Ryan v The Minister for Planning

Land and Environment Court (NSW)|2014-12-01|Before: Sheahan J

P Clay, SC with N Hammond, barrister (Applicant) K Richardson, barrister (First and Third Respondents)

Environment Defenders Office New South Wales (Applicant) Department of Planning (First and Third Respondents) Marsdens Law Group (Fourth Respondent) Norton Rose Fulbright Australia (Sixth Respondent) File Number(s): 40334 of 2014

A: Introduction

This is a judicial review challenge to the validity of a plan made by way of an amendment ("Amendment 3") to the Local Environmental Plan 2012 ("LEP") for the City of Lismore, concerning, in particular, the area known as the North Lismore Plateau ("the Plateau").
In the run-up to the hearing there were up to six respondents to the challenge.
The applicant has discontinued against two of them, leaving (1) the Minister for Planning, (2) the Director-General or, now, Secretary, of the Department of Planning, (3) Lismore City Council and (4) the Plateau Group, being respectively the first, third, fourth, and sixth respondents to the summons.
Of those four respondents, the Council and the Plateau Group have filed submitting appearances; hence, the hearing proceeded against only the Minister and the Secretary as active contradictors, jointly represented.
The relevant statutory scheme for the making of planning instruments, notably LEPs, is contained in Division 4 of Part 3 of the Environmental Planning and Assessment Act 1979 ("the EPA Act").
It was substantially amended in 2008, and the amending legislation was described in the Parliament as containing "big reforms in relation to ... Local Environmental Plans". The key change made was the introduction of what has been described as the new "Gateway process".
The LEP amendment presently under consideration was proposed, considered, and made, under the new process, and the decision on its validity will substantially depend on whether or not the same principles of construction and application should be applied to the relevant post-2008 provisions of the EPA Act, as were applied to the pre-2008 provisions.
On the same day as the present challenge was argued in the Court, Pain J heard a very similar challenge to an amendment made to the Manly LEP 2013. Her Honour published her decision on 8 May - Save Little Manly Beach Foreshore Incorporated v Manly Council (No 3) ("Save Little Manly") [2015] NSWLEC 77 - and I invited the parties to the present matter to supplement their submissions before I finalised this judgment.

B: The Challenge

Before turning to the facts and relevant provisions in detail, it is appropriate to set out the terms of the applicant's summons. The original filed on 21 May 2014 was amended on 13 June 2014, but the hearing dealt with a further amended summons, filed by consent, in Court, on 1 December 2014, in the following terms: ORDERS SOUGHT 1 A declaration that the Lismore Local Environmental Plan 2012 (Amendment No 3), published on the NSW legislation website on 21 February 2014, is invalid and of no effect. 2 An order that the First Respondent pay the Applicant's costs of these proceedings 3 Such further or other orders as the Court sees fit. DETAILS OF DECISION 1 The decision maker was Mr Richard Pearson, in his capacity as delegate of the Minister for Planning. 2 The decision to be reviewed was a decision to make the Lismore Local Environmental Plan 2012 (Amendment No 3) (2014-74) 3 The applicant seeks relief from the whole of the decision. GROUNDS 1 The Lismore Local Environmental Plan 2012 (Amendment No 3), as made, was not a product of the process under Part 3, Division 4 of the Environmental Planning and Assessment Act 1979 and was therefore beyond power Particulars a. The final proposal by Lismore City Council for the North Lismore Plateau area, which was confirmed by the Council on 13 August 2013, included 28.5% of the area to be zoned for environmental conservation or management; b. The Lismore Local Environmental Plan 2012 (Amendment No 3), as made, contained no environmental zones and was thereby fundamentally different to both the publicly exhibited and the final planning proposal; c. No community consultation occurred in relation to the removal of all environmental zones from the planning proposal; d. In the alternative to Particular (a), the Council varied its planning proposal pursuant to s.58(1) such that the variation is beyond power because the varied plan was so different from the publicly exhibited draft in important respects, such that it was a different plan. 2 The Minister failed to accord procedural fairness in the making of the Lismore Local Environmental Plan 2012 (Amendment No 3) a. Part 4, Division 3 of the Environmental Planning and Assessment Act 1979 requires community consultation before making a Local Environmental Plan; b. The Lismore Local Environmental Plan 2012 (Amendment No 3) contained a fundamental alteration of the planning proposal for North Lismore Plateau; c. The Minister owed a duty to give anyone affected by the Local Environmental Plan an opportunity to be consulted before making a fundamentally altered Plan 3 The Secretary of the Department of Planning failed to comply with s.59(1) of the Environmental Planning and Assessment Act 1979 a. The final proposal of Lismore City Council, as the relevant planning authority, for North Lismore Plateau was the planning proposal confirmed by Council vote on 13 August 2013; b. The Secretary did not make arrangements for the drafting of a local environmental plan that gave effect to the Council's final planning proposal for North Lismore Plateau. 4 The Minister, by his delegate, failed to take into account a relevant consideration a. The final form of a planning proposal is a mandatory relevant consideration for the Minister or the Minister's delegate; i. The form of the final planning proposal was not reflected in the Local Environmental Plan that was placed before the Minister's delegate 5 The Minister, by his delegate, acted beyond power in making the LEP a. The result of any consultation between the Secretary and the relevant planning authority is a mandatory relevant consideration for the Minister or the Minister's delegate; b. The Minister's delegate relied on departmental correspondence with Council's Strategic Planning Coordinator to confirm that the draft LEP would achieve the Council's desired planning outcome; c. The Strategic Planning Coordinator had no delegated power to agree to fundamental changes to the planning proposal voted on by Council d. The Minister sought to exercise power, by his delegate, on the incorrect basis that the Council supported the LEP in its draft form and there had been formal consultation with the Council in accordance with s.59(1) of the Environmental Planning and Assessment Act 1979
The challenged "Amendment 3" effectively substituted in the LEP six new maps, as follows (clause 4): Each map adopted by Lismore Local Environmental Plan 2012 that is specified in Column 1 of the following table is declared by this Plan to be amended or replaced, as the case requires, by the map specified opposite in Column 2 of the table as approved by the Minister on the making of this Plan: Column 1 Column 2 Name of map being amended or replaced Name of amending or replacement map Lismore Local Environmental Plan 2012 Height of Buildings Map (4850_COM_HOB_005_080_20131216) Lismore Local Environmental Plan 2012 Height of Buildings Map (4850_COM_HOB_005_080_20140205) Lismore Local Environmental Plan 2012 Height of Buildings Map (4850_COM_HOB_005AA_020_20131022) Lismore Local Environmental Plan 2012 Height of Buildings Map (4850_COM_HOB_005AA_020_20131216) Lismore Local Environmental Plan 2012 Lot Size Map (4850_COM_LSZ_005_080_20140131) Lismore Local Environmental Plan 2012 Lot Size Map (4850_COM_LSZ_005_080_20140205) Lismore Local Environmental Plan 2012 Lot Size Map (4850_COM_LSZ_005AA_020_20131022) Lismore Local Environmental Plan 2012 Lot Size Map (4850_COM_LSZ_005AA_020_20140205) Lismore Local Environmental Plan 2012 Land Zoning Map (4850_COM_LZN_005A_040_20131112) Lismore Local Environmental Plan 2012 Land Zoning Map (4850_COM_LZN_005A_040_20140205) Lismore Local Environmental Plan 2012 Land Zoning Map (4850_COM_LZN_005AA_020_20131022) Lismore Local Environmental Plan 2012 Land Zoning Map (4850_COM_LZN_005AA_020_20131216)

C: The Statutory Schemes, Past and Present

The statutory scheme has always provided for roles to be played by the Minister, his or her officers or delegate(s), the local council, and its officers or delegates, in the making of a LEP. Any instrument resulting from the statutory process begins as a "planning proposal" of some sort.
In the pre-2008 system there was a "one size fits all" approach, irrespective of the significance of the proposal. A draft instrument based on the proposal, whether minor or significant, was exhibited and negotiated.
The purpose of the current Gateway process is to establish, usually without a draft instrument, whether the authorities involved are justified in proceeding with that proposal.
The Gateway determination, according to the Minister's second reading speech, settles (1) what assessment is required to develop the details of the plan, including infrastructure needs, (2) what community or agency consultation is required, and (3) whether a public hearing is required.
The Minister also said that the new regime was designed to provide for flexibility, with a strong emphasis on effective community consultation. No LEP can be made, unless the applicable community consultation requirements have been complied with, and any submissions made have been considered, but consultation will be tailored to the specific proposal.
As I have already noted ([7] above), much of this case turns on the application to the regime now in place for the making of LEPs, of certain principles (discussed below in section D, from [47]), which applied under the "old" regime.
It is, therefore, necessary to discuss in detail the scheme as it existed when the relevant principles were developed, and compare it with the current scheme.
Mr Clay SC, who appeared, with Ms Hammond, for the challenger, prepared a chart which compared the "old" and the "new" plan-making provisions, but the respondents' counsel, Ms Richardson, declined to endorse his summary.

The Pre-2008 Regime

Under the "old" regime, a council would decide to prepare a draft LEP in respect of the whole or any part of the land within its area. The then Director-General had to be informed of that decision, and of the land to which it was intended to apply. The council would then prepare the draft plan (s 54), in accordance with Div 4 of Part 3 of the EPA Act.
The Minister was empowered (by s 55) to direct a council to perform any function conferred or imposed upon it, under s 54, or any other provision of the division, within such time or period as specified in the direction. Following such a direction to prepare a draft LEP, the council was required to prepare it.
Section 57 required the preparation of an environmental study of the land to which the draft LEP is intended to apply, in accordance with such specifications as were notified to the council by the Director-General. Section 61 required that the council prepare the draft, having regard to the environmental study prepared under s 57.
Council was required to consult in the preparation of a study, or a draft plan, with (1) such public authorities or bodies as, in its opinion, would or might be affected by the draft, (2) any neighbouring council that may be affected by it, and (3) "such other persons as the council determines" (s 62).
Section 63 allowed for the council to request a public authority to assist in the preparation of the s 57 study or the plan (s 63), and, when a draft LEP had been prepared, the council was to submit a copy to the Director-General, together with a statement specifying the names of the authorities, bodies and other persons so consulted (s 64).
The Director-General was then empowered by s 65(1), on receipt of a copy of the draft LEP, to cause to be issued to the council, a certificate certifying that the draft plan may be publicly exhibited in accordance with s 66.
Section 65(2) allowed for the certificate to be granted, subject to the condition that the draft LEP be amended in a manner specified in the certificate before being publicly exhibited. Under s 65(3), if a certificate were not issued, the Director-General would return the draft plan to the council, giving reasons for not issuing the certificate, and directing the council to amend the draft plan in such a manner as to enable the certificate to be issued. The council was required by s 65(4) to comply with any direction given under s 65(3).
Section 66 dealt with the public exhibition process. It provided for the formal public notice to be given; and it required the public exhibition of both the study and the plan, along with other relevant documents. Section 66(1)(c) provided that the public notice must specify the period during which submissions may be made to the council, in accordance with s 67.
Section 67 provided for the making of submissions, and s 68 for the consideration of such submissions. Section 68 also empowered the council, in appropriate circumstances, to arrange a public hearing in respect of the submissions, and a report of the public hearing was required to be furnished to the council, and made public. The council was required to consider the submissions and the report, and make any alterations considered necessary. However, those alterations need not relate to a submission (s68(3A)). Section 68(3B) provided that a council "may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3)".
The council would then (s 68(4)) submit to the Director-General details of all submissions, the report of any public hearing, the draft plan, and the reason for any alterations made to it, and a statement to the effect that the provisions of ss 66 and 67 relating to public involvement in the preparation of the draft plan had been complied with, and other information.
Section 68 also provided: (5) In submitting the draft local environmental plan, the council may exclude certain provisions of the draft plan or exclude part of the land from the draft plan, or both (in this section referred to as the deferred matter) which, in its opinion, require or requires further consideration but which should not prejudice the consideration by the Director-General and the Minister of the draft plan as submitted. (6) The council may subsequently take action under this section in respect of the deferred matter, without having to publicly re-exhibit that deferred matter, as if it were a draft local environmental plan. (7) More than one public hearing may be held in respect of any submissions, and one hearing may be held in respect of more than one submission.
Section 69(1) provided for a report to be made by the Director-General to the Minister. That report was to address whether the Director-General was satisfied that the draft LEP was consistent with any applicable planning instrument, and whether the public consultation requirements under ss 66 - 68 had been complied with.
Section 69(2) provided that the Director-General was not to furnish a report to the Minister, unless the Director-General was satisfied that the draft plan had been prepared in accordance with any applicable standard instrument. Section 69(2) placed no limit on "the matters that the Director-General is required to consider for the purpose of a report".
Section 70 provided that, after considering the Director-General's report under s 69, the Minister may make a LEP in accordance with the draft as submitted by the council under s 68(4), or in accordance with the draft plan altered as the Minister saw fit, in respect of any matter seen to be of significance for State or Regional environmental planning. Section 70(1A) provided that, if the Minister determined to make the LEP with alterations, those alterations "may comprise changes of substance", and may arise from "submission or otherwise".
Alternatively, the Minister could decide not to proceed with the draft LEP, or he may or could direct, or not direct, that action be taken in accordance with s 70(3). That subsection provided that the Minister may, but need not, direct the council to publicly exhibit, wholly or in part, a draft LEP that had been altered, pursuant to either s 70 or s 68.
Section 70(4) and (5) provided: (4) Where the Minister decides to make a plan in accordance with subsection (1), the Minister may exclude certain provisions of the draft plan or exclude part of the land from the draft plan, or both (in this section referred to as the deferred matter) which, in his or her opinion, require or requires further consideration but which should not prejudice the making of the local environmental plan. (5) The Minister may subsequently take action in accordance with this section in respect of the deferred matter as if it were a draft local environmental plan submitted under section 68 (4).
The Minister was required (by s 70(7)) to then inform the council of his or her decision, and of his or her reasons for that decision, but no reasons needed to be provided if the Minister made a plan in accordance with the draft submitted. The Minister could also give directions to the council, as to the procedure to be followed in connection with making his or her decision known to the public.
Section 70(8) provided: Notwithstanding anything in this section and without affecting the power to make alterations pursuant to subsection (1), the Minister may make a local environmental plan with such alterations as the Minister thinks fits, being alterations that do not affect the substance of the provisions of the plan as submitted by the council or as altered pursuant to subsection (1).

The Current Regime

I turn now to summarise the regime which now applies:
Section 53, in Part 3 of Div 4, provides that the Minister may make environmental planning instruments, such as LEPs, and s 54 now provides that, for the purposes of Part 3, the "relevant planning authority", in respect of a proposed instrument would be the council or, if so directed by the Minister, the Director-General, or some other person prescribed by the regulations. The circumstances in which the latter course might be adopted are set out in some detail, but there remains a continuing role for the local council.
The sections which follow those two need to be noted: 55 Relevant planning authority to prepare explanation of and justification for proposed instrument - the planning proposal (1) Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal). (2) The planning proposal is to include the following: (a) a statement of the objectives or intended outcomes of the proposed instrument, (b) an explanation of the provisions that are to be included in the proposed instrument, (c) the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117), (d) if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land - a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument, (e) details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument. (3) The Secretary may issue requirements with respect to the preparation of a planning proposal. 56 Gateway determination (1) After preparing a planning proposal, the relevant planning authority may forward it to the Minister. (2) After a review of the planning proposal, the Minister is to determine the following: (a) whether the matter should proceed (with or without variation), (b) whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal), (c) community consultation required before consideration is given to the making of the proposed instrument (the community consultation requirements), (d) any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument, (e) whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body, (f) the times within which the various stages of the procedure for the making of the proposed instrument are to be completed. (3) A determination of the community consultation requirements includes a determination under section 73A (or other provision of this Act) that the matter does not require community consultation. (4) The regulations may provide for the categorisation of planning proposals for the purposes of this section, and may prescribe standard community consultation requirements for each such category. (5) The Minister may arrange for the review of a planning proposal (or part of a planning proposal) under this section to be conducted by, or with the assistance of, the Planning Assessment Commission or a joint regional planning panel: (a) if there has been any delay in the matter being finalised, or (b) if for any other reason the Minister considers it appropriate to do so. (6) The relevant planning authority may, at any time, forward a revised planning proposal to the Minister. (7) The Minister may, at any time, alter a determination made under this section. (8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section. 57 Community consultation (1) Before consideration is given to the making of a local environmental plan, the relevant planning authority must consult the community in accordance with the community consultation requirements for the proposed instrument. (2) The planning proposal (as revised to comply with the determination under section 56 and in a form approved by the Secretary) is to be made publicly available during the period of community consultation. Detailed provisions may be summarised instead of being set out in full if the Secretary is satisfied that the summary provides sufficient details for community consultation. (3) During the period of community consultation, any person may make a written submission to the relevant planning authority concerning the matter (other than any matter that is mandatory under an applicable standard instrument under section 33A). (4) The relevant planning authority may (but need not) make publicly available, in accordance with the community consultation requirements, the submissions made concerning a matter (or a summary of or report on any such submissions). (5) If: (a) a person making a submission so requests, and (b) the relevant planning authority considers that the issues raised in a submission are of such significance that they should be the subject of a hearing, the relevant planning authority is to arrange a public hearing on the issues raised in the submission. (6) The relevant planning authority may arrange a public hearing on any issue whether or not a person has made a submission concerning the matter. (7) A report of any public hearing is to be furnished to the relevant planning authority and may be made publicly available by that authority. (8) The consultation required by this section is completed when the relevant planning authority has considered any submissions made concerning the proposed instrument and the report of any public hearing.
Section 58 provides that the relevant planning authority may at any time vary its proposal as a consequence of its consideration of any submission or report during community consultation or for any other reason, but, if it does so, the relevant planning authority is to forward a revised planning proposal to the Minister. Further community consultation under s 57 is not required, unless the Minister so directs in a revised determination under s 56, and the relevant planning authority may also at any time request the Minister to determine that the matter not proceed.
Section 59 envisages that the relevant planning authority will submit to the State authorities "final proposals".
Section 59(1) provides that the Director-General (now the Secretary) is to make arrangements for the drafting of any LEP required to give effect to those proposals, and is to consult the relevant planning authority, in accordance with the regulations, on the terms of any such draft instrument.
Section 59(2) provides that the Minister may, following completion of community consultation, make the LEP, with or without variation of the proposals submitted by the relevant planning authority, in the terms the Minister considers appropriate; or the Minister may decide not to make the proposed LEP; or he may defer the inclusion of a matter in a proposed LEP.
Section 59(4) provides: If the Minister does not make the proposed local environmental plan or defers the inclusion of a matter in a proposed local environmental plan, the Minister may specify which procedures under this Division the relevant planning authority must comply with before the matter is reconsidered by the Minister.
Division 5 of Part 3 provides for the review and amendment of environmental planning instruments on a regular and periodic basis.
Relevantly, s 73A provides as follows: Expedited amendments of environmental planning instruments (1) An amending environmental planning instrument may be made under this Part without compliance with the provisions of this Part relating to the conditions precedent to the making of the instrument if the instrument, if made, would amend or repeal a provision of a principal instrument in order to do any one or more of the following: (a) correct an obvious error in the principal instrument consisting of a misdescription, the inconsistent numbering of provisions, a wrong cross-reference, a spelling error, a grammatical mistake, the insertion of obviously missing words, the removal of obviously unnecessary words or a formatting error, (b) address matters in the principal instrument that are of a consequential, transitional, machinery or other minor nature, (c) deal with matters that the Minister considers do not warrant compliance with the conditions precedent for the making of the instrument because they will not have any significant adverse impact on the environment or adjoining land. (2) A reference in this section to an amendment of an instrument includes a reference to the amendment or replacement of a map adopted by an instrument.

The so-called Leichhardt principle, and other relevant cases

Important cases which applied to the scheme in place prior to 2008 were: the Court of Appeal decision in Leichhardt Council v Minister for Planning (No 2) ("Leichhardt") (1995) 87 LGERA 78; Cowdroy J's decision in John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning ("Brown Lenton") [1999] NSWLEC 213; 106 LGERA 150; Jagot J's decision in Bryan v Lane Cove Council ("Bryan") [2007] NSWLEC 586; 158 LGERA 390; and Craig J's decision in Friends of Turramurra Inc v Minister for Planning ("Turramurra") [2011] NSWLEC 128.
In Leichhardt, which dealt with the plan-making regime in the context of a draft regional environmental plan, the majority view of the Court of Appeal was stated by Priestley JA, who said (at 84 - emphasis mine): The other argument relied on by the Council concerns the difference between the draft regional environmental plan as exhibited and that made by the Minister. It was submitted that the difference was of such significance that the plan made by the Minister could not be said to be an outcome of the Pt 3 div 3 process. The submission involved the idea that s 51 is the culmination of a sequence of steps contained in ss 40-52; it is not a free standing section; it goes on the footing that a regional environmental plan made by the Minister pursuant to s 51 is one that is the outcome of the process set in train by s 40. Both the Director (s 49) and the Minister (s 51) may alter the draft regional environmental plan; the Director may alter the draft which was exhibited and the Minister may alter the draft submitted by the Director; but the power to alter must be confined by the need for the ultimate plan to be the outcome of the process which included the public exhibition of the draft plan; if either s 49 or 51 were interpreted so that the power of alteration of the Director and the Minister could bring about the making by the Minister of a plan so different from the publicly exhibited draft that in some important respect it could be said to be a quite different plan, then Pt 3 div 3 would be emptied of any substance. This basic idea was not contested point blank by Mr Walker SC, counsel for the Minister, but he argued that the power of alteration was much wider; he submitted the Minister could make an altered plan "so long as there remains a recognisable relation with the draft which permits ordinary language to describe what is done as an altered draft rather than an entirely fresh plan". Either view makes it necessary for the Court to compare the publicly exhibited draft plan with the plan made by the Minister to see what the differences are between them, and how important they are.
His Honour later said (at 88 - 89): ... The Minister's test would make the usefulness of the Pt 3 div 3 process dependent on how much notice the Minister was prepared to take of it. I think the process was designed to have more input into the eventual plan than that. My conclusion therefore is that ... the plan which he made ... was not a plan which in all important respects was the product of a Pt 3 div 3 process. It was a plan which in all respects but one, in my opinion, was a proper product of a Pt 3 div 3 process but in one important respect, that of height controls was not. That is a matter of such potential importance to the future development of the land to which the Greater Metropolitan Regional Environmental Plan No 1 applied that the Greater Metropolitan Regional Environmental Plan No 1 cannot, in my opinion, be said to be a plan which the Minister had power to make under s 51(1). ... the changed clauses, and the fact that the development control plans did not become operative, make all the difference. The resulting Greater Metropolitan Regional Environmental Plan No 1 was significantly different from the draft Greater Metropolitan Regional Environmental Plan No 1 publicly exhibited. It made the planning law substantially different from that which had been the subject of consultation between the Director and the Council.
In Brown Lenton, Cowdroy J emphasised the processes of consultation required by the regime.
His Honour held that the requirement for consultation imposed a duty that was not to be treated as a mere formality. It was one of the essential elements of the statutory scheme for procedural fairness, and it was the intention of the legislator that the statutory scheme for procedural fairness be observed in the making of the LEP.
His Honour applied Vanmeld Pty Ltd v Fairfield City Council ("Vanmeld") [1999] NSWCA 6; 46 NSWLR 78, and followed Leichhardt, in finding that the impact of alterations made to the exhibited draft plan created a stringent regime for development, upon which there had been no opportunity for public consultation or participation.
Due to these changes, the final draft plan was a different plan from the draft which had been exhibited, and could not be said to be "the result of a process provided by Part 3 of the Act". His Honour declared that, in the formulation of the relevant amendment to the LEP, the provisions of Part 3 had not been followed.
I pause at this point in surveying this line of authority directly relevant to the issue in the present case, to note not only the decision in Vanmeld, to which Cowdroy J referred, but also two other Court of Appeal decisions of some tangential relevance to the matter at hand.
Vanmeld concerned "alterations" to a draft LEP (s 68(3)), considered necessary by Council after submissions and/or a public hearing. A subclause was added to the draft, forbidding the placement of fill in a floodway in a particular zone, but was never publicly exhibited. A landholder affected by the added clause challenged its validity but the Court of Appeal held that it was not invalid, and, by majority, that the Council had no duty to accord procedural fairness to any person or body affected by the provisions of a proposed instrument. Meagher JA, one of the majority, specifically found ([184]) Leichhardt to be "not relevant" to the majority view.
In El Cheikh v Hurstville City Council ("El Cheikh") [2002] NSWCA 173; 121 LGERA 293, the Court of Appeal dealt with a case where the exhibition of successive versions of a draft plan, was claimed to be misleading in that the addition in the later version of a height control was not referred to in the notice. The primary judgment was that of Ipp AJA. The successful appellant relied on Leichhardt and Brown Lenton as being correct, and the major issue became the notification processes. His Honour said (at [31]), citing Leichhardt (at 88 - 89), that "the change involving height restrictions was a material matter, ... [which] should have been part of any description of the purpose of the Second Draft Plan".
In Smith v Wyong Shire Council ("Smith") [2003] NSWCA 322; 132 LGERA 148, the Court of Appeal held that compliance by Council with the public exhibition obligations imposed by s 66(1)(b) was an essential step in the process of formulating the content and operation of a draft LEP.
The Chief Justice noted (at [48]) that the purpose and effect of exhibition is "to direct the attention of members of the public, who may wish to make submissions, to the content" of the proposal under consideration, and (at [59]) that "the detailed scheme of consultation and public exhibition indicates the significance attached by Parliament to such public involvement in order to ensure the integrity of the process of formulating local environmental plans".
Jagot J did not refer to Smith in Bryan, but Craig J did so in Turramurra.
I turn now to those two decisions.
In Bryan, Jagot J relied on Vanmeld and Leichhardt to hold that the amendment to the LEP involved differences of such significance that the plan made by the Minister could not be said to be an outcome of the Div 4 process.
Her Honour said: 27 Although the approach of Priestley JA in [Leichhardt] involved conclusions based on an overall impression reached by comparison between the exhibited draft and the plan as made, there was no suggestion in the reasons (or any later decision) that the courts should defer to the opinions of the Director-General, the Minister (in that case) or the Council (in this case). To the contrary, Priestley JA said that to adopt the Minister's submissions in that matter would make the process "dependent on how much notice the Minister was prepared to take of it" (at 88). A similar approach is necessary in this case. 28 I do not accept the Minister's submissions. I am satisfied that, whatever descriptive formula used, Amendment No 62 as made was not the product of an alteration within the meaning of s 68(3) and was never exhibited as required by s 66 of the EPA Act. Amendment No 62 as made involved differences of such significance that the plan made by the Minister could not be said to be an outcome of the Pt 3 Div 4 process. It was a different plan and made the planning law substantially different. ... 29 Considered in terms of substantive operation and effect, the two instruments bear no real relationship to each other. ... 30 This case involves the same considerations. The residents and ratepayers of Lane Cove were given the opportunity to make submissions through the mandated public exhibition process about a draft plan that would empower the Council to quash all restrictive covenants on any parcel of land in the local government area to the extent necessary to enable development to be carried out. They ended up with a plan that would quash covenants on two lots, comprising one parcel, to the extent necessary to enable development on that land to be carried out. The applicant was given the opportunity to make submissions through the mandated public exhibition process about the draft plan, the effect of which would have been to enable the covenants burdening and benefiting both her neighbour's land and her own land to be quashed. The applicant ended up with a plan that left her with the covenant burdening her own land but removed the covenant benefiting her land to the extent necessary to enable her neighbour's land to be developed. Once the true operation of the draft plan and plan as made are recognised, it is not possible to conclude that the latter is the product of an alteration of the former. In particular, the latter cannot be characterised as a mere subset of the former in terms of its operation and effect. Properly characterised it has a significantly different character, substance and legal effect. ... Amendment No 62 as made is not a product of the process Div 4 of Pt 3 of the EPA Act required.
In Turramurra, which involved a complex multi-faceted challenge, Craig J accepted ([156]), and applied ([245]), the line of authority linking Leichhardt, Vanmeld, Brown Lenton, and Bryan.
His Honour held that the "outcome of the process" test was not satisfied in the case before him.
The submissions of the respondents in the present matter are that, as a result of subsequent legislative change, the Leichhardt/Turramurra line of authority no longer applies to challenges such as the present.

Recent decisions

At the time of the hearing of primary arguments in the present case, the first case which appeared (1) to have been decided post-2008, (2) to which the Court was taken, and (3) which is of direct relevance to the "new" plan making regime, and its Gateway determination provisions, was DeAngelis v Pepping ("DeAngelis") [2014] NSWLEC 108; 203 LGERA 61.
DeAngelis was a decision of Adamson J, sitting as an Acting Judge of this Court. It concerned a LEP and a Development Control Plan ("DCP"), which both related exclusively to the land involved in that case.
The applicant had a contentious proposal for development of some land in Bowral.
Ultimately, on 28 March 2014, a site specific LEP was purportedly made, along with a DCP incorporating the changes made in the LEP 2014. If valid, the LEP would change the permitted uses and zoning of the applicant's site from mixed uses to residential use. Both the LEP and the DCP were challenged before Her Honour.
Adamson AJ succinctly summarised ([4] - [12]) the "new" regime, referring in detail to the sections summarised above. Her Honour went on to refer to the second reading speech to which I have already referred (at [14] above), and then dealt with the status and effect of DCPs, and the provisions of the EPA Act in respect of the delegation of powers pursuant to that Act and the Local Government Act 1993 ("LG Act"). Her Honour then summarised provisions relevant to the question of consultation and concurrence ([22] - [26]), the relevant facts of the case ([27] - [66]), and relevant delegations in place ([67] - [74]).
For various reasons not of direct relevance to the present matter, the summons was dismissed. Her Honour found (at [143]) that the draft LEP did no more than had been exhibited in the planning proposal. The Council was held to be the delegate for the Minister, and its relevant officer was the delegate of the Council, in essence its agent - he had neither to form an independent judgment, nor make any decision which was within the Council's function. Her Honour found that it was not necessary for the Council to amend the DCP, even though the amendment was agreed not to have been exhibited, as required. The unamended DCP would have yielded to the amendment made to the LEP, if valid.
Each of the authorities to which I have so far referred turned, in the end, on its own factual history.
As I have noted, this Court has now decided Save Little Manly, but, before I deal with that case, I consider it appropriate that I now deal with the relevant facts in the present matter, at some length.

E: Factual Background

The following factual chronology reflects the Agreed Statement of Facts ("ASF" - tab 11 of the Court Book), the Agreed Chronology of Events (Tab 12), and the competing written submissions of the active parties.
The North Lismore Plateau area is elevated land north-west of Lismore (see maps in Exhibit B).
The Plateau was the subject of interest on the part of the Winten Property Group (formerly the fifth respondent) and the Plateau Group (the still-active, but submitting, sixth respondent). They asked Council to amend the 2000/2012 LEP to enable the rezoning of approximately 255 ha of study area, primarily for residential development and environmental protection.
On 12 April 2011, the Council resolved to support such a planning proposal and forward it to the Department for consideration and processing through the Gateway determination process set out in Div 4 of Part 3 (see from [37] above).
The report presented to Council at that meeting included the following (Exhibit A1 tab 2, fols 0046, 0048 and 0049): Overview of Report This report responds to a planning proposal (a request for Council to commence an LEP amendment to rezone the land) submitted from two groups representing various landowners on the North Lismore plateau. The planning proposal requests that an area similar to that identified in the Lismore Urban Strategy be rezoned for residential and environment protection purposes. It is recommended that Council support the planning proposal and forward it to the NSW Department of Planning for its consideration and response. This report also considers the area subject to the planning proposal in relation to the North Lismore Plateau as identified in the Lismore Urban Strategy and recommends that the Lismore Urban Strategy be amended to align it with the planning proposal area. Furthermore, this report recommends that the NSW Department of Planning amend the Far North Coast Regional Strategy to align with Council's revised Lismore Urban Strategy in relation to the North Lismore Plateau. ... Likely future zoning Should the Winten/Riordan study area be rezoned while Lismore LEP 2000 is still the current planning instrument then it is likely that the land will be variously zoned 2(a) Residential zone, 3(b) Neighbourhood Business zone, 7(a) Environment Protection (Natural Vegetation and Wetlands) zone, 6(a) Recreation zone, and 7(b) Environment Protection (Habitat) zone. It is possible that if areas are identified that do not fit in with these zones then the 1(a) General Rural zone and 1(r) Riverlands zone may also be used. ... Part 2 Explanation of Provisions It is proposed that Lismore Local Environmental Plan 2000 be amended by removing the current 1(d) Investigation zone, 1(a) General Rural zone and 1(r) Riverlands zone and replacing it (sic) with a range of zones that reflect the existing characteristics and desired future use of the land. These zones may include the following: 2(a) Residential - to apply to areas elevated out of the floodplain that are largely constraint free and may be suitable for residential development at various densities that are compatible with surrounding land uses. A primary school site may also be identified in this zone. 3(b) Neighbourhood Business zone - to apply to one or two small areas that are largely constraint free and may be suitable for local neighbourhood business uses that will be required in time to service the residential population of the area. 6(a) Recreation zone - to apply to areas that may be required for passive or active open space as the urban area grows. 7(a) Environment Protection (Natural Vegetation and Wetlands) zone - to apply to significant areas of natural vegetation, such as rainforest remnants and wetlands. These areas typically occur on the shoulders to the plateau and in the valley below it and need to be identified with buffer areas as necessary. 7(b) Environment Protection (Habitat) zone - to apply to largely vegetated areas that are important for wildlife habitat and/or wildlife corridors. 1(a) General Rural zone and part 1(r) Riverlands zone may also be used in areas that are not suitable for residential development and not required for environment protection but are still required for access roads, and stormwater retention and cleansing infrastructure. In the event that the prevailing instrument is in the Standard Instrument format then a suite of zones most similar to these outlined above will be applied.
The planning proposal was lodged on 29 April 2011, and its objective was to rezone the subject land and North Lismore Plateau for residential and neighbourhood business uses as well as environmental protection and restoration and open space and recreation.
Between 29 April 2011 and 30 May 2012, the Department required, as a condition of a Gateway determination (issued 26 June 2011), that the Council carry out additional studies and assessments. The time allowed for that process was extended, at the Council's request, by an additional 12 months (ASF 4 - 7).
However, on 31 July 2012, Council resolved to forward the planning proposal to the Department requesting that it be allowed to be placed on public exhibition. It was forwarded, in revised form, on 8 August 2012, and was approved for exhibition on 15 August 2012 (ASF 8 - 9).
The Overview of the report to Council on 31 July 2012 included the following (Exhibit A1 tab 12, fol 0118): The planning studies that have been undertaken provide a detailed picture of the physical, ecological and cultural characteristics of the NLP and are a sound basis on which to create a suite of land use zones. The planning proposal has been based on the Standard Instrument zones and if approved would amend the new Shire wide LEP currently being considered by DP&I. The planning proposal recommends that 67% of the 255 ha study area be allocated to R1 General Residential, 10% to E2 Environmental Conservation, 18% to E3 Environmental Management, 1% to B1 Neighbourhood Centre, 0.5% to RE1 Public Recreation and 3% to RU1 Primary Production.
The Council resolution of 31 July 2012 (No 140/12) included the following (Exhibit A1 tab 13, fol 0144): 2. Council agrees that the General Manager has delegation to make minor changes to the draft planning proposal in response to referral authorities or the Department of Planning and Infrastructure should this be required prior to exhibition. 3. Following exhibition Council receive a report regarding submissions to the draft planning proposal and outcomes to the outstanding matters identified in the conclusion to this report.
On 20 September 2012, the Minister announced that the Department would review the use of E zones, excise E zones from draft LEPs when they were finalised, and not endorse the use of E zones on rural land, in all Far North Coast LEPs, including Lismore LEP, as a result of "concerns about environmental zonings being applied to agricultural land" (see Exhibit A1 tab 16, fol 0625).
The draft planning proposal was publicly exhibited by Council for 42 days from 4 October 2012 to 15 November 2012 (ASF 11).
The public notice of such exhibition (Exhibit A1 tab 17, fol 0626) said, in part: About the North Lismore Plateau rezoning The North Lismore Plateau (NLP) is a 255 hectare site made up of mostly elevated rural land in the North Lismore locality, located on the western side of Dunoon Road opposite the Lismore Showground. It includes a disused quarry located on Council-owned land in its southern extent. The NLP site is identified as potentially suitable for future urban development in the strategic town planning documents, the 'Lismore Urban Strategy' and the 'Far North Coast Regional Strategy'. Over the past 12 months further investigations have been carried out on the land, including studies of: Cultural Heritage Flora and Fauna Bushfire Hazard Soil Geotechnics Potential Contaminated Land Stormwater Management Noise Potential Parks and Open Space Infrastructure delivery (roads, water, sewer) These studies have informed the preparation of the 'Proposed Rezoning Plan' which shows what type of development could potentially go where on the site (e.g. housing, neighbourhood shops) as well as the location of the areas set aside for public recreation and environmental and cultural heritage protection. The rezoning is the first step in considering the possible future development of the land.
The extensive material so exhibited (at tab 18 - comprising some 1500 pages, in both Exhibits A2 and A3) concerned the question of appropriate zoning of 255 ha of land on the Plateau - 111 ha was then zoned Part 1(d) Investigation, and other Parts 1(a) General Rural and 1(r) Riverlands, under the provisions of the Lismore LEP 2000.
The proposal (CB p50) would replace the existing zones with a range of zones to reflect the existing characteristics and desired future use of the land, that may include residential development, business, environmental protection, and open space. Some 28% of the relevant land was to be rezoned to E zones. The proposal's "supporting notes" recorded that the proposal considered that the Plateau would have a capacity to provide between 1200 and 1500 dwellings but "the exact distribution of the proposed zones is yet to be determined", so the estimate was not included in the land release data.
On 11 December 2012, Council resolved to accept plan-making delegations under s 59, and sub-delegate those powers to its General Manager, under s 381 of the LG Act (Exhibit A3 tab 19).
On 22 February 2013, Lismore LEP 2012, in the form of the "standard instrument", came into force (CB tab 16). It did not provide for any E zones, and it rezoned the relevant land from 1(a) General Rural and 1(d) Investigation, to RU1 Primary Production and partly R5 Large Lot Residential. The objectives of the RU1 Primary Production zone (CB p104) were, understandably, sustainable and diverse primary industry production, protected from inappropriate development or incompatible uses.
On 12 March 2013, Council revoked and replaced its delegations to its General Manager, and the General Manager accepted them on 18 March 2013 (ASF 22/23 and Exhibit A3 tabs 20 - 22).
On 14 June 2013, an amended Gateway determination was issued by the Minister's delegate, to reflect the making of the 2012 LEP, and to extend the time for completing Amendment 3, by seven months, to 3 April 2014 (respondents' subs 8, ASF 12, and Exhibit A3 tabs 24, 25 and 26).
On 13 August 2013, Council considered the following contents of its officers' report, before resolving to forward the draft planning proposal to the Department (Exhibit A3 tab 28, fol 2150 - 2152): Executive Summary This report provides Council with an overview of what has happened since it agreed to place the draft planning proposal on exhibition. It summarises the submissions and the planning response to them as well as outlining new information on land contamination, biodiversity and infrastructure issues. The planning studies that have been undertaken provide a detailed picture of the physical, ecological and cultural characteristics of the North Lismore Plateau (NLP) and are a sound basis on which to create a suite of land use zones. The planning proposal has been based on the Standard Instrument zones and if approved would amend Lismore Local Environmental Plan (LEP) 2012. The planning proposal recommends that 67% of the 255 ha study area be allocated to R1 General Residential, 11% to E2 Environmental Conservation, 17.5% to E3 Environmental Management, 1% to B1 Neighbourhood Centre, 0.5% to RE1 Public Recreation and 3% to RU1 Primary Production. A revised draft Infrastructure Delivery Plan (IDP) has been prepared that consolidates the infrastructure requirements, commitments and expectations that relate to future development of the NLP ... ... Proposed future zoning Under this planning proposal the land will be variously zoned part B1 Neighbourhood Centre (2.4 ha), part R1 General Residential (171ha), part RE1 Public Recreation (1.4 ha), part E2 Environmental Conservation (28 ha), part E3 Environmental Management (44 ha) and part RU1 Primary Production (8.6 ha).
Council resolved, on 13 August 2013 (tab 29, fol 2175), to: 1. Forward the North Lismore Plateau draft planning proposal as outlined in this report to the NSW Department of Planning and Infrastructure requesting that the Minister for Planning and Infrastructure make the plan as soon as possible. 2. Adopt the draft Infrastructure Delivery Plan as a basis for supplying key infrastructure to the North Lismore Plateau.
On 14 August 2013, the Council forwarded the draft planning proposal to the Department, requesting the Minister to make it, as an amendment to the 2012 LEP (ASF 13, and Exhibit A3 tab 30).
The proposal reflected the idea that 28 ha of the subject land should be zoned E2 Environmental Conservation and 44 ha E3 Environmental Management (Exhibit A3 tab 55, p2296). 171 ha would be R1 General Residential, and only 8.6 ha RU1 Primary Production. The E2 and E3 areas would represent 28.5% of the affected land (Exhibit A3 tab 55, p2295).
On 16 August 2013, the Department informed the Council that the E zones shown in the planning proposal were required to be shown as "deferred matter" on the zoning maps.
Maps were then generated by Council, showing those publicly exhibited E zones as "deferred matter" (ASF 14, and Exhibit A3 tabs 31, 32, and fol 2188 of tab 34). Those areas were then ordered to be changed to RU1 (See tab 36, fol 2193, item 6), apparently "pending the outcome of the E zone review" (tab 39, fol 2207). (There is some conjecture between the parties as to who was responsible for ordering the amendment of the zoning maps, but they were provided by Council's Senior Strategic Planner, Greg Yopp, on 28 August 2013 - ASF 14).
On 21 October 2013, Yopp sent to the Department amended maps, in which all "deferred matter" areas had been deleted, and were instead shown according to their current zoning, namely RU1, "pending the outcome of the E zone review" (ASF 15, and see Exhibit A3 tab 39).
On 6 January 2014, Council's General Manager delegated certain functions to certain officers in its Sustainable Development Directorate, including the Strategic Planning Coordinator and Senior Strategic Planner (ASF 24, and Exhibit A3 tab 45). Function No 4 in the delegation schedule was (tab 45, fol 2238): Signing of Correspondence and Other Forms etc To sign all correspondence relating to and emanating from the work allocated to the position under their own name and title - except to Ministers of Governments and to sign all forms/documents, submissions etc where appropriately relevant to completing the roles/duties of their position. Two of many officers named under that item as "delegate" are "P Newman" and "G Yopp".
Also on 6 January 2014, Yopp emailed the Department asking it to "confirm that Council has fulfilled all of its requirements" in respect of Amendment 3. On 17 January 2014, Jon Stone of the Department confirmed that it had (ASF 16, and Exhibit A3 tab 46).
On 14 February 2014, the Department received an Opinion from Parliamentary Counsel that the LEP Amendment could be legally made (Exhibit A3 tab 51).
On 17 and 18 February 2014, Craig Diss of the Department exchanged emails with Paula Newman, Council's Strategic Planning Co-ordinator - to "consult ... as required by s 59(1)". Diss was seeking comments and input in respect of the draft LEP, which was forwarded to Newman "on a confidential basis" (Exhibit A3 tab 52, fol 2266, repeated at tab 55, fol 2338), "to ensure that the appropriate planning outcome is achieved". Newman agreed (ASF 18, and Exhibit A3 tab 55, fol 2337), and expressed the hope that the Amendment would be made "in the near future".
Key zoning maps LZN 005A and LZN 005AA were nominated in the Diss email (Exhibit A3 tab 52). Those maps had been drafted by the Council, and both retained the zone RU1 in the relevant areas. They were carried forward into the amendment, as made (respondents' sub 18).
On 17 February 2014, the Department prepared a Planning Proposal Summary Report, indicating that the Council had removed the E zones from the proposal, with the effect that the land would retain its current RU1 Primary Production zoning. The Summary Report stated that the Department considered those changes to be appropriate (Exhibit A3 tab 54).
On 19 February 2014, a Department Briefing Note (in Exhibit A3 tab 55) was prepared for the Minister's Delegate, in relation to the planning proposal, and the LEP Amendment, recommending that the delegate (a/the Deputy Director General) make the amendment under s 59(2).
The Briefing Note also noted (fol 2287) that the Council had removed all E zone lands from the Planning Proposal due to the ongoing E zone Review, saying, under the heading "Current Position": Due to the ongoing Department review of the use of environmental zones in the Far North Coast, Council has removed all land from the Planning Proposal to be zoned E2 Environmental Conservation or E3 Environmental Management. This land will retain its current RU1 Primary Production zoning. and, later (fol 2293), under the heading "Environmental Zonings": The Planning Proposal originally sought to rezone various land with significant environmental value within the release area to either E2 Environmental Conservation or E3 Environmental Management. Due to the ongoing review into the use of environmental zones in the Far North Coast, Council has elected to remove all 'E Zones' from the Planning Proposal. The land proposed to be zoned E2 and E3 land will retain its current RU1 zoning until the E Zone review is completed. A Planning Proposal will be undertaken to include the E Zones at the conclusion of the E Zone review. This approach is supported.
Attached to the Note, as "tag D" (still in tab 55), was a Planning Proposal Report, which concluded (as also noted on fol 2287) that the Planning Proposal was "consistent with the intent and purpose of the Gateway determination".
Page "12 of 13" of tab "D" (fol 2335) records "a number of minor changes to the proposed LEP zone boundaries", and goes on to comment: Due to the ongoing department review of the use of environmental zones in the Far North Coast, Council has removed all land from the Planning Proposal to be zoned E2 Environmental Conservation or E3 Environmental Management. The land formerly proposed to be zoned E2 and E3 land will retain its current RU1 zoning until the E Zone review is completed. A Planning Proposal will be undertaken to include the E Zones at the conclusion of the E Zone review. These changes are discussed further in the Planning Report (see attached documents) and are considered to be appropriate and are supported.
"Tag E" (fols 2337 - 2338) was Newman's exchange of emails with Diss, on 17-18 February 2014 (see [103] above).
The LEP Amendment was published on 21 February 2014, and contained no E zones (Exhibit A3 tab 56).
Having set out the complex factual history of the matter, I now turn to consider the parties' respective positions.

F: The Cases Put By The Parties

In summary, the parties' respective positions are as follows:
The applicant claims (subs pars 2 - 7): 2. The planning proposal that was publicly exhibited by the Lismore City Council (Council) between 4 October 2012 and 15 November 2012, provided for the rezoning of certain lands from 1(a) General Rural and 1(d) Investigation to E2 Environmental Conservation and E3 Environmental Management (E zones) (under the Lismore Local Environmental Plan 2010). However, the LEP Amendment as made did not rezone the land but retained the existing zone, which was at that time RU1 Primary Production. It was, therefore, fundamentally different from the planning proposal as exhibited. This is the heart of the Applicant's case and the basis for each of its grounds. 3. The Applicant's primary ground is that the LEP Amendment, as made, was not a product of the statutory process for the making of an LEP, under Part 3, Division 4 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), because the LEP Amendment was significantly different from the planning proposal as publicly exhibited. 4. The Applicant's second ground is that the Minister failed to accord procedural fairness in the making of the LEP Amendment because the community was not afforded an opportunity to be consulted on a fundamental change to the planning proposal, that is, the retention of RU1 Primary Production rather than rezoning to E zones. 5. Thirdly, the Applicant contends that the Secretary of the Department of Planning, the Third Respondent, failed to make arrangements for the drafting of the LEP Amendment to give effect to the Council's final planning proposal and to consult with the Council on the terms of any such draft instrument. 6. The Applicant's fourth ground is that the Minister failed to take into account a relevant consideration, that is, the Council's final planning proposal which proposed rezoning certain land from 1(a) General Rural and 1(d) Investigation to E zones. 7. Finally, the Applicant contends that the Minister acted beyond power in relying upon correspondence with the Council's Strategic Planning Coordinator to confirm that the draft LEP would achieve the Council's desired planning outcome, in circumstances where that Council officer did not have appropriate delegated power to agree to fundamental changes to the elected Council's final planning proposal.
The applicant nominates (CB tab 7) the following "real issues for determination": 1. Whether the provisions of the Lismore Local Environmental Plan 2012 (Amendment 3) (LEP Amendment), as exhibited and as made, were so significantly different that the LEP Amendment was not a product of the process under Part 3, Division 4 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. What was the final planning proposal put by the Council? 3. Whether the Secretary of the Department of Planning (Department), or the Secretary's delegate, made arrangements for the drafting of the LEP Amendment so as to give effect to the final planning proposal, as required by section 59(1) of the EPA Act. 4. Whether the Minister or the Minister's delegate failed to afford procedural fairness in the making of the LEP Amendment by not providing an opportunity for community consultation on the amendments made to the planning proposal, before the LEP Amendment was made. 5. Whether the Strategic Planning Coordinator at Council, had delegated power to consult with the Department, on behalf of the Council or General Manager, in regard to the draft LEP Amendment.
On the other hand, the active respondents, the Minister for Planning and the now Secretary of the Department of Planning, submit, in summary (subs par 2): a) In relation to Ground 1 - the Leichhardt Council line of cases dealing with the old Division 4 of Part 3 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) (which imposed a limitation on the power to change a proposal after exhibition) are not applicable. The analysis in those cases turned on the highly-prescriptive and "detailed scheme of consultation and public exhibition" then in force. By contrast, the "process" under the new Division 4 in force since 2008 no longer mandates public exhibition. Rather, the Minister is given control over the approvals process with the "flexibility" to "tailor" what consultation is required, if any. It follows that the Lismore LEP Amendment was a "product of the process" under Division 4 of Part 3 of the EPA Act. b) In relation to Ground 2 - the provisions of Division 4 indicate a legislative intention that, except to the extent that the Minister expressly imposes community consultation requirements, Council is not subject to any duty to accord procedural fairness to any person who might be affected by the provisions of the proposed LEP. c) In relation to Grounds 3-5 - officers of the Department of Planning, on behalf of the Secretary, made arrangements with the Council for the drafting of an instrument which gave effect to the Council's final proposals (see s 59 of the Act). The Strategic Planning Coordinator of Lismore City Council validly acted under delegated authority when she confirmed on behalf of Council that the draft LEP instrument prepared by the Department (and put before the Minister's delegate) gave effect to the final proposal of Council (see s 59 of the Act). The form of Council's earlier proposal dated 13 August 2013 - although it was not the final proposal of Council - was also considered by the Minister's delegate when making the decision whether to make the LEP. Accordingly, each of Grounds 3-5 must fail.
The respondents nominate (CB tab 8) the following "real issues for determination": 1. Whether there is a requirement for community consultation other than as imposed under the express terms of Part 3, Division 4 of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. Whether the Secretary of the Department of Planning or the Secretary's delegate (the Department) made arrangements for the drafting of the LEP Amendment so as to give effect to the final proposals of Council, as required by s 59(1) of the EPA Act. 3. Whether the Strategic Planning Coordinator of the Council had delegated power to consult with the Department on behalf of the Council under s 59(1) of the EPA Act? 4. Whether any failures (which are denied) lead to invalidity of the LEP Amendment?

G: Consideration

I now turn to consider the applicant's grounds of challenge.
The primary allegation is that the LEP, as now amended, infringes the implied limitation established in Leichhardt (see [48] - [49] above), namely, it is not a product of the Div 4 process.
The respondents' defence on this ground, was based primarily on the assertion that that implied limitation does not apply to the new scheme for the making of an LEP under Div 4 (see [116] above).
It is now convenient and appropriate to discuss Pain J's decision in Save Little Manly, which involved a challenge to the validity of an amendment made to the Manly Local Environmental Plan 2013. That amendment was made pursuant to the new LEP making process under Div 4. The applicant argued, relevantly, that the LEP was invalid because it was "not a product of the Div 4 process".
The relevant facts of the case were as follows.
Manly Council, on 19 March 2013, submitted to the Minister a planning proposal that involved the rezoning of three properties located on the foreshore of Little Manly Beach, namely Nos 34, 36 and 38 Stuart Street Manly, from RE1 Public Recreation to E4 Environmental Living, and the imposition of various planning controls on those sites.
Two of those three blocks (Nos 34 and 36), were purportedly classified as "operational public land" under the LG Act. On the other hand, No 38 was privately owned, but earmarked for acquisition, to be used as "local open space", under the 2013 Manly LEP (at [5] - [11]).
On 26 April 2013, the Minister issued a Gateway determination, requiring, among other things, the public exhibition of the proposal for a period of 28 days (at [14]).
The intended outcomes, as expressed in the exhibited proposal, were to enable the Council to sell both 34 and 36 Stuart Street, to help pay a loan taken out for the purchase of land at 40 Stuart Street (land not the subject of the planning proposal), which had been zoned RE1 Public Recreation (at [18]).
During the exhibition period (18 May - 14 June 2013), the Council received 106 written submissions, none of which supported the proposal ([21]). The Council noted the submissions, and resolved to prepare Draft Manly Local Environmental Plan 2013 (Amendment No 1) ("the Draft LEP Amendment"), reflecting the planning proposal as exhibited, pursuant to the Minister's delegation of his power under s 59(1) of the EPA Act (see [42] above) to Local Councils ([9]). That draft plan was submitted to the Minister for gazettal on 9 September 2013 ([22] - [23]).
One month later, Biscoe J delivered judgment in Save Little Manly Beach Foreshore Incorporated v Manly Council (No 2) [2013] NSWLEC 156. His Honour's orders were summarised by Pain J (at [24]), as follows: (a) declaring that 34 and 36 Stuart Street are classified as community land [c.f operational land - [124] above] under the LG Act; (b) restraining Manly Council from selling, exchanging or otherwise disposing of 34 and 36 Stuart Street, so long as it is classified community land; and (c) declaring that 36 Stuart Street is subject to a trust for public purpose.
As a consequence, on 9 December 2013, Council resolved: (a) to rescind its decision to make any changes to 34 and 36 Stuart Street, as reflected in the Draft LEP Amendment submitted to the Minister (see [127] above); and (b) proceed with the rezoning of 38 Stuart Street as originally proposed (see [123] above) ([28]).
On 10 January 2014, the Council sent to the Minister a revised planning proposal reflecting the above resolution, and sought to exercise the Minister's power, by delegation, to draft the LEP amendment (see [127] above) ([29]).
On 21 March 2014, the Amendment was notified on the NSW legislation website, but it applied to only Lot 38.
Having set out the relevant facts, Her Honour framed the issues for determination as follows (at [31]): (1) Whether the variations to the planning proposal made subsequent to exhibition exceeded the powers conferred by s 58 and/or s 59(2). (cf Leichhardt (No 2)) (2) Whether the exhibited planning proposal contained misleading information. (Failure to comply with community consultation requirements of s 57(1) and s 57(2) cf El Cheikh) (3) If the Court finds breaches of the EPA Act in (1) or (2) whether the impugned LEP was a valid and lawful product of a process under Pt 3, Div 4 of the EPA Act.
After setting out the old and new plan-making regimes, Her Honour turned (from [41]) to consider the three issues identified for determination, first discussing the principles derived from the Leichhardt line of cases, to some of which I was referred in the present proceedings. Her Honour said (at [44]): Both this Court and the Court of Appeal have consistently held that as a matter of statutory construction, the power of a planning authority to make an environmental planning instrument is limited to the extent that the resulting environmental planning instrument remains part of the legislative process prescribed for its making. In Leichhardt (No 2) the Court of Appeal considered the regime for the making of a regional environmental plan (REP) and held that the Director's power to alter a draft REP as exhibited (s 49) and the Minister's power to alter a draft REP submitted to him or her (s 51) is limited to the extent that the resulting plan remains a proper product of a Pt 3 Div 3 process.
Her Honour then outlined (at [51] - [54]) the submissions made by Manly Council in response to the claim that the impugned LEP was "not a product of the process", as follows: 51. Manly Council does not agree that the differences between the planning proposal and the revised planning proposal (which became the made plan) are "stark" and "substantially different". The planning law as proposed to apply to no 38 in the revised planning proposal was applied in the precise terms set out in the planning proposal. The planning law as proposed to apply to nos 34 and 36 was not proceeded with. The fact that nos 34 and 36 were omitted from the revised planning proposal does not result in a plan that is substantially different and not the product of the process under Pt 3 Div 4 of the EPA Act. 52. ... The rezoning of no 38 was in the terms originally proposed in the exhibited planning proposal and was therefore the subject of consultation in accordance with s 57. The status quo in relation to nos 34 and 36 was retained. The change to no 38 did not affect the planning law in respect of nos 34 and 36 and the non-change to nos 34 and 36 did not affect the planning law in respect of no 38. 53. The process of Pt 3 Div 4 contemplates that a matter may be deferred from inclusion in a proposed LEP (s 59(3)) or that a planning proposal may not proceed at all. This indicates that the "process" contemplates that part only of a planning proposal may proceed and that, in such circumstances further consultation is not first required. 54. Variation by deletion of separate and individual components (outcomes for nos 34 and 36) changes the planning proposal, but is a legitimate variation within the meaning of s 58(1) because it remains constant with respect to the intended outcome for no 38 and that outcome is not dependent on the outcome for nos 34 and 36. The community was consulted with respect to no 38 and there would be no purpose served in further consulting them on the matter.
Before she proceeded to consider whether the impugned LEP was indeed a "product of the process", Her Honour considered it necessary to determine a threshold question, namely, whether the Leichhardt line of cases (see [47]ff above) applied to the current LEP-making process under Div 4, introduced in 2009 (at [65]). After comparing the old and new regimes, and considering some relevant "extrinsic materials" (see [66] - [72]), Her Honour determined that the Leichhardt line of authority did apply to the new regime, stating at [72] - [74]: 72. ... The process in the current Div 4 provides far greater flexibility in the community consultation arrangements than in the old Div 3 or Div 4. Greater flexibility does not undermine the importance of community consultation in the statutory scheme. Where consultation is required by the gateway determination it is mandatory. The power to alter an instrument from that publicly exhibited was circumscribed by the Court of Appeal in Leichhardt (No 2) and subsequent cases on the basis that the instrument made must reflect the statutory scheme in Div 4 which includes the community consultation requirements. While there are substantial procedural changes in the current Div 4, in substance the significance of the requirement for community consultation remains and there is no basis for distinguishing earlier authorities which considered the old Div 3 and Div 4. 73. I agree with the Applicant that effective community consultation is a fundamental precondition to the exercise of powers to make an LEP under the current Div 4. The power to vary the exhibited planning proposal under s 58 is necessarily constrained by the requirement that the resulting plan be a product of the Div 4 process, as reflected in the accuracy of the planning proposal's discussion of a proposed instrument. That proposal informs the public and their submissions. This approach to statutory construction is consistent with Project Blue Sky as the Applicant contends in par 41-42. 74. The adoption of a "planning proposal" (s 55), as opposed to a "draft LEP" under the old Div 4 provides for greater community consultation than its predecessor by exhibiting a plain English document to the public (see the gateway determination at exhibit A tab 12), as the Applicant submitted.
Having established that Leichhardt does apply, Her Honour defined the issue to be determined (at [76]) as follows: This case requires consideration of the scope of the power of Manly Council under s 58 and the Minister under s 59(2)(a) to vary a proposed instrument the subject of a planning proposal once community consultation has occurred. A comparison of the planning instrument the subject of the exhibited planning proposal with the instrument made to determine the extent of the difference is necessary. As identified in [Turramurra] at [158], whether the amendment is so significant that it differs in important respects from the exhibited draft planning proposal involves a consideration of the amendments and their significance in the context of the instrument. This is a question of fact and degree to be answered in the particular circumstances of this case.
Her Honour determined that the impugned LEP was not so materially different from the exhibited planning proposal, that it infringed the implied limitation, and found no breach of the EPA Act process (at [84]). The changes made to the zoning and development controls applicable to Lot 38 had been the subject of public consultation, and the absence of changes to Lots 34 and 36 in the LEP made no material difference to the rationale behind the changes to Lot 38, because there were two separate planning schemes involved in the proposal, one relating to Lots 34 and 36, and the second to Lot 38. Her Honour said (at [80]): Number 38 is in private ownership unlike nos 34 and 36. Its treatment under the proposed instrument is separate from nos 34 and 36 for that important reason. One part of the proposed scheme related to nos 34 and 36 which did not proceed and one related to no 38 which did proceed essentially unaltered from the exhibited planning proposal describing the proposed instrument. The circumstances are not like [Bryan] where a provision with local government area-wide application in a draft instrument was in the final version applied to only one property so that only one landowner was adversely affected. While the geographical scope of the impugned LEP is smaller than the planning proposal exhibited it is consistent with the exhibited scheme for no 38. There was no relevant change of circumstance for that property as a result of the rezoning of nos 34 and 36 not proceeding.
Thus, despite finding that the Leichhardt line of authority does apply to the new LEP making process under Div 4, in the particular circumstances of the case before her, the differences between the planning proposal, as exhibited, and the LEP, as finally made, were not so significant to invalidate the LEP.
Her Honour then went on to consider a second issue in those proceedings, concerning land classification under the LG Act, and rejected the applicant's argument.
Consistent with her approval of the Council's characterisation of the planning proposal as containing "two parts", one relating to the sale of Lots 34 - 36 to fund the purchase of Lot 40 and the second, concerning the rezoning of Lot 38 in line with its current use as private land, and have it removed from the list of properties "earmarked" for future use as recreation land under the LEP (see [124] above), Her Honour said at [102] - [103]: 102. On one view of the facts, that Manly Council did not proceed with any amendment of the LEP in relation to nos 34 and 36 meant there was no misleading of the public as Manly Council submitted. Manly Council did not pursue rezoning of nos 34 and 36 once their status as community land rather than operational land was identified, hence the change in the LEP as made relates only to no 38. This circumstance is unlike that in El Cheikh where the LEP contained provisions which were not the subject of the public exhibition on the second occasion. That did not occur in this case. 103. Even if subsequent variations to the planning proposal after it had been exhibited were misleading, the change was not a material one. As discussed above at par 78-82, there were no changes to no 38 in the amended planning proposal from what was exhibited, nor was there a relevant change of circumstance for the rezoning of nos 34 and 36 not proceeding.
If Her Honour's reasoning is applied to the present case, I would apply the Leichhardt principles to the new Div 4 process. In supplementary submissions, the respondents argue that Pain J's finding in Save Little Manly, that the Leichhardt line of authority continues to apply, is obiter, because Her Honour held that the implied limitation identified in those cases was not infringed in any event (see [137] above). Accordingly, the respondents argue (pars 4 - 6), even judicial comity does not require me to follow Save Little Manly.
I respectfully disagree with the downplaying of Pain J's finding. A "rule of law expressly or impliedly treated by [a Judge] as a necessary step in reaching his/[her] conclusion" constitutes ratio decidendi: Soong v Deputy Commissioner of Taxation [2011] NSWCA 26; 80 NSWLR 226, at [41]. The Leichhardt issue was at the heart of Save Little Manly, (see [65] - [74]). The determination of the question of the applicability of the Leichhardt line of authority was treated as a necessary precondition to the ultimate conclusion that those principles were not infringed. Had the principles not been applicable, there would have been no need to determine whether they were infringed in the particular circumstances of the case - how can a principle be infringed if it is not applicable?
Even if Her Honour's determination were obiter, I find her reasoning highly persuasive, and am content to adopt it here, as I am entitled to do: Chief Executive Officer of Customs v Tony Longo Pty Ltd (t/as Aquila Shoes) [2001] NSWCA 147: 52 NSWLR 458, at [70].
The respondents submitted (par 9) that, even if the Leichhardt cases do apply, I should reach a similar conclusion to Her Honour, and find that the implied limitation identified in Leichhardt is not infringed. As Her Honour said (at [73]), whether the implied limitation is infringed involves a comparison between the exhibited proposal, and the LEP as finally made.
In the present case, the exhibited proposal envisaged environmental zones but the LEP, as made, did not include any. Whether that difference was so significant that it made the plan not a "product of the process", is a matter of fact and degree, a question to which I now turn.
The exhibited planning proposal expressly provided that some land would be "set aside" for environmental protection, in addition to zonings to facilitate urban development on the plateau, but, as finally made, the LEP rezoned land to facilitate the development on the plateau, but no land was set aside for environmental protection.
As in Save Little Manly, only part of the exhibited proposal here is reflected in the impugned LEP. However, Pain J found ([81] - [82]) that the impugned LEP was indeed a "product of the process", because "no new provisions not the subject of public consultation were made in relation to … the impugned LEP", and "there was no relevant change of circumstance for [those] properties as a result of the rezoning … not proceeding".
Crucial to Pain J's finding in Save Little Manly was her characterisation of the proposal as containing two separate, and somewhat divisible, schemes (at [80] - see [137] above). As a consequence, the rationale behind the rezoning of Lot 38 was not impacted by the absence of any changes to Lots 34 - 36.
In the present case, the LEP in question did not introduce changes that were not publicly exhibited - the exhibited proposal clearly envisaged the rezoning of the land for residential development and public recreation purposes - but that fact alone does not convince me that the LEP was a "product of the process".
The planning proposal and impugned LEP in question here cannot be said to contain two or more separate or divisible "parts" or "schemes". Amendment 3 involved the rezoning of 255 ha of land, which had long been identified as a potential site for urban development (Exhibit A3 fol 2153), but envisaged the rezoning of some of that land for the purposes of environmental protection. Those zones were to play an important role in the abatement of environmental impacts as a result of the rezoning of the plateau for residential purposes, as illustrated in the report (fol 2155), which provided: A number of ecological assessments were undertaken for the site which identified some small areas of regenerating lowland sub-tropical and dry rainforest that have ecological value. These areas are also most likely to be habitat for any threatened fauna that use the site (e.g. rainforest pigeons, microbats. All these areas are proposed to be included in E2 Environmental Conservations zones … The ecological assessment did not locate any koalas on the site, but a small area of forest red gum at the southern tip of the site has been included in an E2 zone in any case.
Public submissions would have been informed by those factors.
The absence of environmental protection zonings in the "product" fundamentally altered the nature of the proposal as a whole.
The fact that the areas proposed to become environmental zones retained their pre-existing RU1 zoning seems to me to be irrelevant to the consideration of this question.
In Turramurra, Craig J considered a number of differences between the exhibited draft LEP and the LEP which was made, which he summarised (at [159]) in this way: (i) The exhibited draft Centres LEP had proposed to zone lands identified below either for residential or business purposes with stated limitations upon the minimum lot size for subdivision, maximum permissible building heights and maximum floor space ratios. The Centres LEP, as made, removed or amended some or all of these controls. The lands affected are as follows: (a) the Ravenswood College site at Gordon; (b) the Pymble Ladies College site at Pymble; (c) the Roseville College site at Roseville; (d) the site of Corpus Christie College at St Ives; (e) the Masada College site at St Ives; (f) the site of the electricity substation on the Pacific Highway at Turramurra; (g) the site of the electricity substation on Mona Vale Road at St Ives; (h) the site of the electricity substation on the Pacific Highway at Pymble; (i) the site of the electricity substation on the Pacific Highway at Lindfield. …
In rejecting the Minister's submission that such differences were not "significant", His Honour said (at [197] - [198]): 197. ... The reader of the exhibited draft Centres LEP would recognise that permissible development of the sites in accordance with the respective zoning tables was subject to the prescriptive controls expressed in Pt 4 of the draft instrument. So understood, those controls would inform any submission that the reader might seek to make to the Panel consequent upon exhibition. The interested reader may also have become aware that other discretionary considerations would apply in a given case but the primary prescriptive control remained central to the consideration of those provisions. 198. The removal of that prescriptive control from the Centres LEP, as made, has a different legal and practical consequence from that which would flow from the draft. To apply the observations of Priestley JA in Leichhardt No 2 (at 88), "it made the planning law substantially different" from that which had been the subject of public exhibition (cf Bryan v Lane Cove Council at [22]). This substantial difference was not alleviated by the fact that other discretionary considerations may be invoked to achieve a result that mollifies the absence of those prescriptive controls.
Similar observations can be made here. It would have been reasonable for the public to assume, on the basis of the exhibited proposal, that the land proposed for environmental zones would be subject to strict controls associated with that zoning. The maintenance of the rural zoning over those lands has significant legal and practical consequences in respect of the uses to which that land may be put, and how it is to be managed.
Accordingly, the absence of the environmental zones reflected a very substantial change in the planning regime, and the plan had a "significantly different character, substance and legal effect": Bryan at [30] - see [62] above.
I, therefore, conclude that Lismore Local Environmental Plan 2012 (Amendment No 3), was not a "product of the process" in Division 4 of Part 3 of the EPA Act. As such, the applicant succeeds on his primary ground of challenge, and it is not necessary for me to consider the applicant's other grounds.

H: Costs

The applicant claimed his costs against the Minister in its further amended summons, filed in Court on 1 December 2014.
As he has emerged entirely successful in his challenge, costs should follow the event.

I: Orders

I therefore make the following orders: 1. I declare that Lismore Local Environmental Plan 2012 (Amendment No 3), published on the New South Wales legislation website on 21 February 2014, is invalid and of no effect. 2. I order the first respondent to pay the applicant's costs of these proceedings, as agreed or assessed. 3. All Exhibits and Court Books are returned.

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: 05 June 2015

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