Conclusions on Issue 2
61 Mr Wilson's submission noted in sub-par 52 above can be considered together with his submissions noted in pars [53] and [58] to [60] above - namely, the Council failed to consider the possibility that a consequence of granting the consent is that Moorebank might never be able obtain access to its land if it were to seek to develop it for the permissible purpose of concrete recycling. In this respect the use of Moorebank's land for the purpose of a "material recycling yard" is expressly allowed, with the consent of the Council, by the Liverpool Local Environmental Plan 1997: cl 10(13) and Sch 4.
62 I find that two of the reports to the Council were materially misleading on the question of whether access could or would be available to Moorebank's land. The Council had previously been advised by the RTA on 1 July 2004 of the need to remove existing access points along Newbridge Road in the event of redevelopment of Moorebank's land: par [26] above. The Council was also told by its development assessment panel in its report of 22 November 2006 that "[r]ecyclers current access arrangements, i.e, the 10 metre access way on to Newbridge Road is insufficient for the proposed usage of the site for materials recycling": par [36] above. The same report goes on to refer to the fact that the applicant for development consent has provided conceptual details which show that future ramps can be accommodated "at a future point in time", and that a condition is proposed to be imposed that the bridge design is to be able to accommodate the proposed bolt on ramps. The report concluded with this statement: "Such an arrangement is unlikely to hinder access to the [Moorebank] Recyclers' site": par [38] above. As I will demonstrate, this statement is misleading.
63 As I have noted, the IHAP report dated 1 March 2007 recommended that the application be refused: par [40] above. However, the subsequent report of Mr Coburn of 16 April 2007, noted in par [43] above, which was the final report before the Council, departed from the IHAP recommendation and recommended approval subject to conditions. That report, insofar as it refers to access to Moorebank's land, is also misleading. The misleading content is in the statements in the report to which I refer below and which I have emphasised.
64 The report of Mr Coburn notes that the land adjoining the road corridor, owned by Boral "is required to be dedicated to Council at the time that 480 lots are released within the Boral development under the terms of the Developer Agreement".
65 The report then states that the bridge design provides for additional on and off ramps on either side of the bridge "at a later date", which will provide direct access from the bridge to the Moorebank Recyclers' property.
66 The report notes that the on and off ramps are located outside the 2(a) road reserve and within the 7(c) Environmental Protection zone, and that while the current zoning and land ownership prevents Moorebank Recyclers proceeding with on and off ramps, "there will be a time in the future, in which they will be able to access the bridge". The report states that this is dependent on Boral dedicating the 7(c) Environmental Protection land to the Council "which has been earmarked to occur by the end of the year".
67 Finally, the report states that Moorebank will have access to the road bridge and that this will be dependent on the timing of the dedication of the 7(c) Environmental Protection land by Boral, which adjoins the road bridge, and "while the 7(c) land is not required to be dedicated until 480 lots are released on the Boral residential site, Boral have committed … to bring forward the dedication of this land by the end of 2007", which will then "enable the on and off ramps to be attached to the road bridge, which cannot occur now given the zoning and land ownership constraints". Upon the 7(c) land being dedicated to the Council "the zoning constraint is removed as roads can be carried out without consent".
68 The emphasised statements above in the report of Mr Coburn are misleading because they are, at best, half-truth. The events to which they refer may never occur. A statement may amount to a misleading statement as much by what it does not say, as well as what it expressly states: see, for example, the cases on misleading conduct under s 52 of the Trade Practice Act 1974 (Cth), such as Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 at 555 and 557. A statement which is a half-truth, such as the statements made by Mr Coburn here, is misleading: R v Kylsant [1932] 1 KB 442, Lego Australia Pty Ltd v Paraggio (1996) 52 FCR 542, Price v Elder [2000] FCA 133; (2000) 97 FCR 218 at [12].
69 The events referred to in the emphasised statements may never occur because Boral opposes to the development of a materials recycling yard on Moorebank land since it would adversely affect residential development on its own land. Boral may never release 480 lots within its development. It could stop its development at 479 lots, in which event its obligation under the developer deed to dedicate the 7(c) land to the Council would not arise. Thus, the opportunity for the provision of the on and off ramps to service Moorebank land, within the 7(c) land, may never arise. The reference in the report to "a later date", or to the fact that "there will be a time in the future", in which Moorebank will be able to access the bridge, are thus misleading. As noted in par [56] above, the deed comprises the entire agreement between the parties, so that any statement by Boral that it would bring forward the dedication of the land by the end of 2007 is not binding.
70 As Biscoe J noted in Sharples v Minister for Local Government [2008] NSWLEC 328 at [77], materially misleading statements have the capacity to vitiate a decision in some statutory contexts. For example, in El Cheikh v Hurstville City Council [2002] NSWCA 173; 121 LGERA 293 at [12], it was held that a public notice required by s 66(1)(a) of the EP&A Act that was misleading, was not a public notice as required by that section. In Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137 it was held that a public exhibition of a draft local environmental plan, required by s 66(1)(b) of the Act, that was misleading, was not a valid public exhibition within the meaning of that section. In both El Cheikh and Castle Constructions the council's duty to give a public notice in each case was the subject of an express statutory obligation. The question in the present case is whether the statutory context in which the misleading statements were made invalidates the Council's decision to grant its consent.
71 The IHAP report, noted at par [42] above, refers to Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd in support of its recommendation that the development application be refused. In that case the trial judge, in considering the relationship of a proposed development to existing development on the adjoining land, had wrongly given primacy or a superior public interest to the proposed development. The Court of Appeal held, however, that the use of the adjoining land as an existing use was not to be afforded a lesser status or weight. The present case is distinguishable from Inghams Enterprises - the use of Moorebank's land for materials recycling is a permissible use with consent (amongst others). But there is at present no such use of the land and no consent for such use.
72 In Anderson v Minister for Infrastructure, Planning and Natural Resources [2006] NSWLEC 725, (2006) 151 LGERA 229, Biscoe J held that misleading conduct which was not characterised by fraud, bad faith or the like is, at least generally, insufficient to vitiate an administrative decision. In Broad Henry v Director-General of the Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172, Preston J, the Chief Judge of the Land and Environment Court, said that the correctness or incorrectness of a conclusion reached by a decision-maker is entirely beside the question. His Honour continued at [124]:
"Proper consideration of a relevant matter does not demand factual correctness. It is wrong to equate relevancy with factual correctness and irrelevancy with factual incorrectness: Akpan v Minister for Immigration and Ethnic Affairs (1982) 58 FLR 47 at 50. A wrong assessment of the considerations the decision maker takes into account is not a reviewable error of law: Brunetto v Collector of Customs (1984) 4 FCR 92 at 97-98."
73 In Akpan v Minister for Immigration & Ethnic Affairs (1982) 58 FLR 47, Sheppard J held (at 50) that the grounds of irrelevant or relevant consideration were not be equated with factual incorrectness or correctness.
74 In Brunetto v Collector of Customs (1984) 4 FCR 92, Toohey J held (at 97-98) that a wrong assessment of relevant considerations does not mean that there has been a failure to take relevant considerations into account.
75 It is settled law that there is no error of law in making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54 at 77, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356, Bruce v Cole (1998) 45 NSWLR 163 at 187, Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 154.
76 In the present case, it cannot be said that the Council failed to take into consideration the relationship of the proposed development on the adjoining land. It clearly did so. The consequence is that although the report of Mr Coburn is misleading, the misleading statements would not vitiate the Council's decision.
77 I am thus not persuaded that the Council's decision to grant its consent to the development application is vitiated as a consequence of its misunderstanding of the effect upon future access to Moorebank's land.
78 For the same reasons, I am not persuaded that the decision of the Council is vitiated as a consequence of the other factors relied upon by Mr Wilson, noted in par to (h) above. As to sub-par (b), the Council did not need to consider how the proposed "bolt-on" ramps would be configured because they were not part of the development application. In relation to the structural adequacy of the bridge, I am satisfied that the Council took this into consideration. This is reflected in condition 45 of the development consent which requires the bridge to be built in accordance with the AS5100 - Bridge Design Code, and, as noted in par [50] above, I am satisfied by the expert evidence that this condition is adequate to allow for Moorebank's proposed use. As to sub-par (c), the Council did not need to consider how the bridge would be connected to Brickmakers Drive because that connection was not part of the development application, but was clearly to be the subject of a separate development application. As to sub-par (d), it is not correct to say that the Council erroneously believed that a road was not a permitted use which the 7(c) zone. Although the zoning table in cl 9 of the Liverpool Local Environmental Plan 1997 shows that roads are prohibited within the zone, the fact is that cl 24 allows land adjoining a zone boundary to be developed for a purpose which is permissible in an adjoining zone. In the present case, roads are a permissible use within he adjoining 2(a) zone. The fact remains, however, that so long as Boral retains ownership of the 7(a) land, that land was not available to either the Council or Moorebank for road purposes. Moreover, even if the Council were in error in its understanding, the error will only vitiate a decision if it materially affects the decision: Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275, Parramatta City Council v Hale (1982) 47 LGRA 319 at 335. In the present case the Council's belief, if erroneous, would not materially affect the decision. As to sub-par (e) and sub-par (f), the council was not bound to take into account these considerations and thus any failure to take them into account does not render the consent invalid: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. As Deane J stated in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 (affirmed on appeal: (1982) 42 ALR 676), the duty of a decision-maker to have regard to relevant matters does not mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that one of them was not specifically taken into account. As to sub-par (g) and sub-par (h), I am not persuaded that the Council did not take these matters into account. The council clearly considered the public interest, as evidenced by par [37] above. It also considered the provision of pedestrian and cycleway access, as illustrated by condition 32 extracted at par [86] below.
79 The Council took into consideration the matters called for under s 79C of the Act. As noted above, if it came to incorrect conclusions in the course of doing so, that does not invalidate the decision.