Nicholas Tang Holdings Pty Limited v Berbic and Wingecarribee Shire Council

Introduction and outcome

1. In these judicial review proceedings commenced by summons filed 23 March 2023 (and amended 8 May 2023 and further amended 12 December 2023), Nicholas Tang Holdings Pty Limited ('applicant'), challenges the validity of a development consent granted on 18 January 2023 by Wingecarribee Shire Council ('Council') to a development application lodged by Refik Berbic ('first respondent') seeking development consent for a dwelling house at 3A Holly Road, Burradoo ('site').
2. The applicant seeks a declaration that the decision to grant development consent is invalid and advances various grounds including that Alan Lindsay, Senior Accredited Certifier, who determined the consent under delegated authority of Council, failed to properly assess the development application before consent was granted; and that certain mandatory relevant considerations were ignored.
3. The first respondent denies the allegations and contends that the Court would not, in any event, in the exercise of its discretion, grant the relief sought by the applicant.
4. Council, the second respondent, as consent authority, filed a submitting appearance, with the first respondent being the active respondent.
5. For the reasons that follow, I find that the applicant is entitled to the relief sought in the further amended summons filed 12 December 2023.

Background

1. The following introductory narrative is largely uncontentious. Further salient facts will be noted in my consideration of the evidence and parties' submissions.
2. On 11 May 2022, the first respondent lodged development application DA 22/1717 ('DA' or 'application') with Council seeking development consent for a dwelling house and swimming pool at the site. The site is zoned R5 Large Lot Residential under the Wingecarribee Local Environmental Plan 2010 ('WLEP') and development for the purpose of a dwelling house is permissible.
3. The proposal was referred for consideration and assessment to Hugh Halliwell, an external Consultant Planner retained by Council. In July 2022, Mr Halliwell prepared a draft assessment report and a draft Notice of Determination (including conditions in relation to stormwater) which, on 21 October 2022, was forwarded by Mr Halliwell to certain Council officers "for review", noting that "engineering and contribution referrals remain outstanding".
4. Council's records note that the "Assessing Officer" was "Hugh Halliwell", and that a draft Notice of Determination had been "done in July", but it had not been "internally reviewed".
5. On 30 November 2022, Council's records note that Mr Lindsay accessed documents in relation to the application on Council's electronic filing system including the objections to the application received in response to the public exhibition period between 26 May and 9 June 2022 from Nicholas Tang, Katherine Binks, Zoran and Ivanka Mustapic, and from Chris and Julie Whicker (who each provided detailed objections to the proposal prepared by an expert town planning firm, Planning Ingenuity Pty Ltd), and internal correspondence from other Council officers.
6. On 30 November 2022, Mr Lindsay also emailed various Council officers noting that the "applicant is after a decision", "the lot is subject to flooding" and that "there have been numerous objections to the proposal in regard to stormwater … I have attached a copy of the plans, the [statement of environmental effects] Flood Map". Mr Lindsay also forwarded to Council officers the objections, the statement of environmental effects, and a copy of the "Flood Map" from the WLEP.
7. On 16 December 2022, an internal Council email records "'Owner has just come to the front counter to chase an update' but that [application] is 'still with External Planner - Hugh Halliwell'" and that there is still an "outstanding internal referral to the Development Engineers".
8. On 21 December 2022, a memorandum was sent to Mr Halliwell from Marium Hamnawa, Council's Development Engineer, providing suggested conditions for Council's engineers.
9. On 3 January 2023, Council's Business Support Officer, sent an email to Mr Halliwell (and a copy to Tula Bhattarai, Council's engineer) to "see escalated request below emails", to which Mr Halliwell responds on 16 January 2023, "I have just got back from leave today … It would be appreciated if the engineering team could jump onto this as a matter of urgency".
10. Council's electronic recording system shows that Mr Lindsay accessed various documents on 17 and 18 January 2023 including the statement of environmental effects, various plans, and the objections. He also had access to a draft unfinished assessment report prepared by Mr Halliwell.
11. On 18 January 2023, Mr Lindsay, under delegation, granted development consent for the DA ('Consent').
12. At the time of the Consent, Mr Lindsay had considered Mr Halliwell's draft report and had access to other documents in relation to the application including the bushfire assessment, BASIX certificate, architectural plans, inspection note, statement of environmental effects, and the draft Notice of Determination.
13. On 14 February 2023, the applicant's solicitors wrote to Council expressing concerns regarding the Consent and threatening to commence proceedings. Judicial review proceedings were commenced by summons filed 23 March 2023 (and amended 8 May 2023). A further amended summons was filed on 12 December 2023.

Structure of judgment

1. These reasons for judgment are structured as follows. First, I will outline the applicant's present claims as provided in the further amended summons and the first respondent's response to the amended summons. I will then briefly note the evidence and the statutory provisions relevant to the applicant's claims before considering the active parties' submissions. Given the tripartite (and somewhat overlapping) nature of the grounds for review raised by the applicant, and the manner in which the parties presented their positions, it is appropriate to deal with each ground seriatim which involves some unavoidable repetition in my consideration.
2. In its further amended summons filed 12 December 2023, the applicant raises three grounds. First, that Mr Lindsay purported to, but failed to perform an assessment of the DA before determining the application on 18 January 2023, resulting in a failure to comply with s 4.15(1) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act').
3. Secondly, to the extent Mr Lindsay performed an assessment of the DA, he failed to identify or consider, first, cl 5.21 of the WLEP as affecting the proposal, which was a mandatory consideration under s 4.15(1)(a)(i) of the EPA Act; and second, public submissions or objections, including an objection made by the Nicholas Tang, a director of the applicant, on 9 June 2022, which were mandatory matters for consideration under s 4.15(1)(d) of the EPA Act.
4. Thirdly, Mr Lindsay purported to grant the Consent without any probative evidence as to the likely impacts to and of the development from flooding when such probative evidence was required in order to be satisfied of the matters in cl 5.21(2) of the WLEP, and in order for the matters in cl 5.21(3) of the WLEP to be considered.

Evidence

1. The Court received an extensive agreed bundle of documents containing background documentary material including the Notice of Determination issued by Council (signed by Mr Lindsay on 18 January 2023) as well as various reports and plans which accompanied the DA including the statement of environmental effects and a document styled "Responsive Outcome Unit Site Inspection", and various internal Council documents relating to the proposal.
2. The bundle includes an undated and incomplete document titled "Planning Assessment Report" prepared by Mr Halliwell ('First Report'), and a further version of that report identified as the "final copy", dated 17 February 2023 ('Later Report').
3. The bundle also includes several submissions objecting to the DA, including, from Nicholas Tang dated 31 May 2022, Katherine Binks dated 9 June 2022, Zoran and Ivanka Mustapic dated 14 June 2022, and Chris and Julie Whicker dated 14 June 2022. The objections from Katherine Binks, Zoran and Ivanka Mustapic, and Chris and Julie Whicker each enclosed a specialist town planning report of Planning Ingenuity Pty Ltd. Also included in the bundle were two background flood studies each prepared for Council pursuant to the NSW Government's Flood Prone Land Policy being, the Burradoo BU2 Catchment Assessment Study Stage 1 Flood Study Report dated 29 October 2010 ('Flood Study Report'), and the Burradoo BU2 Catchment Floodplain Risk Management Study and Plan dated 31 January 2014 ('Floodplain Risk Study').
4. The applicant read the affidavit of its solicitor, Anthony Boskovitz, sworn 6 December 2023. The first respondent read the affidavits of Refik Berbic sworn 24 October 2023 and Tarek Kheir, solicitor for the first respondent, sworn 11 December 2023.
5. In his affidavit, read in support of the first respondent's discretionary defence, Mr Berbic deposes that he is the registered proprietor of the site. Mr Berbic details various expenses that he has incurred (which would be thrown away if the Consent were to be set aside) including $1,320 for surveying; $3,300 for the cost of an environmental report; and $8,048.13 for the cost of preparing and lodging the development application with Council (via the company, Obliq Design). Mr Berbic also indicates that he is making regular mortgage payments and undertaking maintenance tasks on the property. Mr Berbic anticipates that the property will lose $200,000 in value if the site does not have the Consent.
6. In his affidavit, Mr Kheir deposes that a Notice to Produce was issued by the applicant to Council requesting data from Council's electronic records management system showing who accessed certain documents within Council's electronic records when determining the application for the site and the date and time of that access. The affidavit attaches a table titled "Summary Schedule of Document Access Records for Public Submissions" exchanged between solicitors for the applicant and the first respondent, and two further tables styled "Document Set IDs Accessed by Alan Lindsay and Others" and "Other Documents Accessed by Alan Lindsay".
7. In his affidavit, Mr Boskovitz deposes that the applicant issued a Notice to Admit Facts and Authenticity of Documents ('Notice') to Council on 3 November 2023 and on 1 December 2023, Council's solicitors confirmed that they did not have instructions "to put on any response or dispute the content of the [Notice]."
8. Pursuant to rule 17.3(2) of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'), where Council does not serve a notice disputing the facts of the Notice, the contents of the Notice are taken to have been admitted by Council in favour of the applicant for the proceedings. For the purposes of these proceedings, Council has admitted to the contents of the Notice including that: 1. There is no record of assessment of the application by Mr Lindsay; and 2. The First Report was the only document made available to Mr Lindsay in the nature of the assessment of the DA at the time of his determination of the application.

Legislative Framework

1. Section 4.15(1) of the EPA Act sets out the matters that a consent authority is to take into consideration in determining a development application including relevantly, "the provisions of any environmental planning instrument … that apply to the land to which the development application relates" (s 4.15(1)(a)(i)); and "any submissions made in accordance with this Act or the regulations" (s 4.15(1)(d)).
2. As noted earlier, the applicant contends that Council failed to consider cl 5.21 of the WLEP which, at the time of the Consent, relevantly provided: 5.21 Flood planning (1) The objectives of this clause are as follows - (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the flood function and behaviour on the land, taking into account projected changes as a result of climate change, (c) to avoid adverse or cumulative impacts on flood behaviour and the environment, (d) to enable the safe occupation and efficient evacuation of people in the event of a flood. (2) Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development - (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. (3) In deciding whether to grant development consent on land to which this clause applies, the consent authority must consider the following matters - (a) the impact of the development on projected changes to flood behaviour as a result of climate change, (b) the intended design and scale of buildings resulting from the development, (c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood, (d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion. … (5) In this clause - … flood planning area has the same meaning as it has in the Floodplain Development Manual. Floodplain Development Manual means the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005.

Applicant's position

1. The applicant submits that the Consent is invalid for three primary reasons. First, because there is no record of Mr Lindsay having read or considered the First Report and therefore there is no record of him carrying out the required exercise to assess the application under s 4.15(1) of the EPA Act ('Reason 1').
2. Second, even if Mr Lindsay did read the First Report and adopted its contents in his assessment of the DA, the First Report lacked the required detail to inform Mr Lindsay of the mandatory relevant considerations under s 4.15(1) including, first, cl 5.21 of the WLEP in relation to flood planning and impacts; and second, any public submissions (particularly those of Nicholas Tang and Katherine Binks) ('Reason 2').
3. Third, even if Mr Lindsay did read the First Report and/or had constructive knowledge of the material on Council's electronic records management system in relation to the DA in general, he nevertheless had no probative evidence (from Council's records on file or elsewhere) to generate the state of positive satisfaction required by subcll 5.21(2) and (3) of the WLEP ('Reason 3').
4. In response to the first respondent's position (noted at [50] and [60] in this judgment), the applicant disputes that there is a presumption established in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 31 (Gibbs CJ); [1986] HCA 40 and Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67] (Ipp AJA), that a council's file is taken to be within the constructive knowledge of council officers unless contrary evidence is adduced. The applicant submits that the Court would not conclude that Mr Lindsay had constructive knowledge of either the First Report or any knowledge of Council's entire records on file in relation to the DA for seven reasons.
5. First, because there is no rule or presumption to that effect. Second, there is nothing in Mr Lindsay's title of "Senior Accredited Certifier" which would suggest that he had day-to-day knowledge of the DA. Third, there is no evidence that this was a contentious application which suggests that a senior officer and/or manager such as Mr Lindsay would not have any particular knowledge of the details of the DA. Fourth, the amount of time taken between the initial supply of information (of objector submissions) to Mr Lindsay and the date of Mr Lindsay's assessment being approximately six to seven months (from June 2022 to his assessment in January 2023) would weigh against him having appropriate familiarity with the contents of the information. Fifth, there is no evidence that Mr Lindsay inspected the site or that he was familiar with it. Sixth, the specific conditions notified to Mr Halliwell recommended by Ms Hamnawa in relation to conditions to be satisfied prior to the issue of an occupation certificate were not included in the Consent, which suggests that Mr Lindsay had not seen that document or had not been involved with compiling the conditions needed to be included in the Consent. Seventh, even assuming that Mr Lindsay had constructive knowledge of the entire Council records on "file", this would not include the Later Report because an email of 17 February 2023 of Paige Zelunzuk, a Governance Officer of Council, confirmed that the Later Report had not been earlier "saved" in Council's records.
6. Even if Mr Lindsay could be said to have constructive knowledge of the First Report, the applicant contends that that document was so fundamentally deficient in identifying issues relating to mandatory relevant considerations that Mr Lindsay could not be taken to have performed the function of assessment as required by s 4.15(1) of the EPA Act. Furthermore, even if Mr Lindsay had considered the statement of environmental effects, it does not refer to cl 5.21 of the WLEP.
7. The applicant submits that the Notice of Determination is the only document where there is a clear inference that it was before Mr Lindsay and adopted by him.
8. The applicant further submits that the fact that the site was identified as "flood affected" in the Flood Study Report and on maps in the corresponding Floodplain Risk Study should lead to the conclusion that the site is "within the flood planning area" for the purposes of cl 5.21(2) of the WLEP. As such, development consent could not be granted unless the consent authority formed a positive satisfaction of the matters in cl 5.21(2) (which is achieved through the consideration of the matters in cl 5.21(3)).
9. The applicant notes that Mr Lindsay had identified that the site was within the "Flood Map" in an email dated 30 November 2022 which shows that he knew that the site was flood-affected (an affectation that is supported by the Flood Study Report), however, he failed to apply cl 5.21(2) of the WLEP as required under s 4.15(1)(a)(i) of the EPA Act. This failure is evidenced by there being no record produced by Council which refers to subcll 5.21(2) or (3) and no record of Mr Lindsay's consideration of the matters in cl 5.21(3) nor any record of his (positive) satisfaction of the matters listed in cl 5.21(2). Furthermore, what is required to be satisfied are matters of a "technical nature" to which there is no probative evidence available to Mr Lindsay for him to form the view.
10. In relation to the construction of cl 5.21 of the WLEP, the applicant submits that the provision cannot be understood simply on its face but must be understood by reference to other documents. An assessment of whether certain land is "consider[ed]" to be "in the flood planning area" (pursuant to cl 5.21(2)) must be made by reference to "institutional" materials such as the Flood Study Report, the NSW Floodplain Development Manual (2005) ('Manual') and the Floodplain Management Plan and not by subjective assessment of an assessor. The applicant notes that although by reference to the Flood Study Report, the Manual and the Floodplain Management Plan, Mr Lindsay had clearly and correctly identified that the site was "subject to flooding" and within the "Flood Map" as evidenced by his email of 30 November 2022, he did not form a positive satisfaction of the matters in cl 5.21(2) and did not consider the matters in cl 5.21(3).
11. The applicant further contends that the public submissions drew attention to the potential flood impacts of the site and identified that required information was missing (per Nicholas Tang's objection), and that there were likely adverse flood impacts from the site (per neighbour, Katherine Binks' objection). These objections should have drawn Mr Lindsay's attention to cl 5.21(2) of the WLEP, and the fact that he did not consider the clause, necessarily leads to the conclusion that Mr Lindsay did not consider the public submissions as required by s 4.15(1)(d) of the EPA Act.
12. The applicant contends that the terms of subcll 5.21(2) and (3) of the WLEP clearly support a proposition that "probative" information of a specific type was necessary before any person could form views required under cl 5.21(2). As such, in order to reach a positive state of satisfaction as to whether a proposed development was - "compatible with the flood function and behaviour on the land" (cl 5.21(2)(a)); or would not "adversely affect the safe occupation and efficient evacuation of people" (cl 5.21(2)(c)); or would not "adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses" (cl 5.21(2)(e)), Mr Lindsay would have required "probative" information based upon specific and specialised knowledge before he could form a view.
13. The applicant contends that the requisite state of satisfaction on the matters identified above cannot be reached by the ordinary knowledge of a layperson or the assessing officer of a council. The applicant notes that the DA was not supported by any specific information in relation to the matters noted above. Nor is there any record of any internal referral of such matters to an officer of Council with that specialised knowledge or expertise. The applicant maintains that even on a generous view of presumption of regularity or constructive knowledge within Council, the Court could not be satisfied that Council had formed an appropriate positive state of satisfaction in relation to the issues identified in cl 5.21(2) of the WLEP.

First respondent's position

1. The first respondent submits that each of the applicant's three primary "reasons" should be rejected.
2. Reason 1 should be rejected as Council is not under a duty to give reasons, therefore, whether or not there is a "record" of Council's assessment of the DA does not constitute an available ground of review. The applicant has not supported Reason 1 by reference to a list of mandatory relevant considerations that are to be considered by the decision-maker and has not indicated that the decision-maker has failed to take into consideration any such mandatory consideration, accordingly, Reason 1 is not a ground of judicial review known to the law.
3. Reason 2 fails as it assumes that the First Report prepared by Mr Halliwell was adopted by Mr Lindsay and therefore becomes a record of the final decision. However, there is no evidence of that being the case.
4. Reason 3 should be rejected as it cannot be demonstrated that Mr Lindsay did not know about subcll 5.21(2) and (3) of the WLEP, and it would be surprising that as Senior Accredited Certifier under delegated authority of Council, that he would not know about clauses within Council's own local environment plan. There is no inference available to the Court which suggests that there was no evidence available to Mr Lindsay to form a state of satisfaction as required under the WLEP.
5. In response to the applicant's submission (at [36] above) that the Court should not find that Mr Lindsay had constructive knowledge of the entire Council records on file, the first respondent submits that the applicant seeks to reverse the onus of proof. It is the applicant who is required to demonstrate that Mr Lindsay did not take into account a mandatory consideration and not for the first respondent to prove that Mr Lindsay knew, or was deemed to know, the whole of the records on file. There is no reason for the Court to draw an inference that Mr Lindsay had not appraised himself of the material in Council's records on file nor can the Court draw an inference that Mr Lindsay's knowledge was limited to the information within the file.
6. Similarly, where the applicant contends that there is no evidence that the DA was a "contentious" application such that a certifier like Mr Lindsay would have particular knowledge of it, the applicant again reverses the onus of proof. The first respondent is not required to prove that Mr Lindsay did have particular knowledge of the DA for the reasons that it may have been particularly contentious or otherwise. Similarly, the first respondent is not required to prove that Mr Lindsay attended the site or to provide any evidence of communication between Mr Halliwell and Mr Lindsay.
7. The first respondent submits that although the Court would not draw any determinative inference from Mr Lindsay's title, the Court would accept that Mr Lindsay is a Senior Accredited Certifier, a role under delegation of Council that requires him to oversee a team that assesses development applications in the assessment of the DA. And the Court could infer from Mr Lindsay's title that he would be familiar with the DA, and issued the detailed conditions in the Notice of Determination with working knowledge of the provisions in Council's local environmental plan including cl 5.21 of the WLEP. There is no evidence to suggest that Mr Lindsay has not "done his job".
8. The first respondent submits in response to the applicant's contention at [37] above, that any time taken between information being supplied to Council by way of objectors' submissions in May and June 2022, and the Consent being granted in January 2023 is a positive indicator of the amount of time which Council had to consider the information.
9. The first respondent submits that contrary to the applicant's submission at [37], any difference between the conditions in the Notice of Determination and the conditions that were notified to Mr Halliwell (although not to Mr Lindsay), by Council's Development Engineer, Ms Hamnawa, in her memorandum of 21 December 2022 directed to Mr Halliwell, allows an inference to be drawn that Council had turned its mind to her advice in the formulation of final conditions.
10. The first respondent submits that the fact that certain material had not been "saved" in Council's records (in relation to the Later Report) does not permit any (negative) inference to be drawn as the first respondent has no obligation to produce material in circumstances, again, where the applicant bears the onus of proof.
11. The first respondent again submits that the applicant has to prove that an identified mandatory relevant consideration was not considered and points to the conditions imposed, including condition 16 (in relation to floor levels) which refers to the 1% AEP flood level, indicating that flood issues had been considered, and that a number of other conditions dealing with stormwater discharge and drainage (including conditions 9, 10, 17, 18 and 34), being further evidence that Council took into account the relevant mandatory considerations.
12. The first respondent notes that a number of public submissions referred to cl 5.21 of the WLEP and, as such, it can be inferred that Council, including Mr Lindsay, considered flood issues. Further, Mr Lindsay was aware of the "Flood Map" as well as the location of the site in relation to the "Flood Map", and points to Mr Lindsay's email dated 30 November 2023 asking for further advice concerning flooding. Mr Lindsay was also aware of objections to the application in regard to stormwater. The first respondent notes that while there is no evidence that further advice regarding the flood situation was provided in writing, the Court could infer that such advice was provided orally.
13. In relation to the application of cl 5.21 of the WLEP, the first respondent contends that where cl 5.21(2) only applies if Council "considers" that the site is within the "flood planning area". The applicant has not established that Mr Lindsay "considered" that the site was within the flood planning area, and thereafter has not established that the state of satisfaction identified in the second part of cl 5.21(2) was required to be formed by Mr Lindsay.
14. In any event, even if cl 5.21 of the WLEP applied, the applicant has not demonstrated that Mr Lindsay did not form the state of satisfaction as required under cl 5.21 having regard to the express reference to matters in cl 5.21(2)(a)-(d) in the public submissions which were before him during his assessment of the application.
15. The first respondent submits that the presumption of regularity applies in this case, and it applies to the formation of states of satisfaction: Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154; (1987) 62 LGRA 409 at 149 (McHugh JA).
16. The first respondent submits that Reason 3 (that there was no "probative" evidence in relation to flooding concerns (at [35] above)) is a misplaced submission made on the merits as to what the first respondent considers to be an appropriate fact or (merit) method to approaching cl 5.21 of the WLEP. To reject this ground, the first respondent points to detailed submissions made by objectors in relation to the considerations stated in cl 5.21 specifically raising the merits concerns which are now agitated by the applicant.

Consideration

1. The jurisdiction of this Court in these judicial review proceedings is confined to ensuring that Council carried out its functions in accordance with the statutory provisions that govern the performance of those functions and the exercise of the relevant parts.
2. As noted above, in its submissions the applicant advances three slightly overlapping positions: first, there is no record of Mr Lindsay's proper consideration or assessment of the application; second, the material upon which Mr Lindsay otherwise relied upon lacked detail to inform him in relation to two mandatory relevant considerations being cl 5.21 of the WLEP and any public submissions; and third, in the alternative, even if Mr Lindsay had knowledge, constructive or otherwise, of the material in Council's records on file, he nevertheless had no probative evidence to generate the state of positive satisfaction required by subcll 5.21(2) and (3) of the WLEP.
3. The gist of the applicant's case is the failure to have regard to cl 5.21 of the WLEP. The legal principles the Court is to apply were generally agreed between the parties and may be briefly noted.
4. The onus rests upon the applicant to prove on the balance of probabilities each of the matters it raises. That onus can be discharged by reference to any documentary material evidencing the decision-making process to allow the Court to draw the inference that Council did not form the required positive state of satisfaction.
5. In a matter such as this, the Court is not required to focus on a minute examination of all of the material before Council with an eye keenly attuned to perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 (Brennan CJ, Toohey, McHugh and Gummow JJ).
6. The obligation of a consent authority is to "determine" a development application pursuant to s 4.16(1) of the EPA Act. The process of assessment and determination has been described as "indivisible" (GPT RE Ltd v Wollongong City Council [2006] NSWLEC 303; (2006) 151 LGERA 116 at [80] (Biscoe J)) such that the determination function is tied to the assessment function. The duty to consider statutory matters arises and must occur "in" determining the development application (under s 4.15(1)).
7. The primary question is, what is the likely inference arising from the material before the primary decision-maker? Put simply, whether the material relied upon by a decision-maker (here, Council) provides support for an inference that it was aware of the specific issue which was of critical importance: Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321 at [53]-[54] (Powell, Giles and Fitzgerald JJA). Such an inference is unlikely to arise from material which demonstrates no more than that the consent authority was aware of the issues which were relevant to its decision whether or not to grant consent. As such, I consider that an inference is unlikely to arise in the absence of some reference to the effect of cl 5.21 of the WLEP. As will be seen, I am not satisfied that cl 5.21 has been lawfully addressed. Before addressing the issues, I note the following by way of introduction.
8. The use of language requiring that decision-maker to form an opinion has been held to reflect a legislative intention to prevent litigation on questions of jurisdictional fact: Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; (2012) 188 LGERA 26 ('Darley') at [76] (McColl JA).
9. Leaving the language of jurisdictional fact (which arose in submissions) to one side, it appears to be common ground that the forming of a state of satisfaction, rather than the underlying circumstances, is the criteria which preconditions the exercise of the power to grant consent: Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 at [33] (Basten JA). As such, if necessary, I find that in this matter, the underlying circumstances in cl 5.21 of the WLEP are not questions of fact to be assessed by the Court and it is the state of satisfaction of Council as decision-maker which is the "jurisdictional fact": Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [130] (Gummow J).
10. It is clear that Council has no obligation to provide in any record, official or otherwise, of all of the considerations that informed its decision, or to provide specific reasons. As the applicant did not avail itself of other mechanisms such as administering interrogatories or seeking a statement of reasons pursuant to r 59.9(2) of the UCPR, the applicant must discharge its onus by reference to documentary material evidencing the decision-making process to allow the Court to draw the inference that Council formed the required state of mental satisfaction.
11. Having closely considered the whole of the evidence and having regard to the detailed submissions, for the reasons to follow, I do not consider that it is appropriate to draw the inference that Council (through its delegate) formed the positive state of satisfaction required by cl 5.21 of the WLEP.
12. In circumstances where there is no record of Council indicating that Mr Lindsay undertook the assessment of the application, and all earlier records appear to assert that Mr Halliwell remained the assessing officer, I accept the applicant's submission that the inference is that Mr Lindsay appeared to be performing a "managerial role" in response to an inquiry regarding the timing of the assessment. The inference that arises from the conduct up until 18 January 2023 is that Mr Lindsay, even if he did access the public submissions, only appears to have viewed the documents in Council's records to undertake the necessary administrative work of stamping the required documents that form part of the determination.
13. In approaching the question of whether there was consideration of mandatory relevant matters, I consider that it is appropriate to have regard to the whole of the material including the submissions received by Council.
14. While I do not necessarily accept the applicant's submission that the key date of assessment for the Court is confined to what occurred on 18 January 2023 (being the last day of the decision-making process in the lead up to the grant of the Consent), I consider that the Court could, as submitted by the first respondent, review Mr Lindsay's decision based on the steps that he took over a period of time leading up to the date of the grant of the Consent.
15. Council's electronic records management system shows the documents Mr Lindsay accessed in the process of reviewing the application. The evidence indicates that Mr Lindsay accessed the public submissions, including the objections referred to at [10] above (with the exception of one of Katherine Binks' two objections). Those submissions (which included the Planning Ingenuity Pty Ltd report of 11 June 2022, prepared by a specialist town planning firm) objected to the proposal and expressly raised the provisions in cl 5.21 of the WLEP. The Planning Ingenuity Pty Ltd report makes specific reference to flood issues in the following manner: 1. Reference is made to "flooding" stating that the site is in a flood-prone area and provides figures showing 1:100 and PM Flooding Maps extracted from the Flood Study Report and Floodplain Risk Study (including satellite images). 2. Reference is made to a large overland flow path connecting to Council's draining easement and noting that "any further work that impacts upon overland flow … will most likely lead to a further increase in flood levels downstream". 3. The report further noted that no "flood study" had been provided with the application to "demonstrate the proposal's consideration and compliance with Clause 5.21 Flood Planning of the Wingecarribee LEP 2010 or Section 5 of the Bowral DCP". The report further noted the effect on properties downstream included the ability of the proposal to minimise the flood risk to life and property associated with the use of land, and allow development on land that is compatible with the flood function.
16. It is also clear that Mr Lindsay accessed the statement of environmental effects, architectural plans, and received an email from Council's Development Engineer, Ms Hamnawa, relating to conditions to be imposed to deal with flooding and stormwater.
17. Although I accept that some of the conditions imposed (noted at [56] above) address issues of stormwater and flooding, in particular condition 16 requiring the floor levels to be above the 1% AEP flood level, and although the parties made detailed submissions in relation to these conditions, I do not consider that the imposition of these conditions reflects an approval of the application which has been considered to be compatible with identified flood issues in relation to the site nor, more relevantly, indicates engagement with cl 5.21 of the WLEP.
18. While Mr Lindsay expressed the view that "the lot is subject to flooding" and "that there had been numerous objections … in regard to stormwater" and provided the "Flood Map" in his email of 30 November 2022 to Council's engineers, apart from providing that material and requesting the engineers to "have a look at the file and provide response", it does not follow that Mr Lindsay had regard to the context of the submissions raised by the objectors and therefore cl 5.21 when granting the Consent. In particular, Mr Lindsay, at no point makes reference to cl 5.21 of the WLEP.
19. For the above reasons, and accepting the applicant's submissions at [37]-[38],[40]-[41] above, I consider that the evidence from Council's records on file marshalled by the applicant has discharged the onus of proof, and is sufficient to draw the inference that Council did not form the state of positive satisfaction in relation to cl 5.21 of the WLEP when granting the Consent. Further, I do not find that Mr Lindsay had constructive knowledge of the records on Council's "entire file" for the reasons submitted by the applicant at [37] above, in particular the second, third, fifth and sixth reasons.
20. It is pertinent to note that the first respondent contends, in the alternative, that even if Mr Lindsay did not access the reports or submissions in relation to flooding issues, the presumption of regularity applies to matters of substance (not just form) such that it may be presumed that Council has considered all relevant matters when granting the Consent.
21. There are a range of judicial views in relation to the use of the presumption of regularity. There is dicta that "it has no place" when determining the formation of a positive state of satisfaction in administrative action and that care should be taken in relation to circumstances where the presumption of regularity may be "misplaced": Franklins Ltd v Penrith City Council [1999] NSWCA 134 ('Franklins') at [28] (Stein JA); Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 at [59]-[60] (McClellan CJ of LEC). There is also a general view that the presumption of regularity more easily arises in relation to "formal requirements of judicial or administrative acts".
22. For the reasons above, more particularly that the matters in cl 5.21 of the WLEP are prescriptive, I consider that those matters are determinative in favour of the applicant's position in the present case. Furthermore, as considered by Basten JA in GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 at [83], a party challenging the validity of an exercise of statutory authority must demonstrate, with appropriate evidence, a basis for finding invalidity such that the Court is affirmatively satisfied that there has been a failure to comply with some necessary precondition and, in these circumstances, it is "less clear from the authorities" the precise role of the presumption once the Court has "some evidence to the contrary".
23. Although I am sufficiently satisfied in my finding in relation to Mr Lindsay's (lack of) consideration of mandatory matters including flood issues, I find that the first respondent is not entitled to rely on the presumption of regularity and the better view is that the presumption cannot apply to present matters as these are matters of substance and not just form: Darley at [117]. In any event, even if the substantive information in the objectors' submissions (including the matters relating to cl 5.21 of the WLEP) were effectively before Mr Lindsay during his consideration of the application, they are not capable of showing that Mr Lindsay reached the positive state of satisfaction by consideration of the required matters. The information in the submissions cannot substitute for the positive engagement of cl 5.21 of the WLEP.
24. Apart from the above, an inference of a failure to reach the required positive state of satisfaction could be "more readily drawn in the absence of any evidence from Council officers with knowledge of the facts": Franklins at [29]. The absence of evidence from Council officers (or others) assists in my consideration of this aspect.
25. For completeness, I also do not accept the first respondent's submission, as I understand it, that because Mr Lindsay did not "consider" that the site was within the "flood planning area" (as per cl 5.21(2)), the assessment under cl 5.21 was not otherwise required. This is because, first, there is no evidence to this effect; second, I have found the presumption of regularity does not apply; third, Mr Lindsay knew that the site was "subject to flooding" (per his email of 30 November 2022); and fourth, there was no evidence that any consideration was given to cl 5.21 of the WLEP at all by Mr Lindsay or any other Council officer.
26. Although not determinative in my findings above, the applicant further contends that specific technical or probative evidence is needed to be marshalled (and indeed considered) to allow the matters under cl 5.21(3) to be considered in order to reach a positive state of satisfaction under cl 5.21(2). The applicant notes that cl 5.21 is essentially dealing with "Flood planning" and contains objectives in relation to minimising the flood risk, flood function, flood behaviour, and safe occupation, and requires the consent authority to be satisfied in relation to these matters, and in making the decision must consider the impact of the development on flood behaviour, the design and scale of the buildings, and other matters.
27. As such, an essential difference in approach between the parties' positions was that the first respondent contended that the actual requirements of subcll 5.21(2) and (3) could be (and were in fact) accommodated under the general rubric of "flooding", which Council has considered. I do not accept this position. There are specific matters in cl 5.21 that require discrete attention and as stated above, the evidence clearly indicates that these matters were not considered nor engaged with by the decision-maker.
28. Further, I note that there was no mention at all of cl 5.21 in the statement of environment effects despite it noting a number of "relevant" clauses in the WLEP. And, despite the reference in the statement of environmental effects to material in relation to flooding in an earlier development application for the subdivision that created the site, there was no "Flood Impact Assessment Report" (or any subsequent modelling or impact assessment) provided in support of the application.
29. I also note and accept that there was no "advice" from Council's Development Engineer that specifically mentioned cl 5.21 at all, or in substance, and as noted above, that the primary condition relied upon by the first respondent went only to flood levels (such as the 1% AEP flood level).
30. The applicant's third ground of challenge was that the Consent was granted in circumstances where there was no probative evidence in relation to the matters about which Council was required to be satisfied. I consider that this ground is made out.
31. I find that even taking into account the detail in the objectors' submissions, including the material noted at [76] above, the statement of environmental effects and the suggested conditions of consent (provided by Council's Development Engineer) at their highest, it was not reasonably open for Mr Lindsay to assess the issues in relation to the likely impacts of the development from flooding in the context of cl 5.21. That is, there was no material (technical, expert or otherwise) such that it was reasonably open for Mr Lindsay to understand the likely impacts to and of the development from flooding. To the extent necessary, and although not on its own determinative given my finding above, I find that the no (probative) evidence ground is made out.
32. For completeness, and not determinative of my findings, I note that the first respondent submitted that the statutory interpretation of cl 5.21 of the WLEP requires that cl 5.21(2) be read in isolation such that the satisfaction of the decision-maker referred to in that subclause is not a jurisdictional precondition for the grant of development consent based upon the comments in El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 ('Gemaveld') at [70], where Leeming JA noted, "the content of the [local environmental plan] cannot determine whether a power conferred by statute is subject to precondition which is a jurisdictional fact". The first respondent submitted that it follows that s 4.15 of the EPA Act simply requires the WLEP to be taken into consideration but does not require that the satisfaction required by cl 5.21(2) be a jurisdictional fact and that it follows that in order for Mr Lindsay to fall into legal error in the decision-making process, the applicant needs to show that there was an absolute failure to take into account cl 5.21. I consider that this cannot be the case such that cl 5.21 should not be read in isolation nor can there only be consideration of, and not satisfaction of, the matters in cl 5.21 as this would fundamentally undermine the objectives of the provision.
33. Although I have made findings which are sufficient to determine this matter, I do not rely upon the first respondent's submission as I do not consider that the words of Leeming JA in Gemaveld were meant to overturn what I understand to be previous persuasive authority.

Discretion under s 25B of the Land and Environment Court Act 1979 (NSW)

1. I have determined that the applicant is entitled to the relief sought in the further amended summons and that the Consent is invalid. In such circumstances, the first respondent submits that the Court has the discretion to make orders for conditional validity of the application pursuant to s 25B of the Land and Environment Court Act 1979 (NSW) ('Court Act') and that it would be appropriate for the Court to exercise its discretion to remit the matter back to Council for re-consideration. Alternatively, the first respondent submits that evidence in relation to his personal financial loss would dissuade the Court from making a declaration of invalidity.
2. The applicant submits that it should only be an extraordinary set of facts where an error is material enough to result in validity and yet trivial enough to warrant the exercise of the discretion under the Court Act. The applicant distinguishes the ability to make a s 25B order in the current circumstances from those of "exceptional cases" in Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141 (Craig J), where the council's public notification and advertisement of a development application incompletely identified the land upon which the development would take place, thus the Court made s 25B orders for the council to correctly re-notify and advertise the development; and Filetron Pty Ltd v Innovate Partners Pty Ltd atf Banton Family Trust 2 and Goulburn Mulwaree Council [2023] NSWLEC 45 at [139]-[140], where the delegate had failed to translate matters that were properly considered at the assessment stage into conditions and the Court made orders for such conditions already considered and defined in the assessment report to be added to the development consent.
3. I consider that the power to make an order under s 25B of the Court Act, while wide, should be exercised in a manner explained by Biscoe J in Aldous v Greater Taree City Council [2009] NSWLEC 17; (2009) 167 LGERA 13 at [99]: "… s 25B(1)(b) only permits an order specifying terms compliance with which have not been taken, which could appropriately be taken, and which, if taken, "will" result in validity. If a council, in granting development consent, has failed to consider a mandatory relevant [matter] when purporting to grant development consent, it cannot be said that an order that it now do so "will" validate that consent because, on consideration of that matter, which must then be weighed and balanced against all other matters relevant to the council's consideration, the council might decide to refuse consent… [a]lternatively, if s25B is capable of applying to a case of failure to consider a [matter], it seems to me to be generally inappropriate to exercise the discretion by ordering the council to consider that matter. The reason is that consideration of a particular [matter] is not discrete but necessitates a reopening of the whole process, weighing and balancing consideration of that matter against all other relevant matters, and may lead to refusal of the application."
4. The principles applicable to the operation of s 25B of the Court Act were further considered by Biscoe J in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 at [30]-[46] in a manner which I adopt without recitation, and more recently considered by Pritchard J in Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140 at [122].
5. Given my findings above, I do not consider that the error in the present matter is a discrete technical breach where I have found that there is a breach of a mandatory statutory requirement: Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 at [21] (Hodgson JA).
6. Further, although I have some sympathy for the personal financial loss that will be experienced by the first respondent consequent upon a declaration of invalidity of the Consent which invalidity has resulted from the conduct of the consent authority, and as I have a residual concern as to whether personal financial hardship is a considered "ground" for withholding administrative law remedies, I do not consider that this is an appropriate matter to withhold the relief otherwise sought by the applicant.

Conclusion

1. For the above reasons, I find that the applicant is entitled to the relief sought in the further amended summons filed 12 December 2023.
2. There is no record of Mr Lindsay or any other Council officer considering cl 5.21 of the WLEP and/or carrying out the required exercise to assess the application in accordance with s 4.15(1) of the EPA Act. Although Mr Lindsay was aware of the various objections, the content thereof was insufficient to address the satisfaction required in cl 5.21.

Costs

1. The parties have not addressed the Court in relation to costs. The usual order in judicial review proceedings is that costs follow the event. If there is no agreement between the parties in relation to costs, I direct that the parties file primary submissions in relation to any application for costs (limited to 5 pages) within 21 days of this judgment, and file, if necessary, any response to primary submissions (also limited to 5 pages) within 14 days thereafter, with the intention that any question of costs will be decided on the papers unless an application is made in submissions for an oral hearing.

Orders

1. The orders of the Court are: 1. A declaration that the grant of development consent for development application 22/1717 by Wingecarribee Shire Council on 18 January 2023 is invalid. 2. Costs are reserved.

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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: 11 September 2024