Save Little Manly Beach Foreshore Incorporated v Minister for Planning

Land and Environment Court (NSW)|2014-12-02|Before: Pain J, Mr P, Ms J

Solicitors: Woolf Associates (Applicant) Department of Planning and Environment (First Respondent) Manly Council (Second Respondent) Peter R Rigg (Third Respondents) File Number(s): 40445 of 2014

Judicial review challenge to making of local environmental plan

The Applicant Save Little Manly Foreshore Incorporated challenges in these judicial review proceedings the making of Manly Local Environmental Plan 2013 (Amendment No 1) (the impugned LEP). The Second Respondent Manly Council resolved to prepare the amendment on 9 December 2013. The First Respondent, the Minister for Planning (the Minister), gazetted the impugned LEP on 21 March 2014. The Applicant seeks a declaration that the impugned LEP is invalid and of no legal effect.

Background facts

The background facts about which there is no dispute are identified in the amended summons dated 11 August 2014 at par 11-40 and these paragraphs are set out in narrative form in the following paragraphs.

34 Stuart Street

34 Stuart Street Manly was purchased by Manly Council on 2 May 1977. It is zoned RE1 Public Recreation and contained a dwelling house being a Federation Queen Anne style weatherboard house listed as a local item of environmental heritage under Schedule 5 of the impugned LEP. The rear of the property contained a substantial area opening onto the beach that for years has been used by the public for recreational purposes. At 12 December 2012 it was understood by Manly Council to be zoned operational public land under the Local Government Act 1993 (NSW) (the LG Act).

36 Stuart Street

36 Stuart Street Manly was purchased by Manly Council on 22 September 1998 and is zoned RE1 Public Recreation under the impugned LEP. At 12 December 2012 it was understood by Manly Council to be zoned operational public land under the LG Act. Prior to June 2014 it contained a residential dwelling and a substantial area at the rear of the property opening onto the beach that for years has been used by the public for recreational purposes. On or about June 2014, Manly Council caused the residential dwelling on the property to be demolished for the purpose of creating a public reserve.

38 Stuart Street

38 Stuart Street Manly was acquired by the Third Respondents at auction in 2007. On 7 October 2009, development consent approval (DA261/08) under existing use rights was granted for two residential flat buildings in Lane v Manly Council [2009] NSWLEC 1329, with further amendments approved by the Manly Independent Assessment Panel in June 2010. Prior to 21 March 2014 and the making of the impugned LEP it was zoned RE1 Public Recreation and marked for acquisition as "local open space" under the Manly Local Environment Plan 2013 (Manly LEP 2013) Land Reservation Acquisition Map. On 21 March 2014 with the making of the impugned LEP it was zoned E4 Environmental Living and omitted from the Manly LEP 2013 Land Reservation Acquisition Map.

40 Stuart Street

In 2012 40 Stuart Street Manly was acquired by Manly Council. It is currently classified as Zone RE1 Public Recreation under the impugned LEP.

The planning proposal and delegation of Ministerial authority

On 14 October 2012 the Minister made an instrument of delegation delegating his function under s 56(5) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) to the Director-General of the Department of Planning and Infrastructure; and delegating all of his functions under s 59 of the EPA Act to all councils (within the meaning of the LG Act): 1. if the council is the relevant planning authority for a proposed instrument; 2. if the Director-General gives a written authorisation to exercise the delegation; and 3. subject to the terms of the authorisation.
On 10 December 2012, by resolution no 203/12 at its Ordinary Council Meeting, Manly Council resolved that: 1. properties 34, 36 and 38 Stuart Street Manly be zoned for Environmental Living E4 under the Draft Manly Comprehensive LEP; 2. Council proceed to create a three metre wide right of way at the rear of 34 and 36 Stuart Street to enable public access to the beach from the Craig Avenue Carpark; and the Dingy Storage facility located at the rear of no 34 be retained as an on-going concern with existing use rights attached and requiring the purchaser of no 34 to maintain the facility. And the General Manager to consult with the Heritage Committee regarding the Farrell Family memorial and anchor; 3. Council approach the owners of 38 Stuart Street to seek agreement for a right of way at the rear of their property to link up with that proposed for nos 34 and 36; 4. following the creation of the right of way at the rear of nos 34 and 36 Stuart Street, these properties be sold and proceeds go to repay the loan on 40 Stuart Street, and the General Manager to determine the timing for these divestments; 5. the General Manager be authorised to do all things necessary to implement the above points one to four, including the execution of any documents and the affixing of the Council Seal upon them; and 6. 40 Stuart Street remain zoned for open space.
On 19 March 2013, Manly Council submitted to the Minister, the Manly Local Environmental Plan 2013 - Amendment No. 1 - 34, 36 & 38 Stuart Street, Manly for a gateway determination under s 56 of the EPA Act.
On 19 March 2013, Manly Council requested delegation for the planning proposal from the Minister.
On 26 April 2013, the Minister issued a gateway determination, determining that the planning proposal should proceed, subject to the conditions in the gateway determination (gateway determination).
The conditions in the gateway determination required: 1. Prior to undertaking public exhibition, Council is to update Part 1 - 'Objectives' within the planning proposal to include a concise statement setting out the intended outcome of the planning proposal. It is to include a plain English explanation of what the proposed amendment intends to achieve. … 3. Community consultation is required under sections 56(2)(c) and 57 of the [EPA Act] as follows: (a) the planning proposal must be publically available for a minimum of 28 days; and (b) the relevant planning authority must comply with the notice requirements for public exhibition of planning proposals and the specifications for material that must be made publicly available along with planning proposals as identified in section 5.5.2 of A Guide to Preparing LEPs (Department of Planning and Infrastructure 2012).
On 26 April 2013, the Minister authorised Manly Council to exercise the functions of the Minister for Planning and Infrastructure under s 59 of the EPA Act that are delegated to it by instrument of delegation dated 14 October 2012, in relation to the planning proposal in the following terms: Planning proposal (Amendment No 1) to rezone land at 34, 36, and 38 Stuart Street, Manly from RE1 Public Recreation to E4 Environmental Living, apply a minimum lot size of 250sqm, a floor space ratio of 0:6:1 and a maximum building height of 8.5m to the subject lands and remove land at 38 Stuart Street, Manly from the Land Reservation Acquisition Map.

Exhibited planning proposal and impugned LEP

During the period 18 May 2013 to 14 June 2013, the Manly Local Environmental Plan 2013 Draft Amendment No. 1 - 34, 36 & 38 Stuart Street, Manly (exhibited planning proposal) was publically exhibited.
The exhibited planning proposal concerned: 1. 34 Stuart Street Manly, being Lot 8 DP 1108368; 2. 36 Stuart Street Manly, being Lot 1 DP 252420; and 3. 38 Stuart Street Manly, being Lot 2 DP 252420.
The intended outcomes of the exhibited planning proposal were said to reflect resolution no 203/12 of Manly Council at its Ordinary Council Meeting referred to above at par 10, by which Manly Council resolved to rezone properties 34, 36, and 38 Stuart Street on the Manly foreshore from Zone RE1 - Public Recreation to E4 Environmental Living and sell 34 and 36 Stuart Street with the proceeds to repay the loan on 40 Stuart Street.
The exhibited planning proposal contained the statement: In relation to the intended disposal of 34 and 36 Stuart Street, this land is classified as Operational land under the provisions of the Local Government Act and reclassification of this land is not considered to be required in this Planning Proposal to enable disposal or [sic] the land.
On or about September 2013, Manly Council prepared Environmental Services Division Report No 17 (ESD Report 17) in respect of the exhibited planning proposal, recommending that: 1. Council receive and note submissions received during the exhibition of the planning proposal; and 2. Council proceed to prepare the exhibited planning proposal.
Manly Council received 106 submissions in response to the exhibited planning proposal: 1. none of which supported the exhibited planning proposal; 2. a number of which alerted Manly Council to the fact that the properties known as 34 and 36 Stuart Street were in fact classified as community land and not operational land under the LG Act; and 3. 18 of which made requests that Manly Council conduct a public hearing in relation to the exhibited planning proposal.
On 9 September 2013, at its Ordinary Council Meeting, Manly Council resolved that the recommendations of the ESD Report 17 be adopted, namely: 1. Council receive and note submissions received during the exhibition of the planning proposal; and 2. Council proceed to prepare the Draft Manly Local Environmental Plan 2013 (Amendment No 1) as exhibited.
On 9 September 2013, in reliance on the powers delegated to it under s 59 of the EPA Act, Manly Council provided the Draft Manly Local Environmental Plan 2013 (Amendment No 1) as exhibited with no variation to the Minister for gazettal.
On 9 October 2013, Save Little Manly Beach Foreshore Incorporated v Manly Council (No 2) [2013] NSWLEC 156 was handed down: 1. declaring that 34 and 36 Stuart Street are classified as community land under the LG Act; 2. restraining Manly Council from selling, exchanging or otherwise disposing of 34 and 36 Stuart Street, so long as it is classified community land; 3. declaring that 36 Stuart Street is subject to a trust for public purpose.
The Applicant also asserted in its summons that this case determined that Resolution 203/12 to sell the properties known as 34 and 36 Stuart Street was invalid. This fact was not admitted by Council.
On 14 October 2013, at its Ordinary Council Meeting, Manly Council considered the motion: That the Council's decision of 9 September 2013 being Environment Services Division Report No. 17 in respect of Re-zoning of Stuart Street Manly be and is hereby rescinded.
On 14 October 2013, by resolution no 168/13 at its Ordinary Council Meeting, Manly Council resolved to seek legal advice in relation to the exhibited planning proposal in the following terms: 168/13: That this Rescission Motion be deferred to allow Council to seek legal advice before the next Ordinary Meeting to consider its options.
On 9 December 2013, by resolution nos 217/13 and 218/13 at its Ordinary Council Meeting, Manly Council resolved: 1. that Council rescind so much of its decision of 9 September 2013 ESD Report 17 as it relates to the rezoning of 34 and 36 Stuart Street, Manly; and 2. that Council proceed with the rezoning of 38 Stuart Street, to E4 Environmental Living.
On 10 January 2014, Manly Council: 1. provided the Minister with the amended planning proposal for the impugned LEP; and 2. continued to seek to exercise its delegation for the making of the impugned LEP.
On 21 March 2014, the impugned LEP was notified by Manly Council by publication on the NSW legislation website. The impugned LEP applied to one lot in the exhibited planning proposal, 38 Stuart Street Manly.

Revised issues

The parties agreed in the course of the hearing the revised issues for determination as follows: 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.

Environmental Planning and Assessment Act 1979 Pt 3 Div 4

The statutory scheme in Pt 3 Div 4 for the making of an environmental planning instrument (EPI) was amended significantly from 1 July 2009. These amended provisions have not received much judicial consideration to date. The relevant sections of Pt 3 Div 4 as at 9 December 2013 are: Part 3 Environmental planning instruments Division 4 LEPs 53 Minister may make environmental planning instruments for local areas (LEPs) The Minister may make environmental planning instruments for the purpose of environmental planning: in each local government area, and in such other areas of the State (including the coastal waters of the State) as the Minister determines. Any such instrument may be called a local environmental plan (or LEP). 54 Relevant planning authority For the purposes of this Part, the relevant planning authority in respect of a proposed instrument is as follows: the council for the local government area to which the proposed instrument is to apply, subject to paragraph (b), the Director-General or any other person or body prescribed by the regulations if the Minister so directs under subsection (2). The Minister may direct that the Director-General (or any other person or body prescribed by the regulations) is the relevant planning authority for a proposed instrument in the following cases: the proposed instrument relates to a matter that, in the opinion of the Minister, is of State or regional environmental planning significance, the proposed instrument makes provision that, in the opinion of the Minister, is consequential on the approval of the concept plan for a project under Part 3A, is consequential on the making of another environmental planning or other instrument or is consequential on changes made to a standard instrument under section 33A, the Planning Assessment Commission or a joint regional planning panel has recommended to the Minister that the proposed instrument should be submitted for a determination under section 56 (Gateway determination) or that the proposed instrument should be made, the council for the local government area concerned has, in the opinion of the Minister, failed to comply with its obligations with respect to the making of the proposed instrument or has not carried out those obligations in a satisfactory manner, the proposed instrument is to apply to an area that is not within a local government area (subject to subsection (6)). … 55 Relevant planning authority to prepare explanation of and justification for proposed instrument - the planning proposal 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). The planning proposal is to include the following: a statement of the objectives or intended outcomes of the proposed instrument, an explanation of the provisions that are to be included in the proposed instrument, 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), 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, details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument. The Director-General may issue requirements with respect to the preparation of a planning proposal. 56 Gateway determination After preparing a planning proposal, the relevant planning authority may forward it to the Minister. After a review of the planning proposal, the Minister is to determine the following: whether the matter should proceed (with or without variation), whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal), community consultation required before consideration is given to the making of the proposed instrument (the community consultation requirements), any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument, whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body, the times within which the various stages of the procedure for the making of the proposed instrument are to be completed. 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. 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. 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: if there has been any delay in the matter being finalised, or if for any other reason the Minister considers it appropriate to do so. The relevant planning authority may, at any time, forward a revised planning proposal to the Minister. The Minister may, at any time, alter a determination made under this section. 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 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. The planning proposal (as revised to comply with the determination under section 56 and in a form approved by the Director-General) 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 Director-General is satisfied that the summary provides sufficient details for community consultation. 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). 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). If: a person making a submission so requests, and 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. The relevant planning authority may arrange a public hearing on any issue whether or not a person has made a submission concerning the matter. A report of any public hearing is to be furnished to the relevant planning authority and may be made publicly available by that authority. 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. 58 Relevant planning authority may vary proposals or not proceed The relevant planning authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason. If it does so, the relevant planning authority is to forward a revised planning proposal to the Minister. Further community consultation under section 57 is not required unless the Minister so directs in a revised determination under section 56. The relevant planning authority may also, at any time, request the Minister to determine that the matter not proceed. 59 Making of local environmental plan by Minister The Director-General is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority. The Director-General is to consult the relevant planning authority, in accordance with the regulations, on the terms of any such draft instrument. The Minister may, following completion of community consultation: make a local environmental plan (with or without variation of the proposals submitted by the relevant planning authority) in the terms the Minister considers appropriate, or decide not to make the proposed local environmental plan. The Minister may defer the inclusion of a matter in a proposed local environmental plan. 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.
Section 73A under Div 5 of the EPA Act, which concerns the review and amendment of environment planning instruments, provides: 73A Expedited amendments of environmental planning instruments 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: 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, address matters in the principal instrument that are of a consequential, transitional, machinery or other minor nature, 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. 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.

Old Part 3 Div 3

Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78, a case relied on by the Applicant, concerned the operation of Pt 3 Div 3. Part 3 Div 3 was repealed from 1 July 2009. The relevant sections of Pt 3 Div 3 as at 14 July 1993 as in force at 14 July 1993 were as follows: Division 3 - Regional environmental plans Decision or direction to prepare draft environmental plan 40. (1) The Director may prepare a draft regional environmental plan in respect of a region or part of a region and with respect to such matters as are, in the opinion of the Director, of significance for environmental planning for the region to which, or to part of which, that plan is intended to apply. (2) The Minister may cause to be prepared by the Director for submission to the Minister a draft regional environmental plan with respect to any matter specified by the Minister, being a matter which is, in the opinion of the Minister, of significance for environmental planning for the region to which, or to part of which, that plan is intended to apply. … Preparation of draft regional environmental plan 44. In the preparation of a draft regional environmental plan, the Director shall, within such time as the Minister may determine: cause any State environmental planning policy to be considered so far as it may affect or be affected by the subject-matter of the draft regional environmental plan; and prepare the plan having regard to the environmental study prepared by the Director under section 41. … Public exhibition of draft regional environmental plan 47. When a draft regional environmental plan has been prepared, the Director shall: give public notice, in a form and manner determined by the Director, of the places at which, the dates on which, and the times during which, the environmental study prepared by the Director under section 41 of the land to which the draft regional environmental plan applies and the draft regional plan may be inspected by the public; publicly exhibit that environmental study and draft regional environmental plan at the places, on the dates and during the times set out in the notice; publicly exhibit such other matters as he considers appropriate or necessary to better enable the draft plan and its implications to be understood; and specify, in the notice, the period during which submissions may be made to the Secretary in accordance with section 48. … Submissions 48. Any person may, during the period referred to in section 47 (d), make submissions in writing to the Secretary with respect to the draft regional environment plan publicly exhibited under section 47 (b). Consideration of submissions 49. (1) The Director shall cause any submissions made under section 48 to be considered and; may, if he thinks fit, direct that an inquiry be held, in accordance with section 119, by a Commission of Inquiry appointed under section 119 (2) with respect to any matter relating to the draft regional environmental plan whether or not arising from any submission; may amend the draft regional environmental plan whether or not as a consequence of the consideration of any such submissions or of the findings and recommendations of any such Commission of Inquiry; may, if he thinks fit, publicly exhibit that amended draft regional environmental plan together with a written explanation of the reasons for the amendments, at such places, on such dates and during such times as he determines; and where an amended draft regional environmental plan is exhibited under paragraph (c), shall cause public notice to be given in a form and manner determined by the Director, specifying the period during which submissions may be made to the Secretary in accordance with section 48 as applied by subsection (2). (2) Where the Director causes an amended draft regional environmental plan to be publicly exhibited in accordance with subsection (1) (c), section 48 and subsection (1) apply to and in respect of that amended draft regional environmental plan in the same way as they apply to and in respect of a draft regional environmental plan. … Making of regional environmental plans by the Minister 51. (1) The Minister may, on the submission to him by the Director of a draft regional environmental plan: make a regional environmental plan: in accordance with the draft regional environmental plan submitted to him; or in accordance with the draft regional environmental plan with such alterations as he thinks fit; direct that action be taken in accordance with subsection (4); or decide not to proceed with the draft regional environmental plan. (2) The Minister may not make a regional environmental plan except with respect to such matters as are, in his opinion, of significance for environmental planning for the region or part of the region to which that regional environmental plan applies. (3) A regional environmental plan shall apply to such region or part of the region as is described in the plan. (4) The Minister may direct the Director to publicly exhibit a draft regional environmental plan with such alterations as he specifies, and the provisions of this section and sections 47, 48, 49 and 50 shall, with any necessary adaptions, apply to that plan.

Old Part 3 Div 4

El Cheikh v Hurstville City Council [2002] NSWCA 173; (2002) 121 LGERA 293, a case relied on by the Applicant, concerned the operation of Pt 3 Div 4. The old Pt 3 Div 4 was repealed from 1 July 2009. While minor amendments to Pt 3 Div 4 were made after El Cheikh and before 1 July 2009 these amendments are not material to this case. The relevant sections of Pt 3 Div 4 as in force from 3 December 1999 to 31 January 2000 were: Division 4 Local environmental plans 54 Decision to prepare draft local environmental plan A council may decide to prepare a draft local environmental plan in respect of the whole or any part of the land within its area. … A council or councils, as the case may be, shall inform the Director of the decision to prepare a draft local environmental plan and of the land to which it is intended to apply. Following the decision to prepare a draft local environmental plan, the council or councils may, subject to and in accordance with this Division, prepare the plan. 55 Directions from Minister for the preparation of local environmental plan The Minister may direct a council, or 2 or more councils jointly, to perform any function conferred or imposed on it or them under section 54 or any other provision of this Division within such time or period as is specified in the direction. … Following the direction to prepare a draft local environmental plan, the council or councils shall, subject to and in accordance with this Division, prepare the plan. 57 Preparation of environmental study Where a council decides to prepare a draft local environmental plan or is directed to do so by the Minister under section 55, it shall prepare an environmental study of the land to which the draft local environmental plan is intended to apply. A council shall prepare an environmental study in accordance with such specifications, if any, relating to the form, content and preparation of the study as have been notified to the council by the Director and are then applicable.
… 61 Council's responsibilities in preparing draft local environmental plan The council shall prepare a draft local environmental plan having regard to the environmental study prepared by the council under section 57. 62 Consultation In the preparation of an environmental study or a draft local environmental plan, the council shall consult with: such public authorities or bodies (including authorities of the Commonwealth or other States) as, in its opinion, will or may be affected by that draft local environmental plan, where the draft local environmental plan applies to land adjoining a boundary between the council's area and another area - the council of that other area, and such other persons as the council determines. 63 Information from public authorities To facilitate the preparation of an environmental study or a draft local environmental plan, a public authority: shall, if requested in writing to do so by the council, furnish such information and provide such assistance as it deems proper to assist the council in the preparation of the study or plan, and shall notify the council of any information or any actual or proposed activity or work that, in its opinion, is relevant to the study or plan, and a public authority is hereby empowered to the extent necessary to comply with the provisions of this section. 64 Submission of copy of draft local environmental plan to Department When a draft local environmental plan has been prepared, the council shall submit a copy of the draft plan to the Director, together with a statement specifying the names of the public authorities, bodies and other persons the council has consulted with pursuant to section 62. 65 Certificate of Director Where the Director receives a copy of a draft local environmental plan from a council under section 64, the Director may cause to be issued to the council a certificate certifying that the draft plan may be publicly exhibited in accordance with section 66. … 66 Public exhibition of draft local environmental plan Where a council receives a certificate under section 65 with respect to a draft local environmental plan, it shall, after complying with any condition subject to which the certificate was granted and subject to the regulations: give public notice, in a form and manner determined by the council, of the place at which, the dates on which, and the times during which, the environmental study prepared by the council under section 57 of the land to which the draft local environmental plan applies and the draft local environmental plan may be inspected by the public, publicly exhibit at the place, on the dates and during the times set out in the notice: 1. a copy of that environmental study and draft local environmental plan, 2. a copy of any State environmental planning policy, regional environmental plan, or relevant direction under section 117, applying to the land to which the draft local environmental plan is intended to apply, and 3. if such a policy, plan or direction does so apply - a statement to the effect that the policy, plan or direction referred to in subparagraph (ii) substantially governs the content and operation of the draft local environmental plan and that any submission made pursuant to section 67 should be made having regard thereto, specify, in the notice, the period (being a period which is or includes the period referred to in subsection (2)) during which submissions may be made to the council in accordance with section 67, and publicly exhibit such other matter as it considers appropriate or necessary to better enable the draft plan and its implications to be understood. (2) A draft local environmental plan shall be publicly exhibited for a period being not less than the prescribed period. (3) Where, for the purposes of informing the public generally, a council decides to publicly exhibit a draft local environmental plan otherwise than in accordance with subsection (1), or to publicly exhibit any other matter which could be construed or represented as having a similar purpose to a draft local environmental plan, it shall at the same time publicly exhibit a statement to the effect that the exhibition is not to be regarded as an exhibition for the purposes of this Act. 67 Making of submissions Any person may, during the period referred to in section 66 (1) (c), make submissions in writing to the council with respect to the provisions of a draft local environmental plan publicly exhibited under section 66 (1) (b). 68 Consideration of submissions Where: a person making a submission so requests, and the council considers that the issues raised in a submission are of such significance that they should be the subject of a hearing before the council decides whether and, if so, what alterations should be made, the council shall, in the prescribed manner, arrange a public hearing in respect of the submission. A report of the public hearing shall be furnished to the council and the council shall make public the report. The council shall consider the submission and the report furnished pursuant to subsection (2) and may make any alterations it considers are necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing. (3A) An alteration made by a council pursuant to subsection (3) need not relate to a submission. (3B) The council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft environmental plan that has been altered pursuant to subsection (3). The provisions of this section and sections 66 and 67, with any necessary adaptations, apply to any such exhibition of a draft plan, but not so as to require a further certificate under section 65. … 70 Making of local environmental plan After considering the Director's report made under section 69, the Minister may: make a local environmental plan: in accordance with the draft local environmental plan as submitted by the council under section 68 (4), or in accordance with that draft plan with such alterations as the Minister thinks fit relating to any matter which in the opinion of the Minister is of significance for State or regional environmental planning, direct that action be taken in accordance with subsection (3), or decide not to proceed with the draft local environmental plan. (1A) Without limiting subsection (1) (a) (ii), the alterations that may be made by the Minister relating to any matters which in the opinion of the Minister are of significance for State or regional environmental planning may comprise changes of substance to the draft local environmental plan and may arise from submissions or otherwise from the Minister's consideration of the matters in the draft plan. A local environmental plan shall apply to such area or part of such area as is described in that plan. The Minister may (but need not) direct the council to publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to this section or section 68, and the provisions of this section and sections 66, 67, 68 and 69 shall, with any necessary adaptations, apply to that plan. 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. 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). Where the Minister decides not to proceed with a draft local environmental plan under subsection (1) (c), the Minister shall give such directions to the council as the Minister considers necessary in relation to that decision. The Minister shall inform the council of his or her decision under subsection (1) and, except where the Minister decides to make a local environmental plan in accordance with the draft local environmental plan as submitted by the council under section 68 (4), the reasons therefor, and may at the same time give directions to the council as to the procedure to be followed in connection with making his or her decision known to the public. 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 fit, 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).

Planning proposals

The parties' arguments require consideration of the original and amended planning proposals prepared by Manly Council. These are extracted below.
The planning proposal which was publicly exhibited from 18 May 2013 to 14 June 2013 following the gateway determination stated as follows: Manly Local Environmental Plan 2013 Draft Amendment No. 1 34, 36 & 38 Stuart Street, Manly Department of Planning and Infrastructure Reference: PP_2013_MANLY_001_00 Introduction This Planning Proposal details the intended effect of an amendment to Manly Local Environmental Plan (LEP) 2013. This Planning Proposal sets out an explanation and justification for making the plan. Details of community consultation are also considered. This Planning Proposal is prepared in accordance with "A guide to preparing local environmental plans" (Department of Planning, 2012) in conjunction with "A guide to preparing local environmental plans" and Circular PS 09-015 "Commencement of Certain Provisions of the EP&A Amendment Act 2008 and EP&A Amendment (Plan Making) Regulation 2009". Manly Council advise that it wishes to seek Authorisation to exercise Delegation in relation to this Planning Proposal and such functions are delegated to the General Manager, Mr Henry Wong with the approval of the Council. Land to which this Planning Proposal relates includes: ∙ 34 Stuart Street Manly being Lot 8 DP 1108368; ∙ 36 Stuart Street Manly being Lot 1 DP 252420 and ∙ 38 Stuart Street Manly being Lot 2 DP 252420. Part 1 - Objectives The objectives of this Planning Proposal are to ensure the zoning of certain lands in Stuart Street reflect Manly Councils' local strategic and operational outcomes. This planning proposal intends to amend the Manly Local Environmental Plan (LEP) 2013 to rezone 34, 36 and 38 Stuart Street, Manly to Zone E4 - Environmental Living to permit low impact residential development and to amend respective land reservation acquisition, floor space ratio, height of buildings and minimum lot size mapped controls to assist in the management of Council's local open space. Part 2 - Explanation of Provisions This Part explains the provisions in relation to a proposed amendment to Manly LEP 2013. The remainder of Part 2, concerns Intended Outcomes and an Explanation and Justification for LEP Amendments. The provisions set out in this planning proposal include amendment to maps under Manly LEP 2013 including: ∙ Zoning Map to rezone land at 34, 36 and 38 Stuart Street from Zone RE1 Public Recreation to Zone E4 Environmental Living; ∙ Land Reservation Acquisition Map to remove land labeled 'local open space' on that map at 38 Stuart Street from this map; ∙ Floor Space Ratio Map to add land at 34, 36 and 38 Stuart Street to Area 'F' of that map providing for a floor space ratio of 0.6:1 over the land; ∙ Height of Buildings Map to add land at 34, 36 and 38 Stuart Street to Area 'I' of that map providing for a maximum building height of 8.5m over the land; ∙ Minimum Lot Size Map to add land at 34, 36 and 38 Stuart Street to Area 'C' of that map providing for a minimum lot size of 250 sqm over the land. In relation to proposed amendment to the Manly LEP 2013 Zoning Map, both the existing and proposed zone objectives and land use tables are as follows: Existing Zone RE1 Public Recreation zone objectives and land use table … Proposed Zone E4 Environmental Living zone objectives and land use table Objectives of zone •To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. … •To ensure that the height of bulk of any proposed buildings or structures have regard to existing vegetation, topography and surrounding land uses. … In relation to the proposed amendment to the Manly LEP 2013 Land Reservation Acquisition Map, land identified as 38 Stuart Street is privately owned and marked for acquisition as 'local open space'. However, the proposed zoning amendment no longer reflects this planned future use of the land for local open space and is no longer to be zoned RE1 Public Recreation under this planning proposal. Accordingly 38 Stuart Street would remain in private ownership and the land omitted from Manly LEP 2013 Land Reservation Acquisition Map. In relation to proposed amendments to the Manly LEP 2013 Maps for Floor Space, Height of Building and Lot Size, the adoption of Zone E4 Environmental Living warrants the provision of appropriate development standards over the subject lands. All land zoned Zone E4 Environmental Living in the LEP is typically subject to development standards as detailed in the following table: … Intended Outcomes The intended outcomes for the planning proposal are reflected in the Council's resolution and accompanying Mayoral report in relation to this matter as follows: At its Ordinary meeting on 10 December 2012, Council resolved as follows: 203/12 RESOLVED: (Hay AM) THAT: properties 34, 36 and 38 Stuart Street Manly be zoned for Environmental Living E4 under the Draft Manly Comprehensive LEP; Council proceed to create a three metre wide right of way at the rear of 34 and 36 Stuart Street to enable public access to the beach from the Craig Avenue Carpark; and the Dingy Storage facility located at the rear of 34 be retained as an on-going concern with existing use rights attached and requiring the purchaser of 34 to maintain the facility. And the General Manager to consult with the Heritage Committee regarding the Farrell Family memorial and anchor; Council approach the owners of 38 Stuart Street to seek agreement for a right of way at the rear of their property to link up with that proposed for 34 and 36; following the creation of the right of way at the rear of 34 and 36 Stuart Street, these properties be sold and proceeds go to repay the loan on 40 Stuart Street, and the General Manager to determine the timing for these divestments; the General Manager be authorised to do all things necessary to implement the above points one to four, including the execution of any documents and the affixing of the Council Seal upon them; and 40 Stuart Street remain zoned for open space. Explanation and Justification for LEP Amendments The Mayoral Minute Report No. 12 in support of the above was reported at the time as follows: In my view, the decision made by the last Council to zone 34 to 40 Stuart Street for Open Space had completely ignored the fact that the original 1960s decision for these properties was made at a time when Little Manly had limited amount of open space and the imminent closure of the gasworks located at the Point for high-rise redevelopment. Since then, the provision of open space at Little Manly has vastly improved when in 1988, the then Local Member lobbied the Government to retain the former gasworks site for rehabilitation and gifting of the entire former gasworks site to the Council for public open space, which resulted in Little Manly among the best in the Manly LGA in terms of open space. Compounding on the zoning decision was the Council's subsequent decision to acquire 40 Stuart Street, seemingly at any cost, which has forced the Council into considerable debt for a revenue deficit asset. This inevitably has caused, and will continue to cause, significant pressure on Council's cash flow and programs. The purpose of this LEP amendment is to ensure the zoning of land at 34, 36 and 38 Stuart Street reflect Manly Councils' strategic resourcing plans and its future intentions for these properties to permit residential accommodation on this land subject to certain requirements to retain public access to the beach and the Dingy Storage facility. In relation to the intended disposal of 34 and 36 Stuart Street, this land is classified as Operational land under the provisions of the Local Government Act and reclassification of this land is not considered to be required in this Planning Proposal to enable disposal of the land.
The amended planning proposal furnished to the Minister following public consultation stated as follows. Manly Local Environmental Plan 2013 Draft Amendment No. 1 38 Stuart Street, Manly (Amended post Exhibition to omit Community Land at 34 & 36 Stuart Street Manly) Department of Planning and Infrastructure Reference: PP_2013_MANLY_001_00 Introduction This Planning Proposal details the intended effect of an amendment to Manly Local Environmental Plan (LEP) 2013. This Planning Proposal sets out an explanation and justification for making the plan. Details of community consultation are also considered. This Planning Proposal is prepared in accordance with "A guide to preparing local environmental plans" (Department of Planning, 2012) in conjunction with "A guide to preparing local environmental plans" and Circular PS 09-015 "Commencement of Certain Provisions of the EP&A Amendment Act 2008 and EP&A Amendment (Plan Making) Regulation 2009". Manly Council has Authorisation to exercise Delegation in relation to this Planning Proposal and such functions are delegated to the General Manager, Mr Henry Wong with the approval of the Council. Land to which this Planning Proposal relates includes: ∙ 38 Stuart Street Manly being Lot 2 DP 252420. Note: Reference to other land originally contained in this Planning Proposal is omitted following Public Exhibition and consideration by Council being land at 34 and 36 Stuart Street Manly being Lot 8 DP 1108368 and Lot 1 DP 252420 respectively. Part 1 - Objectives The objectives of this Planning Proposal are to ensure the zoning of certain lands in Stuart Street reflect Manly Councils' local strategic and operational outcomes. This planning proposal intends to amend the Manly Local Environmental Plan (LEP) 2013 to rezone 38 Stuart Street, Manly to Zone E4 - Environmental Living to permit low impact residential development and to amend respective land reservation acquisition, floor space ratio, height of buildings and minimum lot size mapped controls. Part 2 - Explanation of Provisions This Part explains the provisions in relation to a proposed amendment to Manly LEP 2013. The remainder of Part 2, concerns Intended Outcomes and an Explanation and Justification for LEP Amendments. The provisions set out in this planning proposal include amendment to maps under Manly LEP 2013 including: ∙ Zoning Map to rezone land at 38 Stuart Street from Zone RE1 Public Recreation to Zone E4 Environmental Living; ∙ Land Reservation Acquisition Map to remove land labeled 'local open space' on that map at 38 Stuart Street from this map; ∙ Floor Space Ratio Map to add land at 38 Stuart Street to Area 'F' of that map providing for a floor space ratio of 0.6:1 over the land; ∙ Height of Buildings Map to add land at 38 Stuart Street to Area 'I' of that map providing for a maximum building height of 8.5m over the land; ∙ Minimum Lot Size Map to add land at 38 Stuart Street to Area 'C' of that map providing for a minimum lot size of 250 sqm over the land. Note: this amended planning proposal omits reference to 34 and 36 which were originally zoned and attributed development standards in the same manner as described above. In relation to proposed amendment to the Manly LEP 2013 Zoning Map, both the existing and proposed zone objectives and land use tables are as follows: Existing Zone RE1 Public Recreation zone objectives and land use table … Proposed Zone E4 Environmental Living zone objectives and land use table … In relation to the proposed amendment to the Manly LEP 2013 Land Reservation Acquisition Map, land identified as 38 Stuart Street is privately owned and marked for acquisition as 'local open space'. However, the proposed zoning amendment no longer reflects this planned future use of the land for local open space and is no longer to be zoned RE1 Public Recreation under this Planning Proposal. Accordingly 38 Stuart Street would remain in private ownership and the land omitted from Manly LEP 2013 Land Reservation Acquisition Map. In relation to proposed amendments to the Manly LEP 2013 Maps for Floor Space, Height of Building and Lot Size, the adoption of Zone E4 Environmental Living warrants the provision of appropriate development standards over the subject lands. All land zoned Zone E4 Environmental Living in the LEP is typically subject to development standards as detailed in the following table: … Intended Outcomes … At its Ordinary meeting on 10 December 2012, Council resolved as follows: 203/12 RESOLVED: (Hay AM) THAT: Properties 34, 36 and 38 Stuart Street Manly be zoned for Environmental Living E4 under the Draft Manly Comprehensive LEP; Council proceed to create a three metre wide right of way at the rear of 34 and 36 Stuart Street to enable public access to the beach from the Craig Avenue Carpark; and the Dingy Storage facility located at the rear of 34 be retained as an on-going concern with existing use rights attached and requiring the purchaser of 34 to maintain the facility. And the General Manager to consult with the Heritage Committee regarding the Farrell Family memorial and anchor; Council approach the owners of 38 Stuart Street to seek agreement for a right of way at the rear of their property to link up with that proposed for 34 and 36; following the creation of the right of way at the rear of 34 and 36 Stuart Street, these properties be sold and proceeds go to repay the loan on 40 Stuart Street, and the General Manager to determine the timing for these divestments; the General Manager be authorised to do all things necessary to implement the above points one to four, including the execution of any documents and the affixing of the Council Seal upon them; and 40 Stuart Street remain zoned for open space. … 218/13 RESOLVED: (Hay AM / Le Surf) That Council proceed with the rezoning of 38 Stuart Street, to E4 Environmental Living Explanation and Justification for LEP Amendments … Council's subsequent Resolutions 217/13 and 218/13 on the 9 December 2013, which give rise [to] this amended Planning Proposal are justified as a response to public consultations and determinations in relation to land classification. The ESD Report 17 referred to in Resolution 217/13 is attached to this report. The purpose of this LEP amendment is to ensure the zoning of land at 38 Stuart Street reflect Manly Councils' strategic resourcing plans and its future intentions for this property to permit residential accommodation on this land subject to certain development standards to apply to this land.

Evidence

The evidence book containing two volumes was tendered (exhibit A). The court book was tendered (exhibit B). Two aerial photographs of the Little Manly Beach area were also tendered (exhibit C). There is no dispute about the statutory processes undertaken by Manly Council, and the Director-General and the Minister in the making of the impugned LEP. The parties referred to part of the documentary record summarised above from the summons and to the planning proposals in detail. These have been extracted above. Some of the submissions made in the course of the public exhibition period were referred to. These submissions included claims that there was a lack evidence for the sale of no 40 resulting in financial constraints on Manly Council, that nos 34 and 36 provide a nesting site for fauna, that the planning proposal is an example of poor governance and no 38 will obtain a free benefit as a result, that Manly Council has resolved in the past to maintain the area the subject of the planning proposal for open space, that no 34 is still zoned community land and there must be public meetings and open disclosure to change the land from community to operational, and allegations of conflicts of interests by councillors.

Whether the variations to the proposed instrument after exhibition exceeded powers under s 58 and/or s 59(2) of EPA Act (Leichhardt (No 2)) (issue 1)

Applicant's submissions

By its exhibited planning proposal, Manly Council made the following representations to the public: 1. the properties known as 34, 36 and 38 Stuart Street would each be rezoned from RE1 Public Recreation to Zone E4 Environmental Living; 2. development standards would be adopted over each of the properties known as 34, 36 and 38 Stuart Street, namely, floor space ratio (0:6:1); height of building (8.5m) and minimum lot size (250 sqm per dwelling); 3. the intended outcomes for the exhibited planning proposal reflected in Resolution 203/12 of Manly Council at its Ordinary Council Meeting were within the power of Manly Council; 4. resolution 203/12 of Manly Council at its Ordinary Council Meeting to sell the properties known as 34 and 36 Stuart Street was valid; 5. the properties known as 34 and 36 Stuart Street were classified as operational land under the LG Act; 6. the properties known as 34 and 36 Stuart Street, being operational land under the LG Act, could be sold by Manly Council into private ownership; 7. the proceeds of the sale of 34 and 36 Stuart Street by Manly Council would go to repay the loan held by Manly Council on 40 Stuart Street; 8. that Manly Council would approach the Third Respondents to seek agreement for a right of way at the rear of their property to link up that proposed for nos 34 and 36.
The Applicant relied on [70] of Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 which states: 70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Paragraph [70] is the critical part for this case as the central debate in these proceedings concerns the meaning to be given to "variation powers", variation powers which are subordinate to primary provisions, being s 57 which requires community consultation. It is always necessary to identify leading and subordinate provisions and construe them so that the statute gives effect to harmonious goals. A power of variation cannot be construed in a manner which defeats the policy or effect of a leading provision. This has been confirmed in Leichhardt (No 2) and the subsequent cases applying Leichhardt (No 2). Although Leichardt (No 2) was decided before Project Blue Sky the approach is consistent with the Project Blue Sky principle. The power of variation in s 58 is limited in its operation so that it does not defeat the process of operation of s 57.
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.
The majority in Leichhardt (No 2) saw the process of preparation of a REP as a continuum, with the consultation with affected councils as crucial to that process. The height controls were of "critical significance to the density of future multi-unit residential buildings on the sites to which the REP was to apply" (at 85). The differences, so far as building heights are concerned were "stark" (at 87) making the resulting plan "substantially different" from that which was the subject of consultation (at 88-89) such that the REP was not the proper product of the Pt 3 Div 3 process (at 88).
Leichhardt (No 2) has been applied in several subsequent decisions of this Court, including in relation to LEPs under the old Pt 3 Div 4. Previously s 68(3) of the EPA Act similarly allowed a council to make any alterations to a draft LEP it considered necessary, arising from submissions or matters raised at any public hearing. Section 68(3A)-(3B) clarified that such alterations need not relate to a submission, and that a council may, but need not, give public notice and publically exhibit the altered plan before submitting it to the Director-General.
In John Brown Lenton & Co Pty Ltd v Minister for Urban Affairs and Planning [1999] NSWLEC 213; (1999) 106 LGERA 150, Cowdroy J held that amendments made by the council to a draft LEP after public exhibition by s 68(3), imposing restrictions on use of land for the protection and conservation of the bushland, made the plan invalid: at [45]. The amended provisions created a more stringent regime for development which was not stated in the exhibited draft plan and in respect of which no opportunity for public consultation or participation had been afforded.
In Bryan v Lane Cove Council [2007] NSWLEC 586; (2007)158 LGERA 390, Jagot J considered that the council exceeded its powers of variation where the land to which the draft LEP applied (empowering the council to quash restrictive covenants on any parcel of land) was reduced from a whole local government area, to one parcel of land comprised of two lots. The amendment involved differences of such character, substance and legal effect that the plan as made by the Minister was not the product of an alteration within the meaning of s 68(3), was never exhibited as required by s 66 and could not be said to be an outcome of the Pt 3 Div 4 process: at [28]-[31]. That alternation involved a breach of an "essential", "imperative" or "inviolable" limit or restraint in the EPA Act: at [31].
Most recently, Craig J in Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128 held that the removal of controls on subdivision, building heights, floor space ratios from certain identified lands either for residential or business purposes in an LEP, following exhibition, were of such significance that the LEP ought to have been re-advertised. Readers of the draft LEP would recognise such prescriptive controls and this was likely to inform their public submissions. The LEP was not an outcome of a Pt 3 Div 4 process and invalid. No bright line determines when alteration under s 68(3) or s 70(1) (old Pt 3 Div 4) to a draft planning instrument will require the altered draft to be re-advertised: at [236]-[237].
According to the Second Reading Speech of the Environmental Planning and Assessment Bill 2008 (the Bill) (New South Wales Legislative Council, Parliamentary Debates (Hansard), 4 June 2008 at 8073) and Explanatory Note to the Bill (Legislation Review Committee, New South Wales Legislative Assembly, Legislative Review Digest (No 7 of 2008)), effective community consultation is a fundamental precondition to the exercise of powers to make an LEP.

Manly Council's submissions

The exhibited planning proposal proposed to rezone 34, 36 and 38 Stuart Street from RE1 Public Recreation to E4 Environmental Living, to impose development standards in respect of height, floor space ratio and minimum lot size, and to remove no 38 from the land acquisition map. The impugned LEP, as made by the Minister, omitted the properties at nos 34 and 36 from the planning proposal so that they remained zoned RE1 Public Recreation. The proposal in relation to no 38 did not change.
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.
In Bryan the draft LEP proposed that a suspension of covenants clause apply to all land in the local government area. The LEP as made proposed a suspension of a covenants clause in respect of only one parcel of land (comprising two lots). The applicant in those proceedings owned the adjoining land which was subject to a similar covenant to the affected land. The outcome of the LEP was that the objector's land was left subject to the burden of a covenant but lost the benefit of a similar covenant over the adjoining land. The outcome of the LEP changed the application of the planning law in relation to both properties. This was an outcome in respect of which there had been no consultation. This did not occur in the case before me. 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.
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.
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.

Applicant's submissions in reply

It is not correct to look at 38 Stuart Street in isolation without having regard to the surrounding lands and ask whether the end result for a single property is the same as that referred to in the exhibited planning proposal. The impugned LEP must be viewed against the exhibited planning proposal, having regard to the totality of its justification, intended objectives, outcomes and effects.
When compared with the strategic and operational outcomes described in the planning proposal and its intended outcomes, namely the sale of nos 34 and 36 to repay a loan on no 40, the rezoning of nos 34, 36 and 38 to E4 Environmental Living, the creation of a three metre right of way at the rear end of nos 34 and 36 enabling public access to the beach from a carpark, and to approach and seek agreement from the owners of no 38 for a right of way at the rear of their property to link up with that proposed for nos 34 and 36, a materially different LEP was ultimately made.

Impugned LEP a product of Div 4 process

The specific provisions within the current Div 4 and the scheme as a whole for the making of LEPs must be construed in accordance with well-established principles of statutory construction. A purposive approach to construction which gives effect to the objects of the legislation is preferable, as required by s 33 of the Interpretation Act 1987 (NSW) and as confirmed in numerous authorities. The process for the making of an LEP under the current Div 4 has changed in significant respects from the old Div 4. The introduction of these amendments instituted a number of changes to the procedures for making LEPs.
Previously, under the old Div 4, a local council would decide to prepare a draft LEP and so inform the Director (s 54). In turn, the Minister would provide directions via the Director to a council for the preparation of the LEP (s 55), including as to the possible preparation of an environment study (s 57, s 61). A council was required to consult with and obtain information from affected public authorities (s 62, s 63) before submitting the draft LEP to the Director (s 64). The Director would issue a certificate permitting public exhibition of the draft LEP itself (s 65), with specified requirements for notice and the exhibition of the draft LEP and other materials for a prescribed period (s 66). Submissions could be made in respect of the draft LEP (s 67) by the public for consideration by a council, following which a council could make alterations it considered necessary (s 68). Where such alterations were made, there was no mandatory requirement of a further certificate or re-exhibition of the draft LEP (s 68(3B)), before submission to the Director. The Director in turn reported on the draft LEP to the Minister (s 69), who could make the LEP (s 70).
Under the old Div 3 for the making of REPs by the Minister s 47 required a draft REP and an environmental study to be publicly exhibited as specified in that section. Public submissions could be made under s 48. Under s 49 the Director could amend a draft REP under ss (1)(b) whether or not as a result of a submission. If the Director thought fit he or she could publicly exhibit the amended draft REP, ss (c), and provide for further submissions by the public: ss (d). The Minister could make a REP with alterations he or she considered fit after receipt of a draft REP from the Director: s 51.
The Div 3 and Div 4 cases relied on by the Applicant concerned the old Divisions repealed in 2009. In Leichhardt (No 2) the council challenged the validity of the Greater Metropolitan Regional Environmental Plan No 1 under Pt 3 Div 3 of the EPA Act. The publicly exhibited draft REP included height limitations, referable to development control plans (DCPs) which were exhibited with the draft plan. When the Minister made the REP, no DCPs were simultaneously brought into force. Height control was a matter of Ministerial discretion for a period of three months until the DCPs were made. The council submitted that the Director's power to alter the draft exhibited under s 49 and the Minister's power to alter the draft submitted under s 51 was limited to the extent that the resulting plan must remain a product of the Pt 3 Div 3 process. That test was accepted by Priestley JA at 84 and 88 (with whom Sheller JA agreed at 90) as follows: It was submitted that the difference [in height control] 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. … It seems to me that the kind of test contended for by the Council (at 83-84 above) is much more in line with the evident purpose of Pt 3 Div 3 than the test proposed by the Minister. The Minister's test would make the usefulness of the Pt 3 div process dependent on how much notice the Minister was prepared to take of it. I think the process was designed to have much more input into the eventual plan than that.
As identified in Friends of Turramurra at [156], Leichhardt (No 2), while concerned with s 49 of Div 3, has been applied in judgments considering Div 4 relating to the making of the LEPs. Leichhardt (No 2) is cited in John Brown Lenton at [38]-[39] and Bryan at [20]-[22]. The significance of public participation in the plan making process under the old Div 4 was confirmed by Spigelman CJ in Vanmeld Pty Ltd v Fairfield City Council [1996] NSWCA 6; (1999) 46 NSWLR 78 at [38]. As the Applicant submitted public participation is recognised as an important objective of the EPA Act and should be regarded as crucial to the transparency and fairness of the plan making process: see s 5 of the EPA Act and confirmed in numerous cases, such as Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [20].
In John Brown Lenton, Cowdroy J held that the language of former s 62, "shall consult" supported a finding that the requirement for consultation imposes a duty (at [21]) and where a council has not complied with that requirement, an essential requirement for the making of a valid LEP has not been fulfilled: [23].
The parties in Friends of Turramurra accepted that the test in Leichhardt (No 2) applied to the making of LEPs. A useful observation from Friends of Turramurra at [158] follows: … it cannot have been the purpose of the legislation to require re-exhibition of a draft local environmental plan following each and every alteration made to that draft in response to a consideration of public submissions. There is a balance to be achieved between a response to submissions received by exercising the power of amendment and the need to ensure that the end product … is not too different "in important respects" from the exhibited draft. The determination as to where this balance lies involves a consideration of the amendments and their significance in the context of the instrument as a whole.
At issue is whether such authorities still apply in precisely the same manner given the current Div 4 which commenced in 2009. A comparison of the current Div 4 with the old Div 3 and Div 4 provides context for answering that question. Firstly, an obvious difference is that no draft instrument is exhibited to the public in the community consultation process if one is required. The planning authority, in this case Manly Council, prepares an explanation and justification for a proposed instrument in a planning proposal in accordance with s 55. That planning proposal is to include matters referred to in ss (2) such as maps to be adopted by the proposed instrument, as were contained in the exhibited planning proposal in this matter.
Secondly, the detailed mandatory provisions for public notification and exhibition in the former s 66 are not repeated. In the gateway determination in s 56 the Minister can determine a matter is to proceed and the nature of the community consultation requirements: ss (2)(c). Community consultation is required under s 57(1) in accordance with the community consultation requirements specified in s 56(2)(c), if these are required (see ss (3)). The planning proposal is to be made publicly available during the period of community consultation and detailed provisions can be summarised if made to the Director-General's satisfaction: s 57. Under s 56(3) and s 73A there can be no community consultation.
Thirdly, under s 58 a proposal may be varied by the planning authority at any time after consideration of a submission or report during the community consultation or for any other reason. Under former s 68(3) and (3A) a council could alter a LEP in a way not related to a public submission. Under ss (3B) a council could choose to publicly exhibit in whole or part an altered draft LEP. While the old Div 4 provided for alteration by a council that power appears marginally wider under the current Div 4. Section 49(1)(b) of the old Div 3 gave the Director power to amend the draft REP whether or not as a consequence of the consideration of submissions or the findings and recommendations of the Commission of Inquiry. This was a wide power, analogous to the current s 58.
Fourthly, under the current s 59(2) the Minister can make a LEP in the terms he or she considers appropriate following community consultation, a wide power to vary. Under former s 70(1)(a)(ii) in the old Div 4 the Minister could make such alterations to a draft LEP as he or she thought fit concerning a matter which in the Minister's opinion was of state or regional significance. Subsection (1A) gave the Minister a wide power to make changes of substance arising from submissions or otherwise in respect of a matter in s 70(i)(a)(ii). The Minister could direct a council to publicly exhibit in whole or part an altered draft LEP: ss (3). The Minister's power to alter a LEP was further confirmed in ss (8). The Minister had wide but more closely defined powers to amend under the old Div 4. The Minister had wide powers to amend as he or she saw fit in the old Div 3 in s 51(1)(a)(ii), a provision similar to s 59(2) in the current Div 4.
I note for completeness that there is no statutory construction consequence resulting from the current reference to variation in s 58(1) and s 59(2)(a) where previously the reference was to alteration in s 51(1)(a)(ii), s 68(3) and s 70(1)(ii).
Fifthly, drafting of an LEP occurs, in the current s 59(1), to give effect to the final proposals of the planning authority at the end of the Div 4 process not towards the beginning as previously.
The Applicant emphasised the references to community consultation in extrinsic materials. These can be considered in some circumstances according to s 34(1) and (2) of the Interpretation Act. It is debateable they can be relevant here as there is no ambiguity in the statutory provisions as raised in this case, one of the few circumstances in which extrinsic materials can be relied on. Nevertheless the Second Reading Speech contained the following explanation of the relevant changes as follows: … The key change is the introduction of the new Gateway process. As the name suggests, the Gateway will ensure there is sufficient justification early in the process to proceed with the planning proposal. This stops wasting time with planning proposals that are not credible. If it is agreed in principle, the planning proposal then can proceed to a full assessment. The Gateway determination settles what assessment is required to develop the details of the plan, including infrastructure needs, what community or agency consultation is required, and whether a public hearing is required. These provisions provide for flexibility and a strong emphasis on effective community consultation. In response to community submissions on the Exposure Bill, the consultation provisions have been amended to clarify that a LEP cannot be made unless the applicable community consultation requirements have been complied with and submissions have been considered. Consultation will be tailored to the specific proposal, meaning that proposals with potentially significant environmental policy or neighbourhood implications will have more extensive consultation requirements than a simpler, smaller-scale proposal. Under the current system there is a one-size-fits-all approach, irrespective of the significance of the proposal.
The Explanatory Note to the Bill provided at p 25: The environmental planning reforms in Schedule 1 to the Bill seek to simplify and provide flexibility to the plan-making process, while retaining community and related consultation procedures. In particular, the reforms: (a) make provision for a gateway determination at an early stage of the process so that early decisions are made on whether a planning proposal will proceed, on the detailed community and other consultation required, on the time-frames for further stages of the process and on whether the final making of the plan can be delegated to the council, Director-General or other relevant planning authority, and (b) require explanations and justifications for planning proposals for gateway determination and consultation purposes, rather than technical legally drafted documents, and (c) enable comprehensive and other major plans to be provided with more detailed community and agency consultation than minor plans…
To the limited extent that extrinsic sources can be considered, they support community consultation being an important objective of the current Div 4 scheme. The same observation also applies to the old Div 3 and Div 4. These sources also emphasise the desirability of greater flexibility in the making of LEPs including in the achievement of community consultation under the current Div 4. That objective is clear in the current Div 4 process as outlined above in par 64-69 in any event. 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.
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.
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.
Manly Council concedes that if the revised planning proposal did not constitute a variation of the planning proposal within the meaning of s 58(1) then the impugned LEP is invalid. If the revised planning proposal does constitute a variation within the meaning of s 58(1) then the impugned LEP is valid.
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 Friends of 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.
A comparison of the exhibited planning proposal which discusses the proposed terms of the LEP amendment set out at par 37 with the amended planning proposal reflected in the impugned LEP set out at par 38 which was not exhibited, is necessary. The objectives in the exhibited planning proposal were described as: The objectives of this Planning Proposal are to ensure the zoning of certain lands in Stuart Street reflect Manly Council's local strategic and operational outcomes. This Planning Proposal intends to amend the Manly Local Environmental Plan (LEP) 2013 to rezone 34, 36 and 38 Stuart Street, Manly to Zone E4 - Environmental Living to permit low impact residential development and to amend respective land reservation acquisition, floor space ratio, height of buildings and minimum lot size mapped controls to assist in the management of Council's local open space.
The exhibited planning proposal specifies for 38 Stuart Street a change to E4 Environmental Living zoning, removal from the land reservation acquisition map, addition to the floor space ratio map in area F, addition to the height of buildings map in area I and the addition to minimum lot size map in area C. The rationale for the changes for no 38 include a reference to no 38 being privately owned and that different zoning was necessary to reflect the planned future use of the land. The adoption of the E4 Environmental Living zoning warrants the application of appropriate development standards over the subject lands, including no 38. The intended outcomes arising from Manly Council's resolution 203/12 set out the scheme intended for 34, 36 and 38 Stuart Street. All are to be E4 Environmental Living zoning. A three metre wide right of way at the rear of nos 34 and 36 was proposed. The owners of no 38 were to be approached to seek their agreement to a right of way at the rear of their property. Once the right of way was created nos 34 and 36 would be sold. Justification provided was that in light of the provision of other open space areas in the locality and the desirability of reducing the debt acquired through purchase of no 40 through the sales of nos 34 and 36.
The amended planning proposal submitted to the Minister as required by s 58(2) was in identical or very similar terms in relation to no 38 to that identified above in relation to the exhibited planning proposal. The changes in the zoning, removal from the land acquisition map, floor space ratio, building height and minimum lot size were the same. The same explanation for the rezoning of no 38 was provided. The same Council resolution 203/12 was identified which referred to nos 34 and 36. The change in circumstances referred to were Manly Council's resolutions 217/13 and 218/13 of 9 December 2013 which resulted in the amended planning proposal for only no 38 to be rezoned and "determinations in relation to land classification", an implied reference to Save Little Manly (No 2). It is accurate to state as Manly Council did that the planning proposal for the rezoning of no 38 did not change between the exhibited proposal and the amended proposal. Under both planning proposals no 38 was identified for rezoning, to be subject to certain development controls, with consequentially its removal from the land acquisition map, thereby removing Manly Council's obligation to purchase the property.
A consequence of the Applicant's argument is that by failing to make the impugned LEP in relation to nos 34 and 36 as discussed in the planning proposal placed on public exhibition the impugned LEP did not reflect the Div 4 process. Manly Council correctly characterised the scheme identified in the exhibited planning proposal. 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.
In Vanmeld the majority (Meagher and Powell JJA) held that a new clause put in the final LEP after public consultation did not invalidate the making of that LEP. Unlike the facts in John Brown Lenton set out in par 46 and Friends of Turramurra in par 48, no new provisions not the subject of public consultation were made in relation to no 38 in the impugned LEP.
The amendments to the proposed instrument the subject of the exhibited planning proposal are not so significant that the impugned LEP differs in important respects from the exhibited planning proposal for no 38. The amendments are within the scope of Manly Council's power under s 58 to vary its proposal and the Minister's power under s 59(2)(a) to make an LEP with variation of the exhibited proposal as submitted by Manly Council. Opportunity was provided to the community to comment on the planning proposal for no 38, and in practice this was availed of in the submissions in evidence referred to by Manly Council.
The fact that under s 58(3) the Minister did not require the amended proposal to be re-exhibited in accordance with a revised determination under s 56, as provided for in s 58, was not specifically challenged in this case. My finding means that this need not arise in any event.
No breach of the EPA Act has been established by the Applicant in relation to this ground of review. The Applicant is unsuccessful on issue 1.

Whether the exhibited planning proposal contained misleading information (failure to comply with community consultation requirements s 57(1) and s 57(2) - El Cheikh) (issue 2)

Applicant's submissions

The exhibition of the planning proposal and reference to 34 and 36 Stuart Street as operational land gave rise to a "fundamental misapprehension" for the public and accordingly, non-compliance with community consultation requirements. Further, the scheme as a whole, whereby the proceeds of the sale of 34 and 36 Stuart Street would be utilised to cover the costs of the acquisition of 40 Stuart Street could not be achieved. The Court of Appeal in El Cheikh found that a misleading notice infected by inaccurate or incomplete information was invalid and did not comply with former s 66 of the EPA Act, rendering an LEP invalid. The Minister did not have power to make the LEP or any part of it as the invalid provisions in a draft LEP are not severable.
As a matter of statutory construction, two well-known propositions are apposite. First, a statutory provision should be construed so that it is consistent with the language and purpose of all the provisions of the statutory instrument. Its meaning must be determined by reference to the language of the statutory instrument viewed as a whole and a court must strive to give meaning to every word of the provision: Project Blue Sky at [69], [71]. Second, where there is a construction which would render a provision otiose and another which would give it meaning, the latter is ordinarily to be preferred: see the decision of the Court of Appeal in National Employers Mutual General Insurance v Manufacturers Mutual Insurance (1988) 17 NSWLR 223 at 229.
Even if a statement regarding the land classification of 34 and 36 Stuart Street was not required, El Cheikh is decisive against Manly Council's submission. Ipp JA (Sheller JA and Davies AJA agreeing) applied the principle that where a council gives incomplete or inaccurate information to the public and gives rise to a misapprehension of their rights and interests, this misleads the public during the public consultation and the LEP will be invalid: at [12]. Whilst the council was not required by (former) s 66 of the EPA Act to provide the information that was found to be misleading in that case, once provided the explanation needed to be accurate and complete. It was not, and the change involving height restrictions was a material matter leading to invalidity: citing Leichhardt (No 2) at 88-89.
As found by Biscoe J in Save Little Manly (No 2), nos 34 and 36 Stuart Street were not operational land under the LG Act and Manly Council was not at liberty to sell them. The procedure for the disposal of community land is a different and substantial statutory process under the LG Act. The absence of the power to sell community land is material, vitiating error such that the resulting LEP was invalid.
The significance of the removal of 38 Stuart Street from the land acquisition map is quite different to the original intentions of the planning proposal. The affected lot is now a sole, privileged island of residential land on the harbour foreshore surrounded by public land, community land, the core objectives of which are public purposes and the benefit of the community. A single, privately owned residential block in the middle of land classified as open space since the 1960s further detracts from the openness of the public space and has a negative impact on the amenity. Had the exhibited planning proposal only concerned zoning for no 38, then public submissions would have been different in a material effect.
The impugned LEP results in an entirely different planning outcome with no resemblance to its several exhibited justifications and stated objectives. The public was entitled to make submissions on the correct factual matrix and has not been afforded proper community consultation within the meaning of s 57 of the EPA Act.

Manly Council's submissions

The planning proposal met all of the requirements of s 55 of the EPA Act and told the public what was intended with an explanation and justification. The intended effect of the proposed instrument was to rezone three parcels of land (34, 36 and 38 Stuart Street) from RE1 Public Recreation to E4 Environmental Living, impose on those parcels development standards in respect of floor space ratio, height and minimum lot size and in relation to no 38 remove that parcel from the land acquisition map. The justification for the planning proposal was that there was sufficient land available for recreation purposes so that the three parcels the subject of the planning proposal were now surplus and no longer required.
There was no requirement that the planning proposal state whether land was classified as community or operational land under the LG Act. The statement that nos 34 and 36 were operational land, whilst not accurate, was not material to the intended effect of the proposed instrument or the justification for the proposed instrument. The intended effect could be achieved regardless of the actual classification of nos 34 and 36. Manly Council accepts that an inaccurate statement or omission in a planning proposal can lead to invalidity but that outcome is only warranted where that error is material or vitiating.
In so far as the planning proposal referred to "operational land" it did so only in relation to nos 34 and 36 which were owned by Manly Council. The planning proposal indicated that nos 34 and 36 would be sold with the proceeds being used to reduce the debt incurred by Manly Council as a result of the acquisition of no 40. The representation as to the land classification of nos 34 and 36 specifically did not apply to no 38 which was in private ownership and recently developed pursuant to existing use rights. If there is a scheme to the planning proposal as asserted by the Applicant then the scheme had two separate parts. The first part of the "scheme" (recovery of acquisition costs of no 40) related only to nos 34 and 36 and the second part of the "scheme" related only to no 38 which was to remove no 38 from the land acquisition map so as to bring an end to Manly Council's liability to acquire that parcel in circumstances where Manly Council had determined that the land was no longer required for recreational purposes.
Manly Council's primary argument is that the planning proposal was the subject of community consultation required by the gateway determination: s 57. At a time subsequent to the consideration of submissions Manly Council varied the planning proposal in accordance with s 58(1) which permits variation for any reason. The variation involved the removal of 34 and 36 Stuart Street from the planning proposal. Manly Council prepared a revised planning proposal and submitted it to the Minister in accordance with s 58(2). The Minister did not direct further community consultation take place in respect of the revised planning proposal: s 58(3). By the time the gateway determination was amended to allow more time the Minister knew that there was an altered planning proposal (exhibit A tab 32). In the former legislative scheme consultation was embedded in the legislation. Now it is in the Minister's discretion. DeAngelis v Pepping [2014] NSWLEC 108; (2014) 203 LGERA 61 at [13] states that the gateway determination considers the complexity of the planning proposal and tailors consultation accordingly. There is no administrative law challenge by the Applicant concerning the Minister's decision not to require further consultation. The process is now different and the impugned LEP is a product of that process.
Manly Council's alternative argument is that significant change after consultation does not violate El Cheikh. The classification of nos 34 and 36 was not germane or material to the intended effect or justification for the proposed instrument. The land could be rezoned, development standards imposed and land removed from the land acquisition map regardless of the classification of that land. The matters of material importance were that the planning law (zoning and development standards) in respect of the three parcels of land was to change from public recreation to residential because that land was no longer required by Manly Council for the purposes of public recreation.
The planning proposal was the subject of the community consultation required by the gateway determination. It is clear from the submissions received during the consultation that submitters were aware of the intended effect and justification for the planning proposal and submissions were made objecting to the proposed change in the planning law. There were several submissions that asserted that the statement in relation to land classification of nos 34 and 36 was wrong but that did not prevent the submitters from expressing their views in relation to the proposed change to the planning law the subject of the proposed instrument.
If there was any issue regarding the asserted "misleading" statement, the removal of nos 34 and 36 cured the misleading statement or rendered it irrelevant or otiose. In the alternative, the error was not vitiating and did not prevent meaningful and valid consultation in respect of the proposed changes to the planning law.

Exhibited planning proposal not misleading to the public

As discussed in detail above in the finding on issue 1, the process for the making of an LEP under the present Pt 3 Div 4 has changed in significant respects from the old Div 4. I have found above that the substantive obligations identified in Leichhardt (No 2) continue to the effect that an instrument made must be seen to be a product of the Div 4 process including the public consultation requirements. Although the provisions of s 49 (Leichhardt (No 2)) and s 68 (Bryan v Lane Cove, John Brown Lenton and Friends of Turramurra) are not identical to the current Pt 3 Div 4 process, there is a sufficient similarity in substance to render this jurisprudence applicable. A substantial change in the current Div 4 is the greater flexibility in how community consultation can be carried out. My earlier finding means that the primary case of Manly Council in this ground of review in par 94 is not accepted. Manly Council essentially repeated its earlier submissions that community consultation requirements being more flexible and the statutory provisions providing wide powers of variation meant Manly Council and the Minister had greater power to vary than previously so that Leichardt (No 2) and subsequent authorities no longer apply. I have not accepted that argument. No finding in DeAngelis v Pepping suggests otherwise. The particular paragraph relied on at [13] confirms that the current Div 4 provides for flexibility in community consultation not that Manly Council or the Minister is less constrained in the exercise of the variation power by community consultation conducted as part of the Div 4 process than under the old Div 4.
As Manly Council submitted the requirements set out in s 55 relate to the proposed instrument. The proposed instrument is not the same as the planning proposal. The proposed instrument is the instrument which ultimately effects the change in the planning law which is described in the planning proposal. The planning proposal is a document that explains the intended effect of the proposed instrument and sets out the justification for the making of the proposed instrument. The purpose of the planning proposal is to know the effect of the proposed instrument.
El Cheikh, which considered the old Div 4, is relied on. In El Cheikh, the council exhibited a draft amendment to an LEP which sought to restrict development in small commercial areas to a maximum height of two storeys. The notice to the public referred to those height restrictions. Later, the council sought to rezone certain areas to provide for a uniformity of planning controls in each zone. Rather than finalising the first draft plan which incorporated the height restrictions and then make a new plan for the zoning changes, the council resolved to proceed with a new draft plan (the second draft plan) implementing both sets of changes. Public notification occurred, however the notice to the public did not refer to the proposed height restrictions. The second draft plan was then made.
The Court of Appeal held that the change involving the height restriction was a material matter and failure to include a reference to this in a description of the purpose of the second draft plan was misleading: at [31]. The fact that the public had availed itself of an opportunity to make submissions on the subject of height restrictions through the first notification, which submissions were taken into account by s 69, was irrelevant. The change was a material matter, citing Leichhardt (No 2): at [31]. The second notice was still misleading: at [25]-[36]. That authority can still be applied where the facts warrant it.
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.
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.
That the change was not material is demonstrated by the submissions made by the public to Manly Council. In oral submissions, the Applicant contended that had a planning proposal to rezone only no 38 been before the public, then submissions would have been different in a material way. However, submissions received by Manly Council included statements that no 38 would obtain a benefit as a result of the zoning. The public had the opportunity, and some members of the public availed themselves of the opportunity to make submissions in relation to no 38.
The Applicant submits the decision of Biscoe J in Save Little Manly (No 2) affected the impugned LEP. Biscoe J was not asked to consider the proposed instrument the subject of the planning proposal placed on public exhibition. The focus of the judgment was the operation of Pt 2 of the LG Act. As identified above in par 24 Biscoe J held that 34 and 36 Stuart Street were community land, not operational land. Manly Council was restrained from selling or disposing of nos 34 and 36. The decision of Biscoe J had no direct legal effect on the exhibition process for the amendment to the LEP under the EPA Act in this matter. The decision informed Manly Council's decision-making processes in relation to nos 34 and 36 in that Manly Council was restrained from selling the properties as originally intended. Given that Manly Council did not proceed with the rezoning of nos 34 and 36 in the impugned LEP the argument relying on Save Little Manly (No 2) has no consequence given the facts.
The Applicant's submission that no 38 is presently an island being private land surrounded by public land is correct but that circumstance exists regardless of the proposed changes for nos 34 and 36, which did not proceed in any event. Whether classified as community or operational land under the LG Act nos 34 and no 36 continue to be owned by Manly Council. There is no relevant difference in this regard between the exhibited planning proposal and the LEP made. The reference in the exhibited planning proposal to Manly Council approaching the owners of no 38 to ask them to grant a right of way over the rear of the property is not a matter which can be included in an LEP. It was not and could not be the subject of any specific proposal for the proposed instrument.
The Applicant is unsuccessful on issue 2. It is unnecessary to consider issue 3 as the Applicant has not been successful on issue 1 or 2.
The Amended Summons filed 12 August 2014 should be dismissed. Costs will be reserved.

Orders

The Court makes the following orders: 1. The Amended Summons filed 12 August 2014 is dismissed. 2. Costs reserved. 3. Exhibits are to be 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: 11 May 2015

(2011) 184 LGERA 123

(2002) 121 LGERA 293

(1999) 106 LGERA 150

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (26 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (21)

Cited By (2)