Newland Developers Pty Ltd v Tweed Shire Council

Judgment

1. COMMISSIONER: Pottsville is a small town on the North Coast of New South Wales. As such it is an attractive place to live both for retirees and in more recent times young families.
2. It is the educational needs of the growing younger population which is at the heart of this case.
3. Within the aptly named Seabreeze Estate is the parcel of land being Lot 1474 Deposited Plan 1215252 (the Site) on the equally aptly named Seabreeze Boulevard. Seabreeze Estate has been developed over almost 20 years producing approximately 590 residential lots, shops, roads and open space including sports fields.
4. The Site has an area of 6.27ha and is identified in the relevant Development Control Plan as "potential school site".
5. The Applicant made a Development Application (DA 18/0133) (the DA) for the subdivision of the Site into 68 residential lots in addition to public reserves and drainage reserves. If the DA is approved and the residential subdivision of the Site proceeds, then the use of the Site for a school will not be possible.
6. On 24 August 2018, the Council refused the DA. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against that decision.
7. It is now for the Court to decide whether the Site should remain as a potential school site or whether it should be subdivided for residential purposes and so extinguish the possibility of the Site serving the educational needs of the community in the future.
8. A similar, almost identical, development application was made to the Council in 2015 and refused by the Council on 13 October 2015. On 24 January 2017, this Court dismissed an appeal against that refusal (Newland Developers Pty Ltd v Tweed Shire Council [2017] NSWLEC 1021) (the earlier appeal; the 2017 decision).
9. The Council says that the present appeal is an abuse of process and should be dismissed on that basis alone. If not so dismissed, the Council says that the proper application of Tweed Development Control Plan 2008 (the DCP) requires that on the merits the appeal should be dismissed.
10. The Applicant says that whilst the DA is essentially the same as that refused by the Court in 2017, circumstances have changed since the 2017 decision such that this appeal is not an abuse of process. The Applicant also says that the DCP should be given little or no weight and that having regard to the demographic and planning evidence the subdivision for residential purposes should be approved.
11. I was assisted greatly by the detailed and thorough submissions by Counsel for both parties (including those with non-speaking roles). For the reasons which follow, I have determined that the appeal is not an abuse of process but that on the merits the appeal should be refused.

The Application

1. The Site is generally rectangular and has a frontage to Sawtell Circuit, Seabreeze Boulevard and Tom Merchant Way. To the north of the Site are cane fields and the Koala Beach Sports Field, as well as Cudgera Creek. To the east of the Site are residential properties and the Seabreeze Estate Sports Fields. To the south and west of the Site are the residential properties in the Seabreeze Estate.
2. A drainage reserve divides the Site into two parts. The Site has been filled to address flooding constraints in accordance with earlier consents that applied to the Estate.
3. On 15 April 2019, the Court granted leave to amend the subdivision plans for the proposal, with the effect that the amended plans provide for a two-stage subdivision as follows: 1. Stage 18A: for 13 residential lots and one public reserve lot on the western side of the drainage reserve; and 2. Stage 18B: for 55 residential lots and one drainage reserve lot and one public reserve lot on the eastern side of the drainage reserve.
4. The Respondent had previously raised as an issue a non-compliant driveway design (Contention 4). The amended plans resolve that issue. As a consequence, there are no merit issues concerning the subdivision itself, the only issues are those described broadly above.
5. Within the Pottsville locality is a large land area known as the Dunloe Park release area. It is undeveloped and whilst marked for urban release, there is no masterplan for the land at the present time and it retains its rural zoning. Its relevance becomes apparent in due course.

Statutory Scheme

1. The Site is zoned R2 Low Density Residential pursuant to the Tweed Local Environmental Plan 2014 (the LEP). The proposed subdivision is permissible with development consent. Development for the purposes of a school (educational establishment) is also permissible with consent.
2. The objectives of the R2 zone are:

• to provide for the housing needs of the community within a low-density residential environment; and
• to enable other land uses that provide facilities or services to meet the day to day needs of residents.

1. Clause 3.2 of the LEP requires that a consent authority (now the Court) must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. In this case, however, no issue is raised as to the objectives of the R2 zone.
2. There are a number of provisions of the DCP which apply to the Site. In particular, Section B15 - Seabreeze Estate Pottsville, and Section B21 - Pottsville Locality Based Development Code, the latter of which includes sections on the Seabreeze Estate and Dunloe Park Release Area. Section B15.2.9 and Map 7A identify the Site as a "potential school site".
3. The relevant provisions of the DCP are set out below when dealing in detail with the issues.
4. It should also be observed that in November 2019 the Respondent forwarded a planning proposal to the Minister pursuant to s 3.34 for a "Gateway determination" of a proposal to rezone the Site from its present residential R2 zone to Zone SP2 Infrastructure for a period of five years. There is presently no Gateway determination.
5. The Applicant says that it is not a relevant matter for consideration, or if considered should be given no weight. The Respondent says it is a relevant consideration and should be given some, albeit limited, weight as a reinforcement of the continued identification of the Site as a potential school site. I deal with the issue later.

Issues

1. The Respondent summarises its contentions at par 14 of its written submissions (RS):

• whether the current application should be dismissed as an abuse of process on the basis that it is the same as the application considered in the 2017 judgment and there are no substantive changes in circumstances from the previous application;
• whether the current application is inconsistent with the DCP;
• whether the current application is in the public interest.

1. Broadly stated, those are the issues for determination. There are a number of sub issues which I identify when dealing with the broad issues identified.

Abuse of process

1. The parties agree that the principles to be applied in cases of this type are set out in Russo v Kogarah Municipal Council (1999) 105 LGERA 290; [1999] NSWCA 303 (Russo). However, in order to understand the principles in Russo and their application in that case, and in subsequent cases in this Court, it is necessary to first consider more generally the notion of abuse of process.
2. Every Court has, as a necessary incident of its jurisdiction, the power to control its own proceedings and procedure. Rule 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR) which applies in this Court neither detracts from nor adds to the Court's power in relation to dismissing proceedings for an abuse of process. The Rule provides: 13.4 Frivolous and vexatious proceedings If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - … (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim.
3. The High Court in Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; 80 ALJR 1100; [2006] HCA 27 (Batistatos) the majority (Gleeson CJ, Gummow, Hayne and Crennan JJ) observed: "[9] What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues…"
4. Importantly, the majority also observed at [12] that "the power (to dismiss) existed to enable the Court to protect itself from abuse of its process thereby safeguarding the administration of justice".
5. At the heart of the power to dismiss for abuse of process is the need to maintain public confidence in the administration of justice. In Batistatos the majority approved observations of McHugh J in Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 at 286: "Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute."
6. It is the Council's submission that the present appeal brings the administration of justice, the Court, into disrepute, the third category.
7. In general law, in litigation outside the realms of development appeals such as this, it has been said that it is an abuse of process if the cause of action sought to be raised has actually been determined in earlier proceedings and is "res judicata" (Ord v Ord [1923] 2 KB 432; see also Ritchie's Supreme Court Practice [14.28.15]). The principle applies even if the prior judgment was made by consent (Palmer v Dunford Ford (Firm) [1992] 1 QB 483 at 489; [1992] 2 All ER 122). Proceedings will also be regarded as an abuse of process to the extent that they involve an attempt to relitigate particular issues (arising from the cause of action) that were determined, either explicitly or necessarily, in earlier proceedings, including proceedings determined by consent. Such a determination gives rise to "issue estoppel": Blair and Perpetual Trustee Co Ltd v Curran (Adam's Will) (1939) 62 CLR 464; [1939] HCA 23; Ritchie's [14.28.17].
8. Beneath the umbrella of abuse of process and related to the doctrine of res judicata, is the "Anshun estoppel" derived from the High Court decision in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45. The Anshun estoppel principle is that the parties must bring forward all material matters for determination in the proceedings and cannot raise in subsequent proceedings matters that could, and should reasonably, have been raised in earlier proceedings. The principle extends to a case where there has been an unreasonable failure to raise matters that might have constituted either a claim, defence or cross claim in the earlier proceedings.
9. The principal reasons why it is an abuse of process to attempt to relitigate causes of action or issues that have been determined in earlier proceedings are: 1. the principle of finality of litigation; and more importantly 2. the re-agitation of the same cause of action or issue in subsequent proceedings can be seen as a collateral attack upon the first decision of the Court; 3. the potential for a different decision from two decision makers on the same law and circumstances should be avoided.
10. A party which in colloquial terms seeks to run precisely the same case before a different decision maker will be prevented from so doing because the party seeks a different decision from a different decision maker notwithstanding that the case is precisely the same. The principles have been applied in this Court, and the cases begin with the Court of Appeal's decision in Russo, an appeal from the decision of a Judge of this Court.
11. Relevantly in Russo, an application for a childcare centre had been dismissed on appeal to the Court because it was not consistent with the objectives of the relevant zone. There was a second development application which, on appeal, came to the Court and which was again refused on the basis of inconsistency with the zone objectives. A third and identical development application was made to the Council and, after refusal, appealed to the Court.
12. The Judge at first instance dismissed the appeal on the basis of the principle of res judicata rather than abuse of process. On appeal, Stein J, with whom Meagher JA agreed, said that it was inappropriate to apply the principle of res judicata to a planning appeal but said: "The current application, being more or less precisely the same application as the first and the second, both of which were appealed and dismissed by the court, is an abuse of process of the Land and Environment Court, and ought not be permitted to proceed."
13. His Honour conceded that in the future there may be changes within an area such that consistency with zone objective could then be again argued without it being an abuse of process.
14. Davies AJA delivered a short separate judgment, although in agreement with the orders proposed by Stein JA. His Honour said at [14]ff: "[14] Nevertheless it is an abuse of process for an applicant to bring repeated applications to a court, such as the Land and Environment Court, seeking to re-agitate issues which have as a matter of substance already been determined in prior decisions. [15] The application of this principle is not precluded by the making of some minor changes to a town planning application or by reliance upon an argument or arguments which could have been put [but] were not previously put. If there has been no significant change in circumstances, the new application ought not to be brought. Otherwise the application will appear to be a collateral attack upon the prior decision of decisions of the court."
15. His Honour Davies AJA says at [18] that the third application was in substance a collateral attack upon the earlier decisions and accordingly should be dismissed as an abuse of process.
16. The principle of res judicata did not apply because each development appeal brought to the Court is a new cause of action. The principle of res judicata prevents a re-agitation of the same cause of action only. It cannot apply to a statutory right of appeal to this Court which arises because a fresh development application has been made and is refused or deemed to have been refused. On each occasion that there is a refusal (or deemed refusal), a new cause of action arises.
17. There was little analysis in the judgment of Stein JA and some analysis by Davies AJA. Neither Stein JA or Meagher JA recorded agreement with the observations of Davies AJA. Nevertheless, the observations made by Davies AJA at [14] and [15] quoted above at [39] are consistent with principle. His Honour identified three circumstances which did not avoid an abuse of process finding: 1. some minor changes to the application are made; 2. there is reliance upon an argument which could have been put but was not put in the earlier case; 3. there has been no significant change in circumstances.
18. The first observation is simply stating that some minor change is unlikely to change the substance of an application and therefore is to be treated as materially the same.
19. The second observation is important because his Honour limited the "Anshun estoppel" point to one of argument (emphasis added). That is, his Honour is distinguishing between argument and evidence and referring only to a party attempting to overcome the principle of abuse of process merely by wishing to make another argument which could have been made in the earlier case. His Honour makes no observation about additional evidence in a later case.
20. The third observation identifies that a "significant change of circumstances" can take an application outside the realm of abuse of process.
21. But it must not be forgotten that his Honour Davies AJA concludes the paragraph by stating that it is the collateral attack upon the prior decision or decisions of the Court which amounts to the abuse of process. That is the question which must be asked and answered as to whether in the circumstances of a particular case it is an abuse of process because it amounts to a collateral attack upon the prior decision of the Court.
22. In Bird v Hawkesbury City Council [2001] NSWLEC 1 (Bird), the Applicant appealed against the Council's refusal of a second development application to use an existing factory building for a brothel. A previous application, virtually identical, had been refused by the Council and an appeal to the Court dismissed on 31 May 2000.
23. The Applicant argued that there was a change in circumstances when opposing the Council's motion to dismiss the appeal as an abuse of process. At [17]-[19], Pearlman CJ said: "[17] My finding of fact [that there was no change in circumstance] in that situation means that the circumstances in which the development application which is the subject of the current proceedings is made is precisely the same as the circumstances which pertained in the first proceedings disposed of by the determination of Commissioner Hoffman. [18] There are no changed circumstances such as would amount to, quoting Davies AJA "a significant change in circumstances" and quoting Stein JA "the current application [is] more or less precisely the same application as the first…which [was] appealed and dismissed by [this] Court. [19] My conclusion therefore is that the current proceedings are an abuse of process of this Court and they ought not to be permitted to proceed."
24. Implicit in her Honour's finding is that to allow the later application to proceed would have amounted to a collateral attack upon the first decision by the Court because for all intents and purposes there was no change to the application or surrounding circumstances. The relevant surrounding circumstance was a draft Local Environmental Plan which when made would have rendered the development prohibited. That circumstance was unchanged. There was no identification of any additional proposed arguments or evidence to be relied upon in the second appeal.
25. A motion to strike out the appeal against the refusal of a second development application for a brothel in Baulkham Hills was heard by Biscoe J in Edwards v The Hills Shire Council [2009] NSWLEC 187 (Edwards) who gave an ex tempore decision on 19 October 2009.
26. The Court on 29 April 2009 had refused the first appeal. The second development application was made on 5 June 2009 and the appeal filed on 21 July 2009 against the Council's deemed refusal of the application and on 4 August 2009 the Council actually refused the application.
27. The parties accepted that the relevant legal principles were as stated in Russo (Edwards at [5]). The principal reason that the Court dismissed the first appeal was the anticipated economic effect on nearby businesses relying upon evidence from local business owners notwithstanding evidence from town planners that the brothel would not have an economic impact.
28. In resisting the motion to strike out the second appeal, the Applicant identified two changes in circumstances which he said meant the appeal was not an abuse of process, being: 1. the Applicant intended to lead expert evidence concerning the economic impact on the brothel on nearby businesses; 2. the number of service rooms were reduced from seven to six.
29. At [11], his Honour records the Applicant's submission in this way: "…that is, he sought to adduce new evidence on an issue of central importance then the court should not exercise its discretion to strike out the proceedings as an abuse of process."
30. His Honour's reasoning in rejecting that argument is recorded in paragraphs [12] and [13]: "[12] The applicant, in the earlier appeal relating to the subject brothel, was on notice that economic impact was an issue well before the hearing of that appeal. He had been served on or about 25 February 2009 with the Council's bundle of documents which contained strong statements to that effect by objectors who appear to have been proprietors or neighbouring businesses. In the circumstances, I do not accept that the addition of further expert evidence such as the applicant now proposes…constitutes a change in circumstances in the sense discussed in Russo. The evidence could have been called in the earlier proceeding. It is unnecessary to explore the full ramifications of the applicant's oral submission except to note that it appears to raise the unattractive spectre of multiple successive proceedings in which evidence is adduced that could have been called in earlier proceedings. [13] The minor amendments to the development proposal, in my opinion, do not significantly bear on the senior commissioner's reasons for dismissing the previous appeal. The factors material to those reasons have not changed significantly."
31. In my respectful opinion, his Honour has overstated the "principles" from Russo and, perhaps as a result of the manner in which the matter was put by the Applicant, not addressed what must be a two-step process.
32. First, the question for his Honour was whether it was the same development application, even if that is a "more or less" test. His Honour addressed the amendments to the development proposal by reference to the reasons for dismissing the previous appeal and finding that the "factors material to those reasons" had not significantly changed.
33. The second matter is perhaps more important. In Russo, Davies AJA, did not deal at all with the question of whether in a second appeal it was open to an Applicant to lead evidence which may have been available for the first appeal but was not led in that appeal. His Honour Davies AJA only made the observation about argument not evidence.
34. Further, again presumably because it was not how the Applicant put the case, there was no discussion about the nature of the appeal, whether the new evidence constituted part of a fresh development application, and the nature of the new cause of action which arose upon the refusal of the second development application. These matters are discussed below.
35. In Hanna v Council of the City of Ryde [2011] NSWLEC 74, the Court dealt with a motion to dismiss a third development appeal as an abuse of process. The motion failed because the Court found that there was a material difference between the present development application and the two applications previously considered by the Court, principally because the third application was made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 which was not the case in the two previous applications. His Honour Craig J at [33] said: "[33] …a decision made in the context of an application engaging the provisions of the Affordable Housing SEPP, even if that decision is different from that made in respect of the two earlier applications, is a difference that is explicable and one that does not cause the administration of justice to be brought into disrepute."
36. The question of abuse of process came before two Commissioners of the Court sitting together in Davis v Gosford City Council [2012] NSWLEC 1368 (Davis). As in the present case, the Council argued at the final hearing that the appeal should be dismissed as there was no material difference between the then current application and an application refused by the Court in 2007.
37. The Council argued at [21] that: "[21] The change is between the current application and the 2007 application are relatively minor with the only notable changes being the intrusion into the Hibbertia Procumbens management zone, the compliance with the Aboriginal management zone boundary and the extension of the northern boundary of the development by some 2,500sq.m."
38. The Commissioners concluded that the application was not an abuse of process at [23]: "[23] Having considered the detailed written submissions provided by the parties we find it unnecessary to address the submissions beyond stating that we are satisfied that the 2007 application is not "more or less precisely the same application" as the current application. In our opinion, the differences between the two applications identified by [the Council] are sufficient to reject the suggestion that the current application is an abuse of process. The differences between the two applications clearly raised the need for a different assessment to that carried out for the 2007 application even though the application is principally for the same use. By way of example, the current application involves new evidence on the Eastern Pygmy-possum that was not available when the 2007 application was considered. This evidence ultimately results in a different approach to the issue of the Eastern Pygmy-possum found on the site."
39. The development application was for a waste resource recovery facility. The Commissioners clearly found that the differences between the two applications were not "relatively minor" and the test they used was that there was a "need for a different assessment to that carried out for the 2007 application". One can readily conclude from that finding that a second decision if different from the first would not bring the Court into disrepute because the changes made and the need for the different assessment in the second case.
40. The example given by the Court of the Eastern Pygmy-possum is instructive. First it identifies that there was new evidence on the subject matter of the Eastern Pygmy-possum. The Commissioners said that the evidence was not "available when the 2007 application was considered." A review of the first decision by the Court (Davis v Gosford City Council [2007] NSWLEC 795) shows that the question of the impact on the Eastern Pygmy-possum was an issue before the Court in the first appeal. What was not available in the first appeal was survey evidence using different methods to determine the likely presence on the Site of the Eastern Pygmy-possum. This was not "new evidence" in the sense of evidence of events which had occurred since 2007 giving rise to a change in circumstances, but rather "further work" which was said by the Council witness in the first appeal to determine with a reasonable level of certainty of the impact on the Eastern Pygmy-possum (at [30]).
41. With that understanding, the Commissioners in the second appeal took into account in determining that there was not abuse of process the fact that additional evidence was to be led by the parties relating to the impacts of the development which was not before the Court in the earlier appeal and that evidence, as the Court stated in [23], "ultimately results in a different approach to the issue of the Eastern Pygmy-possum found on the Site." Counterintuitively, as a matter of merit, it was still the case that the appeal was dismissed principally upon the basis of the impact on the Eastern Pygmy-possum and the new evidence led by the Council on that subject.
42. It would appear that the decision of the Commissioners in Davis recognised that ultimately the question was one of whether or not the Court is being brought into disrepute and the leading of additional evidence had the capacity to avoid a finding of abuse of process, even where the particular development was in essence the same.
43. The "principles" from Russo were also discussed at some length in the reported decision of the Preston CJ in Nikolaidis v Pittwater Council (2009) 171 LGERA 104; [2009] NSWLEC 227 (Nikolaidis).
44. In Nikolaidis, the Court was dealing with an appeal under s 97(1) of the EPA Act (as it then was) against a decision of the Council to refuse the Applicants' development application for the "continuation of raised parapets to eastern extents of roof and part of northern roof". That "continuation of the parapet" was the subject of proceedings heard and determined by the Court in 2007 when considering an appeal under s 96(6) of the EPA Act (as it was) against the refusal of the Council to modify the relevant development consent. The Court in the earlier decision refused the appeal.
45. In refusing the Council's application to dismiss the appeal as an abuse of process his Honour distinguished between the "process" of an appeal under the modification power and the process of an appeal relating to a development application. His Honour determined that there were two different processes and although different merit decisions may result, such a difference is explicable and does not cause the administration of justice to be brought into disrepute. His Honour at [27] made the following observations: "[27] …however, the administration of justice in the context of merits review appeals involves the court making the correct or preferable decision on the facts and law that apply at the time of determining the appeal and which may be made having regard to the nature of the appeal."
46. Whilst this observation was made in the context of dealing with merits review of a development application on the one hand and a modification application on the other, his Honour's observation is nevertheless is apposite to the present application - the correct or preferable decision is to be made based on the facts and law that apply at the time of determining the appeal.
47. Before the consideration of the present application some matters of process should be observed.
48. The cause of action before the Court arises by the right under s 8.7 of the EPA Act: (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.
49. The right of appeal is obviously a statutory right having regard to the determination (whether deemed or actual) by the consent authority in relation to the development application.
50. Part 6 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) deals with development applications. Clause 50 of EPA Regulation provides that: (1) A development application - (a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1. …
51. It should be observed that the clause distinguishes between the application itself and documents which accompany the application. Part 1 of Schedule 1 to EPA Regulation continues that distinction. Clause 1 of Part 1 of Schedule 1 identifies the information to be included in development applications. Clause 2 of Part 2 of Schedule 1 identifies the documents to accompany a development application. The development application must contain the information such as name and address of the Applicant, a description of the development to be carried out, relevant addresses and other matters. The accompanying documents include matters such as a site plan of the land, a sketch of the development and a Statement of Environmental Effects.
52. The Court on appeal is conducting a rehearing. Section 39(3) of the Land and Environment Court Act 1979 (Court Act) referring to Class 1 appeals (of which the present appeal is one) provides: (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
53. This, of course, accords with the observation made by the learned Chief Judge in Nikolaidis referred to at [69] above.
54. The language of the subsection is important because, consistently with the distinction in the regulation between a development application and the documents accompanying the development application, it suggests that the reference to "evidence" in s 39(3) is a reference to those accompanying documents. That is, the body of material before the Court at the rehearing is evidence in addition to or in substitution for the body of material before the consent authority which made the decision the subject of the appeal. This, in my opinion, is important when one comes to consider the possible application of "Anshun estoppel" in appeals of this type.
55. The parties agreed that the onus of satisfying the Court of an abuse of process lies on the Respondent and it is a "heavy onus": Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 at 529. Notwithstanding that proposition the Respondent argued (RS at par 76) that the Applicant "bears the persuasive onus of demonstrating that … there had been sufficiently significant changes in circumstances so as to escape the principle in Russo." I do not accept that proposition.
56. The Respondent bears the onus. Insofar as the question arises as to whether or not there has been a change of circumstances, the onus of proving that there has not been a change of circumstances also rests with the Respondent. That does not mean that it must search far and wide for all the circumstances which pertained to the first development application and compare them to all the circumstances surrounding the second development application. Rather, the Applicant having identified what it asserts are the changed circumstances, the onus remains with the Respondent to establish that those are not changed circumstances and that the application is an abuse of process. Whether it be described as a "persuasive onus" or any other form of onus, I do not accept that the Applicant bears any legal onus in the assessment of abuse of process. That said, to the extent that the Applicant says there are changed circumstances, it is only those identified circumstances that the Respondent must address in discharging its legal onus.
57. Caution must be exercised in deriving "principles" from the cases which have been reviewed. Fundamentally, the question is whether in the circumstance of repeated applications, the application under consideration brings the Court into disrepute because it is a collateral attack on a previous decision or decisions of the Court. The body of material before the Court in the earlier appeal is to be compared to the body of material before this Court. That comparison of course embraces the concept of whether or not there are changed circumstances (Russo).

The 2017 decision

1. As previously observed, in 2015 the Applicant made a development application for residential subdivision of the site. That application was refused and an appeal to this Court was dismissed (Newland Developments Pty Ltd v Tweed Shire Council [2017] NSWLEC 1021).
2. There were two contentions which were the subject of the decision on the appeal (see [31]): 1. the proposal is inconsistent with the identification of the property as a potential school site in the Council's DCP; 2. approval of the application would not be in the public interest.
3. The evidence on the appeal included town planning evidence from experts retained by each party and a single expert in demographics (Ms Bennett) retained by the Council. It was common ground in the earlier proceedings that there was likely to be a demand for an additional school within the Pottsville area based on the projected population increases at some stages between 2026 and 2031 (see [47] and [70]). The planning experts agreed that only if a State high school was developed on the site that the whole of the site would be required, but that something less than the whole site would be required for a State primary school and/or non-government primary, high school or K-12 school (at [57]).
4. The Commissioner found at [71]: "…based on the evidence before me…the Department of Education does not require the site for either a primary or high school at this stage despite it having not completed the Cluster Study."
5. At [84], the Commissioner further found: "Whilst the Department of Education currently has no interest in the site, there is evidence that a non-government school does seek to establish a school in Pottsville and is interested in acquiring the site. One offer to purchase the site has been made and was quickly rejected by the owner. I do not consider that such action demonstrates in any way that the site is not required as a school site nor that a better outcome would be achieved through consent being granted to the subdivision that is sought. There is no evidence that negotiations have been exhausted or options such as purchasing only part of the site had been explored."
6. The Commissioner assessed the application against the relevant provisions of the DCP and: 1. accepted that the site is suitable for development as a school (at [81]); 2. was not satisfied "based on the evidence before me, that at this stage, subdivision of the site as proposed represents a better outcome than the provision of a school or would be in the public interest" (at [82]); 3. did not consider that approval of the application would achieve the objectives of the LEP or the R2 zone objective of providing other land uses facilities or services to meet the day to day needs of residents (at [87]).
7. The reason for that conclusion was at [83]: "[83] That is because it is common ground that a school will be required in Pottsville. The Council's long-term strategic planning has and continues to address that need through its DCP by identifying that land. Planning for the orderly and economic use of the land does not always mean that thresholds that trigger the need for a particular land use always coincide with the completion of surrounding development. There may be a delay in finalising the delivery of the full range of infrastructure required by a community for a variety of reasons. That should not prevent the delivery of those facilities that have been planned for and which are demonstrated to be necessary over time. This is a particularly important element of strategic planning and ensuring delivery of all necessary infrastructure overtime."

Submission on abuse of process

1. It is common ground that the subdivision proposed is more or less precisely the same as that determined in the 2017 appeal. The parties' written submissions, supplemented by their oral submissions, focused on the question as to whether there was a sufficient change in circumstances such that the present appeal is not an abuse of process.
2. I do not intend to do any disservice to the submissions of the parties by summarising them in the following manner.
3. The Applicant submitted that there were material changes in circumstances since January 2017, being: 1. A period of three years has elapsed since the 2017 decision and there has been no further progress towards the development of a school on the Site in that time. The Site has been effectively sterilised from development for a further period of three years. 2. It is "now plainly obvious" that the NSW Department of Education would never acquire the Site for the development of a school (Applicant's Submissions (AS) at par 42). 3. The Department of Education has now affirmatively stated (in March 2018) that it intends to acquire a school site at the Dunloe Park Estate by way of a Voluntary Planning Agreement as part of a rezoning process of that site. 4. The Applicant engaged in a marketing campaign in September 2019 to sell the Site for the purposes of a school but there has been no "real interest from any non-government education providers to acquire the Site." 5. There has been a material change in both the supply and the demand for primary and high school places in the Pottsville area since the 2017 decision and it is no longer necessarily the case that the common position about demography for an initial school in the 2017 decision is the position. This change is said to be based upon additional capacity of schools in the catchment area, the 2016 census data which was not available at the time of the 2017 decision and the evidence of the Applicant's demographer Mr McNeill.
4. On the question of significant change in circumstances the Respondent submitted: 1. there has not been any significant change in circumstances since the 2017 decision; 2. in particular the evidence adduced by the Applicant as to the attitudes of the Department of Education and potential operators of private schools does not materially differ from the evidence that was considered in the 2017 decision; 3. the current appeal seeks to re-agitate issues (such as the compatibility of the application with the DCP and the relevant public interests) which were as a matter of substance already determined in the 2017 judgment; 4. it was open to the Applicant to adduce the evidence of a demographer in the earlier proceedings and for whatever reason the Applicant chose not to and is bound by that choice; 5. the changes in demographics asserted by the Applicant are contingent upon the Court accepting the evidence of Mr McNeill over that of the Council's demographer Ms Bennett and the Court should not accept Mr McNeill's evidence in preference to that of Ms Bennett.

Analysis - abuse of process

1. I prefer not to limit the question of abuse of process simply to the question of whether or not there was a significant change in circumstances since the 2017 decision. Rather, the question is whether the present appeal brings the Court, or the administration of justice, into disrepute and is thereby an abuse of process. The findings or comments in Russo and in subsequent cases in this Court assist in answering that ultimate question. Each case clearly will turn on its own facts.
2. Ordinarily an application to dismiss an appeal as an abuse of process is made as an interlocutory application and not at a final hearing, although there is no proscription on the latter. An application to dismiss as an abuse of process is generally brought well prior to a final hearing because the question raised is whether or not an appeal "ought not be permitted to proceed" (see eg Bird at [19]).
3. The fact that in this case abuse of process is raised as a reason for refusal, as distinct from on a motion to strike out, brings sharply into focus the approach the Court must take to the evidence which has been led at the hearing. On a motion to strike out prior to a final hearing, the Court would receive evidence of the development application, any accompanying documents, and, presumably, the Applicant's intentions in relation to evidence at the hearing. When the matter is raised as a contention in the final hearing, however, the Court has received the whole of the evidence upon which the Applicant relies.
4. The Respondent argues that in relation to the demographics upon which the Applicant relies as a change in circumstance, there is in fact only a change in circumstance if the evidence of the Applicant's demographer (Mr McNeill) is accepted over that of the Council's demographer (Ms Bennett). That is, the Court is asked to make a final determination on the competing expert evidence before it to then decide whether or not there is an abuse of process.
5. In my opinion that is not the correct approach. Abuse of process must be determined as if the application has not been finally heard. It involves an analysis of the application and the body of material proposed to be relied upon by an Applicant. The Council's approach asserts a different approach if abuse of process is pleaded as a determining contention in a final hearing compared to it being determined in the usual way as an interlocutory application. It is not the Court's role to make findings at a final hearing to determine if the appeal "ought not be permitted to proceed".
6. The proposed subdivision is more or less precisely the same as the earlier application. But before simply then asking whether or not circumstances have changed between the two applications, the nature of the current appeal and the Court's role should be understood.
7. The Applicant has exercised its statutory right of appeal (s 8.7 of the EPA Act) which constitutes a fresh cause of action. The Court has all the functions and discretions which the Council had in respect of the matter the subject of appeal (s 39(2) of the Court Act). The appeal is by way of rehearing and fresh evidence or evidence in addition to, or substitution for, the evidence before the Council when it made the decision may be given on the appeal (s 39(3) of the Court Act).
8. The body of material now before the Court includes material which was before the Council, is fresh evidence or evidence in addition to or in substitution for the material before the Council. When considering whether or not the administration of justice will be brought into disrepute, a comparison of the body of material now before the Court in respect of a new cause of action is to be compared with the body of material which was before the Court in the earlier appeal.
9. One of the principal differences is that in the present appeal the Applicant has led evidence from a demographer which was not before the Court in the earlier appeal. It is true that the Applicant in the earlier appeal could have led evidence from a demographer, as the Council did (RS at par 110). But in my opinion that is not to the point. Russo is not authority for the proposition that a proponent cannot avoid dismissal as an abuse of process by relying on evidence it could have led in the first appeal. As noted in [44] above, the statement of Davies AJA is limited to argument not evidence. In my opinion, the Anshun estoppel principle plays no role in this case and the evidence in this case must be considered even if it was possible to lead such evidence in the earlier appeal.
10. The evidence of Mr McNeill on its face is different to the evidence of Ms Bennett both in this case and the earlier appeal, and is different from the common position of the parties in the earlier appeal.
11. In my opinion, the Applicant's reliance upon the evidence of its demographer Mr McNeill is sufficient to avoid a finding of abuse of process. If the evidence of the demographer leads to a different result than the earlier appeal then that difference is explicable and does not cause the administration of justice to be brought into disrepute (cf Nikolaidis at [27]). It is not a collateral attack on the earlier decision on the basis of that new evidence.
12. A stark analogy makes the point clearer. Assume in an appeal against a refusal of a development application for a residential flat building, the Applicant relied on town planning evidence in an appeal but the appeal was dismissed on urban design grounds. If the Respondent here is correct, then even if urban design evidence accompanied a second development application, then before the Court on appeal, the Applicant would be precluded from pursuing that second appeal relying on the new urban design evidence because it could have led that evidence in the first appeal. In my opinion, that cannot have been the intention of the legislation to limit the consideration of a second development application in that way, in circumstances where a different decision in the second appeal is explicable and does not bring the administration of justice into disrepute because it is based on new evidence.
13. I do not see a need to specifically identify the reliance upon this evidence as a "change in circumstance". Rather, it is an analysis and understanding of the Court's role in determining an appeal which arises as a fresh cause of action, and a consideration of the proper characterisation of a development application in the broader sense including the documents which accompany or are in support of an application.
14. I make the following additional observations about the "changes in circumstances" relied upon by the Applicant: 1. Lapse of time - it is counterintuitive to assert that the lapse of time where the status quo is unchanged amounts to a change in circumstances. In my opinion the simple passage of time is not of itself a change of circumstance, but something must have occurred (or relevantly not occurred) within that period of time. It was argued that another two years had passed with no school interest in the Site; I do not regard that as a sufficient period of time to constitute a change in circumstance. Accordingly, I reject the Applicant's submission. 2. The intention of the Department of Education has changed in a material way in two aspects. First its intention in relation to the Site are clearer, or more robust, in that in the earlier appeal its intention was qualified by the phrase "at this stage" whereas now its intention not to use the Site is more broadly expressed as not in the medium or long term. Details of the material from the Department of Education are set out in more detail below. 3. The Department of Education's stated intention in relation to the Dunloe Park Estate, whilst qualified, is a change. The Department wishes to explore the establishment of a school at the Dunloe Park Estate which on its face has the potential to lead to two conclusions - the recognition of the need for a further school in the Pottsville locality by the development of Dunloe Park and a potential alternate site rather than at the Site. 4. The marketing program and apparent attempts to sell the Site for the purposes of a school plainly took place after the 2017 decision. The Respondent submits that that material was not a genuine attempt to market the Site and therefore should not be considered a change in circumstance. Even if the Respondent's criticism is correct, in my view that is a matter for final determination on the merits of the application as distinct from a basis to find an abuse of process. That is, the existence of the marketing campaign is a change in circumstance - the result of that campaign and the weight, if any, to be given to it in the consideration of the application is a separate matter. I accept it is a change in circumstances. 5. The Applicant relies upon demographic changes evidenced by the 2016 census (not available at the time of the 2017 decision) together with the demographic evidence to which I refer to above. The 2016 census material, whilst perhaps not in itself significantly different from the 2011 census material which was before the Court in the earlier appeal, nevertheless is part of the matrix of data now available for consideration in determining the question of the demand for a school in the Pottsville area. Alone, it perhaps would not constitute a change in circumstances, but it does not sit alone, it forms part of the analysis of both demographers in the present appeal. 6. (Without setting it out in detail) the availability of education facilities between the 2017 decision and the present appeal appears not to be markedly different and would not constitute a change in circumstances.
15. It is for the foregoing reasons that I do not dismiss the appeal on the basis of abuse of process.

The development control plan

1. It is trite to say that the DCP is a focal point for consideration and is a mandatory relevant consideration - s 4.15(1)(iii) of the EPA Act. There was debate between the parties both as to the weight, if any, to be given to the DCP, and in certain respects its proper construction, and these are dealt with later in this judgment.
2. The DCP concerns itself with the Site and the issues before the Court in a number of places. Section B15 deals specifically with the Seabreeze Estate, Pottsville. That is the land of which the Site forms part and has been the subject of significant residential development with accompanying infrastructure over a number of years. Clause B15.2.9 of the DCP describes the "indicative layout for the Estate" and makes reference to two maps, Map 7 and Map 7A. The relevant parts should be set out in full: "The structure plans shows the indicative layout for development of this Estate (B15 - Map 7). The purpose of the structure plan is to indicate the preferred location and siting of the major elements of the Estate, including open space, principal roads, landscape features, neighbourhood shopping facilities and medium density housing. This structure plan is indicative only and is subject to detailed design in accordance with the objectives, performance criteria, and performance measures/acceptable solutions contained within this section. B15 - Map 7A provides an evolution of the previous structure plan, specifically addressing the development of Stage 2 of the Seabreeze Estate. As discussed above, the structure plan is "high level" and indicative only; nonetheless the broad principles detailed should be investigated and embodied wherever possible into future development applications. B15 - Map 7A includes the specific designation of the Potential School Site. The Potential School Site shown appears to be the only suitable location in Stage 2 of Seabreeze, based on the requirements for 6ha and the Department of Education and community's advisory notes for new educational facility sites."
3. Map 7 shows the Site as a "Potential School Site" within the "structure plan" of the whole of the Seabreeze Estate. It appears to be a plan initially prepared in around the year 2000. Map 7A also shows the Site as "Potential School Site" but it is a plan only on Stage 2 prepared after a large part of the Seabreeze Estate had been developed. Map 7 and Map 7A are reproduced below.
4. Section B15 whilst dealing specifically with the Seabreeze Estate has more general provisions and was drafted it seems prior to the commencement of any development on the Seabreeze Estate, although as I have observed maps such as Map 7A were added later. The last amendment to section B15 appears to be in 2013 when Council again adopted amendments to the DCP, possibly including Map 7A.
5. Whilst it plays no determinative role in the appeal, it was referred to by objectors that the source of the identification of the Site as a potential school site was the Applicant's own masterplan for development of the Seabreeze Estate.
6. Section B21 of the DCP is described as Pottsville Locality Based Development Code, and was adopted by the Council in April 2010 and provides more detailed provisions.
7. The purpose of section B21 is described in clause 1: "This code is part of a strategic framework for guiding future development of the Pottsville locality and represents the most detailed level of the strategic framework. The section includes an analysis of the Pottsville locality, its potential for growth and various elements of its character."
8. Figure 2.4 shows Stage 2 of Seabreeze Estate and Dunloe Park as "proposed future urban release areas".
9. The DCP describes at clause 3.1 the "existing condition" in relation to community facilities and services relevantly as follows: "The Pottsville locality is currently served by one primary school, located in Pottsville north on the Coast Road. The nearest high school is some 20km away in Kingscliff. The current primary school site is constrained and is not readily able to expand to cope with an increasing population. Both the 2001 and 2005 census highlight a significant proportion of school age children. The continuation of this trend is probable and therefore, as the population grows to exceed 10,000, there will be a very real demand for additional educational establishments."
10. Appropriately, the DCP describes a strategy in relation to education at clause 3.4. After considering likely population growth the DCP states: "…it may be surmised that in the years to come, adequate demand for an additional primary school and establishment of a local high school is likely to exist in Pottsville."
11. The strategic analysis sought to identify potential sites for the future provision of educational facilities and provides: "Based upon a desktop analysis, three main areas for future school sites are identified, comprising a site within the Seabreeze Estate [the Site], the potential future "Dunloe Park" release area and finally the potential future employment release area west of the village centre. Each of these observations are discussed below."
12. The DCP concluded that only two of the sites - the subject site within the Seabreeze Estate and a site within the Dunloe Park Release Area - were appropriate opportunities. The strategic material concluded with: "As such, these opportunities should be explored as the priority and prime sites. In this regard, any application received by Council on [the Site], or any master planning process for the Dunloe Park release areas should acknowledge the site's potential for school use. Development control requirements are provided within section 3.5 should Council receive an application over these lands which does not include the provision of a school facility."
13. In a conventional way, therefore, the DCP identified the likely educational requirements in the Pottsville locality based upon the Council's analysis and expectation of population growth, including the likely demographics of that growth, and identified the potential sites for the provision of those facilities in the future. The DCP then dealt with development controls and implementation in clause 3.5. Its first heading is: "LEP considerations Ensure that land within the village centre is appropriately zoned for the provision of additional community facilities."
14. It is a curious provision which perhaps does not play any meaningful role in this part of the DCP. It is hardly the role of a development control plan to dictate the manner in which a local environmental plan zones land. It may well be simply referring to the fact that the LEP has appropriately zoned land within the Pottsville locality to enable the provision of additional community facilities as and when required.
15. Nevertheless, the critical provision follows: "Development controls DCP guidelines and controls should support community facilities and allied professional services within the village centre precinct and discourage in other locations. Should the provision of a school not be pursued on the Site previously nominated as a potential school site within the approved Seabreeze Estate master plan (namely Lot 1147 DP 1115395) [the Site] or within the Dunloe Park release area, any related development application is to detail, to the satisfaction of Council, the circumstances as to why a school cannot or should not be provided on the Site, with respect to, but not limited, to the following criteria: • building and urban design • siting of the school • recreation areas • parking and servicing • traffic and pedestrians • noise generation • landscaping. Any application received is also required to address how any proposed alternative land use sought provides: (1) an appropriate use of the lands; and (2) represents a better outcome than the provision of a school."
16. In a note to the clause, the DCP provides: "…the locality not possessing a sufficient population base at present, is not deemed to be adequate justification on its own to exclude the use of the site for a school."
17. It can immediately be noted that the clause does not identify its objective. It is apparent however, and it was common ground, that the objective of the clause is as part of its overall strategic planning to ensure the orderly provision of educational facilities within the Pottsville locality.
18. From that brief moment of common ground, the parties then differ as to the proper construction of the clause, specifically that part which provides: "Should the provision of a school not be pursued on the site previously nominated as a potential school site within the approved Seabreeze Estate master plan…or within the Dunloe Park release area, any related development application is to detail…"
19. The Applicant submits clause 3.5 should be construed so that it only applies in circumstances where the development of a school has not been pursued on either the Site or Dunloe Park. That is, because Dunloe Park remains available as a potential school site, as a matter of construction clause 3.5 does not apply to the present development application.
20. The Respondent submits that the clause should be read so that the criteria are to be met if a school is not pursued on the Seabreeze Estate or (meaning "and") if a school is not pursued within the Dunloe Park Release Area. That is, if a development application is made for development of either potential school sites for purposes other than a school, then B15 applies.
21. Whilst ordinary principles of statutory construction will apply to a document such as a development control plan, it must be born in mind that the DCP is drafted by planners not lawyers and that a common-sense approach should be taken to its construction (GTAA Pty Ltd v South Sydney City Council (2001) 117 LGERA 51; [2001] NSWLEC 213 at [11] citing Gill v Donald Humberstone & Co Ltd [1963] 3 All ER 180 at 183).
22. Generally, I prefer the construction of the Respondent. In my opinion, the clause should be read in the following manner.
23. The phrase "the provision of a school not be pursued on the site" means simply that a development application for some alternate use is proposed. This is because later the clause refers to "any related development application". The related development application is the development application which demonstrates that a school is not being pursued on the Site.
24. The criteria and requirements in clause 3.5 apply to a development application in respect of the potential school site in the Seabreeze Estate where the development application does not propose the inclusion of a school. Similarly, the criteria and requirements apply if a development application is made in respect of Dunloe Park where such development application does not include the provision of a school. This is so because the objective of the provision is to make adequate and proper provision for educational facilities within the Pottsville area. The two sites have been identified as potential school sites and the DCP does not specifically provide a preference of one over the other nor that the criteria would not apply unless it was the last "Potential School Site" left standing.
25. Further, there is no master plan for the Dunloe Park Release Area, and both at the time of the adoption of the DCP and at the hearing Dunloe Park is not zoned to permit development for a school or for residential purposes.
26. It is not common sense to construe the DCP so as to put all the eggs in one basket, as it were, in relation to the potential provision of educational facilities. The criteria and requirements of clause 3.5 must apply if a development application other than for a school is made in respect of either the Site or Dunloe Park Release Area.
27. The whole of the clause as it applies to the Site is to be read in the following as meaning: Because the development application does not include a school then: (1) the Council (now the Court) must be satisfied as to why a school cannot or should not be provided on the Site with respect to criteria including but not limited to: • building and urban design • siting of the school • recreation areas • parking and servicing • traffic and pedestrians • noise generation • landscaping. The application must address how the residential subdivision provides: (1) an appropriate use of the land; and (2) represents a better outcome than the provision of a school. The fact that the present population does not justify an additional school is an insufficient justification for not retaining the land for the future provision of a school.
28. In my opinion, that is the meaning of the clause. Before dealing with an argument from the Applicant that the DCP is "outdated" and therefore should not be given any weight, there are two other elements of the DCP which should be noted.
29. First, section 4 of Part 4 "Area Specific Strategies" deals with the Seabreeze Estate. It adds little to the debate other than noting that "this site is considered to hold opportunities to provide school facilities". There is nothing in this section which is inconsistent with or adds more to the critical clause 3.5 referred to above.
30. Section 7 of Part 4 deals with Dunloe Park Release Area. This Part acknowledges that Dunloe Park is intended for urban release and that that process should commence with the provision of a master plan as a consequence of consultation between the land owner and the Council. The key principles to be included in a master plan are said at clause 7.3 to include:

• the provision of a consolidated local neighbourhood centre comprising retail, local community facilities (including a potential school site) should be explored as well as recreation/sporting facilities at a focal location within the site.

1. This provision is consistent with the reference to Dunloe Park Release Area in clause 3.5. There are no provisions relating to development control because there was not then, nor now, a master plan for the Dunloe Park Release Area whether approved or otherwise.
2. Section 4.15 of the EPA Act requires the consent authority to take into consideration the DCP. Section 3.43(5) of the EPA Act provides that a provision of a development control plan has no effect to the extent that it is inconsistent or incompatible with the provision of a local environmental plan.
3. The principles of application of a development control plan are well-known and scarcely need repeating. The consent authority must give the provisions of a development control plan proper consideration and make them a focal point of the assessment and decision (Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167at [71]-[75]). It is not open to substitute a different approach or policy to that embodied in a development control plan (Botany Bay City Council v Premier Customs Services Pty Limited (2009) 172 LGERA 338; [2009] NSWCA 226). To those classic statements should be added the statements of Cole JA (with whom the other members of the Court agreed) in North Sydney Council v Ligon 302 Pty Limited (No 2) (1996) 93 LGERA 23 at 31: "I see no reason why a development control plan, in providing more detailed planning considerations may not, by imposing criteria by way of restriction or specification of necessary requirements to be met before the development consent contemplated by a [local environmental plan] is granted should not be regarded as conforming with the wider [local environmental plan]. … A detailed [development control] plan which contained a provision contrary to the wider plan would not be inconformity with it, but a provision which is restrictive or prohibitive unless certain conditions are met is not such a contrary provision."
4. A number of authorities were gathered by the then Chief Judge in Stockland Developments Pty Limited v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 (Stockland). McClellan CJ identified at [87] the following principles: "• A development control plan is a detailed planning document which reflects a Council's expectation for parts of its area… • a development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. • A development control plan which has been consistently applied by Council will be given significantly greater weight than one which has only been selectively applied. • A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a state, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies. • Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property."

The planning proposal

1. As set out in [22] above, on 3 October 2019, the Respondent resolved to endorse the submission of a planning proposal to the Minister for a Gateway Determination the essence of which was to rezone the Site to SP2 Infrastructure "to align with the intended school use". In November 2019, the planning proposal was forwarded to the Minister. The matter has not progressed since that time.
2. The Applicant argues that because there is not yet a Gateway Determination and therefore the planning proposal has not been placed on public exhibition, it is not a matter the Court is required to consider under s 4.15 of the EPA Act. That much can be accepted, the planning proposal resolution is not a mandatory relevant consideration.
3. However, the Applicant goes further to say that it is not a relevant matter for the Court to consider at all. That is, it cannot take it into account, and that "it appears to have been pursued by Council as part of a deliberate attempt to subvert the Applicant's Class 1 appeal rights in this proceeding" (AS at pars 20-28).
4. There is no evidence upon which I could conclude, even if it was within the power of a Commissioner of the Court to so conclude, that the Council's resolution and decision to forward the planning proposal to the Minister was for an improper purpose. I do not make any such finding.
5. The Applicant argued that because s 4.15(1)(a)(ii) refers to a proposed instrument that has been the subject of public consultation as a mandatory relevant consideration, that provision effectively covers the field and that a proposed instrument which has not yet been the subject of public consultation cannot be considered. I reject that submission. The fact that the planning proposal was forwarded to the Minister is a fact which cannot be ignored. It falls within the rubrik of public interest under s 4.15(1)(e) of the EPA Act. The weight to be given to it as part of the public interest is a separate question altogether (Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289). There is, however, force in the argument that a proposed instrument which has not been the subject of public consultation must be given less weight than one that has been the subject of public consultation.
6. In the context of these proceedings, in my opinion, the existence of the planning proposal is no more than evidence of Council's continued intention, expressed as recently as November 2019, to retain the Site for the purposes of a potential school site. No more and no less.

The evidence as to population growth and demand for a school

1. There is a substantial body of evidence dealing with the broad subject matter of the current and likely future demand for further educational facilities in the Pottsville area. That evidence falls largely into categories of demographic evidence, the interest and intentions of the NSW Department of Education, the interest and intention of any other education provider (that is private schools) and the attempted sale of the Site for educational purposes in recent times. I will deal with each of those matters summarising, sometimes briefly, the evidence including reference to the parties' submissions on any conflicts in that evidence.

The demographers

1. Demographic evidence was given by Mr Chris McNeill retained by the Applicant and Ms Vanessa Bennett retained by the Respondent. Ms Bennett gave evidence in the earlier proceedings.
2. The Respondent argued at the outset that the evidence of Ms Bennett demonstrated subconscious bias on her part because it said certain assumptions of Ms Bennett favourable to Council were without foundation. The argument appears to be that because on an assessment of the merits of the evidence, the Applicant says that the assumptions she made are wrong then subconscious bias is demonstrated. I am not sure that that is an appropriate analysis.
3. I do not intend to reject Ms Bennett's evidence simply on the basis of "unconscious bias" but rather will assess the merit of the evidence of both Ms Bennett and Mr McNeill and form an opinion accordingly, having regard to the assumptions made and their foundation.
4. The demographers considered their task to assess the population in the Year 2036, because apparently that is the practice within the field of demography - in 2019 one looks to the future no later than 2036. So whilst the evidence referred to likely population generally and of school aged children in 2036, there is no particular "magic" about that year in terms of the Council's planning. That is, the Council's strategic planning, as evidenced by its DCP, does not focus on the year 2036 or any other particular year.
5. Mr McNeill estimated the Pottsville region population in 2036 to be 10,660 persons. Ms Bennett (on her revised analysis after accepting error) was that the population in 2036 would be 11,000 persons. There is no meaningful difference between the two population estimates and the experts agreed that the difference was statistically insignificant.
6. The experts agreed that the increase in population will be largely driven by the development of the Dunloe Park Release Area. The commencement of that development and its likely pace are obviously uncertain and for present purposes it is unnecessary to analyse the different potential scenarios. In terms of overall population, it is enough to accept that the likely population in 2036 is 10,660-11,000 persons in the Pottsville region. There is the potential for a greater number in the event that the Dunloe Park development occurs faster or with a greater density of dwellings. Ms Bennett provided a scenario too where the population could be in the vicinity of 13,600 people by 2036. In light of the fact that there is no master plan yet for Dunloe Park, it would seem that although possible it is less likely that the population in 2036 will extend much beyond the range of 10,660-11,000 people. Not enough is known at the present time to determine with any certainty what will happen at Dunloe Park over what period of time.
7. The population range of 10,660-11,000 is based on an assumption of 975 new dwellings in Dunloe Park to 2036 and it seems reasonable, although based on general population forecasts. It could be higher, and it seems unlikely to be lower. It is necessary in this case to adopt a range of potential population figures whilst accepting a significant degree of uncertainty and the potential for the population to be even higher. That range I accept is 10,500 to 11,000 people. That is also generally consistent with the Council's expected population in 2031 in the DCP (10,000 people).
8. The demographers adopted an assumed percentage of the population as primary school aged children and secondary school aged children. In relation to secondary school aged children Mr McNeill adopted 7.1% and Ms Bennett 7%. Clearly there is no material difference in those assumptions.
9. It is in relation to primary school aged children as a percentage of the Pottsville population in 2036 upon which the demographers differed in a more significant way. Mr McNeill adopted 9.6% whereas Ms Bennett adopted 11.7%. Whilst on its face those percentages may not differ markedly, when applied to the population figures, Mr McNeill estimates 1,020 primary school aged children in 2036 an increase of only 80 on the present number. On the other hand, Ms Bennett applying the slightly higher percentage to her slightly higher population figure calculates the number of primary school aged children in 2036 as between 1,290 and 1,590 being an increase of between 350 and 650 on the present number.
10. Those calculations demonstrate how a relatively small change in a percentage assumption can have a significant change in the ultimate estimated number of school aged children.
11. Mr McNeill relied upon the widely available and well-respected forecasts of id Consulting to determine the likely percentage of school aged children. That material is based upon detailed population analysis Australia wide to derive the percentage of school aged children assumption. Ms Bennett adopted the slightly higher percentage by making an adjustment to the id Consulting forecast increasing the percentage of primary school aged children over the relevant period on the basis that the Dunloe Park Estate was likely to attract a younger cohort than the average derived over the Australia-wide population statistics by id Consulting.
12. There is merit in Ms Bennett's approach, although part of her analysis was flawed in that she indicated that part of the attraction of Dunloe Park to a younger cohort would be the existence of a school. However, a school is not likely to exist until the population is increased.
13. Mr McNeill accepted that ultimately the particular spread of ages and family composition attracted to Dunloe Park will depend upon a number of factors including how the developer markets the residential development. He also accepted in cross-examination that it is likely to attract a younger cohort. I should add that notwithstanding the circular argument of Ms McNeill identified above, those coming to the Pottsville region will be made aware of the Council's strategic plan to make available land for educational facilities in the future. That also has the potential to be the driver for a younger cohort.
14. Nevertheless, it appears to me more likely than not that Dunloe Park will reflect a younger cohort than the national average because it will be a new development in a location a little distant from the Pottsville town centre and without level access to the town centre. It is the latter criteria which would make it less attractive to an older cohort.
15. In the circumstances of this type of case, it can be said that demographics is an art rather than a science. The demographers agreed with the following proposition put to them by the Court: "You say, Mr McNeill, by 2036 Pottsville may well require additional educational facilities and, Ms Bennett, you say by 2036 it will in all likelihood need additional educational facilities."
16. It is apparent that neither witness excludes the possibility of the requirement for additional educational facilities by 2036. It is only the degree of certainty upon which they disagree. For the foregoing reasons, I accept that by 2036 the local population is likely to be in excess of 10,000 people and the additional numbers of primary school aged children will be 300-500.

Department of Education

1. In the earlier appeal, the Commissioner concluded that although the cluster study by the Department was unfinished, that the Department of Education was "at this stage" not likely to acquire the Estate. The evidence before me includes the following communications from the Department of Education.
2. On 21 March 20018, Catherine Pyne, Senior Asset Planner, School Infrastructure NSW, Planning and Strategy said in response to inquiry from the Respondent: "In relation to existing facilities, it is noted that a construction project is underway at Pottsville Beach Public School to deliver permanent accommodation to meet long-term enrolment demand. Secondary students from Pottsville are zoned to Kingscliff High School which has 17 surplus teaching spaces in 2018. The Department of Education has been working towards the completion of an overarching strategy for educational facilities within the Tweed. This includes a detailed review of demographic forecasts and existing assets. Although the strategy has not been completed and work to date supports previous advice that the Department does not wish to acquire the school site identified through Council's development control plan [Seabreeze Estate site]. Our discussions with the proponent for Dunloe Park Estate have indicated that a school site will be identified which will be acquired through the Voluntary Planning Agreement provisions as part of the rezoning process."
3. From this correspondence, I draw the following:

• the Department does not wish to acquire the school site in Seabreeze Estate, which would plainly involve significant expenditure of funds;
• the Department expects a school site will be identified in the Dunloe Park Estate;
• that school site could be acquired through a Voluntary Planning Agreement as part of the rezoning process and therefore at no cost to the Department;
• as Dunloe Park is developed there will be a need for additional education facilities;
• the overarching strategy for educational facilities in the Tweed remains incomplete.

1. In response to an inquiry from the solicitor for the Applicant in August 2018 Joe Lantz, Executive Director, Strategic and Planning NSW Education, said as follows: "I refer to your correspondence concerning your client's land at Seabreeze Estate, Pottsville that is identified in the Tweed Development Control Plan as being set aside for education purposes. Students from Pottsville are designated to attend Pottsville Beach Public School for primary education and Kingscliff High School for secondary education. A project to upgrade accommodation facilities at Pottsville Beach PS is nearing completion and a project to upgrade accommodation at Kingscliff High School has recently been announced and is in the planning phase. These schools have adequate spaces to meet medium-long term local enrolment demand. The site at Seabreeze Estate is not required by the Department of Education."
2. That correspondence must be read in the context of the March correspondence from Ms Pyne. There is no mention of the development of Dunloe Park Estate and a fair reading of the August 2018 letter would tend to suggest that the medium to long-term educational facilities at Pottsville are adequate absent the release of land for urban purposes at Dunloe Park Estate.
3. Again in response to an inquiry from the solicitor for the Applicant in December 2018 under the signature of Mr Lantz but apparently authored by Ms Pyne, who is referred to as the contact person, the Department said as follows: "In response to your letter requesting any information available relating to strategic planning for educational facilities in the Tweed and its impact on your client's land, I advise: • a number of projects have recently been announced that will meet the educational accommodation demands of the Tweed up to 2031; • the position of the Department of Education regarding the demand for a high school in Pottsville has not altered: • Pottsville secondary students are designated to attend Kingscliff High School. • an upgrade to Kingscliff High School will ensure adequate and functional accommodation to meet secondary enrolment demand to 2031."
4. There is no direct evidence from the Department of Education and one can only draw inferences from the correspondence the latest of which is December 2018. It appears to me that the Department's position in relation to population growth is consistent with the other evidence - it is the emergence of the Dunloe Park Estate which will generate additional population and ultimately the need for additional education facilities.
5. The Department, logically, sees an opportunity with the development of the Dunloe Park Estate to obtain land for an educational facility without as significant a cost as the acquisition of land in the Seabreeze Estate. That is not a criticism of the Department but the recognition that there will be an opportunity, it perceives, to provide what will become an education facility at a lesser cost to the State of New South Wales by a voluntary planning agreement from the rezoning and subsequent development of the Dunloe Park Estate.

The demand for the Site

1. The Applicant submits that there has been no real interest from any non-government education providers to acquire the Site for the development of the school, in particular in reliance upon a marketing campaign conducted on its behalf by Ray White Special Projects in September 2019. Evidence of that campaign was given by the General Manager of the Applicant Mr Stuart Campbell by affidavit sworn 16 November 2019. Mr Campbell was not required for cross examination although the Council criticised the campaign as one which was "set up to fail". It was said by the Respondent that the marketing campaign was not a proper or genuine attempt to market the Site for sale as a potential school site.
2. The Applicant submitted that because Mr Campbell was not cross-examined I should reject any criticism that the marketing campaign was not a proper or genuine attempt by the agent to market the Site for sale as a potential school site.
3. I do not regard the Respondent as having an obligation to cross-examine Mr Campbell about the marketing campaign. First, the principles in Browne v Dunn (1893) 6 R 67 do not apply to these proceedings. Second, Mr Campbell was not personally involved in the marketing, in the sense that it was conducted by Ray White Special Projects who reported to Mr Campbell. The Respondent is entitled to point out any inadequacies in the Applicant's evidence which it perceives without having to cross-examine Mr Campbell in the present circumstances.
4. The marketing campaign invited expressions of interest describing the Site as a potential school site with an area of 6.27ha. The advertising and approach to potential education providers was extensive. There was no conforming expression of interest in the sense of an absolute or unconditional offer to acquire the property. There were however two groups that lodged what was described by the agent as "some form of offer or expressed interest". Those interested parties Lindisfarne Anglican Grammar School (Lindisfarne) and a Mr Wayne Laurence working "with a group who may have interest in establishing a school on the site".
5. Lindisfarne expressed a general interest through its Principal and also its Business Manager although not at the higher levels of authority within the Church to which it was subject. The agent reported that Lindisfarne: "…confirmed that strategically it was a good fit as they would like to eventually expand into this region, it just did not fit in well with their current obligations. Without prompting [the Business Manager] commented that around $3m-$4m to acquire the land it would place too much stress on their current financial position."
6. There is no indication as to where the $3m-$4m range of potential sale price originated.
7. Mr Laurence was reported as indicating: "…he was working with a group who may have interest in locating a school on the site. He indicated that his opinion on value was circa $1 million. He requested a copy of the contract and previous judgment of the unsuccessful application for residential development."
8. What is absent from the evidence is any indication as the communication, if any, from the agent to prospective purchasers as to the range of sale price expected by the vendor. It is plain that the sale of en globo land for residential subdivision has a significantly greater value than sale of the same land for the purposes of a school. There is no evidence as to the expectation of the Applicant/vendor nor whether such an expectation is reasonable and upon what it is based. Nor the extent of communication of that expectation to inquirers.
9. The Applicant argued that the Court should find that there was no interest from school providers. In the circumstances of two interested parties, one whose interest is in the coming year or so, and the other perhaps discouraged because of the vendor's price expectation, it is difficult to so conclude. There was interest based on the sales programme alone and I do not accept that there is no interest at all from non-government education providers although it can be accepted that it is perhaps somewhat limited.
10. Ms Bennett followed up the apparent interest of Lindisfarne with phone calls on 18 November 2019 and 2 December 2019 to which Ms Bennett deposed in an affidavit sworn 3 December 2019. Ms Bennett relevantly had the following conversation with Mr Dinsdale of Lindisfarne: "Bennett: Do you know where the Lindisfarne intends to submit an offer for the site? Dinsdale: We have stopped further investigations at this time because we are completing large works on current campuses. We are definitely interested in the area but will look into it in another twelve months. We can see ourselves developing a K-12 school in the area, anything from 600 to 1,100 students. We are certainly interested in areas to the south of our current schools. If we don't develop around there, then I'm sure someone will. We would be looking at putting a large school on a site so we would need to further investigate the site to make sure that it can accommodate our intentions. Am I able to see your independent analyses? Bennett: I'm still in the middle of my work for Council but I can check with Council and see what I can provide, but I don't think that will be until early 2020."
11. Ms Bennett had a further conversation with Mr Dinsdale on 2 December 2019 however no additional information was obtained.
12. The Applicant objected to the tender of the affidavit of Ms Bennett. It referred to the calls made by Ms Bennett as evidence of her unconscious bias because the inquiry of Lindisfarne was not strictly within her brief as a demographer, it was an unprompted inquiry and designed, the Applicant said, to further the Council's case.
13. Ms Bennett said in cross-examination that she was in effect seeking to "ground truth" her thesis that additional educational facilities would be required in the future by seeking to clarify the position of a school which had expressed an interest in the Site. The Respondent submitted that it was a perfectly appropriate line of inquiry for Ms Bennett to undertake.
14. I see no difficulty in Ms Bennett making that inquiry and do not regard it as evidence of unconscious bias. The evidence was effectively a "loose end" and seeking to obtain further information for the assistance of the Court is not an inappropriate course for Ms Bennett to take.
15. In any event, be it Ms Bennett or someone else who made the inquiry, the evidence of the conversation with Mr Dinsdale should be and is part of the evidence before the Court. That said, it does little more than confirm the information deduced from the agent during the attempted sale process.
16. There are, of course, limitations in that evidence as the Applicant points out. As with any organisation such as the Church which runs Lindisfarne school, there is a hierarchy of decision making and neither the Principal nor Mr Dinsdale is an ultimate decision maker. Further, the information from Mr Dinsdale goes little further than a continuing interest which is likely to be enlivened no earlier than about a year from the conversation in November 2019.
17. There are two primary schools in the Pottsville area, the state public school and St Ambrose Primary School (a Catholic primary school). Whilst there was some debate about the additional capacity of both of the schools, they do have some capacity. The public school has capacity for around 700 students and in 2018 had 668 students enrolled. St Ambrose Catholic School currently has around 320 students with a capacity (by condition in its development consent) of 420. There was some conflicting evidence from the school in that one telephone inquiry suggested the capacity of St Ambrose was 450 with reference to 15 classrooms each capable of taking 30 students, and separately the Principal indicating a capacity of 374 students expected to be reached in 2020.
18. I prefer to adopt the condition of development consent limiting the number of students to 420 as defining the capacity of the school at the present time and for the foreseeable future. That means there is a capacity in the order of 100 students if the school wishes to move to the maximum permissible under its development consent. Of course one cannot equate public school capacity with private (Catholic) school capacity and lump them together as a total capacity in the order of 120 students or so. School students cannot be forced to attend a private school whereas of course a public school is required to take a student who wishes to go to a state funded school.
19. There is limited public school capacity and some private school capacity in the Pottsville area.

Planning evidence

1. Mr Anderson is the planner retained by the Applicant and who also gave evidence in the earlier proceedings. The Council retained Mr Vescio to give evidence in its case. Mr Vescio did not give evidence in the earlier appeal.
2. The planning experts agreed, unsurprisingly, that the current proposal is inconsistent with Map 7A - Structure Plan contained in section B15 of the DCP insofar as it seeks removal of the site for a potential school and to develop the Site for residential lots.
3. The planners gave competing evidence about the weight to be given to the DCP. Mr Anderson opined that little or no weight should be given to the DCP and the residential subdivision should be approved. Mr Vescio opined that significant weight should be given to the DCP such that the residential subdivision ought not be approved.
4. Mr Anderson did opine that considering the criteria in clause 3.5 that a school may not be an appropriate land use because:

• bulky school buildings could be an urban design issue;
• the Site is less than satisfactory as a school because it only has two frontages and is severed by a drainage reserve;
• the local street network does not ideally suit a school at the Site;
• a school would introduce non-residential noise sources which are likely to give rise to significant amenity impacts.

1. On the other hand, Mr Viscio said simply that there are no constraints that would sterilise the development of the Site for a school.

Public contribution

1. The proposal was advertised in accordance with the Council's notification policy from 14 March 2018 to 13 April 2018. Council received 27 submissions of which 22 were against the proposal and 5 were in support. The principal issue raised in submissions against the proposal was an objection to the development of the Site for anything other than a school.
2. At the commencement of the hearing, evidence was given by two local residents, a third local resident on his own behalf and on behalf of the Pottsville Community Association Inc and a local real estate agent. Each of the objectors supported the Council's contention that the Site should be retained for the purposes of the school consistent with the long-term strategic planning for the Site. Reference was also made to a "commitment" by the Applicant from the time of the initial master plan and development consent that the Site would be developed as a school.
3. I have considered and taken into account the written and oral evidence of the objectors. It was largely coincident with the Council's contentions in any event.

Submissions and Discussion

1. In summary, the Applicant says that the inconsistency of the application with the identification of the Site as a "potential school site" in section B15 and B21 of the DCP does not provide a basis for rejecting the present proposal for the following reasons: 1. the DCP should be given little weight because it is outdated; 2. in any event, the DCP makes clear that it was only ever a "potential" that the Site should be developed; 3. retaining the Site for a school in circumstances where the Department of Education does not want to acquire the Site, there have been no other offers from non-government school operators and there is unlikely to be any demand before 2036 the DCP has the effect of sterilising the Site from any development at all which is not in the public interest; 4. the aim of the DCP to provide community facilities infrastructure in an orderly and economic manner is not relevant in circumstances where there is unlikely to be any need before 2036; 5. subdivision for residential purposes is permissible with consent and having regard to the zoning, it is to be expected that a consent authority will approve an application to use the Site for a purpose for which it is zoned provided there are acceptable environmental impacts. The impacts of the subdivision are acceptable; 6. if the DCP were applied as in effect permitting only the development of a school on the Site, it would be inconsistent or incompatible with the LEP and therefore have no effect by reason of s 3.43(5) of the EPA Act.
2. The Applicant further submits that it has demonstrated that a school cannot or should not be provided on the Site. The Applicant submits: 1. (again) that the DCP should have little or no weight; 2. there is current primary school capacity; 3. there will be no need for the establishment of any additional education facilities up to 2036; 4. the NSW Department of Education "has decided to acquire land at Dunloe Park not the Seabreeze Estate"; 5. flexibility should be applied to clause 3.5 of the DCP and a school cannot reasonably practicably be provided on the Site within the foreseeable future; 6. reliance upon the evidence of Mr Anderson as to a school use being inappropriate.
3. The Respondent, in summary, submits: 1. the DCP identifies the Site as a potential school site; 2. the Applicant has not satisfactorily demonstrated the criteria to be addressed in the DCP are met; 3. approval of the application would not be in the public interest; 4. the Applicant has failed to demonstrate that there is an alternative site that is both capable and suitable for equivalent educational requirements of the Pottsville emerging community; 5. there is no substantive evidence that the long-term strategic planning undertaken and reinforced by the Council over time should be abandoned; 6. there is only one way whereby the DCP is given any less than decisive weight - that it brings about an "inappropriate planning solution" (Stockland) and the Court would not be satisfied that the necessary level of comfort exists to disregard the DCP; 7. the Court would only reach the conclusion that the DCP brings about an inappropriate planning solution if it were certain that the Site will never be required for a school and similarly certain that there is an alternative site that is both capable and suitable for equivalent educational requirements of the Pottsville emerging community and the Court is unable to reach that state of certainty.
4. For the reasons which in part are demonstrated by the analysis of the evidence above together with what follows, I find that it is not appropriate to grant development consent for the residential subdivision of the Site. I will set out my analysis first and then deal with any of the Applicant's arguments which are not dealt with directly or inferentially in that discussion.
5. It is first necessary to consider the provisions of the DCP and apply them to the application. Then, consider whether notwithstanding a finding of inconsistency with the provisions of the DCP the application should be approved by giving little or no weight to the DCP or for other reasons.
6. Section B15 of the DCP deals with the Seabreeze Estate. One of the aims of the section which identifies the Site as potential school site is to:

• ensure that the necessary services and community facilities infrastructure are available in an orderly and economic manner.

1. Plainly enough section B15 which included the structure plan or indicative layout for the Estate provided for residential development and the location of infrastructure including "potential school site".
2. When in November 2013 the DCP was amended to apparently include Map 7A, it included the following commentary: "B15 - Map 7A includes the specific designation of the Potential School Site. The Potential School Site shown appears to be the only suitable location in Stage 2 of Seabreeze based on the requirement for 6ha and the Department of Education and communities' advisory notes for new education facilities sites."
3. The identification of the school site is in fulfilment of the aim to ensure infrastructure is available in an orderly and economic manner including educational facilities. It seems unnecessary to repeat once more that the proposal conflicts with Map 7A. The question remains whether the proposal nevertheless is not inconsistent with the aim to provide infrastructure in an orderly and economic manner. Attention should be given to the provisions of the development controls in section B21, specifically clause 3.5, in answering that question.
4. Section B21 is concerned with the Pottsville locality and includes provisions in relation to education strategy as well as the Seabreeze Estate and Dunloe Park Release Area. The aim of the provision is as described in clause 3.4 to plan effectively for the educational needs of the growing community. As identified earlier, the DCP anticipate a total population of over 10,000 people "in the coming years" after potential land releases including Dunloe Park Release Area.
5. The strategy underpinning the development controls identify that "any application received by Council on [the Site] or any master planning process for the Dunloe Park Release Area should acknowledge the Site's potential for school use." The DCP goes on: "Development control requirements are provided within s 3.5 should Council receive an application over these lands which does not include the provision of a school facility."
6. The controls are designed then to impose upon an Applicant to demonstrate: 1. why a school cannot or should not be provided on the Site with respect to certain non-inclusive criteria; 2. how the alternate land use is an appropriate use of lands; and 3. why the alternate use represents a better outcome than the provision of a school.
7. I accept for present purposes that the criteria identified in the preceding paragraph are standards or performance criteria for the purposes of s 4.15(3A) of the EPA Act. That means, the Court is to be flexible in applying the provisions and allow reasonable alternative solutions that achieve the objects of the standards.
8. I do not for a moment accept that a school cannot or should not be provided on the Site having regard to the identified criteria of design, sighting, recreation areas, parking servicing, traffic pedestrians, noise generation and landscaping. It is a large site zoned for purposes which include the provision of a school and schools are found consistently in residential areas. There was no foundation given by Mr Anderson that as a matter of planning merit a school of some form or description could not be provided on the Site. In particular in cross-examination, Mr Anderson conceded that he failed to consider such ameliorative measures as may be taken, and would ordinarily be taken, when approving the development of a site for the purposes of a school. I accept the evidence of Mr Vescio and the Respondent's submissions.

Conclusion and orders

1. For the foregoing reasons, the appeal should be dismissed.
2. I make the following orders: 1. The appeal is dismissed. 2. The exhibits are returned, except for Exhibit B.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2020