Consideration
95The principles underpinning the no (probative) evidence ground as found in Bruce v Cole per Spigelman CJ at 188 - 189 and as discussed in Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action , 4th ed (2009) Thomson Reuters at [4.370] - [4.380] emphasise that the ground is narrow. The discussion in Aronson, Dyer and Groves commences with Bond where Mason CJ stated that provided there is some basis for an inference to be drawn even if that appears to arise from illogical reasoning there is no error of law. There must be no probative evidence before the decision-maker to support findings of fact made in order to succeed on this ground.
96This ground of legal challenge was raised in Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 , considered by Tobias JA at [95] - [98]. That case concerned the discretionary decision of a council to impose a rating category which applied to only one premises in the relevant local government area. Tobias JA identified that the no evidence ground in Bruce v Cole was made in the context of an alleged failure of the Conduct Division of the Judicial Commission of NSW in that it was required to make a finding of fact that a judicial officer's incapacity was continuing at the time of the report. Tobias JA at [97] identified that where an exercise of statutory power by a body such as a council is dependent on the existence of a fact or holding of a particular opinion, the absence of evidence to support that finding of fact can vitiate a decision. Under the statutory regime, his Honour was considering the rating provisions of the Local Government Act 1993. The relevant rating decision did not have to be made according to any statutory criteria which had to be satisfied before exercising the power suggesting a finding of no evidence would not be made in that case. Those observations are also important in the context of the discretion exercised by the PAC on behalf of the Minister under Pt 3A which does not require any finding of fact or satisfaction of any matter before a decision to approve a particular project or concept plan is made. The PAC has a broad discretion under Pt 3A in weighing up the planning merits of the applications before it, provided this is exercised within the scope and objects of the EPA Act.
97The Council submits the PAC relied on the Metro Strategy in its determination to support its conclusion about the appropriate density. Consequently, the determination lacked supportive evidence because the Metro Strategy is not an instrument intended to provide controls for any individual sites including buffer area 3 at Warriewood Valley. The Respondents submit that the PAC did not rely solely on the Metro Strategy as can be seen in the determination which refers to matters raised in meetings with the Department, the Council and Meriton, and the various and extensive planning reports and the Council's planning instruments.
98The PAC does not have to provide a report of its reasons under Pt 3A and is not exercising judicial or quasi-judicial functions with the attendant requirement to give closely analysed reasons. The Minister's submission on the importance of reviewing such reasons without an eye attuned to the perception of error applies. Reliance was placed on the Metro Strategy when the PAC determination is reviewed. This refers to the PAC taking its lead from the Metro Strategy. The only document before the PAC which referred to 60 dwellings per hectare was the Metro Strategy. The Strategy was released on 16 December 2010, not long before the PAC's determination on 18 January 2011. The concept plan and project were referred to PAC on 15 November 2010.
99As highlighted and reviewed extensively in the Respondent's submissions, there was also a great deal of other material before the PAC and it was extensively informed of the issues of density and height of buildings, inter alia, by all parties. The Department and Meriton were seeking a yield of 75 dwellings per hectare and a mix of three, four and five storey buildings as identified in Meriton's PPR, the DG's report and the Department's supplementary report to the PAC. Meriton's EA dated March 2010 had assessed and supported 81 dwellings per hectare. The Worley Parsons report prepared for the Department recommended 81 dwellings per hectare in the buffer areas. The most recent Council strategic report (the Warriewood Valley Planning Framework 2010) recommended 25 dwellings per hectare. Section 4 of the PAC's determination refers to the Department's supplementary report provided at the request of the PAC in relation to urban development in the Warriewood Valley and the Warriewood Valley Planning Framework 2010.
100The parts of the draft North East Subregional Strategy referred to by the Minister's counsel identified the number of dwellings required in the Pittwater local government area as a whole for the next twenty-five years. The draft North East Subregional Strategy released in July 2007 was created in response to the Metropolitan Strategy 2005. That document was also not intended to provide site-specific densities. Its implementation was intended through s 117 directions. The same observation as can be made in relation to the Metro Strategy applies to this subregional strategy, namely that was not an irrelevant consideration for the PAC's determination.
101Here the PAC was exercising a broad planning discretion in the context of Pt 3A of the EPA Act. That the effect of the PAC's decision was, as submitted by the Council, to almost triple the density for the site above the density that has applied elsewhere in this area to date was not outside the broad discretion it has under Pt 3A. While it is not accurate to describe the figures in the Metro Strategy as controls because the intent and nature of that document is to provide broad level strategic advice which will be implemented at a site specific level through LEPs responding to s 117 directions issued to the Minister, it is not an irrelevant document to consider in the Pt 3A framework.
102Meriton's counsel relied on Tugun which considered s 75J(2) concerning the decision of a Minister whether or not to approve a project. That subsection states the considerations the Minister must take into account, which include relevantly for this matter the DG's report on a project. Her Honour stated at [104] that there are matters which the decision-maker is bound to take into account or not take into account and the further category of matters where there is a discretion whether or not to consider the matter. This authority supports the argument I have accepted that the PAC could take into account any matter not expressly or impliedly forbidden to be taken into account under the statutory scheme which is otherwise within the objectives of the EPA Act and the Pt 3A scheme.
103Support for this conclusion arises from two cases referred to by the Respondents where broader level planning documents were taken into account as part of a merit assessment process. In Terrace Tower Holdings the Court of Appeal considered whether in a merit review appeal the trial judge was in error in taking into account various policy documents some with legal status under the EPA Act such as draft SEPPs, and some broad level strategic documents (set out at [71]) without legal status. The Court of Appeal held there was no error in the consideration of the draft SEPPs in the assessment of the project in the Court, as matters that could clearly be taken into account under (then) s 79C(1)(a)(ii). At [81] Mason P stated:
In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63; Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231 at 235).
104In Stockland , a merit review appeal against a refusal of a development application for a large shopping centre under the EPA Act by a local council, McClellan J had to consider what Council instruments and policy documents he would take into account under (then) s 79C(1)(a)(i)(iii), (b),(c), (e). The council was relying on development control plans and urban design documents. At [86] - [87] his Honour considered the role of development control plans. At [88] he recognised that there are many cases where a council adopts statements of policy for its area not included in such plans. He referred approvingly to Mason P's statements in Terrace Tower Holdings about the public interest being discernible beyond environmental planning instruments. He went on to consider at [91] and beyond that weight can be given to a detailed policy depending on a number of matters including the level of public consultation and research undertaken, the time the policy is in force, the extent of departure from it, its compatibility with other environmental planning instruments and development control plans, inter alia.
105Both cases were considering the merit review context in relation to development consents granted under Pt 4 of the EPA Act and emphasise that a wider range of documents than those which are required to be taken into account under the EPA Act can be considered. Part 3A provides a less constrained decision-making framework when contrasted with Pt 4. Such cases establish that documents which are not legal instruments required to be considered under the EPA Act can inform decision-makers. Under s 75J(3) and s 75O(3) the Minister and therefore the PAC is not bound by the provisions of any environmental planning instrument but may take these into account. No compulsory planning instrument specifying relevant standards and controls as would apply under Pt 4 applies under Pt 3A. The PAC did not have to apply the provisions of the LEP, DCP 21 or the Warriewood Valley Planning Framework 2010. Here the PAC has relied in part on a broad level strategic planning document released immediately before the PAC's determination to identify a site-specific standard.
106That leads to the consideration of PAC's role as an expert panel under Pt 3A of the EPA Act. The members of the PAC are appointed as an expert panel (Sch 3 cl 2(3) identifies the expertise one of which each panel member must have). The Respondents, particularly Meriton, submit that the panel is expected and should apply its planning expertise to the determinations it must make. The PAC considered that a strategic study of all undeveloped sites in the Warriewood Valley was required jointly between the Council and the Department. The PAC considered it was able to assess the "proposal on its merits and in the context of what it considers to be appropriate standards for the future of the Valley." The reasons it identified include the need to increase housing stock in metropolitan Sydney and in each subregion to meet the housing demand generated by a growing population and changing household requirements. The Council submits that the PAC must exercise its powers on the basis of probative evidence which is a correct submission but the scope of that evidence is informed by the statutory context in Pt 3A. That allows the PAC wide discretion in carrying out its functions when determining an application on its merits.
107The Council is unsuccessful on this ground. This ground overlaps with the fourth ground of challenge that the PAC's decision was unreasonable in the Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680 sense.