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[2008] NSWLEC 156
Land and Environment Court (NSW)
2008-03-07
Sheahan J, Mr J
Original judgment source is linked above.
The Applicant pleads discretion in its favour, but has abandoned its original prayer for relief under s.25B of the Land & Environment Court Act 1979 (" Court Act ") regarding DC 185. 143 NRS has succeeded in arguing the validity of the first of its two consents. That earlier consent (DC 131) was granted almost four years ago (2 June 2004), relevant conditions are acknowledged to have been satisfied, and, despite in-principle agreement that NRS was so entitled as long ago as 6 August 2004, the relevant subdivision certificate has still not issued. It seems to me that NRS is entitled to the first declaration it sought, and, if needed, to an appropriate order in respect of the subdivision certificate. In his written submissions for the Council (par 49), Mr Hemmings undertook that Council would issue the certificate (if otherwise appropriate) in the event that DC 131 was upheld. 144 I should now set out the discretionary matters raised on both sides in respect of any further relief to be considered. 145 On the basis of Council's granting of DC 131, and Council's cooperation and support in the advancement of its overall concept plan, NRS has, since three months after the initial s.101 advertisement of DC 185, incurred substantial expenditure and debt. (Patrick's affidavit 7 March 2008 identifies a total of $5.2M). Despite Council's 1 June 2005 letter casting doubt on the validity of both consents and threatening to bring proceedings in this Court to have them overturned, and despite the Independent Panel's work commencing December 2005, and its report being presented on 30 March 2006 and acted upon fully by Council within two months, such proceedings were never commenced, and the validity of the consents was contested only when a cross-claim was lodged in these proceedings on 22 January 2008. 146 NRS complains vehemently about this delay, and the fact that, in the interim, Council acknowledged the two consents in its register and s.149 certificates, without qualification. 147 NRS worked collaboratively at every stage of this project with Council and its officers. Its consents remain valid until declared invalid, no apparent environmental harm is involved in their implementation, and no genuinely "prime agricultural land" will be "lost". Faced with Council's letter of 1 June 2005, and further particulars provided shortly thereafter, NRS embarked on serious efforts to find a solution to its impasse with Council, or an alternative way forward (largely via State Government intervention of some sort). It did not resort to these class 4 enforcement proceedings until 1 November 2007. 148 On the other hand, it must be noted here that Mr Patrick deposes to having initiated discussions with legal advisors about bringing these proceedings, as early as July 2006, and then again in February 2007, so there is delay on the company's part as well. Further, the evidence indicates Council's repeated invitations to NRS to surrender the consents and recommence the DA process afresh. (See e.g. Tab 46 to Parker affidavit 18 December 2007). It was submitted that the amended LEP (see pars [88]-[89] above) may now permit dwellings on the proposed Lachlan Village Estate lots. The new cl.17 provides as follows: Dwelling-houses - Zones Nos 1 (a) and 1 (c) in general Despite any other provision of this plan (including clauses 17A and 17B), the Council may consent to the erection of a dwelling-house on an allotment of land within Zone No 1 (a) or 1 (c) if the Council is satisfied that: (a) the allotment was created in accordance with a consent granted before the appointed day, and it is an allotment on which a dwelling-house could have been lawfully erected immediately before the appointed day, or (b) the allotment comprises an allotment created for the purpose of a dwelling-house by a subdivision for which consent was granted under this plan.
149 I can see no reason to deny the Respondent, on the grounds of discretion, the appropriate declaration of invalidity in respect of DC 185. It was a gross miscarriage of Council's planning functions, regardless of the merit of what was proposed by NRS, and it should be declared void and of no effect. In matters of this type the Court has to be careful to stay away from any merits review. See Kindimindi Industries Pty Ltd v Lane Cove Council & Another (2006) 143 LGERA 277, especially at 297. As Mr Hemmings submitted, the Court is not measuring the merits of DC 185 against those of the other 34 which benefited from the Panel's recommendation regarding the use of s.101, but against the public benefit of honouring the prime agricultural land priorities of the validly made local planning regime, breached so seriously in the process by which DC 185 was granted by the Council (Day 2 T59 L24-39). See, generally, Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 especially at 339; 63 LGRA 361, especially at 365). NRS should not be allowed to rely on the work of the Panel when its report specifically supported Council's attempts to get NRS to surrender its consents. 150 I am obliged by s.25E of the Court Act to consider making an order under s.25B although it is not sought. I agree with Mr Hemmings' submission (par 62) that a fundamental absence of power cannot be cured by such an order. (See discussion in Clark & Davis at pars [5]-[6] and [69]-[73] and cases cited there. See also Centro Properties Limited v Hurstville City Council and Another (2004) 135 LGERA 257 at pars [82]-[85]). 151 The Court makes the following Orders: 1. The parties are directed to agree upon, and bring in, Short Minutes of Order within 7 days to reflect these reasons for judgment. 2. All questions of costs are reserved. 3. The parties are granted liberty to apply on 72 hours notice. 4. All exhibits will be returned after 14 days.
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NRS Group Pty Ltd
Cowra Shire Council
CITATION : NRS Group Pty Ltd v Cowra Shire Council [2008] NSWLEC 156
Centro Properties Limited v Hurstville City Council & Another (2004) 135 LGERA 257 Clark & Davis v Wollongong City Council & Others [2008] NSWLEC 110 Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116 Kindimindi Industries Pty Ltd v Lane Cove Council & Another (2006) 143 LGERA 277 Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 Lord and Another v Hiscock and Others (1980) 47 LGRA 168 CASES CITED: Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695 Manly Council v Hortis and Another (2001) 113 LGERA 321 Mulyan Pty Ltd v Cowra Shire Council & Another (1999) 105 LGERA 26 Noble v Cowra Shire Council (2001) 114 LGERA 440 Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; 63 LGRA 361 Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707
122 For the Council, Mr Hemmings argues that there is no evidence of any consideration of the zone objectives when DA 131 was assessed and the Court should infer they were not considered at all (a question for judicial review, cf "inadequately" as in a merits review). Noble v Cowra Shire Council (2001) 114 LGERA 440 ("Noble"). 123 For NRS, Mr Johnson says that, in the absence of such evidence, the Council bears, but has not discharged, the onus of making good its challenge to its own processes and their output. Parramatta City Council and Another v Hale and Others (1982) 47 LGRA 319 at 335, 339-340. The Council sent a copy of both the plan and zone objectives to Lachlan Industries on 3 December 2003, before lodgement of either DA (Tabs 5 and 7 to Patrick affidavit 18 December 2007), and there is no evidence at all that they were not considered when the DAs were received. Mr Johnson says that the process of inference described in Noble works in reverse of the way argued by Mr Hemmings. Manly Council v Hortis and Another (2001) 113 LGERA 321, at par [26] ff. 124 I accept Mr Johnson's submissions on this aspect of the matter. In respect of DC 131, I am satisfied that, as the challenger to the consent, the Council has failed to discharge its onus. 125 When the Court comes to consider the processing of DA 185, there is clear evidence that Council's consultant town planner did, indeed, consider at least the plan's "aims", if not, in terms, the zone "objectives" (Exhibit C1 folio 143). I have already drawn attention to their overlapping provisions and to the provision in cl.2(3). The amount of weight to be attributed to any of them is a matter for the Council, and there is no Wednesbury-type challenge in play in this case. In respect of zone objective (d) (par [120] above), Council had before it Mr Wilson's expert opinion indicating that the home-site area was not prime agricultural land. Reliance on that may not have been legally sound, but I raise it as evidence of "consideration" having occurred. 126 I am again not satisfied that the challenges to the consents, dealt with in this section, have been made out. Lack of Power to Grant Consent - Challenge (4) to DC 185 127 I turn now to the last of the six challenges before the Court, the assertion that Council lacked the requisite power to approve DA 185 (see assessment report at fols 139-143 of Exhibit C1). 128 The relevant provisions of the Cowra LEP in force at the relevant time are set out and discussed at pars [43]-[63] above. Some of them are complex and need to be construed and applied very carefully. Their application to DA 185 has to be assessed against a careful characterisation of what it proposed, basically the subdivision of an area of approximately 2.75ha of the newly created northern lot on the subject site into 21 residential blocks and a shared amenities lot, and the intended establishment and use of most of the remaining 40ha of the created Northern lot surrounding that area as a community title vineyard or open space (see pars [7]-[8] above). 129 In considering the permissibility of this DA 185 project the starting point is that the whole of the northern lot is shown as "prime agricultural land" on the relevant NSW Department of Agriculture maps. It may not be truly "prime" in the opinion of even expert observers such as NRS's consultant agronomist Mr Wilson, but it is mapped as such by the Department. 130 The LEP's definition of "prime agricultural land" (par [48] above) is quite clear. In assessing particular land for development consent purposes one must examine how it is mapped to see if it meets that definition. As Mr Hemmings, Counsel for the Council, put it: "… if it is on the map, it is, unless the Director General tells you that it's not" (Day 1 T22 LL12-13). Council lost any former discretion to categorise agricultural land as "prime" when Amendment 7 took effect in 1998 (see par [78] above), but the Rural Development Guidelines/DCP, dating from 1991 (see pars [62]-[63] above), were certainly still relied upon by Council officers and consultants, at the expense of strict compliance with the LEP as relevantly amended in 1998. 131 If one disputes the mapping/classification, the remedy lies in an approach to the Director General of Agriculture for him/her to "notify Council in writing" that the land in question is not "prime agricultural land for the purposes" of the LEP. The Council cannot form and act upon an opinion, or rely on a private agronomist's opinion, that the map is wrong, or operates inadequately, because the particular area of land concerned lacks certain attributes or exhibits certain shortcomings. 132 Neither the Council nor NRS approached the Department in this case, armed with Mr Wilson's opinion, so, legally, at the time of the determination of DA 185 the subject land was "prime agricultural land", and protection of such land was a high priority in the overall planning regime established by the LEP. 133 Accordingly, DA 185 could be assessed and determined only under cls. 10, 12 and 13 of the LEP - because dwelling-houses and intensive or "niche" agriculture (a vineyard) were the ultimate objectives of the scheme in the DA, albeit not part of the DA 185 development itself. Clauses 14 and 19 would apply only if the status of at least part of the relevant affected land is, or becomes, "non-prime". Clauses 17 and 21 were not relevant at that "enabling" stage of the rural-residential project. None of the land was mapped as "non-prime", even though, in fact, it may have been properly considered by experts as "non-prime". 134 A similar complication flowing from such mapping was recently dealt with by the Chief Judge in Hub Action Group Incorporated v Minister for Planning and Orange City Council [2008] NSWLEC 116. The definition of "prime crop and pasture land" in the relevant LEP in that case was based on departmental maps, but the LEP had significantly different provisions from those here, requiring the consent authority to make assessments, satisfy itself, and form opinions regarding the implications for relevant land of approving certain development. 135 His Honour had before him more evidence than was before me regarding the classification system represented in departmental mapping (see pars [30]-[43] and [62]-[65] of his judgment), and the relevant agricultural industry was bee-keeping, which was defined in the plan. His Honour held, over the weight of expert opinion about the relevant land, that the departmental mapping was conclusive of its status. (See pars [41], [54] and [63]). I respectfully agree with His Honour, in coming to a similar conclusion in this matter. 136 Clause 12, read in conjunction with cl.13 (which probably does not apply here) regarding the purely agricultural component of the proposal, renders DA 185 not permissible, due to the sizes of the proposed lots earmarked for dwelling development. Council wrongly relied on cls. 3, 14, 17 and 21 of the LEP to approve DA 185, relying on Mr Wilson's expert opinion about the agricultural quality of the subject land. This is a "manifest absence of power" in the sense in which that term as used in Anambah Homes (at [17]). 137 Mr Johnson conceded, on behalf of NRS, that Council relied on the wrong power(s) in the LEP, and argued in vain for the consent to survive on the basis that the subdivision in DA 185 prevented the fragmentation of "prime agricultural land" by its combination of cluster housing and the community title vineyard, making the grant of DC 185 unique among the 35 consents reviewed by the Independent Panel (see pars [72]-[87] above). 138 That Panel identified the shortcomings in Council's assessment of DAs involving "prime agricultural land" between 1998 and 2004, following the passing of Amendment 7, and especially in reliance upon agronomists' assessments, which questioned mapping but did not lead to the amendment of the maps in the way prescribed (see par [78] above). The Panel recognised the need for Council to have scope to approve "niche agricultural pursuits" on suitable smaller areas of land (par [83] above), possibly involving community title schemes ([84]), and one could easily argue for the DA 185 scheme on this basis. However, that cannot retrospectively make valid an approval previously granted without power, despite the apparent absence of community opposition ([85]). 139 DA 185 was approved by Council, contrary to the express provisions of its LEP. Carter's assertion (Tab 30 to Patrick Affidavit 18 December 2007) that the delegated approving officers properly considered the recommending officers' report matters not when that report is infected with error and did not properly discharge the Council's duties under the EP&A Act, and/or the LEP. 140 I have concluded that DC 185 is invalid. Summary of the outcomes of the Council's challenges to its consents 141 In summary: · Neither of the Council's two challenges to DC 131 have succeeded. · Only one of Council's four challenges to DC 185 has succeeded. · DC 185 is protected by a valid s.101 public notification, but that notification cannot protect a consent granted in the absence of legal power (see par [97] above and the cases there cited). Discretionary considerations and the Relief to be granted 142 As eventually pleaded, the relief respectively sought by the parties is as follows: The Applicant seeks (i) declarations that it is entitled to rely, act upon and implement both DC 131 and DC 185; (ii) orders appropriate to the nature of the proceedings (especially, perhaps, an order against Council to issue a subdivision certificate for DC131?), and (iii) costs.
(2004) 135 LGERA 257
(2006) 143 LGERA 277
(2005) 138 LGERA 207
(2005) 64 NSWLR 695
(2001) 113 LGERA 321
(1999) 105 LGERA 26
(2001) 114 LGERA 440
(1987) 10 NSWLR 335
(2004) 61 NSWLR 707