Richmond v Minister for Urban Affairs & Planning - [2000] NSWLEC 23 - NSWLEC 1998 case summary — Zoe

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Richmond v Minister for Urban Affairs & Planning

[2000] NSWLEC 23

Land and Environment Court (NSW)|1998-09-21|Before: Sheahan J, Cripps J, Mr P, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

1998-09-21

Before

Sheahan J, Cripps J, Mr P, Mr J

Source

Original judgment source is linked above.

Judgment (298 paragraphs)

[1]

CITATION : Richmond v Minister for Urban Affairs & Planning [2000] NSWLEC 23 APPLICANTS: PARTIES : Paul Richmond and Elva Richmond RESPONDENT: Minister for Urban Affairs & Planning FILE NUMBER(S) : 40141 of 1999 CORAM: Sheahan J KEY ISSUES: Injunctions and Declarations :- Declarations - powers of Minister to make plans - Minister's discretion - whether Minister's decision invalid through misinformation - power to review own decision and reverse it - whether whole process must be repeated Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Interpretation Act 1987 The North Coast Regional Environmental Plan 1988 Byron Local Environmental Plan 1988 (Amendment No.61) CASES CITED: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, Attorney General (NSW) v Quin (1990) 170 CLR 1, Chan v Minister for Immigration & Ethnic Affairs 169 CLR 379, Leung v Minister (1997) 79 FCR 399 or 150 ALR 76, Luu v Renevier (1989) 91 ALR 39, Minister for Aboriginal Affairs v Peko-Wallsend 162 CLR 24, Nettheim v Minister for Planning & Local Government & Anor (No.40139 of 1988, Cripps J, 21 September 1998), Parkes Rural Distributions Pty Ltd v Glasson & Anor (1986) 7 NSWLR 332, Parramatta City Council v Pestell 128 CLR 305, Parramatta City Councill & Anor v Hale & Ors, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, Rosemount Estates Pty Ltd v Cleland & Ors (1994-1995) 86 LGERA 1, Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor [1999] LEC 251, Videto & Anor v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167 DATES OF HEARING: 14/09/99, written submissions 17/09/99, 22/10/99, DATE OF JUDGMENT: 02/15/2000

[2]

[33]

The North Coast Regional Environmental Plan 1988 (" the REP ") ( Exhibit M1 ) was signed by the then Minister on 18 December 1987, and the relevant clauses in Div 4 - Rural Housing, are as follows: Objective 19. The objective of this plan in relation to rural housing is to ensure that any opportunities for rural housing area are available only as part of a planned strategy for rural living areas. Plan preparation - rural land release strategy 20. (1) The council should not prepare a draft local environmental plan for rural land permitting rural residential or small holding development unless: (a) it has prepared a rural land release strategy for the whole of its area; and (b) the Director has approved of the strategy; and (c) the draft plan is generally consistent with that strategy. (2) A copy of any such rural land release strategy should: (i) be available without charge, for public inspection and comment at the office of the council during normal office hours; and (ii) be forwarded by the council for their information to such public authorities as, in the opinion of the council, have responsibilities reasonably requiring them to be aware of the strategy. (3) In identifying land suitable for rural housing, any such strategy is to give preference to areas which: (a) are physically capable of supporting rural housing; and (b) are close to existing settlements which already have services and community facilities, or can otherwise be efficiently and economically serviced; and (c) are physically suitable for septic effluent disposal; and (d) are not required or likely to be required for future urban expansion of existing settlements; and (e) do not comprise prime crop or pasture land; and (f) are not subject to significant environmental hazard; and (g) are not of significant value for the conservation of wildlife. (4) Any such strategy is to be based on the average number of allotments needed annually to meet genuine demand for rural residential and small holding development. (5) The average annual number of allotments needed to meet such demand over any period agreed by the Director is not to exceed 130 percent of the average number of building approvals granted for the erection of dwellings (in the course of rural residential and small holding development) in the area in each of the preceding 5 years.

[78]

On 16 January 1998 Departmental Officer Clark sent a minute to Departmental Officer Olive. The minute included the following comments: The LEP has no basis in any agreed rural-residential strategy and is not consistent with the Rural Settlement Guidelines. Council has accordingly not used its section 69 delegations to recommend the plan to the Minister. … Council supported it as a 'one-off' and expressed its intention to amend the strategy for the reasons that it considered the proposal conformed with its criteria for rural-residential land selection, and only a relatively small release was proposed . … Council, in 1996 decided to revoke its own rural-residential strategy and is progressing towards the completion of a revised strategy prepared in accordance with the Guidelines . After Council considered a report on the exhibition of the LEP (December 1995), there was considerable delay while Council negotiated with the landowner and neighbours a suitable flood-resistant access to the land … The Council also considered whether the form of the LEP … was appropriate. The Amendment was eventually submitted unchanged to the Department for making, in December 1997, a delay of almost two years during which the policy changes described above have taken place. Council's submission makes no comment on the delay and the reason for now submitting the plan contrary to the Rural Settlement Guidelines and its own strategic planning work, except to say … 'it is not possible to give any clear indication as to whether the draft LEP would be consistent with …' the provisions of the draft revised rural strategy. … Considerable work (and expense) has obviously gone into the planning report. There is no doubt that on an individual property basis and perhaps on a catchment basis, the proposal is consistent with the Rural Settlement Guidelines. However the difficulty is that the proposal does not fit clearly in a strategic planning framework and in this regard it is not consistent with the Guidelines. … The amendment was not 'agreed' by the Department as the North Coast REP requires. In addition the claim is that the proposal is consistent with the proposed new strategy. While that may be so on the basis of preliminary mapping, Council has not completed its strategy and is presently considering a road hierarchy and awaiting completion of vegetation studies. The completed strategy is not expected until mid-1998. Council is not agreeing that this proposal is consistent with the new strategy… The Department has consistently applied the Minister's Foreword to the Rural Settlement Guidelines that no LEPs inconsistent with the strategic planning requirements will be processed. There have been two or three exceptions, but in these cases, the landowners have had previously-existing rights to development extinguished by occurrences outside their control, often to do with anomalies in the relevant council's approach to rural settlement. That cannot be argued in this instance because it was never clear that the proposal fitted Council's original rural strategy. The only relevant issue is that the matter has been delayed for two years by Council considering access issues, and the delay has not been entirely within the landowner's control. In these circumstances it would be preferable not to compromise the expressed position on the Guidelines, but to defer further consideration of the LEP until Council can complete its new rural residential strategy, and reconsider the matter then.

[95]

… (iii) if Mr Richmond's LEP proceeds it will be difficult not to agree to other rural residential in Fowlers Lane - which ultimately has enough area to consume all the Shire's rural residential needs. This could also set a precedent which could eventually lead to arguments to break down the Strategy in other areas . … (v) Mr Richmond's rural residential development did not comply with Council's 'Preferred Areas' of its previous Rural Residential Strategy. The claim that it did comply is only on the basis of the 'exception' clause which raised the expectations of many people. As a result of the exception clause Council received between 30-50 rural residential proposals which Council has still to formally determine whether or not to support, i.e. following exhibition of its Draft Rural Settlement Strategy; … 75. On 9 June 1998 further information was provided by Prior to the Minister's office: … 3. There is no disagreement that the proposal meets the Department's Rural Settlement Guidelines on an individual property basis . However, Council's investigations exclude this area for future rural-residential development. In this regard, it is not within the social or services catchment of any existing town. Rather, it would be an isolated enclave, dependent upon vehicle transport via the Pacific Highway to the nearest service centre. There is, therefore, no strategic Shire-wide planning basis to support it. The land's location has been considered in the Council's recent draft rural-residential strategy and excluded from future release. Unfortunately, it seems to be the right type of development in the wrong location. 4. The comment that the exclusion is 'based on broad criteria applied very crudely' is not supported. The draft strategy prepared by Council is a thorough exercise, aimed at encouraging rural-residential development in areas where it can be easily and economically serviced. In addition to the exclusion criteria mentioned, the land is at the end of a two kilometre length of poorly-constructed road (photograph folio 66). This road is already operating beyond its capacity, and the development would rely on a sub-standard intersection with the Pacific Highway for travel to all service centres. While the proposal may be '10 minutes from Byron Bay' (although this is considered a significant under-estimate), the Pacific Highway must be negotiated to get there or to Bangalow. This is different from the Wollumbin case in the Tweed Shire, which is within 10 minutes drive from the service centre of Uki, over reasonable, relatively lightly-trafficked roads. Refer to folio 98 for other comparisons and extracts from the Tweed matter in the file wallet. 5. Given that the proposal is excluded from the Council's draft rural-residential strategy, it would set an undesirable (even dangerous) precedent to make an exception on an individual property basis. It will then be difficult for further non-complying rural-residential proposals to be resisted. In this regard, Council's Planner has advised that Council has at least 30 proposals which may similarly seek to be exemptions to the strategy, which Council may find difficult not to support if this exception is agreed to. This effectively begins to break down the strategy before it is finalised. Such action is inconsistent with the Minister's Foreword to the Rural Settlement Guidelines where it is stated that 'local environmental plans for rural-residential development will only be approved where the matters contained in these Guidelines are reflected in the local planning process'. 6. The information provided concerning a multiple occupancy (MO) development for 15 dwellings in the Fowlers Lane area is not correct. Advice from the Council is that that application was approved by Order of the Land and Environment Court in late 1996, and has not so far been developed. Approval was granted under the specific MO provisions of the Byron LEP. Multiple occupancy is distinguished from rural-residential development in view of its communal tenancy requirement, however, its locational criteria should be similar. In this regard, Council's exhibited draft rural settlement strategy does not provide for MO in this area. Therefore, if the previous MO application was considered now, it is more likely that refusal of it would be sustained in an appeal. CONCLUSION 7. The quality of the proposed development at the property level and the history of this proposal makes a decision difficult. However, getting the 'location' right is fundamental to complying with the Rural Settlement Guidelines. As Council has faithfully and thoroughly followed the Guidelines and excluded this location for rural-residential purposes any approval is likely to undermine both Council's strategy and future application of the Guidelines. For this reason planning support for the proposed LEP amendment has not been recommended.

[100]

Both parties are agreed that the most relevant contents of the s 69 report are to be found in two paragraphs which are, unfortunately, both numbered "8 ", as follows: (8) Since Council's original resolution (December, 1995) to proceed with this draft plan, there have been certain policy changes which now make it difficult to support it. The changes are: · the Rural Settlement Guidelines have been released to assist councils in preparing rural residential strategies. The Minister's Foreword to the Guidelines states that 'local environmental plans for rural residential development will only be approved if the matters contained in the Guidelines are reflected in the local planning process'. The applicant has attempted to demonstrate compliance with the Guidelines on an individual property basis, and the Council has supported this to the extent that it considers the proposal a 'prototype' for the operation of the Guidelines. However, there can be no compliance with the Guidelines unless the proposal is consistent with a Shire-wide strategy for rural-residential development prepared under the Guidelines (and the North Coast REP); · The Council in April, 1996, decided to abandon its previous rural-residential strategy. This meant that the amendment to the Strategy made at the time of exhibition of the LEP Amendment was no longer of any effect. Council has expressed the view that at a meeting in June, 1995, the Department agreed to the Amendment proceeding. While this is correct, that was before release of the Rural Settlement Guidelines and the Council's decision to abandon its strategy. It is also now three years ago; and · the Council has now prepared a draft revised rural-residential strategy. While the strategy has not been finalised, it is clear at this stage, that the proposal does not fall within any of the rural-residential release areas contemplated by the draft strategy (see map folio 96). (8) The draft plan is therefore inconsistent with the Rural Settlement Guidelines, and clause 20(3) of the North Coast REP. While otherwise the plan is consistent with State Environmental Planning Policies, and relevant directions under section 117 of the Act, approval would set an undesirable precedent for plans inconsistent with the Guidelines. The fact that delays have occurred in Council's processing of the Amendment has allowed time for it to be demonstrated by Council's own strategic planning work, that the proposal's' location is not appropriate for the proposed development.

[152]

Mr McClellan asserts that the s 69 report properly identifies the REP and the Guidelines as matters to be taken into account in the determination of the question as to the making of the LEP. He puts the argument this way in his final written submissions: 2. The Applicant persists to focus upon one aspect of the facts, in ignorance of the facts as a whole. That (improper) focus in turn also improperly assumes that the mere existence of the Strategy equates to consistency of the draft LEP with the Strategy, and hence the REP. It is to be noted that at all times it has been the position that the draft LEP was inconsistent with the strategy, and that the Strategy was required to be amended: see documents 3, 3A, 4, 4A, 4B, and 5B. 3. Notwithstanding this fundamental inconsistency of the draft LEP, the Applicant's entire case is based upon establishing that whereas the reporter (of the s.69 Report) stated that the Strategy had been revoked, as a matter of fact no such revocation had occurred, and (somehow) consequently the Report was Wednesbury unreasonable, or at the least erroneous. However, on the facts before the Court either: i. the Strategy was in fact revoked; or ii. the Strategy was not revoked. If not revoked there had still not ever been effected an amendment to incorporate the subject land. 4. On either alternative, the draft LEP could not be said to be consistent with the REP (the REP requiring a Strategy, and an LEP to be made in accordance with the Strategy). Accordingly, on those alternatives either: i. there was no Strategy upon which to base the LEP; or ii. there was a Strategy, but the terms of the Strategy were not consistent with the effect of the LEP (see Documents 3, 3A, 4, 4A, 4B, and 5B). In either case, it could not be said that the draft LEP was consistent with a Strategy, which the REP required, and hence the draft LEP was inconsistent with the REP. 5. It is consistency of the LEP with the REP which is the true subject matter of the discussion in the s.69 Report, which the author properly identified, i.e. "…inconsistency with the REP…". There is no merit in focussing upon the truth of a statement of revocation of the Strategy, because on the facts nothing turns on that statement alone, as even if the Strategy had not been revoked it then remained "…inconsistent with the draft LEP…". … 7. Furthermore, and as set out above, the Applicant has focused upon the wrong question - the proper question to be asked by dint of s.69(a) is "…consistency with [an REP]…". This question was, on the facts, properly answered by the reporter - in the result it cannot be said that the draft LEP was consistent with a Strategy, which is required by the REP, and hence it could not be said that the draft LEP was consistent with the REP. 8. Having thus addressed the proper question (which in any case is the limit of the Court's role - to determining the scope of the exercise of the relevant power to ensure that jurisdiction is not exceeded) it is not within the realm of judicial review to revisit the merits of the decision: see Attorney General (NSW) -v- Quin (1990) 170 CLR 1 at 35-36.

Richmond v Minister for Urban Affairs & Planning

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Judgment (298 paragraphs)

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Legislation Cited (2)

Cases Cited (8)

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