The proceedings before the primary judge
85 The primary thrust of the appellant's case before the primary judge was the alleged breach by the Council of s 66(1)(b) of the Act. Section 66 relevantly provides:
"(1) 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:
(a) 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,
(b) publicly exhibit at the place, on the dates and during the times set out in the notice:
(i) a copy of that environmental study and draft local environmental plan,
(ii) 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
(iii) if such a policy, plan or direction does so apply - 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,
(c) 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
(d) publicly exhibit such other matters 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."
86 The first argument advanced before the primary judge was that the Council had contravened s66(1)(b) in failing to comply with the public exhibition requirements contained in that provision. In particular, the Council was said to have contravened s 66(1)(b)(ii) by failing to publicly exhibit copies of State Environmental Planning Policies Nos. 1 and 6 and Direction G9 and s66(1)(b)(iii) by failing to exhibit a statement to the effect that Direction G9 governed the content and operation of any local environmental plans.
87 The consequent issue, which arose before both the primary judge and this Court, was whether, assuming that there had been contravention of s 66(1)(b) as asserted, the amending local environmental plan was rendered invalid as a consequence thereof. It is necessary to record the primary judge's reasoning with respect to both these issues before turning to the arguments on the appeal.
88 It was submitted by the Council before the primary judge (and later before this Court) that the meaning of the expression "any State environmental planning policy, regional environmental plan or relevant direction under section 117 applying to land to which the draft local environmental plan is intended to apply" in s 66(1)(b)(ii) was contextually governed by the content and operation of s 66(1)(b)(iii), so that the obligation to publicly exhibit under the former provision applied only to a policy, plan or direction that "substantially governs the content and operation of the draft local environmental plan".
89 Accordingly, the Council argued that Direction G9 (iv) did not "substantially govern" the content and operation of the draft plan because it did not zone any land for residential purposes, as all of the land to which that plan was intended to apply had already been zoned as such under the 1991 LEP.
90 Further to this point, the Council argued that the public exhibition of a statement to the effect that Direction G9(iv) "substantially governs the content and operation of the draft local environmental plan" would be factually incorrect and therefore misleading to the public, as it would be inconsistent with the operation and effect of the direction. Such an absurd result would be avoided by the adoption of a construction of s 66(1)(b) which harmonised sub-paragraphs (ii) and (iii) in the manner advanced. In other words, the Council was obliged to publicly exhibit only those policies, plans and directions which were consistent with the content and operation of the draft plan or with which the draft plan conformed.
91 The primary judge accepted the Council's argument in the following terms:
"61. In my judgment, the Council's variant argument as to the proper construction of s 66(1)(b)(ii) and (iii) is correct in that those provisions onl y attract a State Policy, Regional Plan or s 117 Direction which applies to the land to which the draft local environmental plan is intended to apply in the sense that it applies in such a manner "as to substantially govern the content and operation of the draft local environmental plan". In other words , unless the policy, plan or direction ' substantially governs the content and operation of the draft local environmental plan ' it does not relevantly apply to the land to which the draft local environmental plan is intended to apply."
92 Having found that such a construction would harmonise the cumulative obligations imposed by s 66(1)(b)(ii) and (iii) respectively and having emphasised that it was the "content" of the draft plan that must be considered in relation to the content of any potentially applicable s 117 direction, the primary judge concluded as follows:
"63. However, where as in the present case, the content of the draft Amending LEP is contrary to, or in conflict with, or otherwise divergent from, the content of any State Policy, Regional Plan or s 117 Direction, then the obligation to publicly exhibit that material does not arise, because it can be concluded that that material does not apply in the relevant sense to the land to which the draft Amending LEP is intended to apply." (original emphasis)
93 After referring to s 74(1) of the Act, which expressly authorises a subsequent environmental planning instrument to amend "in whole or in part" an existing environmental planning instrument "whether of the same or a different type", the primary judge added this observation:
"64. Lest it be thought that this construction at first blush allows the ' tail to wag the dog ', I would emphasise the fact that the Act, s 74(1) expressly authorises a subsequent environmental planning instrument to amend 'in whole or in part' an existing environmental planning instrument 'whether of the same or a different type'. Thus, because of the existence of s 74(1), it is legally possible for a subsequent local environmental plan to amend a State Environmental Planning Policy or a Regional Environmental Plan. The possibility of this result expressly acknowledged by the Act , s 36 which provides relevant rules of construction to resolve inconsistency between various environmental planning instruments. Accordingly once it is appreciated that the Act does not create an inflexible hierarchy of environmental planning instruments, it is apparent that the statutory phrase ' substantially governs the content and operation of the draft local environmental plan ' appearing in s 66(1)(b)(iii) is referring to comparability of content of the draft plan and the other relevant existing instruments, but significantly reflecting a volitional result and not a compulsory one (such as may operate in an hierarchical system of planning instruments)." (original emphasis)
94 The primary judge thus held that there was in fact no relevant breach by the Council of the obligations imposed on it by s 66(1)(b) of the Act. He then proceeded to consider whether, in the event that he had found the Council guilty of such breaches, the amending LEP would be invalid as a consequence thereof. In this respect his Honour applied his own decision in Jessop v WRA Willcocks Pty Limited (1998) NSWLEC 106. Having found in that case that there had been no relevant breach of duty by the Council in relation to s 66(1)(b), his Honour observed:
"Even if I had otherwise found, on the facts, that there was a failure on the part of the 2nd Respondent to exhibit at the Laurieton office all the required supporting material, I would not have held the failure to be fatal so as to invalidate the Amendment No 4 Plan. There are a number of reasons for so concluding. Firstly I would not regard a failure to comply with s 66(1)(b)(ii) as involving a breach of the overall duty imposed by s 66(1)(b). As the heading to the section states the section is concerned with the public exhibition of the draft local environmental plan . This is obviously the principal object of the section and the material referred to in s 66(1)(b)(ii) is clearly ancillary and subsidiary material. In these circumstances as a matter of construction I would not interpret the section in a manner that visited non-compliance with s 66(1)(b)(ii) with invalidity. Alternatively I would regard the exhibition of the material referred to in s 66(10)(b)(i) even if unaccompanied by relevant material referred to in s 66(1)(b)(ii) as a substantial compliance with the duty imposed by the section, particularly in a case such as the present, where there is unchallenged evidence (which I accept) that there was total compliance in respect of s 66 in the exhibition of materials at the 2nd Respondent's principal offices in Port Macquarie." (original emphasis)
95 The primary judge then referred to some obiter remarks of Stein J (then a judge of the Land and Environment Court) in Monaro Acclimatisation Society & Anor v The Minister (1989) NSWLEC 13, where his Honour indicated that he was not convinced that, assuming a failure to exhibit a particular s 117 direction, such a breach would necessarily lead to invalidity. He agreed with the conclusion of the primary judge in Jessop that the materials that had not been exhibited were "clearly ancillary and subsidiary".
96 Reference was then made to passages from the judgment of Cripps J in Asquith v The Minister for Planning (1989) NSWLEC 104 where his Honour, by analogy with the reasoning of the primary judge in Jessop, considered that the duty to consult imposed by s 62 of the Act was ancillary to the overall duty imposed by Division 4 of Part 3 of the Act so that it could not be assumed that the legislature intended that a failure by a council to notify another council pursuant to that provision would "irretrievably taint the whole process".
97 After referring to a further decision of his own in Premier State Developments Pty Limited v North Sydney Council (1999) 140 LGERA 215 in which he followed his own decision in Jessop, the primary judge concluded in the following terms:
"82. It will thus be seen that the state of existing authority in this Court is that the Court has twice held that the failure to publicly exhibit, in conjunction with the public exhibition of a draft local environmental plan pursuant to s 66(1)(b), an applicable state environmental planning policy or regional environmental plan or a s 117 Direction does not invalidate either the public exhibition of the draft local environmental plan or the subsequent making by the Minister of the local environmental plan ( Asquith and Premier State Developments ) and has twice expressed the obiter opinion that the failure to publicly exhibit the materials referred to in s 66(1)(b)(ii) and (iii) does not invalidate either the public exhibition of the draft local environmental plan or the subsequent making up by the Minister of the local environmental plan ( Jessop and Monaro Acclimatisation Society )."
98 The primary judge noted that there had been only one decision of the Land and Environment Court which had questioned "the settled state of authority", namely John Brown Lenton & Co Pty Limited v The Minister (1999) 106 LGERA 150, where Cowdroy J had held that a failure by a council in preparing a draft local environmental plan to consult as required by s 62 of the Act invalidated the plan. In so deciding, his Honour suggested that the decision of Cripps J in Asquith could not be regarded as current law in view of the decision of the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 and that of this Court in Vanmeld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78.
99 It will be necessary to return to these authorities, but for present purposes it suffices to observe that the primary judge considered that the decision in Project Blue Sky in fact confirmed the correctness of Cripps J's decision and reasoning in Asquith. To his Honour's mind, neither the decision nor the reasoning in Vanmeld cast any doubt upon the correctness of the decision in Asquith. Accordingly, he held (at [96]) that the non-exhibition of Direction G9 in conjunction with the public exhibition of the draft plan did not invalidate the amending LEP subsequently made by the Minister.
The appellant's submissions on appeal
100 The arguments advanced by the appellant before this Court fell into two broad categories. The first, which was not argued in the Court below (see [67] above), was that the Council had no power to prepare and exhibit the draft plan as it was in disconformity with Direction G9. The second alternative argument, which was dealt with by the primary judge, was that if the Council did have the power to prepare the draft plan, it breached the public exhibition requirements contained in s66(1)(b)(ii) and (iii) with the consequence that the amending LEP should be declared invalid.