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[2009] NSWLEC 100
respondent. Application dismissed; applicant to pay second respondent's costs; exhibits may be returned (paras [97]).
Moorebank challenged Liverpool City Council's consent for construction of a road bridge across Moorebank's access strip. The challenge alleged the owner's written consent was defective, Council failed to consider relevant planning matters (notably future access and bridge adequacy), and that consent conditions unlawfully left essential matters for later decision. Lloyd J found the owner's letter, taken with other evidence, showed Moorebank intended to consent to the application; that Council did consider the s 79C matters and imposed conditions (including AS5100 compliance and design accommodation for future ramps) addressing structural and access concerns; and that the conditions were lawful under s 80A and did not offend Mison. The application was dismissed and costs awarded against Moorebank (paras [17]–[24], [61]–[78], [88]–[97]).
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Moorebank Recyclers (the applicant) owned a 20 hectare site with a narrow 10 metre by 840 metre access pan‑handle leading to Newbridge Road. Adjoining land to the west was owned by Boral and to the north by Tanlane. Boral and Tanlane proposed major redevelopment, including construction of Brickmakers Drive through the Boral land and a road bridge running east–west across Moorebank’s access handle to Tanlane's site so that Tanlane (and potentially Moorebank) could use Brickmakers Drive for future access. The Roads and Traffic Authority disallowed direct access from Moorebank’s pan‑handle to Newbridge Road for certain future uses, making an alternative access route necessary if Moorebank or Tanlane were to redevelop.
Tanlane lodged a development application for the bridge. The application included a statement of environmental effects and a letter dated 1 May 2006 from a Moorebank director annexed as the owner's consent. The written consent described the area as "the area subject to the proposed easement for road bridge", whereas the development application related to a slightly different area: a 2(a) residential corridor established under an LEP amendment (the 2(a) corridor). Boral’s developer deed with Council contemplated dedication of adjoining 7(c) land for future ramps only upon release of 480 lots in Boral’s development, a condition which might never be triggered.
Council’s assessment process produced mixed advice. The IHAP recommended refusal, describing the proposal as premature and pointing to unanswered issues about the bridge connecting to Brickmakers Drive and to potential prejudice to Moorebank. Two internal Council reports differed: one (Coburn) recommended approval with conditions and contained optimistic statements about Boral bringing forward dedication of land; other documents and the IHAP flagged concerns. Council approved the bridge with conditions addressing structural standards (condition 45 requiring AS5100 compliance), provision for bolt‑on ramps (condition 14), and other site‑specific matters. Moorebank sued in the Land and Environment Court seeking declarations the consent was invalid on three principal grounds: defective owner's written consent; failure to consider relevant matters under s 79C (notably the real risk of being land‑locked or denied access in future); and that the consent conditions unlawfully left essential matters for later determination contrary to Mison.
Lloyd J heard the matter and dismissed Moorebank’s application on 23 July 2009, holding the written consent was valid as reflecting Moorebank’s intention, Council had taken the relevant s 79C matters into account and the misleading statements in some reports did not vitiate the decision, and the conditions were lawful under s 80A and did not offend Mison. The applicant was ordered to pay the second respondent’s costs and the exhibits returned (paras [1]–[3], [17]–[24], [61]–[78], [88]–[97]).
Three discrete legal questions informed the decision.
Owner's written consent under the Regulation (cl 49(1), cl 115(1)(h)). The statutory requirement is formal: a non‑owner applicant must include written consent from the owner. Moorebank argued its letter (referring to the easement area) did not cover the 2(a) corridor targeted by the application. The Court analysed the evidence (not merely the bare text): contemporaneous correspondence, testimony from Moorebank’s director Brent Lawson (cross‑examination confirmed he knew the application related to the 2(a) corridor and that Moorebank had agreed to give consent while reserving objections to design elements), and later letters by Moorebank consultants acknowledging permission to lodge. On this factual matrix Lloyd J concluded the true intention of the 1 May 2006 letter was to consent to the lodgement of the application as made. Consequently cl 49(1) and cl 115(1)(h) were not contravened. The judge emphasised the court’s discretion to refuse a declaration even if a narrow technical breach occurred when the evidence shows assent in substance (paras [17]–[24]).
Compliance with s 79C (relevant considerations). Moorebank argued Council ignored the real risk the bridge might prevent future lawful use of Moorebank’s land, and that Council was misled by optimistic statements in its own reports (in particular Mr Coburn’s final report) that Boral would bring forward dedication of 7(c) land such that ramps could be attached. Lloyd J found some council reports were materially misleading or half‑truths (paras [62]–[69]). However, the central legal test is whether the consent authority did take the statutory matters into account, not whether every factual premise was perfectly accurate. Citing authorities that a wrong factual assessment does not always amount to error of law, the Court held Council had considered traffic, access, LEP constraints, environmental impacts and public interest; it imposed conditions intended to secure structural adequacy and future connection capability; thus the misleading statements did not vitiate the decision (paras [72]–[78]).
Validity of conditions under Mison and s 80A. Moorebank relied on Mison to argue conditions left critical aspects (use, ramp configuration, structural adequacy, contamination, pedestrian routes) to later consideration thus depriving the consent of finality. Lloyd J stated the Mison principle (consent must be final and certain and not leave fundamental matters to later decision) but also explained s 80A’s modern framework permitting conditions addressing s 79C matters, ancillary aspects, and conditions expressed in outcomes/objectives terms. The Court read condition 45 (AS5100) together with condition 14 (requirement to accommodate Patterson Britton concept ramps) and accepted the combined requirements secured a bridge structurally capable to support Moorebank’s potential heavy‑vehicle needs. Other conditions (26, 27, 31, 33, 34, 78) were ancillary or concerned technical site matters and were permissible under s 80A. The Court therefore rejected the Mison challenge (paras [88]–[95]).
Overall, the factual record (especially admission by Moorebank’s director and supporting correspondence) undermined the technical challenges, and legal principles on review and conditions favoured upholding the consent.
Before this decision the Court of Appeal’s Mison principle remained an important constraint on the form and certainty of development consents: a consent could be invalid if conditions left essential components undecided so that the overall development was not final. Since the enactment of s 80A that principle coexists with statutory recognition that conditions may deal with matters in s 79C, ancillary matters, and may be expressed as outcomes/objectives with criteria.
Moorebank Recyclers clarifies two practices at the intersection of Mison and s 80A:
It confirms that s 80A is a potent mechanism to uphold consents that leave detail to later certification so long as conditions fall within the scope of s 79C and qualify as ancillary or outcome‑expressed matters. In short, s 80A can prevent Mison from voiding a consent where conditions are appropriately framed (paras [89]–[95]).
It emphasises that courts will look beyond the literal wording of an owner's written consent to the evidential context when deciding whether the Regulation’s consent requirement has been met; formal imprecision may be cured by contemporaneous intention and conduct (paras [17]–[24]).
The decision does not change the Mison principle but demonstrates its application in the modern statutory regime where s 80A provides explicit legislative flexibility.
Passage: "Moorebank Recyclers Pty Ltd consents to the lodgement application ... within the area subject to the proposed easement for road bridge." (para [17]) Translation: That was the written consent Moorebank gave. The letter described the easement area; Moorebank later argued that description did not match the actual corridor the application sought. The Court treated the letter not in isolation but alongside later evidence.
Passage: "The evidence satisfies me that, despite the terms of its letter of 1 May 2006, the intention of Moorebank ... was to consent to the making of a development application for a road bridge in the location of the 2(a) corridor." (para [22]) Translation: Even though the words of the letter were imprecise, the Court accepted the practical reality: Moorebank intended to permit the application. Legal formality was subordinated to the provable intention.
Passage: "A statement which is a half‑truth ... is misleading." (para [68]) Translation: Council reports that omitted the real risk that Boral might never dedicate land were misleading by omission. The Judge flagged this as important but then considered whether it was decisive legally.
Passage: "It cannot be said that the Council failed to take into consideration the relationship of the proposed development on the adjoining land." (para [76]) Translation: Despite misleading material, Council did think about how the bridge would affect surrounding land; the legal requirement to consider such matters was met.
Passage: Mison principle summary: "A consent must both be final and certain ... if a consent leaves for later decision an important aspect ... it is difficult to see how that consent could be regarded as final." (para [88]) Translation: The classical warning: you cannot approve a development in a way that defers crucial decisions about what is actually permitted. The Court applied that caution but found the conditions were appropriately framed under s 80A.
This decision is directly applicable where:
An owner gives a written consent that is imprecise in territorial description, and the evidential record shows the owner intended the consent to cover the proposal as lodged. Courts will examine contemporaneous correspondence and admissions.
A consent authority approves physical infrastructure in advance of adjoining redevelopments, leaving future connections, ramps or usage to later applications or conditions; where conditions tie the future outcomes to standards and specified concepts, the consent is likely to be upheld under s 80A against Mison attacks.
Council reports contain optimistic or incomplete statements about private parties' future conduct (for example land dedication by a developer). Even if such statements are misleading, the decision will survive if the authority took the statutory matters into account and the misleading content did not materially affect the decision.
Practitioners should note the combination of documentary and oral evidence is powerful: a director's admissions and subsequent planning correspondence carried decisive weight here (paras [20], [21], [23]).
(As required by instruction: analysis must be grounded in the source text. The judgment itself cites authorities but does not record later treatment of Moorebank Recyclers. The judgment does not contain subsequent citations. Therefore this section is limited to internal cross‑references and the Court's placement of the decision among existing authorities.)
Lloyd J placed Moorebank Recyclers in the context of established authorities on reviewing administrative decisions (Waterford, Australian Broadcasting Tribunal v Bond, Bruce v Cole, Peko‑Wallsend) to emphasise that a wrong factual conclusion is not always an error of law (paras [72]–[76]). The judgment also aligns with decisions recognising that misleading public notices or exhibitions may vitiate statutory processes when the statutory obligation is explicit (El Cheikh, Castle Constructions), but Lloyd J distinguished those contexts from the present s 79C enquiry where no such express statutory formality governed the Council's internal reports (paras [70]–[76]). Thus Moorebank Recyclers is best read as an instance where misleading content in reports did not amount to legal vitiation because the core statutory considerations were addressed.
Degree of proof for owner’s intention: Lloyd J resolved the owner's consent question on the evidence of admissions and corroborating documents. But how strong must the extrinsic evidence be to cure a materially imprecise written consent? The judgment demonstrates a willingness to infer intention from conduct, but practitioners should treat the threshold as fact‑sensitive (paras [20]–[24]).
When is a council report’s misleading content sufficiently material to vitiate? Lloyd J recognised misleading half‑truths may exist (paras [62]–[69]) yet held they did not invalidate the consent because s 79C considerations were taken into account. A closer case where misleading statements are the only real evidential basis for the authority's conclusion might produce a different result. The decision leaves open where the line between harmless inaccuracy and vitiating misrepresentation sits.
Interaction between s 80A and Mison: Moorebank Recyclers shows s 80A frequently will rescue consents from Mison attacks, provided conditions address s 79C matters or ancillary aspects and set objective criteria. However, the content and specificity required by s 80A(4) for outcome/objective conditions remains an area where future litigation may refine how detailed conditions must be.
Reliance on third‑party developer deeds: the judgment notes the developer deed’s triggering mechanism for land dedication might never occur (paras [54]–[69]). The decision leaves open whether a consent reliant on a private party’s uncontracted future commercial conduct could ever be quashed where that reliance is the linchpin of the consent, again a fact‑sensitive question.
Practical takeaway for advisers: ensure written owner consents expressly reference the plans and zones in the lodged application; where a consent authority contemplates staged infrastructure, conditions should be drafted to specify outcomes and objective criteria under s 80A and to tie design standards to foreseeable lawful uses; and councils should avoid report language that creates unwarranted expectations about third party actions without qualification.
Conclusions on Issue 3 88 The relevant principle explained by the Court of Appeal in Mison is that if a condition imposed on a development consent will leave open the possibility that it will significantly alter the development in respect of which the application is made, then there has been no consent to the application: Mison at 737 per Preistley JA (Meagher JA concurring). Moreover, a consent must both be final and certain, and if a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the development in a fundamental respect, it is difficult to see how that consent could be regarded as final: Mison at 739-740 per Clarke JA (Meagher JA concurring). 89 Since the decision of the Court of Appeal in Mison, s 80A of the EP&A Act was enacted, which modified the Mison principle. It relevantly states: " 80A Imposition of conditions (1) Conditions - generally A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or ... (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or ...
(2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.
… (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed."
90 I reject Moorebank's first submission that the consent is void because it relates to construction only and not use. That was what the development application sought. Consent was granted to that application and could only be granted to that application and not to some other application. Section 81A of the Act has no role to play in these circumstances. There is no prohibition in the Act against the granting of a consent which is limited in that way. 91 I also reject the second submission relating to the structural adequacy of the bridge. Mr Wilson submits on behalf of Moorebank that condition 45 requiring the bridge to comply with AS5100 - Bridge Design Code, enables a bridge to be constructed which has a load and geometric capacity less than that which would accommodate Moorebank's proposed use. That condition must, however, be read with condition 14 which requires the bridge to be designed and constructed so that it is able to accommodate the access ramps designed in concept by Patterson Britton and Partners Pty Ltd (Moorebank Recyclers Access Option A). The concept plan of Patterson Britton shows a design vehicle which is described as "[Moorebank] Recyclers Service", which is an articulated truck more than 15 metres in length. It is self-evident that if access ramps are to have the structural adequacy to accommodate such vehicles then so, too, must the bridge to which the access ramps are attached. In this respect I reject the evidence of Moorebank's engineering expert, Mr. Marshall, to the contrary. Conditions 5 and 7 do not change this conclusion. 92 I reject the criticism of condition 78. It is a condition that is clearly allowed by s 80A noted in par [89] above and is not otherwise unlawful. 93 I reject Moorebank's fourth submission that the identified conditions leave to later consideration important matters which should have been considered before the consent was granted. As to condition 26 and 27, the evidence shows that concrete piles to support the bridge will require that soil be excavated and the site has potentially acid sulphate soils and soils of moderate salinity. These conditions are clearly directed to the treatment of soil excavated for the concrete piles and which may contain acid sulphate soils or saline soils. There is no uncertainty or ambiguity of language in these conditions; neither do they change the development in any significant or fundamental respect. As Basten JA said in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [55], a degree of practical flexibility or imprecision may not result in invalidity. Statements to a similar effect may be found in Scott v Wollongong City Council (1992) 75 LGERA 112 at 118 (Samuels AP, Meagher and Handley JJA concurring) and in Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33 at 44 per Gleeson CJ. Conditions 26 and 27 are of this type. Moreover, condition 31 applies to physical works such as the excavation for the piling, which requires certification by the Council or an accredited certifier, the plans for which must incorporate "proposed remediation required". 94 Neither do conditions 33 and 34 leave open the possibility that the development will be altered in a significant or fundamental respect. As I have noted, the development application was for a bridge alone, and that was the development for which the consent was granted. Conditions 33 and 34 are ancillary matters of design which are allowed by s 80A(2) of the Act. 95 Finally, I reject Moorebank's fifth submission regarding conditions 14 and 32. The fact that the provision of the combined bicycle/pedestrian path will result in a bridge some 1.7 metres wider is, in my opinion, a matter of detail. Neither would the requirement for pedestrian access be incompatible with the concept plan for access ramps proposed by Patterson Britton. An examination of that plan shows that pedestrian access can be readily achieved across the entry/exit points of the access ramps, as at any other intersection.
Conclusion and final orders 96 For completeness I note that Moorebank's points of claim raise allegations that certain other conditions of the consent are invalid, but these allegations were not the subject of any submissions on behalf of Moorebank. In the absence of any such submissions I am unable to discern any invalidity. 97 None of the grounds of challenge to the validity of the consent establish that the consent is invalid. It follows that the application must be dismissed with costs. The orders of the Court are: (1) The application is dismissed. (2) The applicant must pay the second respondent's costs. (3) The exhibits may be returned. I hereby certify that the preceding 97 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.
Dated: 23 July 2009 **********************
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Moorebank Recyclers Pty Ltd
Liverpool City Council
CITATION : Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100
Akpan v Minister for Immigration & Ethnic Affairs (1982) 58 FLR 47 Anderson v Minister for Infrastructure, Planning and Natural Resources [2006] NSWLEC 725, (2006) 151 LGERA 229 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Broad Henry v Director-General, Department of Environment and Conservation [2007] NSWLEC 722, (2007) 159 LGERA 172 Bruce v Cole (1998) 45 NSWLR 163 Brunetto v Collector of Customs (1984) 4 FCR 92 Castle Constructions Pty Ltd v North Sydney Council [2008] NSWLEC 137 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 El Cheikh v Hurstville City Council [2002] NSWCA 173; 121 LGERA 293 Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33 Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546 CASES CITED: Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Lego Australia Pty Ltd v Paraggio (1996) 52 FCR 542 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Parramatta City Council v Hale (1982) 47 LGRA 319 Price v Elder [2000] FCA 133; (2000) 97 FCR 218 R v Kylsant [1932] 1 KB 442 Scott v Wollongong City Council (1992) 75 LGERA 112 Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 Sharples v Minister for Local Government [2008] NSWLEC 328 Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341 Waterford v The Commonwealth (1987) 163 CLR 54
JUDGMENT 1 HIS HONOUR: The applicants, Moorebank Recyclers Pty Ltd, own a vacant block of land of about 20 hectares in the City of Liverpool. It is bounded on the east by the Georges River, to the north by land owned by Tanlane Pty Ltd, and to the west by land owned by Boral Bricks Pty Ltd. Tanlane and Boral are, respectively, the second and third respondents in these proceedings. 2 Historically, these areas of land were used in the extractive industries and for allied purposes. Boral and Tanlane now wish to redevelop their land for residential and commercial purposes. Moorebank, on the other hand, wishes to establish a concrete recycling plant, a use which Boral and Tanlane consider inimical to their intended use. Herein lies the problem. 3 These proceedings fit amongst the background of related proceedings before Young CJ in Eq: see Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd [2008] NSWSC 1341. Without addressing the proceedings before Young CJ in Eq in any great detail, I simply note that the parties' primary concern relates to the method of access to the Moorebank and Tanlane land, and that the question before me is a relatively narrow one, namely, whether a development consent for construction of a road bridge is valid. This development consent was approved by Liverpool City Council, the first respondent in these proceedings. 4 Moorebank contends that the consent is invalid due to concerns that construction of the road bridge will, for reasons which become apparent below, prevent it from having sufficient access to its land. Tanlane, on the other hand, contends that the development consent is valid. Boral and Liverpool City Council have filed submitting appearances in these proceedings. 5 In order to appreciate Moorebank's concerns, it is necessary to understand the nature of access to the Moorebank precinct. 6 Presently, the only access to the Moorebank land is via a pan handle of land stretching north of the Moorebank block. The pan handle belongs to Moorebank and is about 10 metres wide and about 840 metres long. The pan handle is bounded by the Boral land on its west and the Tanlane land on its east and intersects with Newbridge Road to the north. 7 In 2002, a developer deed was made between the Council and Boral. The deed provides for the redevelopment of the Boral land, which comprises of over 110 hectares to the west of the Moorebank land, for residential and commercial purposes. In order to cater for the redevelopment, the deed also provides for the construction of a new road, Brickmakers Drive, which intersects with Newbridge Road and runs south through the Boral land and roughly parallel to Moorebank's pan handle, before veering west through the Boral land to meet Nuwarra Road. 8 It is proposed that this new road, Brickmakers Drive, will also be the primary form of access to both the Moorebank land and the Tanlane land to the east of Moorebank's pan handle. Moorebank requires this access because the Roads and Traffic Authority ("RTA") has made it clear that it will not allow to use the intersection between the pan handle and Newbridge Road for its proposed future use. That is, in any redevelopment of Moorebank's land and Tanlane's land, the RTA will not allow direct access onto Newbridge Road. To enable such alternative access, the development consent in question has been approved. The consent relates to a road bridge which runs east-west from Brickmakers Drive, over Moorebank's pan handle, and onto Tanlane's land. 9 The contested development consent, however, relates to the construction of the road bridge only. No part of the design as approved by the Council provides for access to Moorebank's pan handle. The question of the use of the bridge, including use of the bridge by Moorebank, or by Tanlane was to be the subject of a further application. 10 Moorebank's specific concerns will become apparent when I address its submissions, which may be summarised as follows:
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.
[2008] NSWLEC 328
(1982) 58 FLR 47
(2006) 151 LGERA 229
(1990) 170 CLR 321
(2007) 159 LGERA 172
(1998) 45 NSWLR 163
(1984) 4 FCR 92
(2000) 199 CLR 135
(1994) 35 NSWLR 33
(1988) 39 FCR 546
(1996) 90 LGERA 68
(2006) 143 LGERA 277
(1996) 52 FCR 542
(1986) 162 CLR 24
(1999) 197 CLR 611
(1991) 23 NSWLR 734
(2000) 97 FCR 218
(1992) 75 LGERA 112
(1981) 38 ALR 363
(1987) 163 CLR 54
(1982) 42 ALR 676
Application dismissed; applicant to pay second respondent's costs; exhibits may be returned (paras [97]).