as much as that the Consent was issued in circumstances where:
The development application contained wrong and/or inadequate and/or incomplete and/or misleading information in that:-
(a) The development application did not provided:-
(i) insufficient plan detailed,
(ii) a statement of environmental effects,
(iii) a flora and fauna assessments,
(iv) an an assessment under Clause 9 of the State Environmental Planning New Policy 19 Bushland in Urban Areas;
(b) The development application does not comply with condition 12 of the development consent dated 12 September 1999 granted by the Gosford City Council for the creation of Lots 22 an 21 in D.P. 805703;
(c) Inadequate information has been submitted with the development application in respect of the likely impact of the development on the stability of Lots 21 and 22 in D.P.805703;
(d) Inadequate information has been submitted regarding the impact of the proposed development on flora and fauna on the site and the surrounding areas;
(e) No information has been submitted in relation of the impact of the proposed development on the adjoining Brisbane Waters National Park;
(f) No information has been provided in respect of any adverse impact on the two angophora costata trees located on the First Respondent's land;
(g) Inadequate information has been provided in respect of parking and/or vehicular access on and to the First Respondent's land to meet the requirements of Council;
(h) The proposed development is likely to have an adverse impact on the national environment of the area;
(i) The First Respondent's land is unsuitable for development as proposed in the development application;
(j) Pursuant to Section 91A(2) of the Environmental Planning and Assessment Act ("the Act") the Council was precluded by law from granting consent to the development application as the proposed development is an integrated development as defined in Section 91 of the Environmental Planning and Assessment Act and neither the First or Second Respondents had obtained from the Department of Land and Water Conservation a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948;
(k) Pursuant to Section 91A(2) of the Act Council was precluded from granting development consent until consent had been obtained by the First and/or Second Respondent pursuant to Section 90 of the National Parks and Wildlife Act;
(l) The Second Respondent by its servants was precluded from granting development consent under delegated authority in that there had been objections and complaints in respect of the development application;
(m) That the Second Respondent, contrary to law and in breach of the duties, obligations, liabilities and rights prescribed by the Environmental Planning and Assessment Act granted and issued a consent to the First Respondent;
(n) That the Second Respondent failed to comply with Clause 65 of the Environmental Planning and Assessment Regulation 1994;
(o) That the Second Respondent failed to comply with Clause 74 of the Environmental Planning and Assessment Regulation 1994;
(p) That the Second Respondent failed to comply with Section 79B of the Environmental Planning and Assessment Act 1979;
(q) that the Second Respondent failed to:
(a) obtain sufficient plan details;
(b) obtain a statement of environmental effects;
(c) obtain a study in respect of the possible effect on flora and fauna;
(d) ensure compliance with condition 12 of the development consent dated 12 September 1989 and incorporated in the Section 88B instrument lodged with Deposited Plan No.805703 and Deposited Plan No.605723;
(e) require sufficient information and expertise to satisfy itself that the work proposed to be carried out on the site would be carried out in an appropriate manner in accordance with such information and expertise to avoid undermining the stability of the site and surrounding area;
(f) ensure the construction of site parking and vehicular access;
(g) ensure the prevention of boulders, rocks, soil and other debris or detritus from being deposited on the Applicant's land;
(h) ensure that appropriate drainage systems and works would be installed at the site so as to avoid the risk of movement and slippage such as could affect the Applicant's driveway, the serviceability of the Applicant's driveway and the stability of the lower part of the Applicant's land;
(i) ensure that works, drainage and other appropriate means would be implemented to prevent run off from the First Respondent's land being deposited by rain water and/or earth tremors upon the Applicant's land;
(j) require the implementation of such measures as are necessary to avoid the possible slow down hill movement of boulders straddling the boundaries between the Applicant's land and the First Respondent's land so as to prevent the destabilising of that part of the Applicant's land bordering the First Respondent's land,
(k) require the implementation of such measures or works as are necessary to prevent boulders that straddle the boundaries between the Applicant's land and the First Respondent's land from moving, rolling or otherwise being deposited upon the Applicant's land.
20. That as a consequence of the Second Respondent's failure to ensure compliance with the provisions of the Environmental Planning and Assessment Act, the Applicant has suffered loss and damage, and has been put to expense in and about the said loss and damage in that the clearing and excavation work carried out by the First Respondent on or about the 8th July 2000 had the following effects:
(a) altered the natural water drainage systems,
(b) destabilised large boulders,
(c) caused loss of amenity and destabilisation of all or part of the Applicant's land, and that as consequence the Applicant is required to incur expense in inter alia:-
(d) installing appropriate water drainage and remedial systems,
(e) undertaking remedial measures such as suitable boulder retaining walls and/or anchors to prevent destabilisation of part of the Applicant's land.
21. A declaration that the Second Respondent is bound by the terms of the instrument setting out terms of easements and restrictions on use intended to be created pursuant to S88B, Conveyancing Act, 1919 NSW in DP 805703 and the S88B instrument setting out terms and restrictions lodged with Deposited Plan 625723.
The Applicant seeks the following orders against the Second Respondent pursuant to Section 123 of the Environmental Planning & Assessment Act 1979:
22. An order that the Second Respondent restores the First Respondent's land so far as is possible to a condition existing prior to commencement of the clearing and excavation work.
23 An order restraining the Second Respondent from issuing any certificates in respect of any work done pursuant to the consent.
24. An order for costs.
The development consent granted by the council to Mr Liporoni's application was publicly notified in conformity with s 101 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") on 12 August 1999. That section is as follows:
101. Validity of development consents and complying development certificates
If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.
The present proceeding commenced on 14 February 2001, which was some 18 months after the development consent had been publicly notified. The ordinary grounds of judicial review available to a court are, as a consequence, not available. It is not open to the court, for example, to reconsider the merits of the council's determination to grant development consent, or to set aside the determination on any of the following grounds: failure to comply with the requirements of natural justice, failure to observe procedural requirements, failure to take into consideration something that was relevantly required to be taken into consideration, taking an irrelevant consideration into account, exercising a discretionary power at the direction or at the behest of another person, exercising a discretionary power in accordance with a rule or policy without regard to the merits of a particular case, making a determination by asking the wrong question, or making a determination which was so unreasonable that no reasonable authority could ever have come to it. It is alleged by the applicant, however, that the granting of the development consent by the council involves jurisdictional error and was made in circumstances which demonstrates mala fides, neither of which are precluded by a provision such as s 101 of the EP&A Act (R v Hickman; Ex parte Fox (1945) 70 CLR 598). In support of her claim, the applicant relies upon Further Amended Points of Claim of some 23 pages, which includes particulars of the alleged jurisdictional error and mala fides. The applicant relies upon facts which would otherwise be excluded from consideration by the principle in R v Hickman, but which, the applicant submits, demonstrates that the determination to grant development consent must have been made with mala fides and involves jurisdictional error.
The applicant does not, in her Further Amended Points of Claim, differentiate between those allegations that give rise to jurisdictional error and those that give rise to mala fides. This would appear to be because the applicant relies on all matters of which she complains, as demonstrating or giving rise to an inference of mala fides and jurisdictional error. Not all of the allegations set out in the Further Amended Points of Claim were the subject of or supported by evidence, neither were all of those allegations the subject of submissions on behalf of the applicant. I propose to consider only those allegations of the applicant which were the subject of her submissions, and they can conveniently be considered under a number of broad topics. The matters which were not the subject of the submissions were rightly not pressed by the applicant in the absence of evidence to support them.
The background to this case can be best understood by reference to the following chronology of events: 5 February 1999 Contract for sale of No. 97 Woy Woy Bay Road (being lot 22 in DP 805703) from W & K Reynolds to Mr M Liporoni.
9 March 1999 Mr Liporoni lodged development application to erect a house. The council had received from Mr Liporoni's solicitor on 8 March 1999 a copy of the front page of the contract for sale.
17 March 1999 Notice of the development application was given to the owners of neighbouring properties, including J W & P E Moore, the then owners of No. 99 Woy Woy Bay Road, Woy Woy Bay.
19 March 1999 The purchase of No. 97 Woy Woy Bay Road by Mr Liporoni was completed. A copy of the notice of transfer was sent to the council.
30 May 1999 Mr Liporoni entered into a contract to construct the house on his property.
30 July 1999 The council granted consent to the development application subject to conditions. The consent was issued by Mr J A B Bruton, Senior Environmental Health and Building Surveyor, under delegated authority of the council granted pursuant to s 378 of the Local Government Act 1993.
12 August 1999 The council published a public notice of the development consent pursuant to s 101 of the EP&A Act.
13 September 1999 Contract for sale of No. 99 Woy Woy Bay Road (being lot 21 in DP 805703) from J W & P E Moore to Ms S J Maule.
28 September 1999 The purchase of No. 99 Woy Woy Bay Road by Ms Maule was completed.
12 November 1999 The three month period following the publication of the public notice of development consent expired.
14 July 2000 Ms Maule commenced proceedings in the Supreme Court of New South Wales against Mr Liporoni seeking orders restraining him from building his house. Several motions were heard and in the proceedings Ms Maule served 12 affidavits and 16 experts' reports. Those proceedings were subsequently discontinued by Ms Maule on the first day of the hearing in that Court.
14 February 2001 The present proceeding in this Court was commenced (being some 18 months after the publication of the notice under s 101 of the EP&A Act).
Owner
[2]
When Mr Liporoni made the development application to erect a house on No. 97 Woy Woy Bay Road to the council, s 78A of the EP&A Act relevantly provided that "[a] person may, subject to the regulations, apply to a consent authority for consent to carry out development". The Environmental Planning and Assessment Regulation 1994, which was then in force, provided by cl 46(1) that "[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 the land to which the development application relates". (See now cl 49(1) of the Environmental Planning and Assessment Regulation 2000, which is to the same effect.) The applicant submits that at the time the development application to erect a house was made, it was necessary for Mr Liporoni to either be the owner or to have the consent in writing of the owner of the land to which the application relates. The applicant submits that the requirement under the EP&A Act is mandatory. Since neither of the pre-conditions in the making of development application were met by Mr Liporoni, the applicant submits that the development application was not valid. (Although not expressly stated, I infer that the applicant alleges that the development consent granted by the council must be void because it was not made in respect of a valid development application.)
As the chronology of events shows, however, Mr Liporoni lodged the development application after having entered into a contract to purchase the land to which the application relates, and he became the owner on 19 March 1999 when the land was subsequently transferred to him. These events occured before the determination of Mr Liporoni's the development application by the council.
In Woolworths Limited v Bathurst City Council (1987) 63 LGRA 55, Cripps J held (at 62) that it is unnecessary for the owner's consent in writing to be received by the council at the time of lodging the development application provided that it is given at a time prior to the grant of development consent. Cripps J also held (at 63) that even if the owner had not consented to the making of a development application, s 104A of the EP&A Act (now re-numbered as s 101) precludes a challenge to the validity of the subsequent development consent. Cripps J further held (at 64) that for the purpose of the administration of public planning law, the development application ceased to have any relevance for any purpose after the expiration of the time period within which the development consent could be challenged. Moreover, in Amacon Pty Ltd v Concord Municipal Council (NSWLEC, 2 December 1987, unreported) Hemmings J held that the lack of the owner's consent can be cured at any time until the determination of the application.
In the present case the development application was lodged by Mr Liporoni at a time when he was the purchaser of the land under the exchanged contract for sale. Before the determination of the application by the council the contract was completed and the land was transferred to Mr Liporoni, the notice of which was sent to the council by a copy of the notice of transfer. Having regard to the purpose of the statutory requirement for the consent of an owner of land to the making of a development application, I am of the opinion that, provided the applicant for development consent is the owner of the land before the development application is determined, then the development application is validly made. This conclusion is consistent with the decisions of Cripps J in Woolworths Limited v Bathurst City Council and Hemmings J in Amacon Pty Ltd v Concord Municipal Council. It is also, as I have said, consistent with the purpose behind the requirement for the making of development applications either by the owner of the land to which the development application related or with the consent in writing of such owner.
Moreover, even if Mr Liporoni in the making of development application was not the landowner, I would not in the exercise of the Court's discretion have made a declaration of invalidity of either the development application or the development consent on this ground. The objective purpose of the provision is satisfied in this case. That objective of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 is self-evidently to ensure that the owner of the land to which development application relates is aware of what is being sought by way of development application in respect of his land and to ensure that he is aware of and consents to the making of such development application.
Notice
The applicant submits that notice of the development application was not given to the owners of an adjoining property, namely Dr J K Paszkowski and Mrs C M Paszkowski, of No. 95 Woy Woy Bay Road, Woy Woy Bay. The affidavit of Dr & Mrs Paszkowski attests to the fact that they have never been notified of the development application submitted by Mr Liporoni. This evidence appears to be corroborated by the council's file, which shows that the notice of the development application was sent to "J K Paszkowski and C M Paszkowski, 97 Woy Woy Bay Road". Number 97 Woy Woy Bay Road is, of course, Mr Liporoni's land. I am thus prepared to accept the submission that neither Dr Paszkowski nor Mrs Paszkowski of No. 95 Woy Woy Bay Road received the notice of Mr Liporoni's development application.
The applicant submits that s 79A of the EP&A Act imposes a mandatory obligation upon the council to notify the development application. That section provides that notice must be given of a development application to carry out advertised development or to carry out specified development. The definition of "Advertised development" in s 4 of the EP&A Act is "development, other than designated development, that is identified as advertised development by the regulations, an environmental planning instrument or a development control plan." The applicant has not pointed out or referred to any provision of the regulations, an environmental planning instrument or a development control plan which identifies the erection of a house as advertised development. Neither has the applicant pointed out or referred to any provision which identifies the erection of a house as specified development. There is no statutory requirement for notice to be given of a development application for a house.
Neither is there any evidence to suggest that there is a common law obligation on the part of the council to give notice of the development application in this case. There is no evidence to suggest that the council had a duty to give notice of the development application to the owner or occupier of any adjoining or nearby property.
The absence of any duty on the part of the council, either statutory or at common law, to give notice of the development application means that this ground of challenge must fail. Moreover, even if there had been a duty on the part of the council to notify Mr Liporoni's development application, it would appear that s 101 of the EP&A Act would preclude a challenge to the validity of the development consent on this ground.
Delegation
The development consent was determined by Mr J A B Bruton, Senior Environmental Health and Building Surveyor, under delegated authority pursuant to s 378 of the Local Government Act 1993. The applicant asserts that Mr Bruton did not have delegated authority to grant development consent where objections had been received on the development application.
The instrument of delegation to Mr Bruton was tendered in evidence. That instrument delegates to Mr Bruton the function of determining development applications for the erection of Class 1 and 10 buildings and ancillary structures. A Class 1 building is a single dwelling (inter alia) and a Class 10 building is a non-habitable building being a garage, carport, shed, fence, mast, antenna, retaining or free-standing wall, swimming pool, or the like (Pt 1.3, Building Code of Australia). There is no limitation or restriction in the instrument of delegation by which Mr Bruton would not have the authority to determine such development applications in the event of any objection to the development application. The authority to determine such development applications is unconfined. This ground of challenge thus fails. Moreover, it would appear that s 101 of the EP&A Act would also prevent any challenge to the validity of the development consent based upon this ground.
The National Parks and Wildlife Service
Number 97 Woy Woy Bay Road has a boundary which adjoins the Brisbane Water National Park. The applicant alleges that the council failed to comply with guidelines of the New South Wales National Parks and Wildlife Service ("the Service"), despite being provided with copies thereof, in circumstances where it knew or ought to have known of those guidelines.
The applicant alleges that the council did not consider the following matters described in the guidelines: (i) corridor values, (ii) erosion and sedimentation, (iii) stormwater run off to the land of the Service, (iv) management implications and impacts, (v) boundary encroachments, (vi) fire, and (vii) the provisions of the draft Fire Management Plan for Brisbane Water National Park.
The evidence shows that through its letter to the Service dated 17 March 1999, the council consulted the Service regarding Mr Liporoni's development application. In reply by letter dated 19 March 1999, the Environmental Planning Manager, Sydney Zone, of the Service drew attention to a number of specific concerns and enclosed a copy of the guidelines for developments adjoining the land of the Service. The guidelines state that councils should consider the following issues when assessing those development proposals adjoining to the land of the Service: corridor values, erosion and sedimentation, stormwater run off to its land, management implications and impacts, fire, boundary encroachments and visual impact.
In passing, I note that both, the letter of the Service dated 19 March 1999 and the guidelines refer to the need for an assessment and consideration of the proposed development on Aboriginal heritage. However, no allegation over any failure on the part of the council to consider Aboriginal heritage is particularised in the Further Amended Points of Claim. I should record the fact that during the course of the hearing the applicant sought to adduce expert evidence on the issue of Aboriginal heritage. I rejected the evidence on the grounds that this issue is not raised in the Further Amended Points of Claim, that the fresh evidence sought to be adduced was well outside the timetable of directions given by the Court to file and serve evidence, that the respondents were caught by surprise by this late attempt in raising the new issue and the respondents were thereby deprived of the opportunity to engage their own archaeological experts to investigate and report on the applicant's fresh allegations.
The determination of Mr Liporoni's development application was the subject of a report to Mr Bruton by Mr J W Allen, Environmental Officer employed by the council. That report dated 3 June 1999 states (inter alia):
As the proposal adjoins National Park, correspondence was sought from the National Parks and Wildlife Service (ATTACHED). It is considered that the development does not impinge upon the National Park boundary nor will it have impact upon the Park.
In granting the development consent a number of conditions were imposed by the council which demonstrate that consideration was given to erosion and sedimentation and to stormwater run off. These conditions are as follows:
5. a) Any fill or spoil material generated by excavation or site works should be removed from the site or stored in such approved manner to the satisfaction of Council, so as not to constitute a siltation/erosion problem or the potential to cause such a problem.
b) Strict adherence to Council's siltation/erosion control policy must be observed before the commencement of any site works, during construction and after completion of all building works.
NB: Failure to comply with Council's policy may result in Council instigating legal proceedings or immediate on the spot fines under the Clean Waters Act.
…
7. Erosion and Sedimentation Control must be in accordance with Council's Policy for Erosion and Sedimentation Control No. E5.04.
(Reason: Environmental protection)
8. Erosion and Sedimentation Control must be in place prior to the commencement of work.
(Reason: Environmental protection)
…
20. Failure to implement and maintain all erosion and sedimentation control structures may result in Council commencing legal action in the Land and Environment Court.
WARNING
The applicant shall be held responsible for any breaches of the Clean Water act 1970.
Please note: Failure to implement and maintain appropriate erosion/sediment control measure is a breach of the Clean Waters Act 1970. Such a breach is liable for a $600 on-spot fine.
Applicant(s) and Builder(s) are advised that spot checks of Erosion and Sedimentation Control measures may occur and fines for breaches imposed.
(Reason: To eliminate pollution of any clean waters)
21. The measures approved in the Erosion Sedimentation Control Plan submitted in accordance with Council's Code of Practice for Erosion and Sedimentation Control being implemented prior to the commencement of building works.
(Reason: To eliminate pollution of any clean water)
The subject of fire, and in particular bushfire, was considered by the council as a separate issue and is discussed below (at pars [26] to [49]).
In my opinion it cannot be said that the council failed to give consideration to the guidelines of the Service in Mr Liporoni's development application. The guidelines were expressly considered by Mr Allen and were attached to his report to Mr Bruton. Moreover, any failure on the part of the council to consider, or to properly consider, this issue is clearly precluded from judicial review by virtue of s 101 of the EP&A Act.
Fire hazard
The applicant alleges that the council failed to give proper consideration to fire hazards.
The council's file shows that on 6 April 1999 the development application was referred to the council's Fire Control Officer, Mr R E Miller, for comment. On 12 April 1999 Mr Miller sent a memorandum to Mr Bruton in the following terms:
Please supply full details of address and location map as we are unable to pick which "Lot 22" it is.
The file contains a note from Mr Bruton to Mr Miller dated 19 April 1999 which states:
Location details attached as requested.
Minimum width of four (4) metres;
Capable to withstand fully load fire appliance (28 tonnes of 8 tonnes per axle);
Provision of a turning circle of minimum 12 metre radius;
Maximum grade of 15% (1:7).
Would you please indicate at your earliest convenience how you propose to achieve the abovementioned so that your application can be further assessed.
According to the evidence of Mr Liporoni, upon receiving this letter he was concerned over the need for the right of carriageway (which serves both Nos. 97 and 99 Woy Woy Bay Road) to be upgraded to accommodate a fire tanker. He believed that the fire control officer might have seen the wrong block of land. He spoke to Mr Bruton "to understand the meaning of this letter", who then suggested that he speak to the council's fire control officer, Mr Miller. Mr Liporoni then spoke to Mr Miller and, according to the evidence of Mr Liporoni, which I have no reason to doubt, he tried to describe to Mr Miller how near the proposed house was from the road and to understand which block of land Mr Miller may have looked at. Mr Liporoni was left with the impression, after seeing Mr Miller, that "both of us understood that most likely the fire controller didn't actually see my property, maybe someone else's property…".
The council's file bears a file note of Mr Bruton dated 25 June 1999 which states: "Application has been referred back to Fire Control to review previous advice." There is also a memorandum in the council's file from Mr Bruton to Mr Miller of the same date which states:
I understand from the applicant that his DA was to be referred back to FC [Fire Control] for a review of previous advice. I shall await your response.
The council's file contains a memorandum dated 30 June 1999 from Mr Miller to Mr Bruton, as follows:
The applicant visited us the other day to clarify the actual location of the building site. For some reason I was under the impression that the house was being built further up the hill towards the ridge top.
As that is not the case, we can reach the house with safety from the road and lower end of the common driveway. Therefore the only recommendation we would apply is AS3959 as mentioned in the final paragraph of my memo of 15/5/99.
My apologies for the mix up.
Mr Miller gave oral evidence in the proceeding. He said that the building plans supplied to him indicated that the proposed house or building on Mr Liporoni's land was to be placed between 30 and 40 metres from Woy Woy Bay Road. The pumps on the fire tankers, according to Mr Miller, are only capable of lifting water to a vertical head of 30 metres; in order to reach the house it would be necessary for the common driveway to be upgraded to accommodate a fire tanker; and that was the reason for his memorandum of 15 May 1999 (noted in par [29] above).
According to Mr Miller:
Mr Liporoni said to me that the house location was to be much further down from the hill and closer towards Woy Woy Bay Road. … If what Mr Liporoni had told me was to be correct we could reach the house and protect it sufficiently from fire or attack the fire efficiently from the roadside or from back in five metres up the driveway without having to continue further up the driveway.
This evidence appears to be consistent with the site plan on the plans which were approved by the council, as appears from the following evidence:
Q. Mr Miller, the site plan shows that the front of the house is located 26 metres up the driveway, do you see that?
A. Yeah.
The site is naturally vegetated. Two large Angophora costata exist on the site and are proposed for retention. The development is considered a sufficient distance from the trees to avoid disturbance within the dripline of the trees.
Any development approved on the site must not involve development within the drip line of the trees.
…
In light of the above, Council's Environmental Control & Planning Activity has no objection to the proposed development subject to the following conditions being included on any consent issued in relation to this application:
…
The two large Angophora costata trees identified on the Site Plan by M & C Liporoni dated 16 February 1999 Drawing No. 020101 must be retained. No development is to occur within the dripline of either of these trees.
Prior to any construction works, safety fencing is to be placed around the dripline of the trees.
Other than that necessary for the construction of the building envelope, all native vegetation is to be retained on the land.
When the photocopy of the council's file was produced by the council's solicitor in answer to a subpoena issued by the applicant's solicitor, the second page of the Mr Allen's report was missing. The second page of the report contains the recommendations noted at par [70] above. The two nominated conditions are not included in the conditions of the development consent. It is suggested by the applicant that the second page of the Mr Allen's report may have been either deliberately or accidentally removed from the file, so that the two recommended conditions were as a consequence not included in the development consent. It is suggested that this demonstrates a failure to give proper consideration to Mr Allen's recommendations and also gives rise to an inference of mala fides. The applicant also tendered a survey plan of Mr Liporoni's land prepared by a surveyor on 27 November 2001. It shows part of the drip line of the Angophora costata trees as extending over the site of the proposed house.
The council's original file was admitted into evidence. The second page of Mr Allen's report is intact in the original file. I was told from the bar table that when the applicant subpoenaed the council's file, the file was photocopied and the applicant was given a photocopy. The process of photocopying appears to have missed the second page of Mr Allen's report. I accept what I was told from the bar table, since it was from counsel on instructions by his instructing solicitor, an officer of the Court. There is nothing even remotely suspicious about the fact that the photocopy of the council's file which was given to the applicant's solicitor had a missing page. Moreover, the fact that the page with both conditions of Mr Allen's report appear in the original file suggest that the officer to whom Mr Allen was reporting, namely Mr Bruton, would have read it.
Neither can I draw an inference that there has been a failure to give proper consideration to Mr Allen's recommendations. Condition 3 of the consent expressly requires the development to be carried out generally in accordance with the relevant plans. Those plans show the two trees as being retained. Mr Allen's report notes that the trees "are proposed for retention". Importantly, Mr Allen's report then states: "The development is considered a sufficient distance from the trees to avoid disturbance within the dripline of the trees." In the light of these statements it would hardly seem necessary to impose a further condition as suggested by Mr Allen. There is no error of law, if, as alleged, there has been a failure to consider, or properly consider, Mr Allen's recommendations. Neither can I infer anything approaching mala fides from these facts.
Neither can I draw any inference adverse to the council from the tender of the additional survey referred to above (in par [71]). That survey is dated 27 November 2001 being a few days before the commencement of the hearing. As I have noted, it shows the drip line of the two Angophora costata trees as extending over the house. This is, of course, information which has been provided long after the granting of development consent. There is nothing to suggest that the opinion of Mr Allen as stated in his report - "[t]he development is considered a sufficient distance from the trees to avoid disturbance within the dripline of the trees" - was not one which he honestly and reasonably held. He may have been merely mistaken. There is nothing to suggest that there was something wrong on the part of Mr Bruton in accepting this statement. It is easy for someone to come along after the granting of development consent with expert evidence to show that an assessment made some one and a half years previously is factually wrong. Again, however, that is not the issue. As noted in par [44] above, there is no error of law if a determining authority makes a wrong finding of fact (City of Enfield v Development Assessment Commission at 435, 438). Moreover, even perverse or unreasonable findings of fact do not constitute errors of law (Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333).
Integrated development
[3]
I hereby certify that the preceding 107 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Parties
Applicant/Plaintiff:
Maule
Respondent/Defendant:
Liporoni & Anor
Cases Cited (18)
CITATION : Maule v Liporoni & Anor [2002] NSWLEC 25
APPLICANT:
Susan Jane Maule
SECOND RESPONDENT:
Gosford City Council
FILE NUMBER(S) : 40018 of 2001
CORAM: Lloyd J
KEY ISSUES: Judicial Review :- validity of development consent - mala fides - jurisdictional error
Development Consent:- validity - owner's consent to development application - integrated development
Conveyancing Act 1919, s 88B
Environmental Planning and Assessment Act 1979, Pt 4 Div 5, s 5A, s 28, s 78A, s 79A, s 79C, s 91, s 91A, s 95A(5), s 101 and s 112
LEGISLATION CITED: Environmental Planning and Assessment Regulation 1994, cl 46(1)
Environmental Planning and Assessment Regulation 2000, cl 49(1)
Evidence Act 1995, s 140(2)
Rivers and Foreshores Improvement Act 1998, Pt 3A, s 2
Amacon Pty Ltd v Concord Municipal Council, NSWLEC, Hemmings J, 2 December 1987, unreported;
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321;
Azzopardi v Gosford City Council (No. 2) [2001] NSWLEC 283;
Briginshaw v Briginshaw (1938) 60 CLR 336;
Burke v Hawkesbury City Council [2001] NSWLEC 222;
Cartier Holdings Pty Limited v Newcastle City Council (2001) 115 LGERA 407;
City of Enfield v Development Assessment Commission (2000) 199 CLR 135;
CASES CITED: Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602;
Minister of Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; 67 ALJR 170;
R v Hickman; Ex parte Fox (1945) 70 CLR 598;
Randwick Municipal Council v Manousaki (1988) 66 LGRA 330;
Sericott v Snowy River Shire Council (1999) 108 LGERA 66;
Timbarra Protection Coalition Inc. v Ross Mining NL (1999) 46 NSWLR 55;
Woolworths Limited v Bathurst City Council (1987) 63 LGRA 55
DATES OF HEARING: 03/12/2001, 04/12/2001, 05/12/2001, 06/12/2001,07/12/2001,10/12/2001, 11/12/2001 and 12/12/2001
DATE OF JUDGMENT:
03/19/2002
On 15 May 1999 Mr Miller furnished a memorandum which reads as follows:
We confirm assessment of the above.
Firstly, access is not identified - the "existing driveway" leads to next door. If that is to be shared by the applicant it needs to be improved to accommodate fire tanker.
The other recommendation is that construction should be in compliance with AS 3959 in terms of external materials and supporting poles and voids below floors.
On 9 June 1999 Mr Bruton sent a letter to Mr Liporoni which reads as follows:
Further to Council's previous correspondence regarding your application, I can advise that advice has now been received from both Council's Environment Officer and Fire Control Officer.
As a consequence I can advise that Council's Fire Control Officer has required that the right of carriageway be upgraded to accommodate a fire tanker. As such the access should incorporate the following design criteria:
Although Mr Miller continued to express a concern in his evidence about the ability to fight a fire, especially at the rear of the house, he conceded that the slope from Woy Woy Bay Road to the house was not vertical but at an angle; that in the present case the vertical lift from the road to the rear of the house was about 12 metres; and that the horizontal distance from the road to the back of the house was about 38 metres. I refer, in particular, to the following evidence:
Q. And just in terms of lifting water vertically, I suggest to you that to lift water around 12 metres by using a pump that can develop a head of 30 metres, is well within the capacity of that pump?
A. Yes
Q. In terms of horizontal distance to the back of the house, you can measure from the plan, can you not, that the distance along the entire length of the driveway is 12 metres plus 14 metres plus another 12 metres approximately to the survey peg which marks the western corner of the block?
A. Yes.
Q. That's a distance of 38 metres, is that right?
A. Yes.
…
Q. … You can run a hose up the driveway and around the back of the house can't you?
A. Yes.
Q. Which would then be of the order of around 55 to 60 metres in length?
A. I'll take your word for it.
Q. Well don't take my word for it. You've got the dimensions there and you're an expert, sir, 12 metres, 14 metres, 12.2 and another 20 to get around to the back of the house?
A. MM hh.
Q. Is there anything wrong with the logic that I'm talking about in terms of the distance to the back of the house?
A. No, not in those terms.
Q. So in order to send a man up or men up from the tanker with a hose, operating within the capacity of the pump, you would need two canvas hoses and the pump turned on, correct?
A. Yes, but you wouldn't put the house out.
Q. And of course often when fires occur, you don't just get one tanker going to a site do you, you get several?
A. Yes.
…
Q. And within the limits that I've described, one hose comprising two connected hoses to give the right distance and the pump performing in the way described within its capacity, you would, I suggest, have water at the back of the property from one or more trucks for the purposes of fire-fighting?
A. Yes.
…
Q. It would be consistent with what I described to you a moment ago about a fire truck or trucks, with pumps that can produced a head of 30 metres of water pressure using hoses that are around 60 metres long, reaching the house with safety from the road and lower end of the common driveway would it not?
A. I've answered that question.
Q. You answered it yes didn't you?
A. Yes.
…
Q. What I'm putting to you, Mr Miller, is that with the house shown in the position on the site plan, in the two sheets that are in front of you in the witness box there, using the equipment and hoses that I've described, you are able to reach the house with safety from the road and lower end of the common driveway as per your note?
A. This location?
Q. Yes?
A. We could reach it with safety perhaps, depending on the fire we were dealing with, but certainly wouldn't do an effective job and we might kill firefighters in the meantime as we wouldn't have enough pressure to protect them.
Mr Miller said in evidence that he thought Mr Liporoni had shown him a different plan to the site plan on the drawings approved by the council, with the "footprint" of the proposed house closer to the road. He conceded, however, that this would not make any sense (because the width of the land narrows towards the road and the house would simply not fit).
On the whole I find the evidence of Mr Miller to be somewhat unconvincing. After stating that the fire hose pumps could pump to a vertical head of 30 metres, Mr Miller then doubted whether they could effectively pump to a vertical head of 12 metres, that being the elevation of the rear of the house above the road. He did not know how far the water could be pumped in a horizontal direction from a fire tanker. He also did not know the capacity of pumps on the fire tankers. His evidence was generally inconsistent, uncertain and, in my opinion, unreliable.
The applicant relies also upon the affidavit of Mr G Swain, a consultant in fire control and management, who reviewed the council's file, including the documents described above. Mr Swain attests that "having inspected the site at 97 Woy Woy Bay Road, Woy Woy Bay it is inconceivable that anyone could have formed the view that there was any possibility to build a home "further up the hill towards the ridge top" as indicated in the file note from Mr Bob Miller to Jim Bruton dated 30 June 1999." Mr Swain then expresses the opinion that the change in position which appears to have been taken by Mr Miller after Mr Liporoni's visit to him, referred to in Mr Miller's memorandum dated 30 June 1999, "would indicate that the information provided to Mr Miller was inadequate to allow him to undertake a proper assessment of the site or that Mr Miller incorrectly identified the development area from the information provided." Mr Swain continues: "…Mr Miller's assessment was flawed and did not represent a true assessment of the bush fire risk to the development". Mr Swain continues: "I am unable to offer any cogent or rational explanation as to the change of position taken by Mr Bob Miller. I am unable to contemplate that there was any validity to the assertion that Council's Fire Officer had understood that the house would be built "further up the hill towards the ridge top" nor am I able to accept that any reasonable and competent Fire Officer could have possibly held such an opinion". Mr Swain states that he is unable to contemplate any reasonable or rational basis upon which the council could have approved the development application having regard to the totally obvious fire risks. In his professional opinion the council and the council's fire control officer "have not diligently assessed the bush fire risks" to this development.
I should say a number of things about this evidence. Mr Miller said in his evidence that he walked on the right of carriageway (which serves both Nos. 97 and 99) right up to the house now owned by the applicant, Ms Maule, which is on the adjoining property (No. 99). That house is built further up the hill towards the ridge top. Thus it can be perfectly understandable that Mr Miller could have been under the impression that Mr Liporoni's proposed house was also going to be built further up the hill towards the ridge top. There is no logical explanation for the opinion expressed by Mr Swain that "it is inconceivable … that there was any possibility to build a house further up the hill towards the ridge top" or that he was unable to accept that any reasonable and competent fire control officer could possibly have held such an opinion. As I have said, the house next door, which is also served by the common right of carriageway, is built further up the hill towards the ridge top and there is no apparent reason as to why Mr Liporoni's house could not also be built up the hill towards the ridge top. Mr Miller's memorandum of 15 May 1999 refers to the fact that the existing driveway "leads to next door".
Next, it is reasonably clear from the evidence that when Mr Liporoni visited Mr Miller he took a set of the plans with him. The plans, which have also been acknowledged by Mr Miller, clearly show the location of the proposed house. The cross-examination of Mr Miller shows that the proposed house would be within the reach of the fire hoses and within the capacity of the pump on any fire tanker located at the lower end of the right of carriageway.
As noted in par [38] above, Mr Miller said in evidence that following the visit to him by Mr Liporoni he believed that the house was going to be built even closer to Woy Woy Bay Road than that shown on the site plan. The site plan shows the distance of the proposed house from Woy Woy Bay Road as being 23 metres (by scale) and 26 metres by the driveway. The width of lot 22 of DP 805703 narrows towards Woy Woy Bay Road. As previously noted in par [38], it is self-evident that the footprint of the proposed house could possibly not be accommodated on this narrowing section of the land towards the road, as acknowledged by Mr Miller in his evidence.
I am not satisfied on the whole of the evidence that Mr Miller was mistaken about the actual location of the proposed house on the land. He may have initially been mistaken to think that the proposed house was going to be built "further up the hill towards the ridge top", since that is where the house on the adjoining land, lot 21 of DP 805703 (No. 99), is built and which is also served by the common right of carriageway. Even putting the applicant's case at its highest and assuming that Mr Miller was mistaken over the actual location of the proposed house on Mr Liporoni's property, that would not by itself entitle the Court to set aside the determination to grant the development consent. That would be a mistake of fact. There is no error of law in simply making a wrong finding of fact (City of Enfield v Development Assessment Commission (2000) 199 CLR 135, per Gaudron J at 154 [44] and 158 [59]). A mistake of fact is not reviewable in judicial review proceedings (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 340-341, 358-359), unless it is a jurisdictional fact. There is no suggestion that this matter gives rise to any jurisdictional fact.
It follows that, notwithstanding the opinions of Mr Swain, no error of law has been demonstrated in the council's consideration of this issue. One might not agree with the council's determination of that question, but that is not the point. The applicant has to demonstrate that there has been an error of law. No error of law has been demonstrated.
The applicant nevertheless submits that there is no rational basis for the change in position by Mr Miller from his earlier evaluation and recommendations; and the Court ought to be "troubled" by the absence of documents provided to Mr Miller and returned to the council by him, but which does not appear in the council's file. It is not clear, however, precisely what documents, if any, provided to Mr Miller are now not in the council's file. There is, moreover, a rational basis for Mr Miller's change in position from his earlier evaluation and recommendations, namely, the explanation given in evidence by Mr Liporoni and the matters to which I have referred in pars [41] to [44]. In particular, if (as it appears to have happened) Mr Liporoni saw Mr Miller with the site plans showing the actual distance of the proposed house from the road, then the memorandum of 30 June 1999 from Mr Miller to Mr Bruton (noted in par [33] above) is a logical consequence.
Again this issue is, in any event, one which is precluded from judicial review by virtue of s 101 of the EP&A Act.
It is also suggested by the applicant that the "change of heart" by Mr Miller from his memorandum of 15 May 1999 (noted in par [29] above) to his memorandum of 30 June 1999 (noted in par [33] above) is not only "troubling" but is sufficient to give rise to an inference of bad faith on part of the council. This proposition was put squarely to Mr Miller in cross-examination as follows:
Q. Do you know what acting in bad faith means?
A. Yes.
Q. You're not suggesting for a moment, are you, that in your assessment of this application you endeavoured to do other than act properly and to the best of your ability are you?
A. That's correct.
After careful observation and attention to Mr Miller's evidence, the impression I am left with is that the only thing which troubles me is his level of competence rather than any suggestion of mala fides.
Suspension of covenants and geotechnical issues
The subject land, lot 22 in DP 805703 (and the adjoining land owned by the applicant, lot 21 in DP 805703) is the result of a re-subdivision of lot 2 in DP 625723.
Lot 2 in DP 625723 is subject to the burden of a number of restrictive covenants under s 88B of the Conveyancing Act 1919. Some of the restrictions may only be released, varied or modified by Dr and Mrs Paszkowski (the original registered proprietors of lot 2) or, if the said Dr and Mrs Paszkowski cease to be the registered proprietors of any land in the plan of subdivision (DP 625723), then the person or persons for the time being registered as the proprietors of the land comprised in the subdivision other than the lot burdened. Certain restrictions may also be released, varied or modified by the council.
The applicant has not identified any restriction as to user burdening lot 2 in DP 625723 which is infringed by the subject development consent. However, if in granting the development consent the council consented to a development which infringes any restriction as to user, then that is something which is authorised by s 28 of the EP&A Act and cl 54 of the Gosford Planning Scheme Ordinance (a deemed environmental planning instrument).
Section 28 of the EP&A Act relevantly provides as follows:
28 Suspension of laws etc by environmental planning instruments
(1) In this section, "regulatory instrument" means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.
(2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.
(3) A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision.
…
(5) A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of a Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence.
Clause 54 of the Gosford Planning Scheme Ordinance provides as follows:
54 (1) In respect of any land which is comprised within any zone, 11.7.80 the operation of any covenant, agreement or instrument imposing restrictions as to the erection or use of buildings for certain purposes or as to the use of land for certain purposes is hereby suspended to the extent to which the covenant, agreement or instrument is inconsistent with any provision of this ordinance, or with any consent given thereunder.
…
( 1B) Pursuant to section 28 of the Environmental Planning and Assessment Act 1979, the Governor approved of subclause (1A) before the plan inserting that subclause (Gosford Local Environmental Plan No. 314) was made.
The subject land, lot 22 in DP 805703 is burdened by restrictions as to user under s 88B of the Conveyancing Act 1919. The particular restriction as to user which is alleged to be infringed is as follows:
All recommendations in Geotechnical Report by Shirley Partners Pty Ltd Ref: RN 89037/1/Q037/5 dated 8th August 1989 are to be complied with.
The benefit of this restriction is in favour of the Council of the City of Gosford, which may release, vary or modify the restriction. It follows that the council may not only directly release, vary or modify the restriction pursuant to s 88B instrument itself, but it may also do so indirectly by the operation of cl 54 of the Gosford Planning Scheme ordinance, which suspends any restriction if it is inconsistent with any development consent given under the Gosford Planning Scheme Ordinance.
The geotechnical report of Shirley Partners Pty Limited (previously called Andrew Shirley & Associates Pty Limited) referred to in the restriction as to user states (inter alia):
Location & Planning
(a) The location of the house building area within the proposed new Lot No. 22, be restricted to the area as set out on the attached site plan Q037G1.
(b) The precise location of the house on the land be verified by an Experienced Geotechtical Engineer at the commencement of site building works.
(c) The details of the various house footing, retaining walls, etc., be prepared by an appropriately qualified Practising Professional Engineer.
…
Finally, it is to be noted that the recommendations in this report are based upon a limited amount of site investigation and analysis; therefore, should the site conditions differ markedly from those predicted in the report or the scope of the development works planned vary significantly from those presently advised, then further geotechnical advice should be obtained.
The drawing attached to the geotechnical report shows areas of land suitable for building and areas of land subject to restriction as to user.
After receiving the development application the council sent a letter to Mr Liporoni on 6 April 1999 requesting him to submit to the council a report from a geotechnical engineer commenting on the suitability of the site and making specific reference to the proposed development.
On 15 April 1999 the council again sent a letter to Mr Liporoni which relevantly states:
Council is in receipt of a geotechnical report of the subject land. The report was prepared by Shirley Partners Pty Ltd and dated August 1989.
Due to the age of the report Council considers it necessary to require a review of the report to reflect current site conditions and to comment on the proposed dwelling specifically.
Would you please arrange the aforementioned at your earliest convenience.
On 7 May 1999 Mr Liporoni obtained a "Geotechnical Assessment and Report" from Mr G B Brink of Brink & Associates, geotechnical environmental hydrogeological and geological consultants, and provided the report to the council. The report notes the previous report by Shirley Partners Pty Limited dated 8 August 1989 and concludes that the proposed building site is generally safe and suitable for the proposed house, subject to a number of recommendations set out. The position of the proposed house is apparently in a different location from that which is shown on the plan attached to the report of Shirley Partners Pty Limited.
The report of Mr Brink apparently satisfied the council, because not only did it grant the development consent, but also the council imposed a condition of consent as follows:
17. The site is subject to a geotechnical appraisal, and structural engineer's drawings shall carry a statement to the effect:
"A geotechnical report No. 99087-A prepared by Brink & Associates dated 7 May 1999 and Report No. 89037/1/Q037/5 prepared by Shirley Partners Pty Limited dated 8 August 1989 has been examined by myself and I have given due regard to its comments and recommendations and hereby certify that the design has been prepared to ensure the longevity of the dwelling".
(Reason: Structural adequacy)
The applicant alleges that in its considerations the council failed to take into account the restrictions as to user; failed to require the development to comply with the restrictions as to user; failed to have proper and due regard to the recommendations set out in the report of Shirley Partners Pty Limited; failed to notify all of those persons who had an interest in or enjoyed the benefit of the covenant, namely Dr and Mrs Paszkowski; and failed to give any notice at all of any proposed release, variation or modification of the covenant.
I have considered above (in pars [12] to [15]) the issue of whether there was any obligation on the part of the council to give notice of the development application at all and my conclusion is that the council was under no such obligation. The present assertion is that the council should have given notice of its intention to approve the development application which had the effect of suspending the restrictions as to user.
There is, however, no requirement or obligation on the part of the council to notify in such circumstances. The applicant has not referred me to any requirement or obligation to do so. Neither there was a scheme of development. The covenant expressly gives the council the right to release, vary or modify the relevant restrictions as to user. Clause 54 of the Gosford Planning Scheme Ordinance expressly suspends any covenant inconsistent with any consent given under that instrument. There is simply nothing unlawful about the council's conduct in this case at all.
Neither can it be suggested that the council failed to give consideration to the geotechnical issues. The council expressly sought from Mr Liporoni an updated report from a geotechnical engineer, having due regard to the age of the report prepared by Shirley Partners Pty Limited in 1989. The requested report was then furnished to the council; and it states that the proposed building site is generally safe and suitable for the proposed dwelling. The council gave further consideration to the issue by imposing condition 17 of the consent, as noted above (in par [62]), which in turn incorporates the recommendations of both the Shirley Partners' report and the Brink & Associates' report.
The applicant asserts that the council should have consulted Mr Shirley and obtained a second opinion from him, or obtained an independent expert advice "given the conflict between the reports of Mr Shirley and Mr Brink". As noted above, Mr Brink had the benefit of the Shirley Partners' report of 1989 when he prepared his report. The Brink & Associates' report specifically addresses the proposed building site on the land. It does not seem to me to be in conflict with the Shirley Partners' report. But even if it were in conflict with the Shirley Partners' report, there is no legal obligation on the part of the council to do what the applicant suggests it ought to have done. The council responsibly sought an updated report of a geotechnical engineer and was furnished with one commenting on the suitability of the site and making specific reference to the proposed development. As noted above, the council incorporated the recommendations of both the Shirley Partners' report and the Brink & Associates' report into a condition of consent. Moreover, it must be remembered that the Court may not in judicial review proceedings review the administrative action of the council on its merits. The applicant and, indeed, the Court, may not agree with the council's determination, but that is not the test. As Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40: "It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator." This claim raises no basis for setting aside the council's determination. It is also precluded by virtue of s 101 of the EP&A Act.
Vegetation
As I understand the applicant's submission, it is that there was a failure on part of the council to give proper consideration to the Environment Officer's recommendations contained in the council's file. In particular it is said that there was a failure to consider the existence of two large Angophora costata trees on the land and the effect of the proposed building thereon.
The plans accompanying the development application show the two large trees outside the "footprint" of the proposed house. The plans also show the trees as being retained.
A report on the development application by Mr J W Allen, the council's Environment Officer, to Mr Bruton dated 3 June 1999 states (inter alia):
The applicant alleges that there was and is a river, as defined in the Rivers and Foreshores Improvement Act 1998, within forty metres of the proposed house; and as a consequence Mr Liporoni needed a permit under Pt 3A of that Act before carrying out any work. This fact meant that the development was integrated development as defined in Pt 4, Div 5 of the EP&A Act and the council failed to refer the development application to the Department of Land and Water Conservation to obtain any terms of approval (proposed to be granted by that body before granting the development consent under s 91A of the EP&A Act) and, it is alleged, the council failed to request a "Part 3A certificate" pursuant to the Rivers and Foreshores Improvement Act.
In considering the applicant's allegations it is necessary to first refer to the relevant legislation. Division 5 of Pt 4 of the EP&A Act is headed "Special Procedure for integrated development". Integrated development is relevantly defined in s 91 as development that, in order for it to be carried out, requires both development consent and one or more approvals under certain other Acts. The approvals referred to in s 91 include a permit under Pt 3A of the Rivers and Foreshores Improvement Act.
Part 3A of the Rivers and Foreshores Improvement Act is headed "Protection of rivers and lakes". A person must not make an excavation or remove material from protected land without a permit under that Part and in accordance with any conditions to which the permit is subject (s 22B). "Protected land" is relevantly defined as including "land that is not more than 40 metres from the top of the bank or shore of protected waters" (s 22A). "Protected waters" is defined as including a river (s 22A). "River" is widely defines as follows (s 2):
"River" includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream of water and any affluent, confluent, branch, or other stream into or from which the river flows and, in the case of a river running to the sea or into any coastal bay or inlet or into a coastal lake, includes the estuary of such river and any arm or branch of same and any part of the river influenced by tidal waters.
The applicant alleges that the site of the proposed house is on protected land, as the land within forty metres of a river. The applicant relies on the following evidence in support of this assertion:
(a) An environmental impact checklist provided by Mr Bruton on 19 July 1999 which contains the following notation: "Drainage Easement or Watercourse on site? Yes - OK" .
(b) A file note of a conversation of Mr Bruton with Mr G Hopkins, who made a submission regarding the development application, states that Mr Hopkins "was attempting to ensure that appropriate environmental safeguards were applied and enforced." The written submission of Mr Hopkins dated 8 April 1999 to the council raises a number of general environmental concerns (but no specific reference to a river or watercourse).
(c) The affidavit of Mr J W Moore, the previous owner of the applicant's land, No. 99 Woy Woy Bay Road, who spoke to Mr Bruton after receiving notice of the development application, attests that he told Mr Bruton: " [i] t appears that the house is to be constructed in the middle of valley which is a natural watercourse" and "during rain a substantial stream of water flows directly down the valley."
(d) The 1996 edition of the 1:25000 topographical map published by the Land Information Centre, which was in the possession of the council, shows a watercourse on the property in conformity with the legend of the map.
(e) The Department of Land and Water Conservation, upon becoming aware of the work being done on the land, served a stop work order on Mr Liporoni and sent him an application form for a permit under Pt 3A of the Rivers and Foreshores Improvement Act. Mr Liporoni then made an application for a permit to the Department, which was granted on 4 December 2000. The permit was renewed on 8 November 2001. (The permit allowed the construction of the dwelling house subject to conditions relating to sediment control measures, site rehabilitation and the like.)
(f) A storm water culvert, shown in a map in the council's file, can be seen as crossing Woy Woy Bay Road in front of the subject land.
(g) Statements in the report of Brink & Associates dated 7 May 1999 as follows: " A shallow, bouldery depression above the north-western corner of the building site developes uphill into a wide, bouldery catchment" , " concentrated water flows from the uphill depression" and " [t] he bouldery depression at the north-western corner is expected to discharge run-off waters onto the building site".
(h) Mr G Winnacott, a Town Planning Consultant engaged by the applicant, attests in his affidavit that, to his observation, a natural watercourse on lot 21 (No. 99) is about ten metres distance from the location of the proposed house on lot 22 (No. 97).
(i) The implied admission of Mr Liporoni to the existence of a watercourse by making an application for a Pt 3A permit.
(j) A reference in the report of Shirley Partners Pty Limited of 8 August 1989 to a "notch" in the cliff face above the building site and the statement: "In periods of heavy rainfall water drains trough the "notch" in the cliff faces and saturates the site soils."
(k) Mr P Cooper, an ecological consultant who gave evidence for Mr Liporoni, said that the majority of the site had a natural draining channels through and over which water intermittently flows, there were natural drainage paths on the site and there were natural watercourses on the land.
The respondents submit that the applicant's evidence does not establish the existence of a river within the meaning of the Rivers and Foreshores Improvement Act, or at all. There was no admission, it is submitted, on the part of Mr Liporoni by the making of an application for a Pt 3A permit, since he was only doing as asked by the Department of Land and Water Conservation. The opinion of the Department is not binding on the Court and no one from the Department was called to give evidence. I agree with the respondents' submission. Neither do I regard the fact that a river is shown on the land on the topographical map as being conclusive. The criteria used by the Land Information Centre for determining the presence of a river may be different from that which is employed under the Rivers and Foreshores Improvement Act.
In Burke v Hawkesbury City Council [2001] NSWLEC 222, Sheahan J drew a distinction between an ephemeral stream, which is one that flows only during and immediately after rain, and an intermittent stream which flows for a longer period of time. Similarly, in Azzopardi v Gosford City Council (No.2) [2001] NSWLEC 283, Sheahan J drew the same distinction, describing the watercourse as an ephemeral drainage depression with no real channels or banks and thus was not a river for the purposes of the Rivers and Foreshores Improvement Act, despite the fact that a permit had been issued under Pt 3A of that Act.
Despite the label given to the flow of water in the present case by witnesses (for example, "intermittent") the evidence shows only that water drains across the land in or immediately after periods of heavy rainfall. There is no evidence to show that there was or is any flow outside those times. That suggests to me that the flow could only be described as ephemeral rather than intermittent, by which there is nothing that falls within the expanded definition of "river" in the Rivers and Foreshores Improvement Act. It follows that the subject land is not "protected land" under the Act and that ss 91 and 91A of the EP&A Act relating to integrated development do not apply.
Moreover, even if one were to assume that there was a river as defined in the Rivers and Foreshores Improvement Act and that the subject land is "protected land" under that Act, it does not follow that the council has acted unlawfully in failing to process the development application as integrated development.
The provisions of Pt 4, Div 5 of the EP&A Act are beneficial and facultative. They were enacted to overcome delays and duplications where there is more than one consent or approval body for a particular development so that an applicant for consent would not have to go through the whole process again for each application. The beneficial and facultative nature of the legislation is explained by the Minister's second reading speech on the relevant Bill which introduced the legislation:
The solutions contained in the bill focus on reducing necessary delays and duplication, simplifying the assessment process as much as possible and achieving consistency and certainty across multiple environmental approvals. …
While there will still be a need for the applicant to obtain the other relevant approvals, greater certainty for the applicant and the community will be provided as multiple assessment processes will be collapsed into the one overall framework.
(Hansard, Legislative Assembly, 15 October 1997, pp 821-832)
If a development application is made for integrated development, the effect of any subsequent development consent is that an approval body, following notification of the development application, and which then fails to inform the consent authority whether or not it will grant the approval or to inform it of the general terms of its approval, cannot subsequently refuse to grant approval to an application for approval in respect of that development and any such approval must not be inconsistent with the development consent (s 91A(5)). The provisions relating to integrated development are there for the benefit of applicants for development consent and not to hinder them.
As noted in the second reading speech, the granting of development consent for integrated development does not avoid the need to obtain any other relevant approvals. Even if the development application had been processed as integrated development and a development consent had been granted on that basis, Mr Liporoni would still have had to apply for and obtain a permit under Pt 3A of the Rivers and Foreshores Improvement Act assuming for the moment that the site of the building was on "protected land".
In making the development application Mr Liporoni did not tick the box in the application form to indicate that consent was being sought for an integrated development approval. In so doing he elected to have his development application processed as if it were not an application for integrated development. That was his choice. There was and is no compulsion on an applicant to make an application for an integrated development approval, if he or she choses not to do so.
There is nothing unlawful in an applicant for development consent so electing. There is nothing unlawful in the making of the development application in the present case, neither is the anything unlawful in the council's failure to process the development application as if it were for integrated development.
Even if I am wrong and the council did act unlawfully in failing to process the development application as integrated development in conformity with s 91A of the EP&A Act, the validity of the development consent is protected from challenge on this ground by s 101. In Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 Gaudron and Gummow JJ considered the effect of the Hickman principle upon the operation of a privative clause. After referring to the reasoning of Dixon J in R v Hickman; Ex parte Fox (1945) 70 CLR 598, Gaudron and Gummow JJ described the threefold Hickman principle in the following way (at 630):
In that case, Dixon J said that the effect of privative clauses, which purport to exclude judicial review entirely, is that decisions are not "considered invalid if they do not upon their face exceed the ... authority [conferred by the legislation in question] and if they do amount to a bona fide attempt to exercise the powers [conferred] and relate to the subject matter of the [legislation]". …
So far as concerns impugned exercises of power, the Hickman principle allows the privative clause to operate in the fashion identified by Brennan J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [(1995) 183 CLR 168 at 194]:
"The privative clause treats an impugned act as if it were valid. In so far as the privative clause withdraws jurisdiction to challenge a purported exercise of power by the repository, the validity of acts done by the repository is expanded" [ O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 275].
Gaudron and Gummow JJ also said (at 633-634):
The operation of a State privative clause is purely a matter of its proper meaning ascertained in its legislative context. However, privative clauses, whether in State or Commonwealth legislation, are construed "by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied" [ Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 160, per Dawson and Gaudron JJ] . Thus, a clause which merely provides that a decision is to be final and conclusive is construed as not excluding certiorari for error of law on the face of the record [See Hockey v Yelland (1984) 157 CLR 124 at 130, per Gibbs CJ. See also Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR at 141 per Brennan J] . So, too, a clause which provides only that a decision may not be called into question in a court of law is construed as not excluding review on the ground that the decision involved jurisdictional error, at least in the sense that it involved a refusal to exercise jurisdiction or that it exceeded the jurisdiction of the decision-maker [Note the wider use of the expression "jurisdiction" referred to in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 171, per Lord Reid; see also at 195, per Lord Pearce] . However and provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind. And if it does, the decision in question is entirely beyond review so long as it satisfies the Hickman principle.
These passages from Darling Casino were quoted by Beazley JA in Sericott v Snowy River Shire Council (1999) 108 LGERA 67 (at 73-74). As in Sericott, there is no suggestion in the present case that there was a refusal to exercise jurisdiction or that on its face the consent exceeded the council's authority conferred by the legislation, in the sense described by Gaudron and Gummow JJ in Darling Casino. As in Sericott, even if the council had no power to grant the consent, the validity of the consent is protected by s 101.
The applicant nevertheless contends that a failure to conform with or follow the procedures for integrated development in accordance with s 91A involves jurisdictional error which is not protected by s 101. In my opinion, any such failure does not involve jurisdictional error at all. The question of whether a jurisdictional error or jurisdictional fact is involved depends upon the legislative intention and the statutory context (Timbarra Protection Coalition Inc. v Ross Mining NL (1999) 46 NSWLR 55 at pars [36] and [38]). Having regard to the purpose of the integrated development provision of the EP&A Act (which I have described in pars [83] and [84] above) I conclude that the legislature could not have intended that a failure to follow those procedures would invalidate the action taken under the statute. Moreover, the decision in this case does not involve a jurisdictional error in the sense described by Gaudron and Gummow JJ in Darling Casino, which I have set out above, in the sense it involved a refusal to exercise jurisdiction or that it exceeded the jurisdiction of the decision-maker.
Finally on this issue, even if the arguments of the applicant were correct and the council was required by law to process the development application as integrated development and to comply with s 91A of the EP&A Act, I would not in the exercise of the Court's discretion have granted relief on this ground. A permit under Pt 3A of the Rivers and Foreshores Improvement Act has been granted. The conditions attached to the permit clearly allow the proposed development to proceed but require the taking of certain environmental safeguards. There would be no utility in setting aside the consent on this ground and requiring the council to refer the application afresh to the Department of Land and Water Conservation now that a permit has been granted by that Department.
Threatened Species
The applicant alleges that when the development application was lodged there were certain threatened species and their habitats on the land which were and/or are significantly affected by the development; and as a consequence there has been a failure to comply with ss 5A and 78A(8)(b) of the EP&A Act, which require the development application to be accompanied by a species impact statement. According to the applicant, it follows that the development application is not a valid development application and the development consent was granted in breach of the Act. The applicant also submits that this is a jurisdictional error which is not protected by s 101.
In considering this issue it is first necessary to turn to the relevant legislation. Section 78A(8)(b) of the EP&A Act provides that if the development application is in respect of development on land that is, or is part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, the application must be accompanied by a species impact statement prepared in accordance with Div 2 of Pt 6 of the Threatened Species Conservation Act 1995.
Section 5A provides that for the purposes of the Act and, in particular, the administration of ss 78A, 79C and 112, certain factors must be taken into account in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities. Those factors are then set out in eight sub-paragraphs of the section which is the so-called eight-part test.
The applicant alleges that at the time of the lodgement of the development application and subsequently, the following threatened species were on the land: Red-crowned Toadlet (Pseudophryne australis), Giant Burrowing Frog (Heleioporous autraliacus), Greater Broad-nosed Bat (Scoteanax rueppellii), Glossy Black Cockatoo (Calyptorhynchus lathami), Powerful Owl (Ninox Strenua) and Koala (Phascolarctos cinereus). The applicant alleges that these species were and are significantly affected by the proposed development.
The applicant further alleges that at the time of the lodgement of the development application there were and are the following habitats on the land: two Angophora costata trees, a Eucaliptus piperata, a Syncarpia glomulifera tree, natural drainage paths through the talus filled gully to the west, the phizoophere and the under stony vegetation and natural water courses. It is alleged that these habitats were and are significantly threatened by the effect of the proposed development.
The evidence does not support the applicant's assertions. The applicant's environmental consultant, Mr R Payne did not record the presence of any of the threatened species on or in the vicinity of the subject land. Moreover, according to his report on vegetation and fauna on the land and in its vicinity Mr Payne states:
No plant species were recorded that are listed on the schedule of the Threatened Species Conservation Act 1995.
Mr Payne detected the presence of a number of species of fauna in the vicinity of the land but none of the nominated threatened species. Neither did the ecological consultant called by Mr Liporoni (Mr P Cowper) find any threatened flora species or communities, or threatened fauna species, on the land. Mr Cowper performed a retrospective eight-part test as specified in s 5A of the EP&A Act. Although there had been clearing of the site of the house he was able nevertheless to perform the eight-part test. Mr Cowper found that whilst there was habitat of threatened species on the land, the eight-part test enabled him to conclude that there would not be a significant impact. In Mr Cowper's opinion one needs to look at the entire site. In his opinion the habitats on the site were not significantly threatened by the proposed development, even if the two Angophora costata trees were removed.
The council's Environment Officer, Mr J W Allen, inspected the land as part of his assessment of the development application. In his report of 3 June 1999 Mr Allen states: "The development is not considered to have a significant effect on threatened species." In his proof of evidence, which was admitted as an exhibit, Mr Allen states that during his employment with the council he often raised concerns with management as to the inadequacy of the environmental assessment of development applications and activities carried out by the council; and he had raised concerns with regard to what he describes as "improper processes" by which some development application were processed. Mr Allen's statement then continues:
In my handling of the Liporoni application, I felt I was pressured and intimidated by Mr. Bruton on the basis of his continual reference to Senior Management views. That was a matter which led to me approving with conditions instead of refusing unless conditions were imposed.
However, in the same proof of evidence, Mr Allen states:
In regard to threatened species I reviewed the considerations outlined in Section 5A of the Environmental Planning and Assessment Act 1979 and concluded that the proposed development would not have a significant impact upon threatened species.
In his oral evidence Mr Allen said that he carried out the eight-part test required by s 5A of the EP&A Act but did not reduce it to writing. He also said in his oral evidence that the statement he made in his report of 3 June 1999 reflects his professional judgment and it represents the views that he honestly held at the time. It seems to me, from this evidence, that any pressure or intimidation felt by Mr Allen did not affect his professional opinion in this instance.
I conclude, therefore, that there is simply no evidence to support the applicant's contention that there were at all material times threatened species on the land, or that the habitat of such species was likely to be significantly affected by the proposed development or that the council failed to consider the eight-part test as required by s 5A of the EP&A Act.
Mala fides
The onus is on the applicant to establish that the determination is made with mala fides on the part of the council in granting the development consent (Cartier Holdings Pty Limited v Newcastle City Council (2001) 115 LGERA 407 at 423). Moreover, the applicant accepts that, having regard to the seriousness of the allegation, the Briginshaw principle relating to the standard of proof must be applied (Briginshaw v Briginshaw (1938) 60 CLR 336). This requires something more than "inexact proofs, indefinite testimony, or indirect references" (per Dixon J in Bringinshaw, at 362).
The Court should proceed with much care and caution before finding that such a serious allegation as mala fides is established. (Briginshaw, at 347, per Latham CJ). Section 140(2) of the Evidence Act 1995 provides that the court, in deciding whether it is satisfied that the case of a party is proved on the balance of probabilities, is to take into account (inter alia) the gravity of the matters alleged. Thus, whilst the ordinary standard of proof in civil proceedings requires the party who bears the onus to prove the case on the balance of probabilities, the strength of the evidence necessary to establish the matters alleged may vary according to the nature of what is sought to be proved (Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 110 ALR 449 at 449-450). A serious allegation such as mala fides will not be found in the absence of a "clear or cogent or strict proof" (Neat Holdings Pty Limited at 450).
The applicant alleges that all of the above issues give rise to an inference of mala fides in the absence of an explanation on the part of the council. The absence of evidence from Mr Bruton, in particular, was criticised. The evidence adduced by the applicant, however, does not come near to suggesting mala fides in the absence of any explanation by Mr Bruton or anyone else from the council. No such evidence was called for. There is simply no conduct of either Mr Bruton or of anyone else within the council which requires explanation. I conclude that the evidence does not lead to an inference of mala fides in the determination of development application to the required standard of proof, or at all.
Conclusion
For the various reasons explained under the several broad headings above, the applicant's claim for relief must fail. It would normally follow that the applicant must also pay the respondents' costs. I note, however, that an application for indemnity costs has been foreshadowed, so that it is appropriate I reserve the question of costs. The final orders of the Court are:
1. The application is dismissed.
2. The question of costs is reserved.
3. The exhibits may be returned.