Multistar Pty Limited v The Minister for Urban Affairs & Planning & Anor

SECOND RESPONDENT: Sydney City Council

FILE NUMBER(S) : 40184 of 1999 CORAM: Lloyd J Estoppel :- issue estoppel (Anshun estoppel) - a point assumed or admitted and which formed the groundwork of or was fundamental to a previous decision though not directly the point in issue - same point cannot be raised or questioned in later proceedings - applicant's claim fails in limine

KEY ISSUES: Environmental Planning Instruments:- whether a development control plan can be given the force of a statutory rule - compliance with a development control plan can be an absolute requirement rather than a discretionary requirement

Judicial Review:- environmental planning instruments - validity of clause in a local environmental plan - whether in derogation of incorporated provisions - whether clause for that reason void - procedural fairness - delegation by council - agency Central Sydney Local Environmental Plan 1996 (Amendment No. 9) - Public Car Parking Environmental Planning and Assessment Act 1979 s 23, s 34, s 62, s 65, s 66, s 67, s 68, s 69, s 70, s 72, s 106, s 107, s 108, s 109, s 117 and s 119 Environmental Planning and Assessment Regulation 1994 Pt 5, cl 16 LEGISLATION CITED: Fair Trading Act 1987 Inflamable Liquid Act 1915 Local Government Act 1993 s 22 and s 377(1) Trade Practices Act 1974 (Cth) Big Country Developments v Penrith City Council (1998) 98 LGERA 194; Blair v Curran (1939) 62 CLR 464; Brewer v Brewer (1953) 88 CLR 1; Cachia v Isaacs (1985) 3 NSWLR 366; Carden v Willoughby Municipal Council (1985) 56 LGERA 366; Dainford Limited v Smith (1985) 155 CLR 342; Holster v Director-General of National Parks and Wildlife [1999] NSWLEC 102, unreported; Hoysted v The Federal Commissioner of Taxation (1925) 37 CLR 290; CASES CITED: Kartinyeri v The Commonwealth (1998) 195 CLR 337; McRae v Coulton (1986) 7 NSWLR 644; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1996) 162 CLR 24; Moore v Penrith City Council, Talbot J, NSWLEC, 20 July 1993, unreported; Multistar Pty Limited v Sydney City Council [1999] NSWLEC 205, unreported; Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589; Re Wakim; Ex-parte McNally (1999) 198 CLR 511; Rosemount Estates Pty Limited v The Minister (1996) 90 LGERA 1; Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78, 101 LGERA 297; Wright v T.I.L. Services Pty Limited [1956] 56 SR (NSW) 413 DATES OF HEARING: 09/10/2000; 10/10/2000; 11/10/2000 DATE OF JUDGMENT: 12/04/2000

APPLICANT: Mr N A Hemmings QC (Solicitor) SOLICITORS: Allen Allen & Hemsley

FIRST RESPONDENT: Mr M J Leeming (Barrister) LEGAL REPRESENTATIVES: SOLICITORS: Christine Hanson

SECOND RESPONDENT: Mr S D Rares SC SOLICITORS: Blake Dawson & Waldron

IN THE LAND AND Matter No: 40184 of 1999 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 4 December 2000

1 The applicant seeks a declaration that clause 48A of the Central Sydney Local Environmental Plan 1996 (Amendment No. 9) - Public Car Parking, published in New South Wales Government Gazette on 9 August 1999, is void. The applicant seeks, in the alternative, a declaration that parts of clause 48A are void; and further alternatively, a declaration that the Central Sydney Local Environmental Plan (Amendment No. 9) is void.

2 The applicant is the owner of the property known as Kent Street Parking Station which it purchased from the second respondent, Sydney City Council ("the council") and others on 23 February 1998.

3 On 14 December 1998 the council resolved to prepare a draft local environmental plan for all land within the City of Sydney to which the Central Sydney Local Environmental Plan 1996 applies. The council resolved to amend the Central Sydney Local Environmental Plan 1996 to prohibit public " long-stay " car parking on all land within the City of Sydney and to permit " short-stay " commercial car parking only within a specified part of the " retail core " of the central business district and to compel all public car parking to be located below ground. On 5 August 1999 the first respondent, the Minister for Urban Affairs and Planning, made the local environmental plan which was published in the Gazette on 9 August 1999 and which contains the clause to which the applicant objects.

4 The applicant claims that in the preparation and the making of the draft local environmental plan the council failed to comply with the provisions of Part 3, Division 4 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), notably sections 62, 68 and 69. The applicant claims that the Minister made the local environmental plan in breach of section 70 of the Act. The applicant further claims that clause 48A of the local environmental plan is ultra vires as being contrary to Part 4, Division 10 of the EP&A Act and is inconsistent with the incorporated provisions referred to therein.

5 The respondents deny the applicant's allegations. They further say that the applicant is estopped from maintaining these proceedings, since the applicant seeks orders which are inconsistent with a final judgment obtained by it on 1 September 1999 in Multistar Pty Limited v Sydney City Council [1999] NSWLEC 205, unreported.

6 It is convenient to consider the respondents defence of estoppel at the outset since, if the defence is established, the applicant's claim will fail in limine.

7 On 1 September 1999 Talbot J delivered judgment in Multistar Pty Limited v Sydney City Council. That was a case in which the applicant appealed against the deemed refusal of a development application for the demolition of existing buildings including Kent Street parking station and for the erection of a building " incorporating residential, retail and commercial uses and tenant and public car parking ". One of the issues in that case was issue 8: Whether the inclusion of a public car park at the proposed location and hours of operation is inconsistent with exhibited draft Local Environmental Plan 1996 Amendment No. 9 - Public Car Parking. 8 When the appeal came on for hearing, Amendment No. 9 had commenced, the publication of it in the Gazette having occurred a few days earlier. This was noted by Talbot J in his judgement at [145]: The council has developed a policy of restricting the availability of car parking in the city in order to promote the use of public transport. The efficacy of this policy is not an issue in the proceedings as it is now enshrined in the enforceable provisions contained in cl 48A inserted in LEP 96 on 9 August 1999. 9 It seems that in the proceedings before Talbot J the applicant accepted the validity of Amendment No. 9 to the Central Sydney Local Environmental Plan. Talbot J upheld the applicant's appeal and granted development consent to the applicant's development application subject to conditions. One condition, condition 16, imposes a requirement consistent with clause 48A of Amendment No. 9 that any public car park must, in effect, comply with the requirements of that clause, that is to say, it must operate only as a short stay car parking station.

10 Mr M J Leeming who appears for the first respondent ("the Minister") relies upon the facts that the applicant has obtained a final judgment permitting it to develop the land, but in terms that it complies with clause 48A; and that those proceedings were heard over nine (9) days with the knowledge that clause 48A was in force and upon the assumption that it was applicable. In Mr Leeming's submission, a person who has obtained a final judgment is not permitted in a fresh proceeding to seek to undermine an essential premise of that judgment, in which the construction of the clause was interpreted.

11 It is not to the point, in Mr Leeming's submission, that the validity of the clause was assumed and not argued in the earlier proceedings (he referred to Hoysted v The Federal Commissioner of Taxation (1925) 37 CLR 290, Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 and Cachia v Isaacs (1985) 3 NSWLR 366). The judgment now sought is inconsistent with the first. By the earlier judgment of Talbot J the applicant can operate a public car park on the land, but restricted to conform with the requirements of clause 48A. An essential element of the proceedings before Talbot J was the validity of clause 48A. The judgment depended on the efficacy of clause 48A, whilst all of the applicant's arguments in these proceedings are aimed at a finding that clause 48A is void. (He also referred to Re Wakim; Ex-parte McNally (1999) 198 CLR 511 at paras [160] - [162]).

12 Mr S D Rares SC, who appears for the second respondent, the council, submits that the applicant now seeks to set up the invalidity of the very process upon which Talbot J's judgment is founded. As Talbot J noted in his judgment (at para [180]): The original plans have been amended to reflect concerns expressed by council officers in some respects and in response to DCP 96 Amendment No. 9 made on 24 June 1999 and LEP 96 Amendment No. 9 made on 9 August 1999. 13 Mr Rares notes that the judicial consent of Talbot J operates as a judgment in rem as to the permissible use of the applicant's land in Kent Street and no appeal has been brought against that judgment. The present proceedings, if successful, would result in an order which would conflict with a law, clause 48A, which Talbot J had to apply and did apply. In his judgment Talbot J said (at para [156]): Nevertheless the Court is obliged to ensure that the policy objectives are taken into account and that the development does not provide a number of car spaces which is overwhelmingly beyond the demand for short-stay use. 14 Moreover, Talbot J adopted a purposive construction of clause 48A which was advanced by the applicant: "A purposive approach is appropriate. The applicant's construction of clause 48A(5) accommodates the achievement of the aims and objectives of the LEP" (at para [147]). Mr Rares SC relies, in addition to the cases cited by Mr Leeming, upon Blair v Curran (1939) 62 CLR 464 and Brewer v Brewer (1953) 88 CLR 1. 15 Mr N A Hemmings QC, who appears for the applicant, made the following submissions on this issue: Anshun estoppel is inapplicable to proceedings such as that which was heard and decided by Talbot J, (he referred to Rosemount Estates Pty Limited v The Minister (1996) 90 LGERA 1 at 32-33); Anshun has little or no relevance to proceedings such as the present; the proceedings concern public law and are not limited by the conflicts in private interest with which Anshun was concerned; the subject matter of the two proceedings, that is the proceedings before Talbot J and the present proceedings is different; a finding of invalidity would not be inconsistent with the judgment of Talbot J and the development consent which his Honour granted would be unaffected; the validity of the instrument was not in question in the previous proceedings; and the applicant is the owner of the other car parking stations which are the subject of the other proceedings in the Court. 16 I should say at once that there is no evidence to support the last mentioned submission. The amended points of claim upon which the applicant relies contains an assertion that the applicant is only the owner of the Kent Street Parking Station, which assertion is admitted by the respondents. That is the same property which was the subject of the proceeding before Talbot J. 17 In Hoysted v The Federal Commissioner of Taxation it was held (at 299) that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started with a view to obtaining an another judgment upon a different assumption of fact. It was also held that the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case. If this were permitted, litigation would have no end, except where legal ingenuity is exhausted. The same principle applies where a point, fundamental to the decision, taken or assumed by one party and traversable by the other party, has not been traversed. An estoppel occurs. 18 Hoysted was referred to by Dixon J in Blair v Curran (at 532) in the following terms: In the phraseology of Lord Shaw, 'a fact fundamental to the decision arrived at' in the former proceedings and 'the legal quality of that fact' must be taken as finally and conclusively established (Hoysted v Commissioner of Taxation). 19 In Brewer v Brewer Fullagar J (with whom Dixon CJ agreed) explained the decision in Hoysted in the following terms (at 15): In Hoysted's case the Commissioner was not merely seeking to raise on the second appeal a point which he might have raised but had omitted to raise on the first appeal. He was seeking to raise a point which could not be decided in his favour consistently with the decision on the first appeal. The point had not been argued on the first appeal, and there was therefore no express decision on the point. But the Commissioner had allowed it to be assumed against him, and the assumption was fundamental to the decision in the sense that, if the assumption had not been made, the decision must have been different…. The point in question had been ' the groundwork of the decision itself , though not then directly the point at issue' (per Coleridge J. in Reg. V. Township of Hartington [(1855) 4 El. & Bl 780, at 794 [119 E.R. 288, at p.293]]. 20 In Anshun , Gibbs CJ, Mason and Aickin JJ, in a passage expressly relied upon by Mr Leeming, said (at 603): It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. In this respect the discussion in Brewer v Brewer is illuminating. There it was held that the wife's omission to plead matters which would have constituted a discretionary bar to her husband's suit of dissolution of marriage on the ground of adultery did not estop her from raising those matters in subsequent proceedings for maintenance. [The judgment then set out the passage which I have quoted in paragraph 19 above]. This was also the conclusion reached by Williams , Webb and Taylor JJ. 21 In Cachia v Isaacs , Hope JA (with whom Kirby P agreed), after referring to Blair v Curran and to Anshun , said (at 381-382): It should be noticed that the present case is not one where the defendant failed to raise some special defence; it is a case where a fact essential to the plaintiff's case was assumed. This seems to bring it squarely within the decision in Hoysted v Commissioner of Taxation [1926] AC 155. There trustees held property the annual income of which was divisible between the testator's six daughters. In respect of one financial year an assessment of land tax was challenged by the trustee, the question being whether there should be a deduction of £5,000 in respect of the share of each daughter. The questions asked were: '(1) Whether the shares of the joint owners, or of any and which of them, in the land were original shares within s 38. (2) How many deductions of £5,000 the respondent should make.' The High Court answered the questions as follows: '(1) The shares of the six children surviving at the date of the assessment. (2) Six.' In the following year the Commissioner of Taxation again only allowed one deduction. In a new case stated to the High Court it was held that the Commissioner was estopped by the earlier decision from denying that the beneficiaries were joint owners, although in that previous litigation no express decision had been given whether the beneficiaries were joint owners, it being assumed and admitted that they were. … In Hoysted, Lord Shaw, after discussing various types of situations where a point has not been litigated but has been admitted or assumed, went on to say (at 166): '…Thirdly, the same principle - namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties' rights to rest applies and estoppel occurs.' This is the principle that was affirmed by Dixon J in Blair v Curran, and by Diplock LJ, as he then was, in Fidelitas Shipping Co Ltd v V/O Exportcheler [1966] 1 QB 630 at 649; [1965] 2 All ER 4 at 14. 22 In Re Wakim , Gummow and Hayne JJ expressed the view (at 591-592) that even if in the circumstances of a particular case there is no estoppel, the court should not allow a procedural indulgence to permit a party to reagitate an issue raised in earlier proceedings and to do so by instituting a different proceeding. 23 The conclusion to be drawn from the above-mentioned authorities is that the applicant is bound by a point, taken or assumed by it, which was a groundwork of or fundamental to the decision, though not being directly the point in issue. Such matter cannot be raised or questioned in the later proceedings. 24 In the present case the applicant is seeking to raise a point which could not be decided in its favour consistently with the decision in the previous case. It being assumed, in the first case, that the local environmental plan and, in particular, clause 48A, were valid means that the question of validity cannot be raised in these proceedings. 25 It remains to consider, however, the judgment of Stein J in Rosemount v The Minister . In that case Stein J (at 32) noted the purely private law origins of Anshun and said that it has little relevance to public law and to proceedings such as those brought under section 123 of the EP&A Act. Stein J went on to say (at 32): In my opinion, the Anshun estoppel principle is inapplicable to the applicants' claim that the environmental impact statement is invalid. This is primarily because the principle has no application to public law proceedings under 'open standing' provisions in the environmental legislation such as s 123 of the Act. 26 I am thus faced with a conflict between the principles explained by the High Court and the Court of Appeal in the cases described above and, on the other hand, a judgment of a single judge of this Court (as he then was). The judgments of the High Court and the judgment of the Court of Appeal to which I have referred make no distinction between private and public litigation. I accept, however, that the open standing provisions of the EP&A Act did not exist until 1979, so it might not have been expected that the High Court would have such considerations in mind. But the open-standing provisions of the EP&A Act would certainly have been known to the members of the Court of Appeal who decided Cauchia v Isaacs . The judgments of the High Court (and the judgment of the Court of Appeal) set out principles of general application and are, of course, binding upon me: the judgment of Stein J is not. 27 It is apparent, however, that Rosemount is distinguishable from the present case on its facts. In that case the applicants claimed, inter alia , that a development consent was invalid because an environmental impact statement was not a valid environmental impact statement for the purposes of the Act and Regulation. The respondents had pleaded that the applicants were estopped from so alleging, or that the claim was an abuse of process. After referring to the principle in Anshun , Stein J said (at 32): One reason for the principle is the desire to avoid conflicting judgments. No such conflict arises in the present case. The validity of Mr Cleland's report did not rest on the environmental impact statement's validity. A finding that the environmental impact statement is invalid would not be inconsistent with the judgment of Waddell AJ. The subject matter of the two cases is different. The first was concerned with the report of Mr Cleland and the second with the validity of State Environmental Planning Policy No.45 and the decision to grant development consent. 28 It follows that the views of Stein J which I have set out in paragraph 25 above are obiter . I continue to be bound, therefore, by the principles explained in the judgments of the High Court and the Court of Appeal to which I have referred.

29 In the present case, in contrast to the facts in Rosemount , a matter which formed the groundwork of and thus a fundamental matter for the decision of Talbot J was taken or assumed by the applicant to be valid. It is irrelevant that the validity of the instrument (or of clause 48A) was not directly the point in issue. The matter was taken or assumed by the applicant to be valid and was not traversed by it. That is to say, it was assumed that both the local environmental plan and clause 48A in particular were valid. 30 Moreover, Stein J does not refer to the judgments in Hoysted, Blair v Curran , Brewer v Brewer , or Cachia v Issacs and which are binding upon me . . Re Wakim was, of course, decided after Stein J's judgment in Rosemount. 31 I conclude, therefore, that the applicant is precluded from raising in these proceedings the validity of the local environmental plan or of clause 48A of that local environmental plan. 32 This conclusion makes it unnecessary to consider the attacks upon the validity of the local environmental plan and upon clause 48A in particular. I have hesitated over whether I should express my views thereon. As the parties have fully argued the matter, however, it may be helpful to them if I do so. Inconsistency with Part 4, Division 10 of the Act 33 Central Sydney Local Environmental Plan 1996 (Amendment No. 9) - Public Car Parking (which I shall call the LEP) introduced a new clause 48A into the Central Sydney Local Environmental Plan 1996. 34 Clause 48A is as follows: 48A. Public car parking provisions General prohibition against provision of public car parking

a) The carrying out of development for the purpose of providing public car parking is prohibited on all land within central Sydney, except as provided in subclause (2), (3), (4) or (5).

b) Consent may be granted for public car parks on land where no public car park already exists, but only where the consent authority is satisfied: i) that the public car parking directly services major retail, cultural, recreational or entertainment uses which, in the opinion of the consent authority, are not reasonably serviced by public transport (either existing or planned) or existing public car parking; and ii) As to the criteria set out in subclause (6).

Existing tenant car parks c) Consent may be granted to development for the purpose of converting existing tenant car parking that is in excess of the maximum number of parking spaces allowed by clause 48(1) into public car parking, but only if the consent authority is satisfied as to the criteria set out in subclause (6)

Existing public car parks d) The prohibition against public car parking contained in subclause (1) does not apply to land: i) on which a public car park already lawfully exists; or ii) in respect of which a development consent for a public car park is current. e) Consent may be granted for the erection of, demolition of, or making of additions that (in the opinion of the consent authority) are substantial to, a building located on land on which a public car park already lawfully exists, but only if the consent authority is satisfied that any public car park within the development: i) satisfies the criteria set out in subclause (6); and ii) does not result in more public car parking spaces on the land than already lawfully exist; and iii) does not exceed the floor space area of the existing public car park.

Criteria f) The criteria referred to in subclauses (2), (3) and (5) are that the public car park: i) does not prejudice attaining the objectives of this Part; and ii) does not encourage commuter car parking nor reduce the proportion of public transport users travelling to the city each day; and iii) is used for short-stay public car parking only in accordance with the provisions of the Central Sydney Development Control Plan 1996; and iv) is located underground; and v) is included in the floor space area of the building for the purposes of calculation of floor space ratio; and vi) is consistent with, and does not compromise, high quality urban design of buildings in the land and adjacent to the land; and vii) is not likely to cause or increase adverse pedestrian impacts or local or city-wide vehicular traffic impact; and viii) in the opinion of the consent authority, is not likely to cause or contribute to an unacceptable level of vehicle saturation of intersections in the vicinity, or an unacceptable reduction of environmental capacity of roads in the vicinity, of the public car park.

35. Mr Hemmings QC submits that clause 48A purports to deny rights granted by Division 10 of Part 4 of the EP&A Act relating to uses which lawfully exist, so that the clause is, for that reason, void.

36. Division 10 of Part 4 of the EP&A Act relates to existing uses. It allows the continuance of existing uses, that is to say, lawful uses which become prohibited upon the coming into force of an environmental planning instrument (sections 106 and 107). It also allows the continuance of uses which are lawful immediately before the coming into force of an environmental instrument which has the effect of preventing such uses except with development consent (section 109). Section 108(1) enables the making of regulations for the carrying out of alterations or extensions to a building or work being used for an existing use, for the change of an existing use to another use and for the enlargement, expansion or intensification of an existing use. Such regulations (referred to as " the incorporated provisions ") are taken to be incorporated in every environmental planning instrument (section 108(2)). Regulations have been made pursuant to section 108(1) (Part 5 of Environmental Planning and Assessment Regulation 1994). An environmental planning instrument may contain provisions extending, expanding or supplementing the incorporated provisions, but any provision in such an instrument that would derogate or have the effect of derogating from the incorporated provisions has no force or effect while the incorporated provisions remain in force (section 108(2)).
37. In Carden v Willoughby Municipal Council (1985) 56 LGERA 366, Kirby P said that " derogation " involves, relevantly, nothing more than " taking away from " or " detracting from" that which would otherwise exist. In the same case Mahoney JA (with whom McHugh JA agreed) noted (at 371) that the incorporated provisions are incorporated into every environmental planning instrument; and further said (at 372) that if a clause in an environmental planning instrument operated to restrict the council's power or duty to give consent under the incorporated provisions, then such clause would have " no force or effect " whilst the incorporated provisions remain in force.
38. Mr Hemmings submits that clause 48A is in terms a prohibition on the use of land for public car parking. This was held by Talbot J to be its primary objective: " The primary objective of clause 48A is to prohibit the carrying out of development for the purpose of providing public car parking" . ( Multistar Pty Limited v Sydney City Council , at para [169]). I am not prepared to depart from this finding of Talbot J.
39. In Mr Hemmings' submission, sub-clause (4) of clause 48A does not properly operate as an exception because it is redundant surplusage and has no work to do. The sub-clause merely restates the law contained in Division 10 of Part 4 of the Act. I agree. Moreover, sub-clauses (2), (5) and (6) effectively derogate from the incorporated provisions and so have " no force or effect " in the case of an existing use. Those sub-clauses take away from or detract from the incorporated provisions.
40. I do not agree, however, that these considerations mean that clause 48A is void. By sub-section (3) of section 108, any provisions of an environmental planning instrument which would derogate or have the effect of derogating from the incorporated provisions would simply have " no force or effect " while the incorporated provisions remain in force.
41. Almost every provision of every environmental planning instrument would derogate or have the effect of derogating from the incorporated provisions. That does not make such provisions of an environmental planning instrument void. Neither does sub-section (3) of section 108 make such provisions void. They continue to serve a purpose where development is sought on land upon which there is no existing use. If the applicant in this case, or any other landowner within the City of Sydney, is able to show that a use of land is an existing use, then the incorporated provisions would automatically apply to such use. Those provisions of clause 48A which derogate from the incorporated provisions would simply then have no force or effect in relation to that land. But that does not make clause 48A void. The clause would continue to have force and effect in relation to land upon which there is no existing use. I note that the applicant did not contend before Talbot J that it had existing use rights in relation to the Kent Street Parking Station. Mr Hemmings' argument is syllogistic, but that does not make it right. A Development Control Plan with mandatory effect
42. Sub-clause 6(c) of clause 48A purports to make the provisions of a development control plan ("DCP") mandatory and binding on the consent authority. Mr Hemmings submits that this is contrary to the EP&A Act.
43. Section 72 of the EP&A Act enables the council to make a DCP. A DCP is not an environmental planning instrument. (See the definition of environmental planning instrument: section 4). A DCP thus does not have the force of a statutory rule. The effect of sub-clause 6(c) is to give it the force of a statutory rule: "…only in accordance with the provisions of the Cental Sydney Development Control Plan 1996." The consequence is that compliance with the DCP is an absolute requirement rather than a discretionary requirement. Mr Hemmings submits that it is unlawful for an environmental planning instrument to make compliance with a DCP mandatory (citing Big Country Developments v Penrith City Council (1998) 98 LGERA 194).
44. Big Country Developments is not, however, an authority for the proposition for which Mr Hemmings contends. That case does not decide that it is unlawful for an environmental planning instrument to give mandatory effect to the provisions of a DCP by incorporating the provisions of the DCP into the instrument.
45. There is no general principle that a power to make a by-law or regulations may not be exercised by referring to some other document and incorporating or applying it, provided that what is referred to is sufficiently certain (Dainford Limited v Smith (1985) 155 CLR 342 at 348, per Gibbs CJ, applying Wright v T.I.L. Services Pty Limited [1956] 56 SR (NSW) 413).
46. In Wright v T.I.L. Services Pty Limited , the validity of a regulation, regulation 35, made under the Inflammable Liquid Act 1915 was in issue. Regulation 35(d) was relevantly as follows: ... (d) Electrical devices, including wiring and switches, shall comply with the relevant rules of the Standards Association of Australia relating to electrical equipment in hazardous locations, ...
47. Walsh J (with whom Herron J agreed) referred (at 421) to a contention that there was a failure to comply with the requirement of the Act that all regulations shall be published in the Gazette and the power to make regulations cannot be validly exercised if something which is not set forth therein is incorporated by reference. Walsh J then continued: The general proposition that in no circumstances can a regulation incorporate by reference something not set forth in it is, in my opinion, unsound. It is true that a regulation should indicate with sufficient certainty, to those upon whom it imposes a penalty for a breach of it, what is the extent of the obligation. Where a regulation contains a reference to some other document the question of whether or not the requirement just stated is fulfilled must depend upon a consideration of the particular regulation and of the nature and contents of the incorporated document. If there is uncertainty as to what is the document to which reference is made , no doubt the regulation would be held invalid.
48. In Moore v Penrith City Council (NSWLEC, 20 July 1993, unreported) Talbot J considered a clause in a local environmental plan which stated: 12(1) Subject to this clause, the council shall not consent to any development on land to which this plan applies unless the type and location of development is generally in accordance with any development control plan applying to the land.
49. Talbot J held that the clause was made in recognition of the fact that the council may make development control plans specifying the type and location of development. His Honour then continued (at page 13): Clause 12 of LEP 188 gives additional force and effect to the provisions of the DCP. Once the council validly makes a DCP that applies to the land in the zone then it is the LEP that gives the DCP imperative force in respect of the type and location of the development. It is in this way that the controls expressed in the Major Landuse DCP as guidelines in relation to type and location of development have been enhanced in status by the LEP to a level beyond mere guidelines.
50. Talbot J went on to say that it is the effect of clause 12(1) of the local environmental plan to prohibit development unless the type and location is generally in accordance with any development control plan applying to the land. Talbot J held that because the particular development in that case was not generally in accordance with the development control plan, the consequence was that the proposed development was prohibited by the local environmental plan.
51. The conclusion to be drawn from the cases discussed above is that, absent any authority to the contrary, is not unlawful for an environmental planning instrument to give mandatory effect to a development control plan in the manner which clause 48A(6)(c) does in the present case.
52. That is no more than a short-hand way of repeating in an environmental planning instrument the express provision of the DCP. In another way, it is no different to repeating verbatim in the environmental planning instrument each of the express provisions of the DCP. As the cases of Dainford Limited v Smith, Wright v T.I.L. Services Pty Limited and Moore v Penrith City Council show, if it was the intention of the environmental planning instrument to incorporate another document by reference and thereby make it absolute requirement then there seems to be nothing unlawful in achieving that purpose in the manner provided by sub-clause 6(c) of clause 48A in this case. It is the same as a regulation which makes the relevant rule of the Standards Association of Australia an absolute requirement, as in Wright v T.I.L. Services Pty Limited. In the absence of any authority to the contrary, I would not be inclined to find that there is an invalidity in this case.
53. In seems clear, however, that the DCP itself, or at least section 5.2 of the DCP, which relates to short stay public parking, is beyond power and is for that reason void. A DCP may only provide for matters for which a local environmental plan may provide (Environmental Planning and Assessment Regulation 1994, clause 16). The matters for which a local environmental plan may provide are set out in section 26 of the EPA&A Act. Section 5.2 of the DCP purports to control privately owned public car parking by way of specifying the fee structure to be applied. There is nothing in section 26 which enables the making of a local environmental plan to control the fee structure to be applied to privately owned commercial car parking stations or, for that matter, to any other activity. That is not something which local government councils may control or regulate either through development control plans or otherwise. It may be a matter which might be subject to control under the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987. Neither of those statutes, of course, have anything to do with land use and planning. Section 5.2 of the DCP in this case relates to matters for which for which a local environmental plan may not provide. The applicant does not, however, seek any relief in relation to the DCP itself: it seeks only to strike down the LEP or, alternatively, clause 48A of the LEP. As Mr Hemmings said in his submissions: "The provisions in this DCP are draconian and we say not only harsh but ultra vires in that they impose provisions for the charges to be paid. We don't in these proceedings seek to challenge that but merely draw attention to it..." A denial of procedural fairness
54. The next matter is the submission by Mr Hemmings that when the then draft amendment to the Central Sydney Local Environmental Plan 1996 (and which became Amendment No. 9) was publicly exhibited and again re-exhibited it was proposed that the control by way of requiring public parking stations to be for "short-stay" car parking was to be by way of a DCP. As I understand the submission, by making the provisions of the DCP an absolute requirement by way sub-clause 6(c) of clause 48A, there was a significant unexhibited change as to which the applicant (and the public) had a legitimate expectation to be notified and be afforded an opportunity to be heard.
55. In Mr Hemmings' submission the council exercised its policy of inviting submissions on the draft LEP: the applicant and others responded by making submissions; the applicant had a reasonable expectation that an opportunity would be afforded to make submissions on any significant unexhibited changes to the draft LEP; and the applicant was thereby denied procedural fairness.
56. Section 66 of the EP&A Act requires a council publicly exhibit any draft local environmental plan. Section 67 allows any person to make submissions in writing to the council with respect to the provisions of a draft local environmental plan which is publicly exhibited. Section 68(3) allows the council to make any alteration it considers necessary to the draft local environmental plan arising from its consideration of submissions. Sub-sections (3A) and (3B) provide:

(3A) An alteration made by a council pursuant to subsection (3) need not relate to a submission.

(3B) The council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3). ... 57. Mr Hemmings concedes that the applicant had no statutory right to be heard in this case. His submission is that the applicant had a reasonable expectation to be heard and hence was denied procedural fairness. 58. I am unable to agree with the submission. In Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78, 101 LGERA 297, it was held by both Meagher and Powell JJA that, except to the extent of the requirements to notify and to consult provided for in the Act, a council seeking to make an environmental planning instrument was not to be subject to any duty to accord procedural fairness to any person, or body, who or which might be affected by the provisions of the proposed instrument. As Meagher JA put it (at 113): I think the Act specifies exactly to what extent procedural fairness must be accorded to a ratepayer. 59. The judgment of the Court of Appeal in Vanmeld is, of course, binding upon me. It follows that this ground of challenge to the validity of clause 48A fails. The validity of the section 65 certificate 60. The applicant submits that the section 65 certificate, which was signed by Mr G. Maddock, General Manager of the council, was invalid. 61. Section 65(1) of the EP&A Act provides: (1) Where the Director receives a copy of a draft local environmental plan from a council under section 64, the Director may cause to be issued to the council a certificate certifying that the draft plan may be publicly exhibited in accordance with section 66. 62. By an instrument of delegation dated 14 February 1997, the Director (of the Department of Urban Affairs and Planning) delegated to the council her functions under sections 65(1) and 69 of the Act. On 18 August 1997 the council resolved to delegate its functions under sections 65 and 69 to the General Manager. 63. The section 65 certificate in the present case was signed by Mr Maddock on 19 January 1999 "as delegate of the Director-General of the Department of Urban Affairs and Planning" and "as a delegate of the Council of the City of Sydney, which is the delegate of the Director-General of the Department of Urban Affairs and Planning". 64. The power to delegate the functions of the Director is contained in section 23 of the EP&A Act, which provides that the Director may delegate the Director's functions to a council or to an officer or employee of the council (inter alia). In the applicant's submission the delegation by the council to the General Manager of its functions under sections 65(1) and 69 was unlawful because sub-section (8) of section 23 provides that the section does not authorise the delegation of the power of delegation conferred by that section. As I understand the applicant's submission, when Mr Maddock signed the section 65 certificate he personally exercised the function and did not do so in the name of the council. The certificate was, in the applicant's submission, accordingly invalid. 65. In my opinion, the certificate is not invalid. Sub-section (8) of section 23 of the EP&A Act relevantly states that nothing in this section authorises the delegation of the power of delegation conferred by the section. The power of delegation can, however, be found elsewhere. The body to whom the Director delegated was a creature of statute, namely, the Local Government Act 1993. Section 377(1) of that Act permits a council to delegate any of the functions of the council. The functions of the council include functions conferred or imposed on it by or under any other Act or law (section 22, the Local Government Act 1993). Thus, a function under sections 65(1) or 69 of the EP&A Act delegated to the council under section 23 of that Act is a function to which section 377(1) expressly applies. 66. Section 377(1) of the Local Government Act lists a number of express exceptions to the power of delegation. None of those exceptions refer to the exercise of any power under section 23 (or sections 65 or 69) of the EP&A Act. The Local Government Act is, of course, a later Act than the EP&A Act. If the two Acts are inconsistent then section 377(1) of the Local Government Act impliedly repeals section 23(8) of the EP&A Act (Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 353-354 [9]). 67. In the present case the Director delegated her functions under section 65(1) and 69 of the EP&A Act to the council. The council received these functions under section 22 of the Local Government Act and delegated those functions to its delegate, the General Manager, being functions not excluded by section 377(1). The council has thus validly delegated its functions under sections 65 and 69 to the General Manager. Alternatively, the council by its agent, the General Manager, signed the section 65 certificate. 68. The applicant also submits that the section 65 certificate is void because it is significantly misleading. The certificate relates to a draft local environmental plan referred to in the schedule to the certificate. The schedule states:

Central Sydney Local Environmental Plan 1996 (Draft Amendment No. 9 - Public Car Parking).

The purpose of the Draft Amendment is to limit opportunities for growth in public car parking, reduce over time the amount of commuter related public parking, establish criteria for the assessment of public car parking and restrict the leasing of tenant related car spaces to non-tenants. 69. A fair reading of the instrument, both in its draft form and in its final form, does not, however, lead me to the conclusion that this stated purpose is misleading . The validity of the section 69 report 70. Section 69 of the EPA&A act provides as follows: 69 Report by Director The Director shall furnish a report to the Minister as to: a) whether the draft local environmental plan submitted under section 68(4) is inconsistent with any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft plan applies, b) if there is such an inconsistency - whether the inconsistency is justifiable in the circumstances, c) whether the provisions of section 66, 67 and 68 relating to public involvement in the preparation of the draft plan have been complied with, d) the relationship between the draft plan, and other proposed and any existing environmental planning instruments, and any relevant directions under section 117, applying to the land to which the draft plan applies, ... 71. As noted above, the Director delegated to the council her functions under sections both 65(1) and 69 of the Act. 72. The applicant submits that the document described as a section 69 report was not furnished by the council but by Mr Maddock, the General Manager. The report is headed " Council of the City of Sydney ". It then continues, " Director-General's report to the Minister under section 69 of the Environmental Planning and Assessment Act 1979, ...". It contains the following statement ( inter alia): The plan amends Cental Sydney Local Environmental Plan 1996. Council is able to use its section 69 delegation in this instance, as the circumstances of the LEP do not fall within any of the exceptions outlined in 1997 Instrument of Delegation". 73. The report is signed "Greg Maddock, General Manager". In contrast with the section 65 certificate, the General Manager of the council did not purport to sign the section 69 report as a delegate. I accept the respondents' submissions that on its true construction the General Manager signed the report not as a delegate but as the council's agent. A corporate body such as a local government council can validly act through the agency of its servants or officers and when that is done the task is taken to have been exercised by the corporate body. (See, for example, Minister for Aboriginal Affairs v Peko-Wallsend Limited (1996) 162 CLR 24 at 37-38, McRae v Coulton (1986) 7 NSWLR 644 at 633). The General Manager has in this case merely signed the document on behalf of the council. I find that he did so as the council's agent and not as its delegate. 74. This conclusion, as well as my conclusion relating to the section 65 certificate, makes it unnecessary to consider the respondents' submissions that reliance can be placed upon an alternative source of power. I extensively discussed the ability to rely upon an available alternative source of power in Holster v Director-General of National Parks and Wildlife [1999] NSWLEC 102, unreported, at paras [86]-[111]. In the Minister v Rosemount Estates Pty Limited (1996) 91 LGERA 31 it was accepted by Cole JA (at 85-89), with whom Handley JA (at 36) and Sheller JA (at 98) agreed, that it is clear law that a mistake in the source of the power works no invalidity; validity depends simply on whether a relevant power existed. Accordingly, if the General Manager of the council purported to exercise power which he did not posses, the availability of an alternative source of power would appear to preserve the validity of both the section 65 certificate and the section 69 report. 75. The applicant further submits that the report failed to inform the Minister of relevant directions under section 117 and of any inconsistency therewith and its impact thereon and its relationship thereto. 76. The report does, however, contain the following statement: The plan is consistent with state environmental planning policies, regional environmental plans and relevant section 117 directions under the Environmental Planning and Assessment Act 1979. 77. The report, in my opinion, thus complies with the requirements of section 69. It contains a statement as required by section 69(a). There being no inconsistency, section 69(b) is irrelevant. The above-mentioned statement also complies, in my opinion, with section 69(d). The relationship is expressed to be one of consistency. The section does not call for each instrument and each relevant Direction to be specifically identified. The position may be otherwise, however, in the event of an inconsistency. 78. The applicant further asserts that the section 69 report is itself defective in that it did not discuss the relationship between the incorporated provisions and the draft plan nor the reasons for the non-involvement of the public in the amendment of the plan from the draft that was exhibited or the reasons therefor. 79. The report was not, in my opinion, defective. It does not seem to me that there was any need to discuss the relationship between the incorporated provisions and the draft plan. As noted above, almost every environmental planning instrument which contains a prohibition on development would derogate from the incorporated provisions. If a particular applicant for development is entitled to rely on the incorporated provisions, then the provisions of the environmental planning instrument which derogate therefrom would simply have no force or effect in relation to that development. The question of whether any particular applicant for development consent is entitled to rely upon the incorporated provisions is, of course, dependent upon the particular facts in each case. Again, an alteration may be made to a draft local environmental plan after it has been publicly exhibited without the need for re-exhibition (EP&A Act, section 68 (3)(3A)(3B), Vanmeld v Fairfield City Council (1999) 46 NSWLR 78). The section 69 report in this case identifies the amendments to the draft plan which was exhibited, including a short statement of the reasons for each amendment. 80. Finally, on the question of the section 69 report, the applicant asserts that at the time the report was prepared and furnished to the Minister there had been no compliance with sections 62 and 68. It is to those questions that I now turn. Section 62(a): Consultation with Public Authorities

81. Section 62(a) of the EP&A Act relevantly provides:

In the preparation of an environmental study or a draft local environmental plan, the council shall consult with: a) such public authorities or bodies (including authorities of the Commonwealth or other States) as, in its opinion, will or may be affected by that draft local environmental plan, ... 82. The applicant submits that there was no consultation with public authorities in the preparation of the draft local environmental plan. 83. The applicant identified two authorities with which no consultation took place, namely, the Environment Protection Authority and the New South Wales Department of Transport. In the applicant's submission the council must have been of the opinion that the Environment Protection Authority and the New South Wales Department of Transport will or may be affected by the draft plan, because consultation took place with those bodies after 19 January 1999 when the section 65 certificate was issued. 84. The preparation of the draft plan in this case was, however, an ongoing process. Following the consultation with the authorities described above an amended draft plan was prepared, re-advertised and circulated. In my opinion, there was no infringement of section 62(a). Section 62(b): Consultation with an adjoining councils 85. Section 62(b) of the EP&A Act provides:

In the preparation of an environmental study or a draft local environmental plan, the council shall consult with: ... (b) where the draft local environmental plan applies to land adjoining a boundary between the council's area and another area- the council of that other area,... 86. The applicant submits that there was no consultation with Leichhardt Council as required by section 62(b). 87. Clause 3 of the LEP states: Land to which this plan applies. This plan applies to all land situated in the City of Sydney to which Central Sydney Local Environmental Plan 1996 applies. 88. There is no evidence before me to show that the land to which the Central Sydney Local Environmental Plan 1996 applies adjoins a boundary between the council's area and another area. I assume that the Central Sydney Local Environmental Plan does not apply to the whole of the Sydney City Council's area. I have judicial notice, for example, that an entirely separate local environmental plan applies to the Ultimo-Pyrmont area within the City of Sydney, which area lies between Central Sydney and the area of Leichhardt Council. In the absence of any evidence showing that section 62(b) is relevant then I am unable to accept this submission. Section 68(1): Whether there should have been a hearing 89. Section 68(1) of the EP&A Act provides: (1) Where: (a) a person making a submission so requests, and (b) the council considers that the issues raised in a submission are of such significance that they should be the subject of a hearing before the council decides whether and, if so, what alterations should be made, the council shall, in the prescribed manner, arrange a public hearing in respect of the submission. 90. On 31 May 1999 Wilson Parking Australia 1992 Pty Limited made a submission that the council " ought to invoke the procedures under section 119 in the Environmental Planning and Assessment Act, and cause a full and public hearing to be conducted ." (Section 119 provides that the Minister may direct that an inquiry be held by a Commission of Inquiry.) 91. The applicant submits that section 68(1) imposes on the council the duty of considering whether the issues raised in a submission are of such significance that they should be the subject of a hearing. The applicant submits that the council did not discharge that duty: it dealt with it on the basis that there was only a request for section 119 inquiry and did not regard it as a request for a public hearing in respect of the submission. The applicant further submits that details of the submission were not submitted to the Director as required by section 68(4)(a), nor in the report furnished pursuant to section 69. 92. A detailed summary of all the submissions was set out in a report prepared for a special planning committee of the council. The request for an inquiry under section 119 of the EP&A Act was noted in the report, but clearly was not adopted by the council. 93. In my opinion, the applicant's submission is misconceived. Wilson Parking Australia 1992 Pty Limited did not request a public hearing under section 68(1) of the Act. It sought only an inquiry under section 119. That much is plain from the use in the submission of the conjunction " and " rather than disjunctive " or " in its submission, noted above. There would be no point in holding both an inquiry under section 119 and a public hearing. They both perform a similar role. Moreover, an inquiry under section 119 is called by the Minister, not by the council. Even if I am wrong and Wilson Parking Australia Pty Limited did request a public hearing under section 68(1), the council had to consider whether the issues raised in its submission are of such significance that they should be the subject of such a hearing. The applicant conceded that there is no right to a hearing. It follows that I do not consider that there has been any breach of section 68(1). 94. I reject the applicant's assertion that the council did not comply with section 68(4)(a) for the reasons set out in paragraph 97 below. Moreover, a report setting out all the submissions was sent to the Minister by the council's General Manager, Mr Maddock, with the section 69 report. Section 68(4): Matters to be submitted to the Director 95. Section 68(4) of the EP&A Act provides as follows:

(4) The council shall, subject to and except as may be provided by the regulations, submit to the Director: (a) details of all submissions, (b) the report of any public hearing, (c) the draft local environmental plan and the reasons for any alterations made to the plan pursuant to subsection (3) and (d) a statement: (i) to the effect that the provisions of section 66 and 67 and this section relating to public involvement in the preparation of the draft plan have been complied with (ii) specifying the environmental planning instruments and directions under section 117 that have been taken into consideration. (iii) giving details of any inconsistency between the draft plan and any instrument or direction referred to in subparagraph (ii) and the reasons justifying the inconsistency, and (iv) giving details of the reasons justifying the exclusion of provisions of the draft plan under subsection (5) or the exclusion from the application of the draft plan of any land under that subsection. 96. The applicant submits that the council did not prepare or submit to the Director the matters required by section 68(4). It is alleged that the council did not submit to the Director details of all submissions as required by para (4)(a); that no statement was furnished which refers to the reasons why the draft plan was altered so as to make compliance with a development control plan mandatory as required by para 4 (c); that there was no statement as required by para (4)(d); that in particular, there is no statement which specifies the environmental planning instruments and directions under section 117 that have been taken into consideration; and there was no statement referring to the failure to comply with section 62 or section 68(1). 97. The facts, however, do not support the applicant's assertions. On 18 June 1999 the council sent to the secretary of the Department of Urban Affairs and Planning three copies of a report dated 11 June 1999 prepared by Mr D Snoswell, a specialist research planner employed by the council. It can be presumed that the Director received the report (section 34(3)). The council's letter which accompanied the report refers to the fact that on 15 June 1999 the council resolved to adopt the draft plan and intended to exercise its delegation under section 69 of the Act. The report contains all the matters to which section 68(4) refers. In particular, details of all submissions are set out (in paras 26-91 and in attachment C) as required by section 68(4)(a); there was no failure to comply with section 62 or section 68(1)(b) as there was no public hearing to which section 68(4)(b) refers; the draft plan was an amendment and the reasons for alteration to the draft plan are set out in the report, the alterations being identified (in paras 92-97) as required by section 68(4)(c); a statement to the effect that section 66 and 67 had been complied with is set out (in paras 102-105) as required by section 68(4)(d)(i); the environmental planning instruments that have been taken into consideration are set out (in para 1(a)) as required by section 68(4)(d)(ii); no inconsistency between the draft plan and any environmental planning instrument or direction under section 117 has been identified by the applicant so as to require comment under section 68(4)(d)(iii); and, section 68(4)(d)(iv) does not arise in this case. In the absence of any relevant section 117 direction identified by the applicant and to which section 68(4)(d)(iii) might apply I am entitled, in the absence of any evidence to the contrary, to rely on the statutory presumption of regularity (section 34(3)). The report furnished under section 69 of the Act, as noted above, contained a statement, however, that the plan is consistent with state environmental planning policies, regional environmental plans and relevant section 117 directions under the Act. Section 70: The making of the LEP 98. The applicant submits that the Minister made the LEP in breach of the section 70. That section relevantly provides that after considering the Director's report made under section 69, the Minister may make a local environmental plan. In support of the submission that the Minister made the LEP in breach of section 70 the applicant relies upon its various contentions for invalidity discussed above. The applicant's submission depends upon an acceptance of one or more of those contentions. Since it has not established any of them then this ground must also fail. Conclusion and orders 99. For the foregoing reasons the applicant's claim for relief must be refused. Since none of the applicant's contentions have been successful it would normally follow that the applicant should pay the respondents' costs. Because the question of costs was not argued, however, I should reserve that question. 100. I make the following orders: 1. The application is dismissed. 2. I reserved the question of costs. 3. The exhibits may be returned.

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.

`...Thirdly, the same principle - namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed. In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken. The same principle of setting parties' rights to rest applies and estoppel occurs.'

This is the principle that was affirmed by Dixon J in Blair v Curran, and by Diplock LJ, as he then was, in Fidelitas Shipping Co Ltd v V/O Exportcheler [1966] 1 QB 630 at 649; [1965] 2 All ER 4 at 14.

22 In Re Wakim, Gummow and Hayne JJ expressed the view (at 591-592) that even if in the circumstances of a particular case there is no estoppel, the court should not allow a procedural indulgence to permit a party to reagitate an issue raised in earlier proceedings and to do so by instituting a different proceeding.

23 The conclusion to be drawn from the above-mentioned authorities is that the applicant is bound by a point, taken or assumed by it, which was a groundwork of or fundamental to the decision, though not being directly the point in issue. Such matter cannot be raised or questioned in the later proceedings.

24 In the present case the applicant is seeking to raise a point which could not be decided in its favour consistently with the decision in the previous case. It being assumed, in the first case, that the local environmental plan and, in particular, clause 48A, were valid means that the question of validity cannot be raised in these proceedings.

25 It remains to consider, however, the judgment of Stein J in Rosemount v The Minister. In that case Stein J (at 32) noted the purely private law origins of Anshun and said that it has little relevance to public law and to proceedings such as those brought under section 123 of the EP&A Act. Stein J went on to say (at 32):

In my opinion, the Anshun estoppel principle is inapplicable to the applicants' claim that the environmental impact statement is invalid. This is primarily because the principle has no application to public law proceedings under `open standing' provisions in the environmental legislation such as s 123 of the Act.

26 I am thus faced with a conflict between the principles explained by the High Court and the Court of Appeal in the cases described above and, on the other hand, a judgment of a single judge of this Court (as he then was). The judgments of the High Court and the judgment of the Court of Appeal to which I have referred make no distinction between private and public litigation. I accept, however, that the open standing provisions of the EP&A Act did not exist until 1979, so it might not have been expected that the High Court would have such considerations in mind. But the open-standing provisions of the EP&A Act would certainly have been known to the members of the Court of Appeal who decided Cauchia v Isaacs. The judgments of the High Court (and the judgment of the Court of Appeal) set out principles of general application and are, of course, binding upon me: the judgment of Stein J is not.

27 It is apparent, however, that Rosemount is distinguishable from the present case on its facts. In that case the applicants claimed, inter alia, that a development consent was invalid because an environmental impact statement was not a valid environmental impact statement for the purposes of the Act and Regulation. The respondents had pleaded that the applicants were estopped from so alleging, or that the claim was an abuse of process. After referring to the principle in Anshun, Stein J said (at 32):

One reason for the principle is the desire to avoid conflicting judgments. No such conflict arises in the present case. The validity of Mr Cleland's report did not rest on the environmental impact statement's validity. A finding that the environmental impact statement is invalid would not be inconsistent with the judgment of Waddell AJ. The subject matter of the two cases is different. The first was concerned with the report of Mr Cleland and the second with the validity of State Environmental Planning Policy No.45 and the decision to grant development consent.

28 It follows that the views of Stein J which I have set out in paragraph 25 above are obiter. I continue to be bound, therefore, by the principles explained in the judgments of the High Court and the Court of Appeal to which I have referred.

29 In the present case, in contrast to the facts in Rosemount, a matter which formed the groundwork of and thus a fundamental matter for the decision of Talbot J was taken or assumed by the applicant to be valid. It is irrelevant that the validity of the instrument (or of clause 48A) was not directly the point in issue. The matter was taken or assumed by the applicant to be valid and was not traversed by it. That is to say, it was assumed that both the local environmental plan and clause 48A in particular were valid.

30 Moreover, Stein J does not refer to the judgments in Hoysted, Blair v Curran, Brewer v Brewer, or Cachia v Issacs and which are binding upon me_._. Re Wakim was, of course, decided after Stein J's judgment in Rosemount.

31 I conclude, therefore, that the applicant is precluded from raising in these proceedings the validity of the local environmental plan or of clause 48A of that local environmental plan.

32 This conclusion makes it unnecessary to consider the attacks upon the validity of the local environmental plan and upon clause 48A in particular. I have hesitated over whether I should express my views thereon. As the parties have fully argued the matter, however, it may be helpful to them if I do so.

Inconsistency with Part 4, Division 10 of the Act

33 Central Sydney Local Environmental Plan 1996 (Amendment No. 9) - Public Car Parking (which I shall call the LEP) introduced a new clause 48A into the Central Sydney Local Environmental Plan 1996.

General prohibition against provision of public car parking

a) The carrying out of development for the purpose of providing public car parking is prohibited on all land within central Sydney, except as provided in subclause (2), (3), (4) or (5).

b) Consent may be granted for public car parks on land where no public car park already exists, but only where the consent authority is satisfied:

i) that the public car parking directly services major retail, cultural, recreational or entertainment uses which, in the opinion of the consent authority, are not reasonably serviced by public transport (either existing or planned) or existing public car parking; and

c) Consent may be granted to development for the purpose of converting existing tenant car parking that is in excess of the maximum number of parking spaces allowed by clause 48(1) into public car parking, but only if the consent authority is satisfied as to the criteria set out in subclause (6)

d) The prohibition against public car parking contained in subclause (1) does not apply to land:

i) on which a public car park already lawfully exists; or

ii) in respect of which a development consent for a public car park is current.

e) Consent may be granted for the erection of, demolition of, or making of additions that (in the opinion of the consent authority) are substantial to, a building located on land on which a public car park already lawfully exists, but only if the consent authority is satisfied that any public car park within the development:

i) satisfies the criteria set out in subclause (6); and

ii) does not result in more public car parking spaces on the land than already lawfully exist; and

iii) does not exceed the floor space area of the existing public car park.

f) The criteria referred to in subclauses (2), (3) and (5) are that the public car park:

i) does not prejudice attaining the objectives of this Part; and

ii) does not encourage commuter car parking nor reduce the proportion of public transport users travelling to the city each day; and

iii) is used for short-stay public car parking only in accordance with the provisions of the Central Sydney Development Control Plan 1996; and

v) is included in the floor space area of the building for the purposes of calculation of floor space ratio; and

vi) is consistent with, and does not compromise, high quality urban design of buildings in the land and adjacent to the land; and

vii) is not likely to cause or increase adverse pedestrian impacts or local or city-wide vehicular traffic impact; and

viii) in the opinion of the consent authority, is not likely to cause or contribute to an unacceptable level of vehicle saturation of intersections in the vicinity, or an unacceptable reduction of environmental capacity of roads in the vicinity, of the public car park.

35. Mr Hemmings QC submits that clause 48A purports to deny rights granted by Division 10 of Part 4 of the EP&A Act relating to uses which lawfully exist, so that the clause is, for that reason, void.

36. Division 10 of Part 4 of the EP&A Act relates to existing uses. It allows the continuance of existing uses, that is to say, lawful uses which become prohibited upon the coming into force of an environmental planning instrument (sections 106 and 107). It also allows the continuance of uses which are lawful immediately before the coming into force of an environmental instrument which has the effect of preventing such uses except with development consent (section 109). Section 108(1) enables the making of regulations for the carrying out of alterations or extensions to a building or work being used for an existing use, for the change of an existing use to another use and for the enlargement, expansion or intensification of an existing use. Such regulations (referred to as "the incorporated provisions") are taken to be incorporated in every environmental planning instrument (section 108(2)). Regulations have been made pursuant to section 108(1) (Part 5 of Environmental Planning and Assessment Regulation 1994). An environmental planning instrument may contain provisions extending, expanding or supplementing the incorporated provisions, but any provision in such an instrument that would derogate or have the effect of derogating from the incorporated provisions has no force or effect while the incorporated provisions remain in force (section 108(2)).

37. In Carden v Willoughby Municipal Council (1985) 56 LGERA 366, Kirby P said that "derogation" involves, relevantly, nothing more than "taking away from" or "detracting from" that which would otherwise exist. In the same case Mahoney JA (with whom McHugh JA agreed) noted (at 371) that the incorporated provisions are incorporated into every environmental planning instrument; and further said (at 372) that if a clause in an environmental planning instrument operated to restrict the council's power or duty to give consent under the incorporated provisions, then such clause would have "no force or effect" whilst the incorporated provisions remain in force.

38. Mr Hemmings submits that clause 48A is in terms a prohibition on the use of land for public car parking. This was held by Talbot J to be its primary objective: "The primary objective of clause 48A is to prohibit the carrying out of development for the purpose of providing public car parking". (Multistar Pty Limited v Sydney City Council, at para [169]). I am not prepared to depart from this finding of Talbot J.

39. In Mr Hemmings' submission, sub-clause (4) of clause 48A does not properly operate as an exception because it is redundant surplusage and has no work to do. The sub-clause merely restates the law contained in Division 10 of Part 4 of the Act. I agree. Moreover, sub-clauses (2), (5) and (6) effectively derogate from the incorporated provisions and so have "no force or effect" in the case of an existing use. Those sub-clauses take away from or detract from the incorporated provisions.

40. I do not agree, however, that these considerations mean that clause 48A is void. By sub-section (3) of section 108, any provisions of an environmental planning instrument which would derogate or have the effect of derogating from the incorporated provisions would simply have "no force or effect" while the incorporated provisions remain in force.

41. Almost every provision of every environmental planning instrument would derogate or have the effect of derogating from the incorporated provisions. That does not make such provisions of an environmental planning instrument void. Neither does sub-section (3) of section 108 make such provisions void. They continue to serve a purpose where development is sought on land upon which there is no existing use. If the applicant in this case, or any other landowner within the City of Sydney, is able to show that a use of land is an existing use, then the incorporated provisions would automatically apply to such use. Those provisions of clause 48A which derogate from the incorporated provisions would simply then have no force or effect in relation to that land. But that does not make clause 48A void. The clause would continue to have force and effect in relation to land upon which there is no existing use. I note that the applicant did not contend before Talbot J that it had existing use rights in relation to the Kent Street Parking Station. Mr Hemmings' argument is syllogistic, but that does not make it right.

A Development Control Plan with mandatory effect

42. Sub-clause 6(c) of clause 48A purports to make the provisions of a development control plan ("DCP") mandatory and binding on the consent authority. Mr Hemmings submits that this is contrary to the EP&A Act.

43. Section 72 of the EP&A Act enables the council to make a DCP. A DCP is not an environmental planning instrument. (See the definition of environmental planning instrument: section 4). A DCP thus does not have the force of a statutory rule. The effect of sub-clause 6(c) is to give it the force of a statutory rule: "...only in accordance with the provisions of the Cental Sydney Development Control Plan 1996." The consequence is that compliance with the DCP is an absolute requirement rather than a discretionary requirement. Mr Hemmings submits that it is unlawful for an environmental planning instrument to make compliance with a DCP mandatory (citing Big Country Developments v Penrith City Council (1998) 98 LGERA 194).

44. Big Country Developments is not, however, an authority for the proposition for which Mr Hemmings contends. That case does not decide that it is unlawful for an environmental planning instrument to give mandatory effect to the provisions of a DCP by incorporating the provisions of the DCP into the instrument.

45. There is no general principle that a power to make a by-law or regulations may not be exercised by referring to some other document and incorporating or applying it, provided that what is referred to is sufficiently certain (Dainford Limited v Smith [1985] HCA 23; (1985) 155 CLR 342 at 348, per Gibbs CJ, applying Wright v T.I.L. Services Pty Limited [1956] 56 SR (NSW) 413).

46. In Wright v T.I.L. Services Pty Limited , the validity of a regulation, regulation 35, made under the Inflammable Liquid Act 1915 was in issue. Regulation 35(d) was relevantly as follows:

(d) Electrical devices, including wiring and switches, shall comply with the relevant rules of the Standards Association of Australia relating to electrical equipment in hazardous locations, ...

47. Walsh J (with whom Herron J agreed) referred (at 421) to a contention that there was a failure to comply with the requirement of the Act that all regulations shall be published in the Gazette and the power to make regulations cannot be validly exercised if something which is not set forth therein is incorporated by reference. Walsh J then continued:

The general proposition that in no circumstances can a regulation incorporate by reference something not set forth in it is, in my opinion, unsound. It is true that a regulation should indicate with sufficient certainty, to those upon whom it imposes a penalty for a breach of it, what is the extent of the obligation. Where a regulation contains a reference to some other document the question of whether or not the requirement just stated is fulfilled must depend upon a consideration of the particular regulation and of the nature and contents of the incorporated document. If there is uncertainty as to what is the document to which reference is made , no doubt the regulation would be held invalid.

48. In Moore v Penrith City Council (NSWLEC, 20 July 1993, unreported) Talbot J considered a clause in a local environmental plan which stated:

12(1) Subject to this clause, the council shall not consent to any development on land to which this plan applies unless the type and location of development is generally in accordance with any development control plan applying to the land.

49. Talbot J held that the clause was made in recognition of the fact that the council may make development control plans specifying the type and location of development. His Honour then continued (at page 13):

Clause 12 of LEP 188 gives additional force and effect to the provisions of the DCP. Once the council validly makes a DCP that applies to the land in the zone then it is the LEP that gives the DCP imperative force in respect of the type and location of the development. It is in this way that the controls expressed in the Major Landuse DCP as guidelines in relation to type and location of development have been enhanced in status by the LEP to a level beyond mere guidelines.

50. Talbot J went on to say that it is the effect of clause 12(1) of the local environmental plan to prohibit development unless the type and location is generally in accordance with any development control plan applying to the land. Talbot J held that because the particular development in that case was not generally in accordance with the development control plan, the consequence was that the proposed development was prohibited by the local environmental plan.

51. The conclusion to be drawn from the cases discussed above is that, absent any authority to the contrary, is not unlawful for an environmental planning instrument to give mandatory effect to a development control plan in the manner which clause 48A(6)(c) does in the present case.

52. That is no more than a short-hand way of repeating in an environmental planning instrument the express provision of the DCP. In another way, it is no different to repeating verbatim in the environmental planning instrument each of the express provisions of the DCP. As the cases of Dainford Limited v Smith, Wright v T.I.L. Services Pty Limited and Moore v Penrith City Council show, if it was the intention of the environmental planning instrument to incorporate another document by reference and thereby make it absolute requirement then there seems to be nothing unlawful in achieving that purpose in the manner provided by sub-clause 6(c) of clause 48A in this case. It is the same as a regulation which makes the relevant rule of the Standards Association of Australia an absolute requirement, as in Wright v T.I.L. Services Pty Limited. In the absence of any authority to the contrary, I would not be inclined to find that there is an invalidity in this case.

53. In seems clear, however, that the DCP itself, or at least section 5.2 of the DCP, which relates to short stay public parking, is beyond power and is for that reason void. A DCP may only provide for matters for which a local environmental plan may provide (Environmental Planning and Assessment Regulation 1994, clause 16). The matters for which a local environmental plan may provide are set out in section 26 of the EPA&A Act. Section 5.2 of the DCP purports to control privately owned public car parking by way of specifying the fee structure to be applied. There is nothing in section 26 which enables the making of a local environmental plan to control the fee structure to be applied to privately owned commercial car parking stations or, for that matter, to any other activity. That is not something which local government councils may control or regulate either through development control plans or otherwise. It may be a matter which might be subject to control under the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987. Neither of those statutes, of course, have anything to do with land use and planning. Section 5.2 of the DCP in this case relates to matters for which for which a local environmental plan may not provide. The applicant does not, however, seek any relief in relation to the DCP itself: it seeks only to strike down the LEP or, alternatively, clause 48A of the LEP. As Mr Hemmings said in his submissions: "The provisions in this DCP are draconian and we say not only harsh but ultra vires in that they impose provisions for the charges to be paid. We don't in these proceedings seek to challenge that but merely draw attention to it..."

54. The next matter is the submission by Mr Hemmings that when the then draft amendment to the Central Sydney Local Environmental Plan 1996 (and which became Amendment No. 9) was publicly exhibited and again re-exhibited it was proposed that the control by way of requiring public parking stations to be for "short-stay" car parking was to be by way of a DCP. As I understand the submission, by making the provisions of the DCP an absolute requirement by way sub-clause 6(c) of clause 48A, there was a significant unexhibited change as to which the applicant (and the public) had a legitimate expectation to be notified and be afforded an opportunity to be heard.

55. In Mr Hemmings' submission the council exercised its policy of inviting submissions on the draft LEP: the applicant and others responded by making submissions; the applicant had a reasonable expectation that an opportunity would be afforded to make submissions on any significant unexhibited changes to the draft LEP; and the applicant was thereby denied procedural fairness.

56. Section 66 of the EP&A Act requires a council publicly exhibit any draft local environmental plan. Section 67 allows any person to make submissions in writing to the council with respect to the provisions of a draft local environmental plan which is publicly exhibited. Section 68(3) allows the council to make any alteration it considers necessary to the draft local environmental plan arising from its consideration of submissions. Sub-sections (3A) and (3B) provide:

(3A) An alteration made by a council pursuant to subsection (3) need not relate to a submission.

(3B) The council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3). ...

57. Mr Hemmings concedes that the applicant had no statutory right to be heard in this case. His submission is that the applicant had a reasonable expectation to be heard and hence was denied procedural fairness.

58. I am unable to agree with the submission. In Vanmeld Pty Limited v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78, 101 LGERA 297, it was held by both Meagher and Powell JJA that, except to the extent of the requirements to notify and to consult provided for in the Act, a council seeking to make an environmental planning instrument was not to be subject to any duty to accord procedural fairness to any person, or body, who or which might be affected by the provisions of the proposed instrument. As Meagher JA put it (at 113):

I think the Act specifies exactly to what extent procedural fairness must be accorded to a ratepayer.

59. The judgment of the Court of Appeal in Vanmeld is, of course, binding upon me. It follows that this ground of challenge to the validity of clause 48A fails.

60. The applicant submits that the section 65 certificate, which was signed by Mr G. Maddock, General Manager of the council, was invalid.

(1) Where the Director receives a copy of a draft local environmental plan from a council under section 64, the Director may cause to be issued to the council a certificate certifying that the draft plan may be publicly exhibited in accordance with section 66.

62. By an instrument of delegation dated 14 February 1997, the Director (of the Department of Urban Affairs and Planning) delegated to the council her functions under sections 65(1) and 69 of the Act. On 18 August 1997 the council resolved to delegate its functions under sections 65 and 69 to the General Manager.

63. The section 65 certificate in the present case was signed by Mr Maddock on 19 January 1999 "as delegate of the Director-General of the Department of Urban Affairs and Planning" and "as a delegate of the Council of the City of Sydney, which is the delegate of the Director-General of the Department of Urban Affairs and Planning".

64. The power to delegate the functions of the Director is contained in section 23 of the EP&A Act, which provides that the Director may delegate the Director's functions to a council or to an officer or employee of the council (inter alia). In the applicant's submission the delegation by the council to the General Manager of its functions under sections 65(1) and 69 was unlawful because sub-section (8) of section 23 provides that the section does not authorise the delegation of the power of delegation conferred by that section. As I understand the applicant's submission, when Mr Maddock signed the section 65 certificate he personally exercised the function and did not do so in the name of the council. The certificate was, in the applicant's submission, accordingly invalid.

65. In my opinion, the certificate is not invalid. Sub-section (8) of section 23 of the EP&A Act relevantly states that nothing in this section authorises the delegation of the power of delegation conferred by the section. The power of delegation can, however, be found elsewhere. The body to whom the Director delegated was a creature of statute, namely, the Local Government Act 1993. Section 377(1) of that Act permits a council to delegate any of the functions of the council. The functions of the council include functions conferred or imposed on it by or under any other Act or law (section 22, the Local Government Act 1993). Thus, a function under sections 65(1) or 69 of the EP&A Act delegated to the council under section 23 of that Act is a function to which section 377(1) expressly applies.

66. Section 377(1) of the Local Government Act lists a number of express exceptions to the power of delegation. None of those exceptions refer to the exercise of any power under section 23 (or sections 65 or 69) of the EP&A Act. The Local Government Act is, of course, a later Act than the EP&A Act. If the two Acts are inconsistent then section 377(1) of the Local Government Act impliedly repeals section 23(8) of the EP&A Act (Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337 at 353-354 [9]).

67. In the present case the Director delegated her functions under section 65(1) and 69 of the EP&A Act to the council. The council received these functions under section 22 of the Local Government Act and delegated those functions to its delegate, the General Manager, being functions not excluded by section 377(1). The council has thus validly delegated its functions under sections 65 and 69 to the General Manager. Alternatively, the council by its agent, the General Manager, signed the section 65 certificate.

68. The applicant also submits that the section 65 certificate is void because it is significantly misleading. The certificate relates to a draft local environmental plan referred to in the schedule to the certificate. The schedule states:

Central Sydney Local Environmental Plan 1996 (Draft Amendment No. 9 - Public Car Parking).

The purpose of the Draft Amendment is to limit opportunities for growth in public car parking, reduce over time the amount of commuter related public parking, establish criteria for the assessment of public car parking and restrict the leasing of tenant related car spaces to non-tenants.

69. A fair reading of the instrument, both in its draft form and in its final form, does not, however, lead me to the conclusion that this stated purpose is misleading.

The validity of the section 69 report

70. Section 69 of the EPA&A act provides as follows:

The Director shall furnish a report to the Minister as to:

a) whether the draft local environmental plan submitted under section 68(4) is inconsistent with any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft plan applies,

b) if there is such an inconsistency - whether the inconsistency is justifiable in the circumstances,

c) whether the provisions of section 66, 67 and 68 relating to public involvement in the preparation of the draft plan have been complied with,

d) the relationship between the draft plan, and other proposed and any existing environmental planning instruments, and any relevant directions under section 117, applying to the land to which the draft plan applies,

71. As noted above, the Director delegated to the council her functions under sections both 65(1) and 69 of the Act.

72. The applicant submits that the document described as a section 69 report was not furnished by the council but by Mr Maddock, the General Manager. The report is headed "Council of the City of Sydney". It then continues, "Director-General's report to the Minister under section 69 of the Environmental Planning and Assessment Act 1979, ...". It contains the following statement (inter alia):

The plan amends Cental Sydney Local Environmental Plan 1996. Council is able to use its section 69 delegation in this instance, as the circumstances of the LEP do not fall within any of the exceptions outlined in 1997 Instrument of Delegation".

73. The report is signed "Greg Maddock, General Manager". In contrast with the section 65 certificate, the General Manager of the council did not purport to sign the section 69 report as a delegate. I accept the respondents' submissions that on its true construction the General Manager signed the report not as a delegate but as the council's agent. A corporate body such as a local government council can validly act through the agency of its servants or officers and when that is done the task is taken to have been exercised by the corporate body. (See, for example, Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1996) 162 CLR 24 at 37-38, McRae v Coulton (1986) 7 NSWLR 644 at 633). The General Manager has in this case merely signed the document on behalf of the council. I find that he did so as the council's agent and not as its delegate.

74. This conclusion, as well as my conclusion relating to the section 65 certificate, makes it unnecessary to consider the respondents' submissions that reliance can be placed upon an alternative source of power. I extensively discussed the ability to rely upon an available alternative source of power in Holster v Director-General of National Parks and Wildlife [1999] NSWLEC 102, unreported, at paras [86]-[111]. In the Minister v Rosemount Estates Pty Limited [1996] NSWSC 348; (1996) 91 LGERA 31 it was accepted by Cole JA (at 85-89), with whom Handley JA (at 36) and Sheller JA (at 98) agreed, that it is clear law that a mistake in the source of the power works no invalidity; validity depends simply on whether a relevant power existed. Accordingly, if the General Manager of the council purported to exercise power which he did not posses, the availability of an alternative source of power would appear to preserve the validity of both the section 65 certificate and the section 69 report.

75. The applicant further submits that the report failed to inform the Minister of relevant directions under section 117 and of any inconsistency therewith and its impact thereon and its relationship thereto.

76. The report does, however, contain the following statement:

The plan is consistent with state environmental planning policies, regional environmental plans and relevant section 117 directions under the Environmental Planning and Assessment Act 1979.

77. The report, in my opinion, thus complies with the requirements of section 69. It contains a statement as required by section 69(a). There being no inconsistency, section 69(b) is irrelevant. The above-mentioned statement also complies, in my opinion, with section 69(d). The relationship is expressed to be one of consistency. The section does not call for each instrument and each relevant Direction to be specifically identified. The position may be otherwise, however, in the event of an inconsistency.

78. The applicant further asserts that the section 69 report is itself defective in that it did not discuss the relationship between the incorporated provisions and the draft plan nor the reasons for the non-involvement of the public in the amendment of the plan from the draft that was exhibited or the reasons therefor.

79. The report was not, in my opinion, defective. It does not seem to me that there was any need to discuss the relationship between the incorporated provisions and the draft plan. As noted above, almost every environmental planning instrument which contains a prohibition on development would derogate from the incorporated provisions. If a particular applicant for development is entitled to rely on the incorporated provisions, then the provisions of the environmental planning instrument which derogate therefrom would simply have no force or effect in relation to that development. The question of whether any particular applicant for development consent is entitled to rely upon the incorporated provisions is, of course, dependent upon the particular facts in each case. Again, an alteration may be made to a draft local environmental plan after it has been publicly exhibited without the need for re-exhibition (EP&A Act, section 68 (3)(3A)(3B), Vanmeld v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78). The section 69 report in this case identifies the amendments to the draft plan which was exhibited, including a short statement of the reasons for each amendment.

80. Finally, on the question of the section 69 report, the applicant asserts that at the time the report was prepared and furnished to the Minister there had been no compliance with sections 62 and 68. It is to those questions that I now turn.

Section 62(a): Consultation with Public Authorities

81. Section 62(a) of the EP&A Act relevantly provides:

In the preparation of an environmental study or a draft local environmental plan, the council shall consult with:

a) such public authorities or bodies (including authorities of the Commonwealth or other States) as, in its opinion, will or may be affected by that draft local environmental plan, ...

82. The applicant submits that there was no consultation with public authorities in the preparation of the draft local environmental plan.

83. The applicant identified two authorities with which no consultation took place, namely, the Environment Protection Authority and the New South Wales Department of Transport. In the applicant's submission the council must have been of the opinion that the Environment Protection Authority and the New South Wales Department of Transport will or may be affected by the draft plan, because consultation took place with those bodies after 19 January 1999 when the section 65 certificate was issued.

84. The preparation of the draft plan in this case was, however, an ongoing process. Following the consultation with the authorities described above an amended draft plan was prepared, re-advertised and circulated. In my opinion, there was no infringement of section 62(a).

Section 62(b): Consultation with an adjoining councils

In the preparation of an environmental study or a draft local environmental plan, the council shall consult with:

(b) where the draft local environmental plan applies to land adjoining a boundary between the council's area and another area- the council of that other area,...

86. The applicant submits that there was no consultation with Leichhardt Council as required by section 62(b).

This plan applies to all land situated in the City of Sydney to which Central Sydney Local Environmental Plan 1996 applies.

88. There is no evidence before me to show that the land to which the Central Sydney Local Environmental Plan 1996 applies adjoins a boundary between the council's area and another area. I assume that the Central Sydney Local Environmental Plan does not apply to the whole of the Sydney City Council's area. I have judicial notice, for example, that an entirely separate local environmental plan applies to the Ultimo-Pyrmont area within the City of Sydney, which area lies between Central Sydney and the area of Leichhardt Council. In the absence of any evidence showing that section 62(b) is relevant then I am unable to accept this submission.

Section 68(1): Whether there should have been a hearing

(a) a person making a submission so requests, and

(b) the council considers that the issues raised in a submission are of such significance that they should be the subject of a hearing before the council decides whether and, if so, what alterations should be made,

the council shall, in the prescribed manner, arrange a public hearing in respect of the submission.

90. On 31 May 1999 Wilson Parking Australia 1992 Pty Limited made a submission that the council "ought to invoke the procedures under section 119 in the Environmental Planning and Assessment Act, and cause a full and public hearing to be conducted." (Section 119 provides that the Minister may direct that an inquiry be held by a Commission of Inquiry.)

91. The applicant submits that section 68(1) imposes on the council the duty of considering whether the issues raised in a submission are of such significance that they should be the subject of a hearing. The applicant submits that the council did not discharge that duty: it dealt with it on the basis that there was only a request for section 119 inquiry and did not regard it as a request for a public hearing in respect of the submission. The applicant further submits that details of the submission were not submitted to the Director as required by section 68(4)(a), nor in the report furnished pursuant to section 69.

92. A detailed summary of all the submissions was set out in a report prepared for a special planning committee of the council. The request for an inquiry under section 119 of the EP&A Act was noted in the report, but clearly was not adopted by the council.

93. In my opinion, the applicant's submission is misconceived. Wilson Parking Australia 1992 Pty Limited did not request a public hearing under section 68(1) of the Act. It sought only an inquiry under section 119. That much is plain from the use in the submission of the conjunction "and" rather than disjunctive "or" in its submission, noted above. There would be no point in holding both an inquiry under section 119 and a public hearing. They both perform a similar role. Moreover, an inquiry under section 119 is called by the Minister, not by the council. Even if I am wrong and Wilson Parking Australia Pty Limited did request a public hearing under section 68(1), the council had to consider whether the issues raised in its submission are of such significance that they should be the subject of such a hearing. The applicant conceded that there is no right to a hearing. It follows that I do not consider that there has been any breach of section 68(1).

94. I reject the applicant's assertion that the council did not comply with section 68(4)(a) for the reasons set out in paragraph 97 below. Moreover, a report setting out all the submissions was sent to the Minister by the council's General Manager, Mr Maddock, with the section 69 report.

Section 68(4): Matters to be submitted to the Director

95. Section 68(4) of the EP&A Act provides as follows:

(4) The council shall, subject to and except as may be provided by the regulations, submit to the Director:

(c) the draft local environmental plan and the reasons for any alterations made to the plan pursuant to subsection (3) and

(i) to the effect that the provisions of section 66 and 67 and this section relating to public involvement in the preparation of the draft plan have been complied with

(ii) specifying the environmental planning instruments and directions under section 117 that have been taken into consideration.

(iii) giving details of any inconsistency between the draft plan and any instrument or direction referred to in subparagraph (ii) and the reasons justifying the inconsistency, and

(iv) giving details of the reasons justifying the exclusion of provisions of the draft plan under subsection (5) or the exclusion from the application of the draft plan of any land under that subsection.

96. The applicant submits that the council did not prepare or submit to the Director the matters required by section 68(4). It is alleged that the council did not submit to the Director details of all submissions as required by para (4)(a); that no statement was furnished which refers to the reasons why the draft plan was altered so as to make compliance with a development control plan mandatory as required by para 4 (c); that there was no statement as required by para (4)(d); that in particular, there is no statement which specifies the environmental planning instruments and directions under section 117 that have been taken into consideration; and there was no statement referring to the failure to comply with section 62 or section 68(1).

97. The facts, however, do not support the applicant's assertions. On 18 June 1999 the council sent to the secretary of the Department of Urban Affairs and Planning three copies of a report dated 11 June 1999 prepared by Mr D Snoswell, a specialist research planner employed by the council. It can be presumed that the Director received the report (section 34(3)). The council's letter which accompanied the report refers to the fact that on 15 June 1999 the council resolved to adopt the draft plan and intended to exercise its delegation under section 69 of the Act. The report contains all the matters to which section 68(4) refers. In particular, details of all submissions are set out (in paras 26-91 and in attachment C) as required by section 68(4)(a); there was no failure to comply with section 62 or section 68(1)(b) as there was no public hearing to which section 68(4)(b) refers; the draft plan was an amendment and the reasons for alteration to the draft plan are set out in the report, the alterations being identified (in paras 92-97) as required by section 68(4)(c); a statement to the effect that section 66 and 67 had been complied with is set out (in paras 102-105) as required by section 68(4)(d)(i); the environmental planning instruments that have been taken into consideration are set out (in para 1(a)) as required by section 68(4)(d)(ii); no inconsistency between the draft plan and any environmental planning instrument or direction under section 117 has been identified by the applicant so as to require comment under section 68(4)(d)(iii); and, section 68(4)(d)(iv) does not arise in this case. In the absence of any relevant section 117 direction identified by the applicant and to which section 68(4)(d)(iii) might apply I am entitled, in the absence of any evidence to the contrary, to rely on the statutory presumption of regularity (section 34(3)). The report furnished under section 69 of the Act, as noted above, contained a statement, however, that the plan is consistent with state environmental planning policies, regional environmental plans and relevant section 117 directions under the Act.

98. The applicant submits that the Minister made the LEP in breach of the section 70. That section relevantly provides that after considering the Director's report made under section 69, the Minister may make a local environmental plan. In support of the submission that the Minister made the LEP in breach of section 70 the applicant relies upon its various contentions for invalidity discussed above. The applicant's submission depends upon an acceptance of one or more of those contentions. Since it has not established any of them then this ground must also fail.

99. For the foregoing reasons the applicant's claim for relief must be refused. Since none of the applicant's contentions have been successful it would normally follow that the applicant should pay the respondents' costs. Because the question of costs was not argued, however, I should reserve that question.