Mehajer v Director-General of the Department of Local Government

The Proceedings in NCAT

1. The Chief Executive of the Office of Local Government initiated, pursuant to s 462 of the Local Government Act 1993 ("LGA"), an investigation into a complaint that the plaintiff whilst acting in his capacity as a councillor on Auburn City Council ("the Council") had, in 2012 and 2013, failed to disclose a pecuniary interest contrary to his obligations under s 451(1) of the LGA, thereby, on those occasions, acting in breach of the provisions of s 451(2) of the LGA.
2. Consequent upon that investigation, a report was presented to NCAT in accordance with s 468(1) of the LGA. Pursuant to s 469(1) of the LGA, NCAT decided to conduct proceedings into the complaint.
3. Those proceedings were conducted by a principal member of the Occupational Division on 10 November 2015, who delivered a reasoned decision on 29 January 2016.
4. The decision found as follows: "1. I find Councillor Mehajer guilty of breaches of s 451 of the [LGA] committed on 27 November 2012, 4 December 2013, and 11 December 2013. 2. I order that Councillor Mehajer be suspended from Civic Office for a period of four months after the date of publication of this decision. 3. … no order as to costs."
5. The last order was subject to a provision that if the Chief Executive of the Office of Local Government wished to seek an order for costs, an application could be made.
6. It is against this decision that this appeal is brought.
7. There was little, if any, dispute as to facts before the Tribunal. To the extent that there was any dispute, the Tribunal made findings of fact which are not in dispute on this appeal.

Undisputed Facts

1. It is convenient to record the relevant facts in this judgment. They are: 1. At all relevant times on and after 8 September 2012, the plaintiff was an elected councillor of the Auburn City Council ("the Council"). 2. At all relevant times, the plaintiff held a beneficial interest in a company, Mehajer Bros Pty Ltd, which as and from 26 October 2012 was the owner of a property at 3 Mary Street, Auburn ("the Property"), which was within the local government area of the Council. 3. The plaintiff, at all relevant times, had a "pecuniary interest" within the meaning of s 442 and s 443 of the LGA, with respect to the Property, which meant that he had a "pecuniary interest" interest within the meaning of s 451 of the LGA. 4. The plaintiff was present at three meetings of the Council held, respectively, on 21 November 2012 (reconvened to 27 November 2012), 4 December 2013 and 11 December 2013. He remained present throughout each of these meetings, and exercised his vote at each of the meetings with respect to a Report which was before the Council dealing with increases to the floor space ratios and maximum building heights of certain properties in the municipality which were zoned B4: Mixed Use and R4: High Density Residential. 5. The Property was directly affected by the proposals set out in the Report. 6. Although, at each of the three meetings, the plaintiff did make a special disclosure of each pecuniary interest pursuant to s 451(4) of the LGA, he did not include any reference to the Property in such special disclosure. 7. A valuer determined that the reasonable market value of the Property would be increased by $1M by reason of the proposed changes to the floor space ratios and maximum building height standards referred to in the Report which was being considered by the Council.

The Report

1. The matter which the Council was considering, of relevance in this appeal, at the three meetings which have earlier been identified, was noted as an item with the following description: "254/12 Proposed Amendments to Planning Proposal - 3/2010 - Land zoned B4 Mixed Use and R4 High Density Residential."
2. The document was described as a Report from the Director of Planning and Environment, who was the principal planning officer of the Council.
3. It was introduced in the following way: "Summary: this report outlines the findings of studies that have been undertaken in response to the NSW Department of Planning and Infrastructure's gateway determination. The planning proposal was produced in accordance with a resolution of Council made on 20 October 2010. This report recommends amendments to the Auburn Local Environmental Plan 2010 that considers the findings of the studies."
4. After that summary, a recommendation is then made by the Director of Planning and Environment. It is in the following terms: "RECOMMENDATION: The Council amend the planning proposal … (a) That the following land zoned B4 Mixed Use have a floor space ratio of 3.6:1 and a maximum height of buildings of 32 metres: bound by Macquarie Road, Hall Street and Station Road, Auburn, and land north of and including 11 Macquarie Road, 22 Northumberland, 35 Northumberland and 16 Station Road, Auburn; and at 1-5 Station Road, 35-45 Station Road and 4A-6 Dartbrook Road, Auburn; (b) That land zoned B4 Mixed use bound by Harrow Road, Queen Street, Auburn Road and Mary Street, Auburn (known as Auburn Village), have a maximum height of buildings over 49 metres. (c) That the following land zoned B4 Mixed Use be excluded from PP-3/2010: bound by Queen Street, Park Road, Mary Street and Alice Street, Auburn; and bound by Susan Street, Beatrice Street, Marion Street and Kerr Road, up to and including land at 19 Queen Street and 24 Kerr Parade, Auburn; and at 76-164 South Parade, 1-3 to 35-39 Auburn Road, 2-2G Auburn Road, 4A-22 Auburn Road and 8-22 Civic Road, Auburn. (d) That all other remaining land zoned B4 Mixed use within Auburn town Centre have a maximum height of buildings of 36 metres; excluding: 75-77 Auburn Road; and 18 Harrow Road and 93-105 Auburn Road; and 57-59, 60 and 62-76 Queen Street. …"
5. The Report continues with a background description which indicates that in October 2010, the Council had resolved to prepare a planning proposal "…in accordance with the Environmental Planning and Assessment Act 1979 s 54 and Department of Planning Guidelines to increase the FSR's … to a maximum of 5:1 within the Auburn … town centres …"
6. It appears that that resolution led to a Planning Proposal being prepared which was submitted to the Department of Planning on 28 September 2011.
7. The Report notes that the Department of Planning and Infrastructure, having considered the Planning Proposal, issued a gateway determination on 28 November 2011 which, subject to a number of conditions, allowed Council to proceed with the Proposal. One of the conditions imposed was that Council publicly exhibit the Planning Proposal and, further, that it complete the LEP within 12 months.
8. The Report records the following: "The determination states that the planning proposal should be amended where necessary to reflect the recommendations of the studies, and that the revised planning proposal in completed studies should be submitted to the Department prior to exhibition. The gateway determination imposed a deadline of 28 November 2012 for the revised planning proposal to be resubmitted to the Department (a period of 12 months from the date of issue of the determination). An application was made to the Department seeking an extension until the end of August 2013, to complete the revised planning proposal. Formal notification from the Department is expected to be received by council in the near future."
9. The Report describes key findings of various studies, and notes that there were two outstanding gateway determination conditions, namely, public consultation and exhibition, and consultation with affected State and Commonwealth agencies. The Report records that each of those latter two conditions would need to be met as required "… during the planning proposal process".
10. The Report then sets out some proposed LEP amendments. In so doing it used the following terms: "The proposed LEP amendments that form the recommendations of this report are described and justified in Tables 1, 2 and 3 below and are illustrated in attached maps."
11. Relevantly to the Property, what was proposed was shown on Map 1 at reference (i). The Report described what was proposed in the following way: "That an LEP amendment be undertaken for land bounded by Harrow Road, Queen Street, Auburn Road and Mary Street, Auburn, to increase the floor space ratio to 5:0:1 and the maximum height of buildings to 49m."
12. The justification was described in this way in the table to the Report: "This is a large site, centrally located within the town centre core. It is a likely redevelopment site. These controls are considered appropriate given the location, orientation and site context."
13. The Report concluded by listing the various attachments to it and the various maps.

The Principal Issue

1. The principal issue before NCAT was whether the plaintiff was obliged to disclose his pecuniary interest in the Property and not to take part in the council meetings insofar as they were considering the Report. NCAT held that the plaintiff's pecuniary interest ought to have been disclosed, and that his continued presence and participation in the meetings constituted a breach of s 451 of the LGA.
2. This Court is called upon to consider whether there has been any error of law on the part of NCAT in finding that the plaintiff was obliged to disclose his pecuniary interest in the Property. If he was so obliged, his failure to do so constituted a breach of the LGA. If he was not, then NCAT's finding constituted an error of law.
3. It will be convenient to refer to and set out the relevant statutory provisions, including the Auburn Local Environmental Plan 2010.

Environmental Planning and Assessment Act 1979

1. In considering the content of the Report, several of the provisions of the Environmental Planning and Assessment Act 1979 ("EPA Act") under which the Auburn Local Environment Plan 2010 was made ("Auburn LEP") are relevant. As earlier indicated, the preparation of LEPs is dealt with by Division 4 of Part 3 of the EPA Act.
2. Section 53 of the EPA Act gives the Minister the power to make environmental planning instruments for the purpose of environmental planning in each local government area. A council does not have the power to make an LEP.
3. Section 54 of the EPA Act nominates the council for a local government area as the relevant planning authority in respect of any proposed instrument.
4. Section 55 of the EPA Act obliges a relevant planning authority, here the Council, prior to the making of any environmental planning instrument, to prepare "… a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument ('the planning proposal')".
5. Section 55(2) of the EPA Act sets out certain statutory requirements for matters to be dealt with in the planning proposal. Whilst this section requires an explanation of the proposed instrument, its objectives and the justifications for it, together with maps which are to be adopted by the proposed instrument, the legislation does not require submission with the planning proposal of a draft LEP containing the amendments or alterations proposed for an existing instrument.
6. Section 56 of the EPA Act requires a council to forward the planning proposal to the Minister, who is obliged to review it and determine whether: "(a) the matter should proceed (with or without variation); (b) whether the matter should be resubmitted for any reasons (including for further studies or other information, or for the revision of the planning proposal); (c) community consultation required before consideration is given to the making of the proposed instrument …; (d) any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument; (e) whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body; (f) the times within which the very stages of the procedure for the making of the proposed instrument are to be completed."
7. Section 57 of the EPA Act provides for community consultation in accordance with the Minister's requirements. For the purpose of community consultation, a draft LEP or other instrument does not have to be exhibited, but the planning proposal is to be made publicly available. Approved summaries may be used where appropriate.
8. Section 57 of the EPA Act permits any person to make a written submission to the Council as the relevant planning authority, concerning the planning proposal. Such submissions may lead to a public hearing being undertaken on the issues raised.
9. Section 58 of the EPA Act then provides that the Council as the relevant planning authority may: "… at any time, vary its proposals as a consequence of its consideration or any submission or report during community consultation or for any other reason."
10. If this oc. The revised proposal is then dealt with by the Minister in accordance with the provisions of s 56. The Minister can give any further directions which are regarded as appropriate.
11. Section 59 of the EPA Act deals with the making of a local environmental plan by the Minister. It provides: "59(1) The Secretary is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority. The Secretary is to consult the relevant planning authority, in accordance with the regulations, on the terms of any such draft instrument. (2) The Minister may, following completion of community consultation: (a) make a local environmental plan (with or without variation of the proposals submitted by the relevant planning authority) in the terms the Minister considers appropriate, or (b) decide not to make the proposed local environmental plan."

Local Government Act 1919

1. Section 442 of the LGA defines a "pecuniary interest" as being one which exists because of a reasonable likelihood or expectation of an appreciable and not remote, or insignificant, financial gain.
2. Section 444 of the LGA requires a councillor to prepare and submit a written return of interests, and to comply with s 451 of the LGA with respect to disclosure of any pecuniary interest.
3. It is convenient next to consider s 451 of the LGA. Relevantly, it provides as follows: "451 Disclosure and presence in meetings (1) A councillor or a member of a council committee who has a pecuniary interest in any matter with which the council is concerned and who is present at a meeting of the council or committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable. (2) The councillor or member must not be present at, or in sight of, the meeting of the council or committee: (a) at any time during which the matter is being considered or discussed by the council or committee, or (b) at any time during which the council or committee is voting on any question in relation to the matter. (3) For the removal of doubt, a councillor or a member of a council committee is not prevented by this section from being present at and taking part in a meeting at which a matter is being considered, or from voting on the matter, merely because the councillor or member has an interest in the matter of a kind referred to in section 448. …"
4. Section 448 of the LGA provides for a series of exceptions to the general obligation of disclosure. For example, a councillor's interest as an elector or ratepayer is exempted from disclosure. The relevant exemption in this case is in the following form: "448 What interests do not have to be disclosed? The following interests do not have to be disclosed for the purposes of this Part: (a) … (g) an interest in a proposal relating to the making, amending, altering or repeal of an environmental planning instrument other than an instrument that effects a change of the permissible uses of: (i) land in which the person or a person, company or body referred to in section 443 (1) (b) or (c) has a proprietary interest (which, for the purposes of this paragraph, includes any entitlement to the land at law or in equity and any other interest or potential interest in the land arising out of any mortgage, lease, trust, option or contract, or otherwise), or (ii) land adjoining, adjacent to or in proximity to land referred to in subparagraph (i), if the person or the person, company or body referred to in section 443 (1) (b) or (c) would by reason of the proprietary interest have a pecuniary interest in the proposal, …
5. Finally, s 457 of the LGA makes provision for the appropriate state of knowledge of an individual councillor with respect to disclosure. It provides: "457 Circumstances in which secs 451 and 456 are not breached A person does not breach section 451 or 456 if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest."

Auburn Local Environmental Plan 2010

1. The Auburn Local Environmental Plan 2010 was in effect at all relevant times. It applied to, and had effect with respect to, the Property. It commenced on 29 October 2010.
2. The Auburn LEP was made in accordance with the provisions of Division 4 of Part 3 of the EPA Act. Whilst ever it is in force, it falls within the definition of an "environmental planning instrument" in s 4 of the EPA Act.
3. Part 1 of the Auburn LEP provides for certain preliminary matters. Clause 1.2 sets out the aims of the plan. Clause 1.4 provides that certain words and expressions are defined by the dictionary at the end of the plan.
4. Part 2 of the Auburn LEP is entitled "Permitted or prohibited development".
5. Clause 2.1, which is entitled "Land use zones", provides for various land use zones in the Auburn LEP. Relevantly, R4: High Density Residential and B4: Mixed Use are identified as land use zones under the plan.
6. Clause 2.3 of the Auburn LEP is in the following form: "2.3 Zone objectives and Land Use Table (1) The Land Use Table at the end of this Part specifies for each zone: (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. (3) In the Land Use Table at the end of this Part: (a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone. (4) This clause is subject to the other provisions of this Plan. Notes. 1 Schedule 1 sets out additional permitted uses for particular land. 2 Schedule 2 sets out exempt development (which is generally exempt from both Parts 4 and 5 of the Act). Development in the land use table that may be carried out without consent is nevertheless subject to the environmental assessment and approval requirements of Part 5 of the Act or, if applicable, Part 3A of the Act. 3 Schedule 3 sets out complying development (for which a complying development certificate may be issued as an alternative to obtaining development consent). 4 Clause 2.6 requires consent for subdivision of land. 5 Part 5 contains other provisions which require consent for particular development. 6 Part 6 also contains other provisions which require consent for particular development."
7. Clause 2.5 provides for an additional permitted use for particular land described or referred to in Schedule 1. Schedule 1 describes particular land situated on Parramatta Road at Auburn, and makes no reference to the Property or any properties in which the plaintiff has a pecuniary interest.
8. At the end of Part 2, the Auburn LEP sets out the land use table. The Auburn LEP notes that a type of development referred to in the land use table is "…a reference to that type of development only to the extent it is not regulated by an applicable State Environmental Planning Policy". It then refers to various State Environmental Planning Policies which may be relevant to a development on land caught by the Auburn LEP.
9. Zone B4: Mixed Use is referred to in the land use table in the following way: "Zone B4 Mixed Use 1 Objectives of zone • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To encourage high density residential development. • To encourage appropriate businesses that contribute to economic growth. • To achieve an accessible, attractive and safe public domain. 2 Permitted without consent Nil 3 Permitted with consent Backpackers' accommodation; Boarding houses; Business premises; Child care centres; Community facilities; Educational establishments; Entertainment facilities; Function centres; Hostels; Hotel or motel accommodation; Information and education facilities; Office premises; Passenger transport facilities; Recreation facilities (indoor); Registered clubs; Residential flat buildings; Retail premises; Roads; Self-storage units; Seniors housing; Serviced apartments; Shop top housing; Warehouse or distribution centres; Any other development not specified in item 2 or 4. 4 Prohibited Agriculture; Air transport facilities; Animal boarding or training establishments; Boat building and repair facilities; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Crematoria; Depots; Eco-tourist facilities; Electricity generating works; Environmental facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Freight transport facilities; Heavy industrial storage establishments; Highway service centres; Home occupations (sex services); Industrial retail outlets; Industrial training facilities; Industries; Marinas; Mooring pens; Moorings; Open cut mining; Recreation facilities (major); Research stations; Residential accommodation; Rural industries; Sewerage systems; Sex services premises; Storage premises; Tourist and visitor accommodation; Transport depots; Waste or resource management facilities; Water recreation structures; Water supply systems; Wharf or boating facilities; Wholesale supplies."
10. A similar approach is followed with respect to each of the other zones in the land use table.
11. Part 3 of the Auburn LEP refers to exempt and complying development. It is of no particular relevance to the issues in these proceedings.
12. Part 4 of the Auburn LEP is entitled "Principal development standards".
13. Relevantly to these proceedings, cl 4.3 deals with height of buildings and cl 4.4 deals with floor space ratio.
14. Clause 4.3 is in the following form: "4.3 Height of buildings (1) The objectives of this clause are as follows: (a) to establish a maximum height of buildings to enable appropriate development density to be achieved, and (b) to ensure that the height of buildings is compatible with the character of the locality. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. ..."
15. Clause 4.4 is in the following form: "4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to establish a maximum floor space ratio to enable appropriate development density to be achieved, and (b) to ensure that development intensity reflects its locality. (2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map. ..."
16. Clause 4.5 provides for a definition of floor space ratio, and for the rules enabling the calculation of the site area of development for the purpose of applying permitted floor space ratios.
17. Clause 4.6 is entitled "Exceptions to development standards" with the objective to provide "… an appropriate degree of flexibility in applying certain development standards to a particular development …".
18. The operative sections of cl 4.6 are as follows: "4.6 Exceptions to development standards … (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. (5) In deciding whether to grant concurrence, the Secretary must consider: (a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the development standard, and (c) any other matters required to be taken into consideration by the Secretary before granting concurrence. ..."
19. Part 5 of the LEP includes various miscellaneous provisions. Clause 5.4 provides for controls relating to miscellaneous permissible uses. Some of those permissible uses would be permitted with consent in Zone B4.

Interpretation of Legislation

1. The principal issue identified earlier in the judgment requires an exercise of the interpretation of legislation, namely the LGA and the EPA, and delegated legislation, namely the Auburn LEP.
2. In Certain Lloyds Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23] ff, French CJ and Hayne J (with whom Kiefel J agreed) restated some basic principles of statutory interpretation. These restated principles noted that: 1. the task of statutory construction begins with a consideration of the text itself, the meaning of which may require the consideration of the context, which includes the general purpose and policy of a provision, and the mischief which the legislation or the provision is intended to remedy; 2. a determination of the legal meaning of a provision of an Act takes place by reference to the language of the Act viewed as a whole and, as well, the context, general purpose and policy of a provision; and 3. in determining the purpose of a statute, or a particular provision, a Court may find the purpose to be based upon an express statement of purpose in the statute itself, or inference from the text and structure of the statute or, when appropriate, reference to extrinsic material. This last element is governed in NSW by s 34 of the Interpretation Act 1987.
3. It was pointed out by French CJ and Hayne J in Certain Lloyds Underwriters at [26], that care is necessary when a court seeks to identify a relevant statutory purpose because there is a risk that the court will construct its own idea of a desirable policy, impute it to the legislature and then characterise it as a statutory purpose: see Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 at [28].

Discernment

1. The heart of the statutory provision which requires interpretation is to be found in s 448(g) of the LGA. It can be reduced to the following phrase, eliminating irrelevant matters: "… an interest in a proposal relating to the … amending … of an environmental planning instrument other than an instrument that effects a change of the permissible uses of … land."
2. The additional consideration is that the land, to be relevant to this provision, has to be land in which the individual councillor has a pecuniary interest. That was not in issue in these proceedings.
3. The central question is whether the proposal which was being discussed by the Council, as set out in the Report, was one which related to the amending of an environmental planning instrument, namely the Auburn LEP, which did not effect a change of the permissible use of land.
4. The central question can only be answered by a consideration of whether the amendment to the Auburn LEP being proposed "effects a change of the permissible uses of land".
5. The decision below approached this interpretation question on a more general basis and asked whether, in interpreting the phrase "permissible uses", such a phrase was limited to the concept of a permitted use in environmental and planning law, which would be understood as being the same as the uses of the land set out in the land uses table, or whether the phrase ought be interpreted more broadly to include any way in which the land might be lawfully used.
6. The decision below concluded that the broader interpretation was the appropriate one. In so doing, NCAT relied upon an earlier decision of the Local Government Pecuniary Interest Tribunal which came to a similar conclusion. That Tribunal said: "Returning to the phrase 'a change the permissible uses of land', considered at large the concept of 'use' of land, in its ordinary natural meaning, is not confined to the mere use of land itself, such as by holding it for a purpose, using the land physically, such as for quarrying, or carrying out work to erecting a building on it. The concept would extend to the use of works or a building already erected on the land. It would extend alterations or additions to such works or building stock. It would certainly extend to subdivision of the land for a purpose such as the purpose of selling individual lots or retaining part and selling or carry out works or erecting a building on the remainder. … It would be strange reasoning if a change of permissibility as to the use of works or buildings on the land that substantially increased or decreased its value to the person, was exempt from disclosure but a change with the same effect that related only to use of the land as distinct from works or buildings on it, had to be disclosed when either would be likely to give rise to a conflict between financial interest and public duty. The same may be said of changes of permissibility that related to the subdivision of land, development standards and the use of the land for the purpose of works or buildings, or the obtaining of consents and so on."
7. That conclusion was adopted by NCAT in the decision below. In so adopting the decision, NCAT did not return to examine in any detail the contents of the Auburn LEP. In other words, there was no examination of whether the wording and terms of the Auburn LEP, and the proposed amendments, fell within the exemption in s 448(g) of the LGA.
8. The plaintiff submitted that the adoption of such a conclusion was erroneous because it was too broad, and that, upon a proper construction of the provisions of s 448(g) of the LGA, the phrase "permitted uses" ought be read in a restricted way, so as not to include a development standard.
9. The defendant argued that NCAT's decision was correct.
10. As NCAT's decision, and the earlier decision of the Local Government Pecuniary Interest Tribunal, demonstrate, on an ordinary grammatical reading of the phrase "permissible uses", it is possible to conclude that the phrase may extend to and include a development standard.
11. This conclusion is no different than the decision which is to be seen in the judgments of the members of the Court of Appeal in Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380. The judgment in Agostino highlight the existence of a debate which has been ongoing in the area of environmental law as to whether there is a rigid division between land use identified by way of zoning in an LEP, and development standards applicable to one zone or another.
12. The mere fact that in considering the interpretation of the statute, the ordinary and grammatical reading of the words may include a broader description than that contended for, does not provide the answer to the issue posed here.
13. The question here is whether proposed amendments to the Auburn LEP effected a change of the permissible uses of land.
14. An examination of the Auburn LEP indicates that the permissible uses of land are contained in Part 2. So much is apparent from the contents of that Part discussed earlier. As well, the terms of clause 5.4, contained in Part 5 of the Auburn LEP, dealing with "controls relating to miscellaneous permissible uses", support the conclusion that the phrase "permissible uses" as used in the Auburn LEP refers to the uses described in Part 2. As well, clause 5.12 supports a similar conclusion.
15. The clauses which were proposed to be amended fell under Part 4 which was described as "Principal Development Standards". Of particular note is that clause 4.6 provides a mechanism whereby the strictures of a development standard can be varied with respect to any particular development. The mechanism involves the making of an application, the consideration of that application by Council, the satisfaction by the Council that the request for a variation of development standards has adequately addressed the matters required by the clause, and that the proposed development would be in the public interest. Finally, the concurrence of the Secretary of the Department needs to be obtained.
16. There is no similar provision for the variation of the permissible uses of land. The permissible uses are fixed in accordance with the Land Use Tables, and cannot be varied by a development application. Any change to permissible uses has to occur through the LEP variation process.
17. Putting it differently, had an application been made to the Council as the consent authority to vary the maximum floor space ratio for any one proposed development or another, the Council could have determined that such a variation be granted subject to the concurrence of the Secretary of the Department. However, the Council, as the consent authority, could not give permission for a use of land which was prohibited by the Land Use Table in the Auburn LEP.
18. In my opinion, the phrase "change of permissible uses of land" in s 448(g) of the LGA, does not include any clause falling within Part 4 of the Auburn LEP. No breach of s 451 of the LGA has occurred in the factual circumstances described in NCAT's decision.
19. The absence of a careful consideration of the exemption as it applied to the terms of the Auburn LEP was, in my respectful view, an error of law. Put differently, NCAT did not approach the task of statutory construction in the correct way, as required by the law. In those circumstances, I am satisfied that the decision of NCAT was erroneous in law and that its finding ought be set aside.

Further Relief

1. The Amended Summons seeks an order that this Court substitute a decision by way of a finding that the plaintiff did not breach s 451 of the LGA. Neither party put before this Court the whole of the evidence which was before NCAT.
2. Because this Court does not have the full record of the proceedings below, it is not in a position to substitute any finding of fact for that which the Tribunal found. It will be appropriate for the Court to simply make an order setting NCAT's decision aside.

Costs

1. There was no order for costs in the Tribunal below. The Amended Summons does not seek any order for costs of the proceedings in this Court.

Orders

1. The Court orders: 1. The decision of the New South Wales Civil and Administrative Tribunal (Occupational Division) dated 29 January 2016 being [2016] NSWCATOD 10, be set aside. 2. No order as to costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2016