SOS Community Action Group & Anor v Reefco Resort Limited and Cairns City Council

[2] It is necessary to canvass some of the planning history of the land. That is set out in the affidavit of Hayley Marie Blackman filed 13 December 2005. In September 1986 an application was made to the then Mulgrave Shire Council to rezone the subject land from the Rural C zone to the Special Facilities (Tourist Resort Development) Zone. On 22 January 1987 the Council approved the rezoning subject to conditions. The then applicant appealed against the rezoning approval. On 4 December 1987 an order was made in the then Local Government Court by the consent of the parties, subject to a new set of conditions. A copy of the consent order is ex HMB-3 and the approved plan of development is ex HMB-4. On 29 March 1990 the governor-in-council approved the amendment of the Town Planning Scheme in accordance with the consent order.

[3] As is apparent the subject land was formerly located in the Local Government area of the Council of the Shire of Mulgrave but became part of the Cairns City Council Local Government area upon the amalgamation of the two councils. Before that amalgamation the Mulgrave Shire Council adopted a new planning scheme which was gazetted on 17 December 1993 ("the 1993 scheme"). After amalgamation the Cairns City Council introduced a new planning scheme which was gazetted on 29 November 1996 ("the 1996 scheme"). That scheme is a transitional planning scheme pursuant to the provisions of the Integrated Planning Act 1997 as amended ("IPA"). It was that scheme which was in force when the two applications were made to Cairns City Council and which are required to be considered in this proceeding.

[4] On 1 February 2001 the second respondent resolved to approve an amendment to the plan of development that was approved by the consent order of 4 December 1987. On 29 March 2001 the second respondent made a further resolution in relation to the amended plan of development. This resolution enabled the second respondent to amend the consent order rather than remitting the matter back to the Court.

[5] The first respondent changed its name from Starline Australia Holdings Limited to Reef Cove Resort Limited in or about June 2005. The relevant dealings prior to that date were carried on in the first respondent's former name. For convenience I will simply refer to the first respondent where appropriate irrespective of the name under which any relevant dealing was carried out.

[6] The first respondent purchased the subject land in or about July or August 2002. On 15 August 2002 the Planning Development and Community Services Committee of the second respondent issued a clarification of conditions of rezoning for the land. Exhibit HMB-8 is a copy of the clarification of conditions. On 5 June 2003 the first respondent made a development application to the second respondent pursuant to the provisions of the Integrated Planning Act 1997 for a development approval for a staged development as follows:-

(a) Stage 1 - Development Approval for Reconfiguration of Lot 901 into 90 lots.

(b) Stage 2 - Development Approval for Reconfiguration of Lot 902 into 25 lots.

(c) Stage 3 - Development Approval for Lots 907, 908 and 909 into 42 residential lots.

It is not disputed that this application was code assessable and not impact assessable. The result was that there was no public notification, no provision for persons to make submissions, and no right of appeal against the council's decision, except of course for the applicant.

[7] During the assessment process the second respondent sought and received further information from the first respondent. The council was also provided with a report and recommendations by its Town Planning Officer, Mr P M Tabulo. In summary therefore by the time the second respondent made its initial resolution in respect of the application it had before it the following material:-

(a) The development application and proposed site layout (Ex HMB-9)

(b) A planning report submitted as part of the development application (Ex HMB-10)

(d) The first respondent's response to the information request (Ex HMB-12)

(e) The advice and recommendations from Mr Tabulo (Ex HMB-13)

[8] On 22 July 2004 the respondent resolved that it should issue a development approval with conditions in relation to the land for configuration of the land into a number of lots, the details of which need not be set out. On 9 September 2004 the second respondent issued a negotiated decision notice for the development approval, ex HMB-14. The approved reconfiguration plan is ex HMB-15. the next relevant step occurred on 26 August 2005 when the first respondent made an application to the second respondent for approval of operational works for preliminary road works for Stage 1. On 28 October 2005 the second respondent issued a negotiated decision notice approving that application (ex HMB-19). On 13 December 2005 the applicants filed an Originating Application in the Planning and Environment Court at Cairns for the following declarations:-

"1. A declaration pursuant to s 4.1.21 Integrated Planning Act 1997 (IPA) that the development approval for configuration of a lot granted by negotiated decision notice dated 9 September 2004 for reconfiguration of a lot (the reconfiguration approval) granted by the second respondent to the first respondent in respect of land described as Lot 108 on RP 712063 Parish of Trinity, County of Nares having an area of 120.5 hectares and located at False Cape in the City of Cairns (the site) is invalid.

2. A declaration pursuant to s 4.1.21 IPA that the development approval for operational works (the OW approval) granted by the second respondent to the first respondent by negotiated decision notice 28 October 2005 in respect of the site is invalid."

[9] Nothing much seems to have happened between the parties until the solicitor for the applicant wrote to the solicitor for the first respondent to say that the applicants had engaged an engineering geologist, Dr Fred Baynes to provide expert geotechnical information in relation to the hearing of the Originating Application. They requested that Dr Baynes be allowed access to the site for the purposes of undertaking geotechnical mapping and investigations. I will return to consider the issue of expert evidence in more detail later. It is sufficient to say that the first respondent, through its solicitor, has refused to allow Dr Baynes access to the site. However the request from the solicitors for the applicants appears to have provoked some argument as to the appropriateness or validity of ground 1 of the grounds set out in the Originating Application in support of the declarations sought. On 15 February 2006 I made the following order:-

"Ground 1 of the Originating Application filed on 13 December 2005 be struck out."

Pursuant to leave, which I granted, the applicants filed an amended Originating Application on 17 February 2006.

[10] The amended Originating Application seeks the same declarations which I have set out above. Ground 1 of the first application is deleted. New grounds 1A, 1B, 1C and 1D were inserted. There are some slight alterations to one paragraph of ground 2. Grounds 3 and 4 remain the same as specified in the original application. This is an application by the first respondent for an order that grounds 1A, 1B, 1C and 1D be struck out. There is also a subsidiary issue as to whether or not the applicants should be permitted to introduce certain expert evidence on the hearing of the substantive application.

[11] It should be noted that the applicant's substantive attack is upon the reconfiguration approval. In relation to the OW approval it is simply argued that if the configuration approval was invalid then it must follow that the OW approval was invalid.

[12] It is accepted that the application for configuration fell to be determined pursuant to subsection 6.1.30(3)(c) which in turn required the application to be dealt with pursuant to subsections 5.1(6) and (6A) of the otherwise repealed Local Government Planning and Environment Act 1990. Subsection 5.1(6A) provides as follows:-

"The local government must refuse to approve the application if -

(a) The application conflicts with any relevant strategic plan or development control plan; and

(b) There are not sufficient planning grounds to justify approving the application despite the conflict."

[13] The manner in which the decision maker is required to approach the application of this provision has been authoritatively determined in the Queensland Court of Appeal in Weightman v Gold Coast City Council & Anor [2002] QCA 234. The Court was there dealing with subsection 4.4(5A) of the LGPEA which is in identical terms to subsection 5.1(6A). At para [36] Atkinson J said as follows:-

"In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s 4.4(5A)(b) of the P & E Act the decision maker should:

2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those grounds;

3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict."

In order to properly apply the appropriate limitations to the judicial review of administrative action but adopting the above statement I would further subdivide the process which the decision maker must undertake pursuant to subsection 5.1(6A) as follows:-

(a) Determine whether or not there is any conflict at all between the development applied for and any relevant strategic plan or development control plan.

(c) Determine whether there are any planning grounds relevant to the part of the application which is in conflict with the relevant strategic plan or development control plan.

(d) Determine if the conflict can be justified on those planning grounds.

(e) Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.

[14] With respect to (b) above, I am of the view that a Council, when examining the nature and extent of a conflict, may have regard to the potential imposition of conditions which in some circumstances may reduce or even remove the conflict.

[15] The written and oral submissions made to me by counsel for the applicants and the first respondent were comprehensive and able, some might say formidable. I do not propose to lengthen what may be an already lengthy judgment by canvassing those submissions and the numerous authorities to which I was referred. It is necessary to set out in full the grounds which are the subject of the strike out application.

"1A. The second respondent erred in law in failing, in breach of s6.1.30(3)(c) IPA and s 5.1(6A) Local Government (Planning and Environment) Act 1990 ("the repealed Act"), to refuse the first respondent's development application notwithstanding that the application conflicted with a relevant development control plan, namely, the Hillslopes Development Control Plan ("the DCP") and with the strategic plan for the City of Cairns in circumstances where the only matter arguably identified as sufficient planning grounds to approve the application notwithstanding the conflict was not capable, as a matter of law, of constituting sufficient planning grounds.

Particulars of the Conflict with the DCP

(a) The site is identified by the DCP as category B-constrained land;

(b) Despite a requirement in paragraph 1.4.2 of the DCP, the first respondent had not, at the time of the reconfiguration approval, demonstrated to the second respondent that the land could be safe and serviceable for the proposed use without resort to, in the second respondent's opinion, complex engineering solutions to overcome the restraints identified in the DCP; the undertaking of anything more than minor earthworks; or the need for controls to ensure that there is no change to the landscape or scenic value of the area, in excess of those available in the Planning Scheme or Local Laws;

(c) Despite a requirement in paragraph 1.4.2 of the DCP, the process of determining the extent of land unsuitable for development did not occur at the time of the development application or at an alternative time permitted by Hillslopes Objective 9;

(d) In breach of paragraph 1.5.1.1 of the DCP, the proposed use was contrary to maintaining the environmental and visual integrity of the hillslopes including the site;

(e) In breach of paragraphs 1.5.3.2 and 1.6 of the DCP, the application was not accompanied by a concept plan which recorded and identified areas that are too sensitive to develop on account of slope stability problems (and failed to provide a geotechnical report, other than a preliminary report, that assessed existing site conditions and assessed details of measures proposed to be incorporated in the development to ensure safe and satisfactory construction practices) or areas that are visually exposed to other locations or major views within the site and vistas beyond (and failed to provide a visual assessment report which provided details of the proposal with plans, levels, elevations, sections, and perspectives and details of how the proposal accorded with the second respondent's Hillslope Visual Assessment Handbook).

(f) In breach of paragraph 1.7 of the DCP, the proposal failed to conform with requirements that:

(i) The design and layout shall ensure harmony between the proposal and the natural and man-made features of the landscape (1.7.1(a));

(ii) Practical access shall be provided for conventional vehicles (1.7.2(c)).

(iii) Large earth cuts to accommodate building construction shall not be approved (1.7.3(b)).

(iv) Buildings and associated roads shall not be constructed in areas with a slope greater than 1 in 3 (1.7.4(e));

(v) The design, bulk, height and form of all new buildings and outbuildings shall not dominate or detract from the scenic and environmental qualities of the site and of the local environment (1.7.4(f)).

Particulars of the Conflict with the Strategic Plan

(g) In breach of City Image Objective 3, the application failed to maintain the scenic quality and minimal level of development of the beaches and headlands within the City of Cairns in that it will be highly visible from the outer reef and island boating routes and from the northern beaches of Cairns.

Particulars of the matter not capable of constituting Sufficient Planning Grounds

(h) The second respondent regarded itself as bound to approve the application because of the existence of the rezoning from Rural C zone to Special Facilities Zone by governor in council dated 29 March 1990. Such rezoning approval is not reasonably capable of constituting sufficient planning grounds to approve the application despite conflict with the DCP and the strategic plan.

1B. The second respondent's decision to approve the development application, was invalid on the grounds of unreasonableness in that no reasonable council properly instructed would have found sufficient planning grounds to justify approval of the development application despite the fact that the application conflicted with the DCP and the strategic plan for the City of Cairns.

(a) The site is identified by the DCP as category B-constrained land;

(b) Despite a requirement in paragraph 1.4.2 of the DCP, the first respondent had not, at the time of the reconfiguration approval, demonstrated to the second respondent that the land could be safe and serviceable for the proposed use without resort to, in the second respondent's opinion, complex engineering solutions to overcome the restraints identified in the DCP; the undertaking of anything more than minor earthworks; or the need for controls to ensure that there is no change to the landscape or scenic value of the area, in excess of those available in the Planning Scheme or Local Laws;

(c) Despite a requirement in paragraph 1.4.2 of the DCP, the process of determining the extent of land unsuitable for development did not occur at the time of the development application or at an alternative time permitted by Hillslopes Objective 9;

(d) In breach of paragraph 1.5.1.1 of the DCP, the proposed use was contrary to maintaining the environmental and visual integrity of the hillslopes including the site;

(e) In breach of paragraphs 1.5.3.2 and 1.6 of the DCP, the application was not accompanied by a concept plan which recorded and identified areas that are too sensitive to develop on account of slope stability problems (and failed to provide a geotechnical report, other than a preliminary report, that assessed existing site conditions and assessed details of measures proposed to be incorporated in the development to ensure safe and satisfactory construction practices) or areas that are visually exposed to other locations or major views within the site and vistas beyond (and failed to provide a visual assessment report which provided details of the proposal with plans, levels, elevations, sections, and perspectives and details of how the proposal accorded with the second respondent's Hillslope Visual Assessment Handbook).

(f) In breach of paragraph 1.7 of the DCP, the proposal failed to conform with requirements that:

(i) The design and layout shall ensure harmony between the proposal and the natural and man-made features of the landscape (1.7.1(a));

(ii) Practical access shall be provided for conventional vehicles (1.7.2(c)).

(iii) Large earth cuts to accommodate building construction shall not be approved (1.7.3(b)).

(iv) Buildings and associated roads shall not be constructed in areas with a slope great than 1 in 3 (1.7.4(e)).

(v) The design, bulk, height and form of all new buildings and outbuildings shall not dominate or detract from the scenic and environmental qualities of the site and of the local environment. (1.7.4(f)).

Particulars of the Conflict With the Strategic Plan

(g) In breach of City Image Objective 3, the application failed to maintain the scenic quality and minimal level of development of the beaches and headlands within the City of Cairns in that it will be highly visible from the outer reef and island boating routes and from the northern beaches of Cairns.

Particulars of the matter which second respondent held constituted Sufficient Planning Grounds

(h) The second respondent regarded itself as bound to approve the application because of the existence of the rezoning from Rural C zone to Special Facilities Zone by governor in council dated 29 March 1990. Such rezoning approval is not reasonably capable of constituting sufficient planning grounds to approve the application despite conflict with the DCP and the strategic plan. No reasonable council could have considered the above matter sufficient planning grounds.

1C. The second respondent failed to follow procedures required by law, including by s 6.1.30(3)(c) IPA and s 5.1(6A) Local Government (Planning and Environment) Act 1990 ("the repealed Act"), in that, in purporting to approve the development application, it failed to identify and enumerate the conflicts which existed between the proposal and the DCP and the proposal and the strategic plan for the City of Cairns prior to giving consideration to whether sufficient planning grounds existed to approve the application notwithstanding the said conflicts.

Particulars of the Conflict with the DCP which needed to be identified and considered

(a) The site is identified by the DCP as category B-constrained land;

(b) Despite a requirement in paragraph 1.4.2 of the DCP, the first respondent had not, at the time of the reconfiguration approval, demonstrated to the second respondent that the land could be safe and serviceable for the proposed use without resort to, in the second respondent's opinion, complex engineering solutions to overcome the restraints identified in the DCP; the undertaking of anything more than minor earthworks; or the need for controls to ensure that there is no change to the landscape or scenic value of the area, in excess of those available in the Planning Scheme or Local Laws;

(c) Despite a requirement in paragraph 1.4.2 of the DCP, the process of determining the extent of land unsuitable for development did not occur at the time of the development application or at an alternative time permitted by Hillslopes Objective 9;

(d) In breach of paragraph 1.5.1.1 of the DCP, the proposed use was contrary to maintaining the environmental and visual integrity of the hillslopes include the site;

(e) In breach of paragraphs 1.5.3.2 and 1.6 of the DCP, the application was not accompanied by a concept plan which recorded and identified areas that are too sensitive to develop on account of slope stability problems (and failed to provide a geotechnical report, other than a preliminary report, that assessed existing site conditions and assessed details of measures proposed to be incorporated in the development to ensure safe and satisfactory construction practices) or areas that are visually exposed to other locations or major views within the site and vistas beyond (and failed to provide a visual assessment report which provided details of the proposal with plans, levels, elevations, sections, and perspectives and details of how the proposal accorded with the second respondent's Hillslope Visual Assessment Handbook).

(f) In breach of paragraph 1.7 of the DCP, the proposal failed to conform with requirements that:

(i) The design and layout shall ensure harmony between the proposal and the natural and man-made features of the landscape (1.7.1(a));

(ii) Practical access shall be provided for conventional vehicles (1.7.2(c));

(iii) Large earth cuts to accommodate building construction shall not be approved (1.7.3(b));

(iv) Buildings and associated roads shall not be constructed in areas with a slope greater than 1 in 3 (1.7.4(e));

(v) The design, bulk, height and form for all new buildings and outbuildings shall not dominate or detract from the scenic and environmental qualities of the site and of the local environment (1.7.4(f)).

Particulars of the Conflict With the Strategic Plan which needed to be identified and considered

(g) In breach of City Image Objective 3, the application failed to maintain the scenic quality and minimal level of development of the beaches and headlands within the City of Cairns in that it will be highly visible from the outer reef and island boating routes and from the northern beaches of Cairns.

1D. The second respondent failed to follow procedures required by law, in breach of the DCP and s 6.1.30(3)(c) IPA and s 5.1(6A) Local Government (Planning and Environment) Act 1990 ("the repealed Act"), in that, in purporting to approve the development application, it failed to ensure that the following procedures required by the DCP were complied with prior to the granting the said approval.

Particulars of the Procedures Required by the DCP which needed to be complied with prior to any approval being granted

(a) Despite a requirement in paragraph 1.4.2 of the DCP, The first respondent had not, at the time of the reconfiguration approval, demonstrated to the second respondent that the land could be safe and serviceable for the proposed use without resort to, in the second respondent's opinion, complex engineering solutions to overcome the restraints identified in the DCP; the undertaking of anything more than minor earthworks; or the need for controls to ensure that there is no change to the landscape or scenic value of the area, in excess of those available in the Planning Scheme or Local Laws:

(b) Despite a requirement in paragraph 1.4.2 of the DCP, the process of determining the extent of land unsuitable for development did not occur at the time of the development application or at an alternative time permitted by Hillslopes Objective 9;

(c) In breach of paragraphs 1.5.3.2 and 1.6 of the DCP, the application was not accompanied by a concept plan which recorded and identified areas that are too sensitive to develop on account of slope stability problems (and failed to provide a geotechnical report, other than a preliminary report, that assessed existing site conditions and assessed details of measures proposed to be incorporated in the development to ensure safe and satisfactory construction practices) or areas that are visually exposed to other locations or major views within the site and vistas beyond (and failed to provide a visual assessment report which provided details of the proposal with plans, levels, elevations, sections, and perspectives and details of how the proposal accorded with the second respondent's Hillslope Visual Assessment Handbook).

(d) In breach of paragraph 1.7 of the DCP, the proposal failed to conform with requirements that:

(i) The design and layout shall ensure harmony between the proposal and the natural and man-made features of the landscape (1.7.1(a));

(ii) Practical access shall be provided for conventional vehicles (1.7.2(c)).

(iii) Large earth cuts to accommodate building construction shall not be approved (1.7.3(b)).

(iv) Buildings and associated roads shall not be constructed in areas with a slope greater than 1 in 3 (1.7.4(e)).

(v) The design, bulk, height and form of all new buildings and outbuildings shall not dominate or detract from the scenic and environmental qualities of the site and of the local environment. (1.7.4(f)).

[16] The provisions of s 5.1(6A) LGEPA refers to the application. The procedure I have extracted from Weightman's case which I have set out above refers to the way in which a Council should approach the assessment of an application. However, unlike a merits appeal, on an application for judicial review it is not the application which needs to be considered but the approval; in other words the whole of the negotiated decision notice.

[17] 1A(h) refers only to the "rezoning from Rural C zone to Special Facilities Zone by governor-in-council dated 29 March 1990". Paragraph 1A(h) contains inconsistencies. The first sentence is a repetition of ground 2(a). That leaves the second sentence which simply asserts that as a matter of law the prior rezoning approval was "not reasonably capable of constituting sufficient planning grounds to approve the application despite conflict with the DCP and the Strategic Plan." The applicants rely on the statement that I have extracted from Weightman above. It must be remembered that that statement was made in the context of the Court of Appeal dealing with an appeal on a point of law from a merits appeal in the Planning and Environment Court. In other words the Planning and Environment Court was the decision maker. That statement in Weightman is no justification for suggesting that the Court, on an application for judicial review, can consider whether or not a planning ground was sufficient. In my view there are two sorts of planning grounds which are capable of being sufficient to justify the approval in spite of the conflict. The first class of planning ground would be of a practical nature not arising out of the planning scheme itself. The second type of planning ground would be such a ground namely one arising out of the planning scheme. The zoning of the subject land would fall into the second class. Counsel for the applicants relied on a passage in the judgment of Wilson SC DCJ in Palyarus v Gold Coast City Council [2004] QPLER 162 at para 41:-

"The term "planning grounds" in s 4.4(5A) of the PEA, prefaced by the word "sufficient" connotes grounds which would establish positive betterment in terms of planning outcomes which would not otherwise be achievable through the existing planning scheme and justify departure from it. The difficulty for the appellant is that each of the planning outcomes it identifies is equally available under the usage which is presently permitted, and approval would do no more than remove the requirement for a residential component, while permitting the intensification of non-residential purposes. The fact that there are no positive features arising from approval which are not otherwise achievable through development consistent with the planning strategies encapsulated in the 1994 scheme means there is, with the reference to the equation described in the third stage identified by Atkinson J in Weightman, no substantive planning feature which justifies approval, despite the conflict."

It is of relevance to note that His Honour was there hearing an appeal against the decision of the Gold Coast City Council to refuse the development application which would have permitted the use of residential premises as a photographic studio. In other words, His Honour was the decision maker. Further, it is relevant in my view to note that the planning grounds submitted by the applicant as relevant for the material change of use listed in paragraph [37] of His Honour's judgment were all of the practical type and not related in any way to the existing scheme. In that context I would respectfully agree with His Honour's approach to the requirement of a planning ground being "sufficient". It is not without considerable relevance in my view that in the later case of Leda Holdings Pty Ltd v Caboolture S C [2005] QPEC 56 the same judge said at paras [36] and [37]:-

"In any event even if conflict is conceded there nevertheless remains strong planning grounds which would justify approval.

The first is the zoning of the land."

[18] In my view the relevance of the zoning of the land is all the greater in this particular case. The current zoning is not just of a general nature in which the uses intended to follow upon the reconfiguration of the lot generally fall into permitted and permissible uses and development. In this case the uses proposed to follow as a consequence of the reconfiguration of the lot are all permitted (that is as of right). The plan of development which attaches to the zoning provides for those uses to be carried on, on land in which that plan contemplates substantial subdivision of the nature approved by the reconfiguration approval. The zoning of the land and the circumstances in which that zoning was introduced into the plan suggest a specific and compelling planning intent that the subject land was not only suitable for the subdivision approved by the reconfiguration approval but was also intended to proceed to development in that way.

[19] No rational basis has been put forward to support the proposition that the zoning of the land was not capable as a matter of law of constituting sufficient planning grounds for approving the application in spite of any conflict with the Development Control Plan and the Strategic Plan. Ground 1A must be struck out.

[20] Ground 1B is in my view something of a fallback position should ground 1A fail. The conflicts with the DCP alleged in ground 1A are repeated in ground 1B. The essential distinction between ground 1A and 1B is that ground 1A suggests that the zoning of the subject land was not capable as a matter of law of constituting sufficient planning grounds to approve the application despite the conflict with the DCP. Ground 1B is in essence that no reasonable council could have considered the zoning of the subject land as sufficient planning grounds to approve the application despite the conflict.

[21] This is commonly described as the Wednesbury ground after Associated Provincial Picture Houses Ltd V Wednesbury Corp [1947] EWCA Civ 1; 1948 1 KB 223. I will not set out the extracts from cases over the years which have made it clear that it is enormously difficult to make out this ground. On the other hand that is no reason to deny the applicants the opportunity of litigating the ground if there is some evidentiary basis for it. The problem in this case is that the applicants have not identified any basis upon which such a view of unreasonableness could be found. Once again, the only matter referred to in ground 1B is as follows:-

"The second respondent regarded itself as bound to approve the application because of the existence of the rezoning from Rural C zone to special Facilities zone by governor-in-council dated 29 March 1990."

[22] Even if that allegation was made out (and I am by no means satisfied that it could be) it is has no logical relevance to a decision as to whether a reasonable council in the position of the second respondent could have found the rezoning approval sufficient ground to justify the reconfiguration approval. In my view the second respondent was obliged to give very considerable weight to the rezoning approval. Whether that was sufficient planning grounds for the second respondent to make the reconfiguration approval in spite of the conflicts with the DCP and Strategic Plan was a matter for the council and not capable of being judicially reviewed. The applicants have pointed to absolutely nothing in the material to show that the alleged conflicts either alone or in an aggregation, were of such significance and so capable of outweighing the weight which needed to be given to the rezoning approval to potentially justify the conclusion that no reasonable council in the position of the second respondent would have approved the application. What the applicants want to do is to meet this challenge by leading further evidence. I have no doubt that such evidence would be relevant on a merits appeal. There is no doubt that some information concerning visual amenity may have been relevant to the council's consideration of the application. On the other hand it must be recognised that this was an application for reconfiguration. It was not an application for approval of any construction of buildings. Strictly speaking, it was not an application even for the consent for works to be carried out. However it was not unreasonable for the council to set out comprehensive conditions relating to further works as conditions of the reconfiguration approval to guide the consideration of any future application for operational works approval. As to the proposed geotechnical evidence, this is nothing more than a fishing expedition. What the applicants want is for their geotechnical expert to spend a couple of days inspecting the subject land in the hope that he might come up with something. At the risk of stating the obvious this is the applicant's application. The applicants have the burden of proof. There is no doubt that in appropriate circumstances further inquiry after the commencement of an action may be permitted. But that falls far short of indicating that the applicants are entitled to commence their application with nothing and then go looking for evidence to support it. In my view ground 1B must be struck out.

[23] Put shortly, ground 1C asserts that the second respondent was required by subsection 5.1(6A) of LGPEA "to identify and enumerate the conflicts which existed between the proposal and the DCP and the Strategic Plan". Firstly, there is nothing in subsection 5.1(6A) which expressly requires the council to "identify and enumerate the conflicts". For that proposition the applicants rely on the judgment of the Court of Appeal in Weightman. As I think I have pointed out earlier, the Court of Appeal in that case was considering the decision of a Judge of this Court on a merits appeal. In other words, it was a Judge of this Court and not the council who was the decision maker under consideration. Secondly, the single conflict involved was a quantitative one in that it related to the height and number of stories of a building. I can find nothing in the judgment of Atkinson J, or for that matter the other Justices who comprised the Court of Appeal requiring the passage in the judgment of Atkinson J to be observed as if it was some form of statutory imperative to apply in every case. In any event the first step to which Her Honour referred was as follows:-

"1. Examine the nature and extent of the conflict."

In my view this does not equate to identifying and enumerating the conflicts. In addition a merits appeal before the Planning and Environment Court is conducted as a litigation process. The practice of the Court therefore requires the parties to identify with some precision the issues in dispute, such as the particular provisions of a Development Control Plan or Strategic Plan which the party raising the conflict issue alleges are relevant. The process of considering and making a decision upon an application by a local authority can in no way be equated with an adversarial dispute before the Planning and Environment Court. This is particularly so in the case of a code assessable application as this one was.

[24] In this particular case the second respondent had upon its consideration of the first respondent's application a town planning report from Mr Tabulo. That report expressly identifies that there are conflicts between the reconfiguration proposal and the development Control Plan and the Strategic Plan. Whilst it is true that the report does not "identify and enumerate" all of the specific provisions of the DCP and Strategic Plan with which the proposal might be in conflict, there was no requirement in my view for that to be done and the mere failure to do it can in no way give rise to a challenge to the validity of the decision. Further, as Mr Gore pointed out in his submissions, a number of the conditions imposed on the reconfiguration approval address conflicts between the application and the DCP and Strategic Plan.

[25] In my view what is required of the applicants - (a) is to point to specific provisions of the Development Control Plan and the Strategic Plan with which it is alleged the approval is in conflict, (b) identify with a reasonable level of precision the nature and extent of the conflict, (c) demonstrate on the materials the nature, extent and seriousness of the conflict, and finally, (d) demonstrate on the evidence of what was before the council and any evidence concerning its processing of the application that the council did not have regard to it. The particulars pleaded in ground 1C itself fall well short of these requirements. Further, the applicants have not demonstrated that there is an arguable case that the council failed to take into account such a relevant matter to the extent that is decision should be declared invalid. Paragraph 1C must be struck out.

[26] Similar defects appear in particular 1D. Particular 1D is almost the same as particular 1C. Whereas particular 1C alleged that the council failed to identify and enumerate the conflicts between the proposal and the DCP and the Strategic Plan, particular 1D alleges that the council failed to ensure that certain procedures required by the DCP were complied with. The brief answer following upon what I have set out in relation to ground 1C is that there is nothing in the list of particulars of procedures required by the DCP which places any legal obligation on the council to ensure that they were carried out. Secondly, there is nothing in subsection 5.1(6A) of LGPEA which even remotely suggests that the council had an obligation to ensure that those procedures were carried out. Thirdly, there is nothing in the judgments of the Court of Appeal which suggests an obligation on the part of the second respondent to ensure that those procedures were complied with. All of these matters may have been very relevant on a merits appeal. However, in my view, they have no relevance to a judicial review of the second respondent's approval for the reconfiguration of a lot. In my view ground 1D must be struck out.

[27] I have already made observations about the admissibility of the proposed new evidence. In light of the fact that I propose to strike out the particulars there is really no need to say anything further. It must follow that the evidence cannot be led.