South East Forest Rescue Incorporated v Bega Valley Shire Council and South East Fibre Exports Pty Ltd

Land and Environment Court (NSW)|2011-12-02|Before: Preston CJ, Mr J

Nature of case and outcome 1On 14 June 2011, Bega Valley Shire Council ("the Council") granted development consent to a development application by South East Fibre Exports Pty Ltd ("SEFE") for the installation of a pilot wood manufacturing plant at the site of SEFE's existing woodchip mill at Jews Head, Eden. An objector to the proposed development, South East Forest Rescue Incorporated ("SEFR") has challenged, by judicial review proceedings, the development consent on four grounds: (a) the Council failed to consider and form the required mental state of satisfaction under cl 8(3) of Bega Valley Local Environmental Plan 2002 ("the LEP") that the development is consistent with the objectives of the relevant zone, being Zone 1(a) (Rural General Zone) under the LEP; (b) the Council failed to consider, under s 79C(1)(d) of the Environmental Planning and Assessment Act 1979 ("EPA Act"), all of the submissions made by members of the public objecting to the proposed development and, in particular, those submissions concerning the consistency of the proposed development with the zone objectives and the principles of ecologically sustainable development ("ESD"); (c) the Council failed to consider ESD either under cl 79 of the LEP or as an element of the public interest under s 79C(1)(e) of the EPA Act; and (d) the Council failed to consider anthropogenic climate change as an element of the public interest under s 79C(1)(e) of the EPA Act. 2The Council has made a submitting appearance. The proponent of the pellet plant, SEFE, defended the Council's grant of development consent. 3I have determined that the applicant, SEFR, has made out the first, second and third grounds, but not the fourth ground, and that the development consent should be declared invalid.

The Council's consideration and determination of the development application 4On 31 January 2011, SEFE submitted a development application (DA 2011.0035) to the Council to construct a pilot wood pellet manufacturing plant on Lot 16 DP 1066187 ("the development"). The development includes the erection of a 16 m wide x 24 m long x 6 m high steel-framed, colour bond shed. The shed accommodates the wood pellet plant machinery used to produce the wood pellets. The development application was accompanied by a statement of environmental effects. 5Section 1.3 of the statement of environmental effects described the developments, including the shed and the machinery. It noted that: "Raw material feed for the plant would be sourced from hardwood and softwood sawmills located within a 100 km radius of SEFE's mill, alternatively, fines from SEFE's own process would be suitable, but would require more drying energy to reach target moisture content" (p 5 in Tender Bundle, vol 1, p 231 (Exhibit A)). 6It also noted the uses of wood pellets: "Wood pellets can be marketed for use in domestic space heaters, commercial boilers for hospitals, schools, etc, used for animal bedding, mushroom compost, animal litter, spill kits and a wide range of other uses" (p 2 or Exhibit A, p 228). 7Section 2 of the statement of environmental effects considered the "Planning Issues". Section 2.2 was entitled "Zoning" and noted that the SEFE's mill site is zoned 1(a) (Rural General Zone) under the LEP and quoted the objectives of that zone from cl 2(2) of the LEP. Section 2.3 was entitled "Compatibility with Planning Provisions" and provided, in its entirety, as follows: "The Bega Valley LEP 2002, under the Environmental Planning and Assessment Act 1979, requires a range of developments to obtain development consent prior to commencing development in the Rural 'A' Zone, including sawmills and timber yards. Given the existing nature of the woodchip production activity and the objectives of Rural 'A' Zone, the proposed development is compatible with the planning provisions applicable to the site" (p 7 or Exhibit A, p 233). 8Section 3 of the statement of environmental effects dealt with the "Existing Environment, Potential Impacts and Mitigation Measures", section 4 with "Cultural and Heritage Issues", section 5 with "Visual", section 6 with "Solid Waste", section 7 with "Hazard Issues", section 8 with "Monitoring and Reporting" and section 9 with "Social and Economic". None of the discussion in sections 3-9 of the statement of environmental effects dealt with the topics of the consistency of the development with the zone objectives or with the principles of ESD. 9Section 10 contained the "Conclusions" which were, in their entirety: "The proposed pellet plant development at the SEFE Mill is compatible with existing planning and site use. The construction and operation of this development should not result in any significant adverse impacts on the environment. As a precaution, the proponent is committed to a range of mitigation measures" (p 16 or Exhibit A, p 242). 10The whole statement of environmental effects was only 16 pages in total but barely 12 pages in text, the remainder being photographs or blank spaces on the page. 11On 2 February 2011, SEFE submitted the floor plans and elevations for the shed. 12At the meeting on 3 February 2011, the Council's Development Control Unit allocated SEFE's development application to one of the Council's Development Control Planners, Mr Mark Fowler, for assessment. 13On 4 February 2011, SEFE advised, in response to the Council's request, that the annual production capacity of wood pellets would be 1,320 cubic metres. 14Mr Fowler (of the Council) notified various government departments, including the Department of Environment, Climate Change and Water ("DECCW") on 8 February 2011, inviting their comments on the development application. 15The Council notified adjoining residents about the development application, as well as advertised the development application, inviting submissions. The submissions period was from 10 to 24 February 2011. 210 written submissions were received with 107 submissions raised in objection to the development and 103 submissions supporting the development. One of the submissions was from the applicant, SEFR, dated 22 February 2011 but lodged on 24 February 2011. 16SEFR's submission included the following points: (a) the inadequacy of the statement of environmental effects : "the Statement of Environmental Effects is perfunctory to say the least" and "can only be viewed as a preliminary expression of interest, rather than any form of environmental impact statement" (Exhibit B, p 762); (b) the statement of environmental effects' failure to consider ESD and greenhouse impacts :

"The statement of environmental effects does not look at the full life cycle of the raw material and ignores the greenhouse impacts of native forest logging. CO 2 emissions caused by the logging of native forests to supply the Eden chipmill has been conservatively estimated at over 26 million tonnes per year" (Exhibit B, p 762);
"The Statement of Environmental Effects makes no serious attempt to examine the local or global impacts of the development. No attempt is made to assess the sustainability of native forest logging" (Exhibit B, p 762);
"The claim that the factory will only use waste is erroneous. The material to be used for the pellets is not 'waste' and could not exist if over one million tonnes of trees, equating to a figure of almost 19,000 hectares of forest, were not logged each year to supply the chipmill. There is also scant mention of the manufacturing process or industry standards." (Exhibit B, p 762);
"As shown there are many matters not addressed or not met in the Statement of Environmental Effects ... Two such matters are the principles of intergenerational equity and ESD, which are seemingly being breached in the context of s 79C" (Exhibit B, p 774);
"South East Forest Rescue would urge the decision-maker to reject the development application until such time as: ... 3. a comprehensive full life-cycle analysis of the GHG emissions associated with native forest operations, the transport of logs to the chipmill and of the pellet factory operations has been completed and made available for public comment" (Exhibit B, p 778);
"The majority of residents on the South Coast are very concerned about climate change and deforestation. The Galaxy Research Poll's findings were 78% of people want an end to native forest logging. It has been shown that the native forest logging industry is not sustainable. Thus the better outcome for communities and the environment would be for Bega Valley Shire Council to reject the development application for the pellet factory" (Exhibit B, p 778). (c) the development is not consistent with the objectives of the 1(a) (Rural General Zone) under the LEP , in particular the development is not consistent with the objectives of:
encouraging tourism (Exhibit B, pp 763-764);
encouraging development that does not create undesirable environmental and cultural impacts, including greenhouse gases by customers burning the wood pellets (Exhibit B, pp 764-767);
maintaining the scenic amenity and landscape quality of the area (Exhibit B, p 767);
promoting the protection, and the preservation and enhancement, of natural ecological systems and processes, including that "the burning of wood, whether domestically or overseas, is not a clean technology, it still releases CO 2 and particulate pollution, the removal of trees is the removal of a carbon sink, and further the logging of native forest provides an economic incentive to produce more wood waste, rather than encouraging energy efficiency" (Exhibit B, p 768 and generally pp 767-772);

Failure to consider and be satisfied of the development's consistency with zone objectives 88Clause 8(3) of the LEP provides: "Consent must not be granted to development proposed within a zone unless the consent authority has taken into consideration such of the objectives of the zone as are relevant to the proposal and is satisfied that the development is consistent with those objectives." 89Clause 12(2) of the LEP sets out the objective of the relevant Zone 1(a): "The objectives of Zone 1(a) are as follows: (a) to encourage continued growth in the area's rural economic base, (b) to encourage other forms of development, including tourism, that are compatible with agricultural activities and do not create undesirable environmental and cultural impacts, (c) to protect and conserve the productive potential of prime crop and pasture land, (d) to maintain the scenic amenity and landscape quality of the area, (e) to promote the protection, and the preservation and enhancement, of natural ecological systems and processes, (f) to provide proper and coordinated use and protection of rivers, riparian corridors and water catchment areas, (g) to promote the economic provision of services compatible with the nature and intensity of development and the character of the area, (h) to ensure that development and management of the land has minimal impact on water quality and environmental flows of receiving waters, (i) to maintain significant features of natural and cultural heritage." 90Clause 8(3) sets a precondition to the exercise of the power to determine a development application by the grant of consent. The Council, as the consent authority, must, first, take into consideration such of the objectives of the zone in which the development is proposed and, secondly, form the requisite mental state of satisfaction that the development is consistent with those objectives. If the precondition in cl 8(3) is not satisfied in the circumstances of the particular development, the power to grant consent to that development is not enlivened and any purported exercise of the power to grant consent will be invalid: Clifford v Wyong Shire Council (1996) 89 LGERA 240 at 249, 251-252; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 372, 374-375; Franklins Ltd v Penrith City Council [1999] NSWCA 134 at [18], [27], [28]; Manly Council v Hortis [2001] NSWCA 81; (2001) 113 LGERA 321 at [22], [31], [32], [53], [54]; and Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [7]. 91SEFR submitted that the inference should be drawn, from all of the evidence, that the Council did not consider the relevant objectives of Zone 1(a) or form the required mental state of satisfaction that the development is consistent with those objectives. SEFE submitted to the contrary. 92I find that the Council, as the collegiate body that exercised the power to grant consent, neither took into consideration such of the objectives of Zone 1(a) as were relevant to SEFE's development nor formed the required mental state of satisfaction that the development was consistent with those objectives. 93The Council, comprising the councillors as a collegiate body, exercised the power to determine the development application by granting consent. The power was not exercised by a delegate, such as the council officer reporting to the council, Mr Fowler. Hence, the Council, as the collegiate body of councillors, had to consider what were the relevant zone objectives and be satisfied that the development was consistent with those relevant zone objectives. 94The evidence is that the only documents the councillors had before them when they considered and determined SEFE's development application by granting consent were Mr Fowler's two reports to the Council, the first to the Council meeting on 24 May 2011 and the second to the Council meeting on 14 June 2011, together with the respective annexures to those reports, as well as the plans and elevations of the development which were part of the agenda papers for the meeting on 14 June 2011. 95Other documents in the Council's file were not provided to the councillors and no councillor requested to look at, or did look at, the documents in the Council's file. The documents on the Council's file which were not considered by the councillors included: the development application, statement of environmental effects and other documents submitted by SEFE in support of the development application; the 210 public submissions either objecting to or supporting the development; Mr Fowler's first (handwritten) and second Section 79C Assessments; Mr Fowler's document summarising the submissions objecting to or in supporting the development; and Mr Fowler's ESD document. The only other document provided to the councillors was SEFR's submission dated 22 February 2011 which Ms Stone said she placed in front of each councillor at the meeting on 24 May 2011 although Ms Stone said she did not see any councillor read SEFR's submission. 96Mr Fowler's reports to the Council meetings in May and June 2011 did not draw the councillor's attention at all to cl 8(3) of the LEP, either in terms or in effect. Only the May report contained a section "Planning Assessment" and even that consisted only of two paragraphs. The first paragraph merely reported the fact that the Council officer had assessed the proposal in accordance with s 79C of the EPA Act; that is unexceptional - all development applications are required to be assessed in accordance with s 79C of the EPA Act. No detail of the assessment was provided. The first paragraph then stated: "Staff highlight the key issues of the proposal in this report for Council's consideration." 97By this statement, the councillors' attention is only drawn to the "key issues" which are highlighted in the report and to nothing else. Clause 8(3) of the LEP is not one of the key issues highlighted anywhere in the report for the councillors' consideration. 98The second paragraph in the planning assessment section of the May report only refers to the zoning and the permissibility of the development as an industry in that zone. This is a reference to the zoning and development controls in cl 12 of the LEP, distinct requirements from the precondition in cl 8(3) of the LEP. 99The May report returns to the zoning and permissibility of the use in the conclusion where it states that "the proposed development is a permissible use with consent within the 1(a) zoning of the land and is consistent with the existing industrial nature of the site." This is a distinct requirement to the precondition in cl 8(3) of the LEP. The statement that the proposed development "is consistent with the existing industrial nature of the site" is not the relevant test required by cl 8(3) of consistency with such of the objectives of Zone 1(a) as are relevant to the proposed development. 100The only other reference to the issue of the consistency of the development with the zone objectives is in the May report's consideration of the submissions under the topic of "Approval Process". The May report quotes the submission that the development does not promote tourism, which is not consistent with the objectives of the 1(a) zoning and the reference to cl 12(2)(b) of the LEP. However, in the comment in the May report dealing with this submission, the issue raised is totally ignored. The comment focuses instead on another submission that the development is designated development. Hence, one of the "key issues" raised in the May report for Council's consideration was the issue of whether the development was designated development - the report said it was not. The issue of consistency with the zone objectives was not raised as a key issue for the Council's consideration by the comments in the May report. 101Hence, nothing in the May report drew the councillors' attention to cl 8(3) of the LEP or the need to take into consideration such of the objectives of Zone 1(a) as are relevant to the development and to form the requisite mental state of satisfaction that the development was consistent with those objectives, or even stated that the Council staff had considered and formed such a mental state of satisfaction. Indeed, having regard to the express statement that staff had highlighted the key issues of the proposal in the report for the Council's consideration and the fact that cl 8(3) was not an issue highlighted in any way in the report, the councillors would reasonably be expected to have not considered which of the zone objectives were relevant to the proposal or formed the requisite mental state of satisfaction under cl 8(3) that the development was consistent with the relevant zone objectives. 102The June report did not deal at all with a planning assessment. The stated purpose of the June report was merely to assess the three addresses made to the Council meeting on 24 May 2011. The June report stated that "those issues not covered in the previous report to Council are outlined below followed by staff comment." Hence, again, the councillors were being informed of what issues raised by the addresses needed to be considered by the Council. Nowhere in the summary of issues raised in the three addresses or in the comments responding to the issues is there any reference to or consideration of cl 8(3) of the LEP or the development's consistency with the relevant zone objectives. 103In addition to the information in the May report and the June report, the Council also received information at the meeting. At the meeting on 24 May 2011, the additional information was contained in the three addresses by Ms Swift, Ms Stone and Mr Mitchell and in the questions and answers to Ms Swift and Mr Mitchell at the conclusion of their addresses. However, this information did not include cl 8(3) of the LEP in terms or substance. Hence, these addresses and questions and answers did not inform the councillors of the need to consider, or provide an evidentiary basis for considering, cl 8(3) of the LEP and its application to the development. 104The evidence of Mr Tull who attended both the May and June meetings of the Council, and the Question and Answer sessions beforehand, was that there were no questions asked by any councillor or information provided by Mr Tull concerning SEFE's development application hence the application of cl 8(3) to the development. The evidence of Ms Stone, who also attended for the duration of the May and June meetings of the Council, corroborates that the councillors did not discuss cl 8(3) or its application to the development. 105The transcript of the debate at the meeting on 14 June 2011 also shows that there was no discussion of cl 8(3) or its application to the development. 106Mr Tull's explanation of the Council's usual practice provides further evidence that the Council did not consider cl 8(3) and its application to the development in this case. Mr Tull said that the usual practice of Council officers in reporting to the Council is to only identify specific zone objectives if the case officer assessing the development application has reached the opinion that the development is not consistent with the zone's objectives (para 17 of Mr Tull's affidavit of 17 November 2011). Mr Tull gave examples in other cases where the relevant case officer expressly stated in the report to the Council that the development did not meet the zone objectives (para 18). 107This "usual practice" of the Council officers has the consequence that, when the Council is a collegiate body of councillors acting as the consent authority, it only receives information about cl 8(3) and its application to a particular development if and when the Council officer reporting to the Council reaches the opinion that the development is inconsistent with the zone objectives. The Council in that situation is directed by the Council officer's report to give positive attention to the requirement to form a mental state of satisfaction or dissatisfaction as to the consistency of the development with the relevant zone objectives. However, if the Council officer does not reach the opinion that the development is inconsistent with the zone objectives, the officer's report to the Council is silent as to cl 8(3) and its application to the development and no evidentiary basis is provided to the Council to enable it to consider and to form the required mental state of satisfaction as to the consistency of the development with the relevant zone objectives. Mr Tull did not state in his evidence that the Council's usual practice in this situation is, nevertheless, to consider and to form the required mental state of satisfaction as to the development's consistency with the zone objectives. 108From this evidence of usual practice, I infer that the Council only gives positive attention and positively forms the required mental state of satisfaction under cl 8(3) of the LEP in relation to a proposed development if the Council officer reporting to the Council reaches an opinion that the development is not consistent with the zone objectives. 109According to this usual practice, the Council in this case would not have given positive attention to and would not have positively formed the required mental state of satisfaction that SEFE's development was consistent with the relevant objectives of Zone 1(a). Hence, the Council's usual practice corroborates the inference I draw from the other evidence of the Council's consideration and determination of SEFE's development application that the Council did not consider or apply cl 8(3) to the development. 110SEFE sought to rely on Mr Fowler's two Section 79C Assessments as evidencing consideration by the Council of cl 8(3) of the LEP. These assessments do not assist for two reasons. First, the evidence is that the councillors had no knowledge of the contents of these assessments. Neither assessment was provided to any councillor and Mr Tull's evidence is that no councillor asked to look at, or did look at, any documents on the Council's file (which included Mr Fowler's two Section 79C Assessments). Mr Tull's evidence is that no councillor asked any questions, and that Mr Tull provided no information in the Question and Answer sessions before the Council's meeting, concerning SEFE's development application. Hence, there was no oral communication of the contents of the two Section 79C Assessments to the councillors. 111Secondly, neither the first (handwritten) nor the second Section 79C Assessments ticked the box or wrote any comment next to cl 8 of the LEP in the proforma sheets. The assessments were silent as to the issue of the consistency of the development with the zone objectives. The ticking of the box next to cl 12 in both assessments and the addition of the comment in the second Section 79C Assessment that "the use is permissible in the zone subject to Council consent" does not assist in demonstrating consideration of cl 8(3) but rather shows consideration of the zoning and permissibility of the use with consent, distinct issues to those raised by cl 8(3) of the LEP. Even if a proposed development is for a permissible purpose, that does not necessarily lead to a conclusion that the development is consistent with the zone objectives. Separate consideration and formation of a positive opinion of consistency with the zone objectives is required: Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; (2009) 167 LGERA 52 at 79 [84]. 112Hence, even if councillors had considered the two Section 79C Assessments, they would not have had their positive attention drawn to cl 8(3) or its application to SEFE's development. 113SEFE referred to the ticking of the box for cl 65 in each of Mr Fowler's Section 79C Assessments and the addition of the comment in the second assessment considering the matters raised in cl 65 of the LEP. SEFE submitted that the matters in cl 65, and considered in the Section 79C Assessments, substantially overlap with the objectives of Zone 1(a). Hence, SEFE submitted that consideration of the matters in cl 65 in the second Section 79C Assessment effected consideration of the objects of Zone 1(a) for the purposes of cl 8(3) of the LEP. SEFE referred to the statement in Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 at [53] that: "Another consideration relevant to this question is that, so long as the body in question does address the question it is required to address, it does not have to refer explicitly to the statute or instrument that poses the question: the body is required to address the substance of the question, not the fact that the question is posed by a particular statute or instrument. Explicit reference to the statute or instrument will help confirm that the body did address the right question, but absence of such reference does not of itself indicate that it did not." 114In this case, I find that consideration of the matters in cl 65 in the two Section 79C Assessments does not establish consideration by the councillors of cl 8(3) of the LEP. First, as stated above, I find the councillors had no knowledge of the contents of Mr Fowler's Section 79C Assessments, and hence the discussion of the cl 65 matters therein. 115Secondly, the questions that the Council were required to address under cl 65 and under cl 8(3) of the LEP are different. Clause 65 requires only that the consent authority consider such of the matters in cl 65 as are relevant to the proposed development while cl 8(3) requires not only the taking into consideration of such of the objectives of the zone as are relevant to the proposal but also the forming of the mental state of satisfaction that the development is consistent with those objectives. This additional requirement of satisfaction in cl 8(3) is absent from cl 65. 116Thirdly, the matters in cl 65 are not in terms or effect the same as the objectives of Zone 1(a). It is not enough that there are some similarities in the topics covered by the matters in cl 65 and the objectives of Zone 1(a). The question required to be addressed by cl 8(3) is the consistency of the development with the objectives of the relevant zone (here, Zone 1(a)) in the terms in which they are expressed (here, in cl 12(2)). These terms are materially different to the terms in cl 65(1). To address the question required by cl 8(3) by reference to the terms used in cl 65(1) is to address the wrong question. 117Likewise, SEFE submitted that the consideration in the two Section 79C Assessments of the issues under the headings of "Environmental Impacts", particularly in the second Section 79C Assessment with its comments, demonstrated consideration of the objectives of Zone 1(a). SEFE submitted that the issues identified under the "Environmental Impacts" headings overlap with, and mirror, the objectives required to be considered by cl 12(2) and cl 8(3) of the LEP. SEFE submitted that the Council officer, having concluded that the development is satisfactory having regard to the matters identified under the "Environmental Impacts" headings, should also be inferred to have been satisfied that the development is consistent with the zone objectives. 118I do not agree for the same three reasons I rejected SEFE's submission that consideration of cl 65 constitutes consideration of cl 8(3) and cl 12(2) of the LEP: first, the councillors had no knowledge of Mr Fowler's Section 79C Assessments and hence the discussion of the environmental impacts therein; secondly, the questions the Council was required to address under cl 8(3) and cl 12(2), and in particular the requirement of satisfaction of the development's consistency with the relevant zone objectives, are different to the questions raised under the headings of "Environmental Impacts" in the Section 79C Assessments; and thirdly, the terms of cl 8(2) and cl 12(2) are materially different to the terms of the questions in the proforma sheets of the Section 79C Assessments under the headings of "Environmental Impacts". 119SEFE also sought to rely on its statement of environmental effects submitted with its development application, which considered the objectives of Zone 1(a). Again, the statement of environmental effects does not assist SEFE for two reasons. 120First, the evidence is that the councillors were never provided with, never asked to look at, and never did look at the statement of environmental effects, and otherwise, had no knowledge of the statement of environmental effects' discussion of the objectives of Zone 1(a). Hence, the councillors did not consider or adopt the statement of environmental effects' discussion of the zone objectives. 121Secondly, the discussion of the zone objectives in the statement of environmental effects was not adequate in any event to consider or apply cl 8(3) of the LEP to the development. Section 2.2 of the statement of environmental effects, concerning zoning, merely noted that the site of the proposed development was on land zoned 1(a) and set out the objectives of the zone. However, there was neither any reference to cl 8(3) nor any examination in substance of which of the objectives were relevant to the proposed development or of whether the development was consistent with the objectives identified to be relevant (as required by cl 8(3) of the LEP). 122Section 2.3 of the statement of environmental effects, concerning compatibility with planning provisions, is only two paragraphs. The first paragraph contains the unexceptional statement that the LEP requires a range of developments to obtain development consent in Zone 1(a). The second paragraph baldly states: "Given the existing nature of the woodchip production activity and the objectives of the Rural 'A' Zone, the proposed development is compatible with the planning provisions applicable to the site." There is no explanation of what are "the planning provisions applicable to the site." There is no reference to cl 8(3) either in terms or substance. The statement does not ask or answer the relevant questions of which of the core objectives are relevant to the development and whether the development is consistent with the objectives of the zone. There are no findings or inferences of fact demonstrating that the proposed development is consistent with the objectives of Zone 1(a). 123Hence, even if the councillors had considered the statement of environmental effects, they would not have had their positive attention drawn to cl 8(3), either in terms or substance, or its application to the particular development in question. 124Finally, SEFE submitted that the councillors should be assumed to have knowledge of the LEP, and in particular cl 8(3) of it. SEFE submitted that cl 8(3) is a precondition that must be satisfied for all development applications considered by the Council. It stands in contrast to the particular preconditions in the clauses considered in Currey v Sutherland Shire Council and Franklins v Penrith City Council . 125I accept that the cl 8(3) of the LEP is a precondition that the Council must consider and apply before granting consent to all development regulated by the LEP. This may mean that the councillors do have some knowledge of the existence and content of cl 8(3). However, merely being aware of the existence or even of the contents of cl 8(3) of the LEP is insufficient. The Council must enliven that knowledge and apply cl 8(3) to each particular development application. Clause 8(3) demands that the Council not grant consent to the particular development proposed unless the Council has taken into consideration such of the objectives of the zone as are relevant to that particular development and formed the mental state of satisfaction that the particular development is consistent with those relevant objectives. The question is whether the Council did so in the case of SEFE's development application. On the whole of the evidence, I find that the Council, as the collegiate body, did not consider or apply cl 8(3) to SEFE's development application before determining to grant consent to the development proposed. 126For these reasons, the Council did not satisfy the precondition in cl 8(3) of the LEP and therefore had no power to grant consent to the development. The Council's exercise of power to grant consent to the development is invalid.

Failure to consider public submissions 127SEFR's second ground of challenge is that the Council failed to consider submissions made by members of the public in determining the development application and in particular submissions raising the two issues of the consistency of the development with the zone objectives and the principles of ESD. 128SEFR submit that the Council was bound to consider all submissions made by the public under s 79C(1)(d) of the EPA Act, which provides that: "In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (d) any submissions made in accordance with this Act or the regulations". 129The development of the pellet plant is for the purpose of industry. Such development is not designated development or advertised development under the EPA Act and the Environmental Planning and Assessment Regulation 2000. Accordingly, the development application did not need to be notified or advertised, or submissions invited, under the provisions for notification and advertisement of these types of development. 130However, the Council has adopted Development Control Plan No. 3 -Notification Policy under the then s 72 of the EPA Act. The Notification Policy identifies specific development in the LEP that is to be publicly exhibited before an application for development consent is to determined pursuant to the EPA Act (cl 7.2). Notification is required in all instances except where the notification policy specifies that it is not (in cl 7.1). There are 2 types of notification, Type A and Type B. 131Type A notification is stated to be "for minor proposals, and notification is aimed at those on 'adjoining land'." Type A notification consists of a letter being sent to adjoining landowners and occupiers advising them of the development application and inviting written submissions within a period of 14 days from the date of the notification letter (cl 7.3). Type B notification is stated to be "for more complex proposals, where more extensive notification is carried out and is aimed at 'neighbouring land'." Type B notification consists of a letter being sent not only to adjoining landholders and occupiers but also neighbouring landholders and occupiers, as well as placing an advertisement in a local newspaper, inviting written submissions within 14 days from the date of the advertisement (cl 7.3). 132However, the Council retains an element of discretion as to the level of notification required for development that in the opinion of the Director of Environment, Planning and Development is of a nature that the opportunity should be available to submit written comments (cl 7.4). Hence, the Council can, in its discretion, require Type B notification for development for which Table 1 would specify Type A notification, if the particular development is of a nature that more extensive notification is warranted. 133In this case, the Council did determine that more extensive notification was required for SEFE's development and it gave not only Type A notification to adjoining landowners and occupiers but also placed an advertisement in the local newspaper inviting submissions within the submission period of 10 February to 24 February 2011. 210 submissions were received by the Council in response to this advertisement. 134In these circumstances, the submissions made to the Council in the submission period can be characterised as being "submissions made in accordance with the Act or Regulations" within s 79C(1)(d) of the EPA Act. The submissions were made in response to an advertisement placed by the Council in a local newspaper in accordance with the Notification Policy which in turn was made pursuant to the then s 72 of the EPA Act. SEFE did not contest that the submissions made to the Council were made in accordance with the Act or the Regulations. 135SEFR submitted that certain of the submissions made concerned the issues of the development's consistency with the objectives of Zone 1(a) and the application of the principles of ESD to the development. SEFR submitted that both of these issues are relevant matters that the Council was bound to take into consideration in the determination of SEFE's development application. SEFR submitted that when the Council resolved to grant consent to the development, it was done in the absence of any knowledge of the public submissions that had been made on either consistency with the zone objectives or the principles of ESD. The evidence is that no councillor was provided with copies of all of the public submissions (with the exception of SEFR's submission of 22 February 2011 which Ms Stone placed before each councillor at the meeting on 24 May 2011), or asked to look at the Council's file containing the submissions made or was seen to read any submissions. SEFR submitted that the summary of the submissions made in the reports to the Council meetings did not address the issues raised in the public submissions of consistency with the zone objectives or the principles of ESD. Hence, SEFR submitted, the Council failed to take into consideration the public submissions and failed to comply with the requirements of s 79C(1)(d) of the EPA Act: Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 at [186] and [191]. 136SEFE defended the Council's decision, submitting that the Council was entitled to rely on its officer, Mr Fowler, summarising all of the submissions which had been made and reporting to the Council on the submissions in his reports to the Council meetings on 24 May 2011 and 14 June 2011. By adopting the summary of the submissions in the reports, the Council took the submissions into account: Parramatta City Council v Hale (1982) 47 LGRA 319 at 346; Minister for Local Government v South Sydney City Council [2002] NSWCA 288; (2002) 55 NSWLR 381 at 426-427 [211]. 137In my view, SEFR has established that the Council failed to consider the submissions made which raised the issues of the consistency of the development with the zone objectives and the principles of ESD in determining the development application by granting consent. 138The duty under s 79C(1)(d) of the EPA Act requires the body or person who is the consent authority to take into consideration the submissions made in accordance with the Act or Regulations in determining the development application. In this case, it is the Council as the collegiate body who had to take into consideration the submissions. The Council could not delegate that function and duty to someone else, such as a Council officer. The councillors, sitting as the collegiate body, had to apply their own minds to the submissions and the issues raised by the submissions. To do that, they must obtain an understanding of the facts and circumstances set out in the submissions, and of the contentions they urged based on those facts and circumstances. 139This does not mean that the Council as the collegiate body was denied the assistance of others, such as a council officer, in the process of ascertaining the facts and contentions contained in the submissions. The Council could assign to an officer the task of recording, collating, organising and summarising the submissions. The officer could ascertain the facts and contentions raised in the submissions and bring them to the attention of the Council in a summary or report to the Council: see Tickner v Chapman (1995) 57 FCR 451 at 464, 476-477; Minister for Local Government v South Sydney City Council at [211]. 140However, the summary or report of the assisting officer must bring to the Council's attention all material facts and contentions raised in the submissions which the Council as the consent authority is bound to consider and which cannot be dismissed as insignificant or insubstantial: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31; Tickner v Chapman at 477. If the officer leaves out from the summary or report to the Council, and hence does not bring to the Council's attention, the material facts or contentions raised in the submissions, the Council will not be able to perform its function and duty of taking into consideration those submissions by adopting the summary or report alone. The Council cannot perform its task of ascertaining and evaluating the facts and contentions raised in submissions, and hence considering the submissions, unless it knows what they actually are: Tickner v Chapman at 464-465, 476. 141In this case, a number of the submissions made by persons objecting to the development raised the issues that the development was inconsistent or incompatible with the objectives of the relevant Zone 1(a): see, for example, SEFR's submission (Exhibit B, pp 763-773); Mr M Fisher's submission (Exhibit B, p 733); Mr D Reckord's submission (Exhibit B, p 740); Ms W Fuller's submission (Exhibit B, p 747); Ms K Urquhart's submission (Exhibit B, p 782); Ms C Dignan's submission (Exhibit B, p 789); Ms J Dodds' submission (Exhibit B, p 797); Ms H Swift's submission (Exhibit B, p 808); Ms L Katz's submission (Exhibit B, p 819); and Ms L Bower's submission (Exhibit B, p 862). Some submissions also raised the issue that SEFE has not established that the development is consistent with the principles of ESD: see, for example, SEFR's submission (Exhibit B, p 774) and Mr M Harewood's submission (Exhibit B, p 736). 142The Council officer assessing the development application for the Council, Mr Fowler, undertook the task of summarising the submissions in his two reports to the Council for its meetings on 24 May 2011 and on 14 June 2011. However, neither of these reports raised the issues of consistency of the development with the zone objectives or the issue of application of the principles of ESD to the development for the consideration of the Council. 143The May report stated that "the issues raised in the objections are outlined below followed by staff comment." I have summarised earlier in the judgment the May report's consideration of the issues Mr Fowler said were raised in the submissions. Neither the issue of consistency of the development with the zone objectives nor the issue of the application of the principles of ESD to the development was raised in the May report as one of the "issues raised in the objections" or discussed in the May report in the "staff comment". Hence, these issues raised in the submissions were not brought to the attention of the councillors. Councillors reading the May report, especially in the light of the statement that the issues raised in the objections had been outlined in the report, would not have been aware that these issues had been raised in the submissions. These issues were relevant issues for the Council to take into consideration (as I hold elsewhere in the judgment in relation to SEFR's first and third grounds of challenge). The Council could only perform its duty of taking the issues into consideration after it knew that those issues had been raised in the submissions. 144The June report only addressed the issues raised in the three addresses to the Council at its meeting on 24 May 2011. The June report stated that "addresses by Ms Swift and Mrs Stone raised issues objecting to the proposal, and those issues not covered in the previous report to Council are outlined below followed by staff comment." The issues outlined in the June report concerned only two topics: social and economic impact and approval process. Neither the submissions summarised nor the following staff comment in the June report on either of these two topics raised the issues of the consistency of the development with the zone objectives or the principles of ESD. Again, councillors reading the June report would have been unaware that the submissions that had been made had raised the issues of consistency with zone objectives or the principles of ESD. 145The other information provided to the councillors also did not raise the issues of the development's consistency with the zone objectives or the principles of ESD that had been raised in the submissions. The oral addresses to the Council on 24 May 2011, the questions and answers of the persons who addressed the Council on 24 May 2011, and the debate of the Council at its meeting on 14 June 2011 did not address these issues: see my findings earlier in the judgment on SEFR's first ground of challenge. 146SEFE sought to rely on Mr Fowler's two Section 79C Assessments and the separate document Mr Fowler prepared summarising the submissions received by the Council both objecting to and supporting the development. These documents do not assist in establishing consideration by the councillors of the submissions raising the issues of consistency with the zone objectives and the principles of ESD for two reasons. First, I find on the evidence that the councillors were not provided with, did not ask to look at and did not actually look at any of these documents. The councillors were unaware of the contents of the documents and any discussion in them of the submissions. Hence, the councillors cannot be taken to have considered the submissions by reference to these documents. 147Secondly, these documents do not consider the issues of consistency with the zone objectives or the principles of ESD raised in the submissions. The two Section 79C Assessments, in the section on "Public Submissions", noted that submissions had been received and referred to the "separate reporting commenting on issues raised in submissions and Council reports" (May report) or the "attached copy summary of issues detailed in objections and letters of support" (June report). Other, than these respective references, the two Section 79C Assessments do not expressly identify, summarise or comment on the issues raised in the submissions. 148The separate document referred to in each of the Section 79C Assessments was Mr Fowler's summary of submissions objecting to and supporting the development. I have summarised this document earlier in the judgment. Under the topic of "Zoning/Approval process", the document notes the submissions that Zone 1(a) agricultural is not appropriate for the development and that, the development does not promote tourism and is not consistent with the objectives of Zone 1(a). However, in the comment in response, there is no addressing of this issue but instead the comment focuses on other issues raised under this topic. The document does not enable an understanding of the relevant facts and circumstances and the contention urged concerning the inconsistency of the development with the zone objectives based on those facts and contentions, set out in the submissions. The document does not expressly identify the issue of the application of the principles of ESD as having been raised in the submissions and does not address this issue. 149Hence, even if the councillors had considered the two Section 79C Assessments and the document summarising the submissions, they would not have had their positive attention drawn to, and been provided with sufficient information on, the issues of the development's consistency with the zone objectives and the principles of ESD raised in the submissions so as to enable them to take into consideration those submissions. 150In these circumstances, the Council has failed to comply with s 79C(1)(d) of the EPA Act to take into consideration those submissions made which raised the issues of the consistency of the development with the zone objectives and the principles of ESD.

Failure to consider ESD 151SEFR's third ground of challenge is that the Council failed to consider the relevant matter of ESD. SEFR submit that ESD is a relevant matter to be considered in two ways: first, by cl 79 of the LEP and, secondly, as an element of the public interest required to be considered under s 79C(1)(e) of the EPA Act. 152As the first way, cl 79 of the LEP provides: "Before determining an application for consent to development, consideration shall be given by the consent authority to the following in so far as they are relevant to the proposed development and may promote the principles of ecologically sustainable development: (a) building and allotment orientation, (b) conservation, protection and enhancement of natural resources (including riparian areas and remnant native vegetation), (c) optimisation of the use of natural features of the site, (d) reduction of car dependence, (e) use of landscaping to improve air, soil and water quality, (f) optimisation of energy efficiency, (g) waste minimisation." 153The concept of "ecologically sustainable development" is defined in the Dictionary of the LEP to mean "development which uses, conserves and enhances the community's resources so that ecological processes on which life depends are maintained, and the total quality of life, now and in the future, can be increased." 154Clause 79 requires the consent authority to, first, identify which of the matters enumerated in paragraphs (a) to (g) are relevant to the development proposed in the development application and, secondly, consider whether and to what extent the development promotes the principles of ecologically sustainable development (as defined) having regard to those matters identified to be relevant to the development. 155As to the second way, s 79C(1)(e) of the EPA Act requires a consent authority to take into consideration the public interest in determining a development application. Consideration of the public interest embraces ESD where issues relevant to one or more of the principles of ESD are raised by the development the subject of the development application: Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; 146 LGERA 10 at [121]-[124]; Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at 451 [42]-[43]. 156The Council officer assessing SEFE's development application, Mr Fowler, identified the principles of ESD to be relevant to the development proposed, both in terms of cl 79 of the LEP and the wider principles of ESD. As I have summarised earlier in the judgment, in the first (handwritten) Section 79C Assessment, Mr Fowler ticked the box next to cl 79 of the LEP and the box signifying consideration of the principles of ESD and, in the second Section 79C Assessment, he ticked the box next to cl 79 of the LEP and added a written comment discussing the application of cl 79 to the development and ticked the box signifying consideration of the principles of ESD and said "see assessment above". Mr Fowler also prepared the separate ESD document which states that the development has been assessed in accordance with the both the Council's own provisions for ESD in the LEP (ie in cl 79) and wider principles of ESD. I have set out Mr Fowler's discussion in the ESD document earlier in the judgment. 157ESD, in terms of cl 79 of the LEP and as an element of the public interest under s 79C(1)(e) of the EPA Act, were relevant matters to be taken into consideration by the Council in determining SEFE's development application. However, I find that the Council as the collegiate body with the duty to take ESD into consideration in determining to grant consent to SEFE's development, failed to do so. 158None of the material considered by the Council at its meetings on 24 May 2011 or 14 June 2011 in determining the development application addressed ESD, either in terms of cl 79 of the LEP or as an element of the public interest under s 79C(1)(e) of the EPA Act. This is not a case where it is necessary to address the level of particularity of the principles of ESD that the consent authority is bound to consider, such as was the case in Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349. There was simply no consideration by the Council as the collegiate body of ESD at all. 159Neither the May report nor the June report referred to ESD. The May report in its section on "planning assessment" does not deal at all with cl 79 of the LEP. It asserts that: "The proposal has been assessed in accordance with the matters for consideration under s 79C of the Environmental Planning and Assessment Act 1979." However, there is no explanation of what the matters for consideration are or of any assessment in accordance with the matters. The subsequent statement that "[s]taff highlight the key issues of the proposal in this report for Council's consideration" informs the Council that the key issues of planning assessment are highlighted elsewhere in the report. However, nowhere in the report is either cl 79 of the LEP or ESD as an element of the public interest under s 79C(1)(e) of the EPA Act highlighted. 160The June report assessed the issues raised by the three addresses to the Council on 14 June 2011. These were dealt with under the topics of social and economic impact and approval process. Nowhere in the submissions or the following staff comment on these two topics is ESD dealt with in the June report. 161The oral addresses to the Council on 24 May 2011, the questions and answers of the persons who addressed the Council on 24 May 2011 and the debates of the Council at its meeting on 14 June 2011 did not address ESD either in terms of cl 79 of the LEP or as an element of the public interest under s 79C(1)(e) of the EPA Act. 162SEFE sought to rely on Mr Fowler's two Section 79C Assessments as well as Mr Fowler's separate ESD document, which do consider both cl 79 of the LEP and wider principles of ESD. However, I find on the evidence that the councillors were not provided with, did not ask to look at, and did not look at any of these documents and that the councillors were unaware of the contents of the documents and the discussion of ESD in them. Accordingly, the councillors, as the consent authority, cannot be taken to have considered ESD under cl 79 of the LEP or as an element of the public interest under s 79C(1)(e) of the EPA Act by considering and adopting the discussion of these relevant matters in these documents. 163Accordingly, I find that the Council failed to take into consideration in determining the development application cl 79 of the LEP and ESD as an element of the public interest under s 79C(1)(e) of the EPA Act.

Failure to consider anthropogenic climate change 164SEFR's final ground of challenge is that the Council failed to take into consideration the effect of the development on anthropogenic climate change. SEFR submitted that the Council was obliged to take into consideration the effect of the development on anthropogenic climate change as an element of the public interest under s 79C(1)(e) of the EPA Act. 165SEFR submitted that the development would have both downstream and upstream impacts on climate change. The downstream impacts come from the burning of the pellets produced by the pellet plant, by emitting greenhouse gases. The upstream impacts come from the logging of native forests (which are a carbon sink) to supply the timber for the woodchip mill or for sawmills in the area, from which mills the wood waste, which is the raw material for making the pellets, will be sourced. 166SEFE submitted that the Council considered the potential impacts of the development on climate change, including both the downstream and upstream impacts. 167In my view, SEFR has not established this ground of review. 168The relevant matter, which the Council as the consent authority was bound to take into consideration in determining the development application, was the public interest under s 79C(1)(e) of the EPA Act. The precise content of the public interest that a consent authority must take into consideration in determining any particular development application will depend on the relevant facts and circumstances, including of the development and the impact of the development on the environment. In certain circumstances, the impact of a development on climate change, or conversely the impact of climate change on a development, may be facts of such importance that, if they are not considered, it could be said that the relevant matter of the public interest has not been taken into consideration. As was said in Minister for Aboriginal Affairs v Peko-Wallsend at 61, the facts to be brought to mind, in having regard to a relevant matter, are "the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered": see also Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99 at [45]. 169In this case, SEFR submitted that the downstream and upstream impacts of the development, in the general way I have described, were impacts of such importance that, if they were not taken into consideration, the Council would have failed to take into consideration the public interest. 170Even if this were to be assumed for the purposes of this case, I am of the view that SEFR has not established that the Council did not take those matters into consideration. 171In relation to the downstream impacts, the May report brought to the attention of the councillors both the submissions made and the staff comments on the global warming emissions from burning the pellets as well as the impact on humans by emissions from burning the pellets: see the summary given earlier in the judgment of the May report's discussion of these matters. 172The issue of emissions was again briefly raised by Ms Swift in her oral address to the Council at its meeting on 24 May 2011. Mr Mitchell from SEFE, in his oral address to the councillors at the May meeting, also referred to the emissions from burning the pellets, that the pellets were a greener alternative to fossil fuels, and that production of the pellets involves beneficial use of waste shavings from sawmills that would otherwise be disposed of by burning (Exhibit A, pp 652-653). In his answers to questions from councillors after his address, Mr Mitchell referred to the efficiency of, and emissions from, burning the pellets (Exhibit A, pp 654-655). 173The June report to the Council meeting on 14 June 2011 referred the councillors to, but did not repeat, the discussion of the issues raised by objectors in the May report. The June report annexed the written versions of the three addresses made to the Council's May meeting. 174In relation to the upstream impacts, the May report brought to the attention of the councillors both the submissions made and the staff comments on the source of materials issue. The staff comment, and the recommended conditions of consent, dealt with the upstream impacts in three ways. First, to prevent the plant from sourcing raw materials for production of the pellets directly from native forests, the draft consent recommended imposition of a condition prohibiting the use of any materials in the process classified as native forest bio-material defined in cl 96 of the Protection of the Environment Operations (General) Regulation 2009 (condition 3 of the draft consent). Secondly, the May report recorded SEFE's indication that the wood waste, which would provide the raw material for production of the pellets, would be sourced from hardwood and softwood mills located in a 100 km radius of SEFE's mill and fines from SEFE's own woodchip mill. Thirdly, verification of the source and volume of raw materials and production output would be ensured by imposition of a condition that SEFE record the source and volume of all raw feed materials and the production output, and provide copies of the records annually to the Council and to the Office of Environment & Heritage (condition 4 of the draft consent). The staff comment in the May report was that these conditions would address the source of materials issues raised in the submissions. 175The May report also addressed the issue raised in the submissions that the development would encourage the destruction of forests and exacerbate the dire climate emergency. The staff comment on these issues repeated that imposition of the proposed conditions of consent would ensure that native forest bio-material is not used for the development and that instead the development would only use waste wood from existing sawmills and the chipmill. In this way, the plant would not encourage destruction of the forest or exacerbate the climate emergency. The May report also stated that, "the ethics of forest logging is not a consideration in the assessment of this application." Finally, the May report annexed a copy of DECCW's letter of 17 March 2011 which addressed the issue of the "Source of Wood Material for Pellet Manufacture". DECCW stated: "DECCW is satisfied that the proponent has now provided suitable information with regard to the type and source of raw feed material. DECCW requests that the raw feed material be explicitly defined within any consent and that the proposed sources of this raw feed material should be controlled through the consent." (Exhibit A, p 532). 176Ms Swift, in her oral address to the Council at its meeting on 24 May 2011, a copy of which was provided to the councillors in the June report, specifically addressed the proposed condition 3 which prohibited use of native forest bio-material. Ms Swift extracted for the benefit of the councillors the definition of native forest bio-material contained in cl 96 of the Protection of the Environment Operations (General) Regulation 2009. Ms Swift referred to the just released report of the Climate Commission and said that it calls for an end to the logging of native forest. Ms Swift said that: "At a time when Australia is finally waking up to the importance of our native forests in combating climate change, it would be a very sad day for the Bega Valley to be leading the charge in the other direction, giving the green light to yet another pretext for destroying the forests and turning them into carbon dioxide." (Exhibit A, p 535). 177Ms Stone, on behalf of SEFR, in her address to the Council, also submitted that native forests are being logged at an unsustainable rate and that one of the adverse impacts of native forest logging is on greenhouse gas emissions. Ms Stone also referred to the Climate Change Committee's recently released report which, she said, underscored the importance of eliminating harvesting of old growth forests in reducing emissions from land ecosystems. Ms Stone tabled with the councillors, and referred in her address to, SEFR's written submission of 22 February 2011. This contained extensive discussion of the adverse impacts of native forest logging. Ms Stone referred to opinion polls which showed that the majority of people are concerned about climate change and deforestation and want an end to native forest logging. 178Mr Mitchell, in his oral address to the Council, referred to the staff comment in the May report that the ethics of forest logging is not a consideration in the assessment of the application. He stated that SEFE operates under the regional forest agreement and EPA licence and sources its timber for the chipmill under Australian Forestry Standards and complies with all regulatory statutes. After his address, councillors asked and Mr Mitchell answered questions including about the proportions of softwood and hardwood and the mills from which SEFE would source the material within 100 kms. 179The June report referred to and annexed copies of the three addresses to the May Council meeting. The June report specifically addressed the issue raised by Ms Stone of the adverse impacts of native forest logging and the concern about climate change and deforestation. The comment in the June report reiterated that the raw material to be used for the plant would be sourced from hardwood and softwood sawmills within 100 kms of the chipmill site or fines generated from the chipmill operation. The June report repeated that the ethics of forest logging is not a consideration in the assessment of the application and stated that the existing chipmill operates within the existing development approvals and other approvals from State and Federal government and legislation. It referred to the proposed conditions that would limit the operation of the plant, and, "in the opinion of staff, would appropriately mitigate concerns raised over additional logging of Native Forests." 180In the conclusion, the June report noted that: "The majority of the grounds for objection to the proposal raised in the addresses to Council by Ms Swift and Mrs Stone relate to the logging of Native Forests in the South East Region of Australia which is not a consideration in this report. The applicant has detailed that the materials to be utilised for the pellet plant would be obtained from sawmills or from waste materials generated at the chip mill itself. The attached draft consent details conditions that would limit the materials to be used for the pellet plant and provide reporting mechanisms detailing the source of materials to be used in the plant." (Exhibit A, p 587). 181At the meeting on 14 June 2011 of the Council's Planning and Environment Committee, Councillor Hughes expressly referred to the staff comment in the May and June reports, and picked up by Mr Mitchell in his address to the May meeting, that "the ethical issues of native forest logging weren't to be considered." He said the Council should be thinking about "all the values that can be derived from native forests" (Exhibit A, p 657). Councillor Hughes went on to urge the Council to impose a monetary rate on the chipmill for the wood it used. 182Councillor Seckold addressed the statement that "raw material will be sourced from wood and softwood mills within 100 kms of the chipmill." He said that this may be adequate for the pilot plant but not for a full-scale pellet production mill in the future. He expressed concern that "there is no assessment for procuring the raw materials needed for the mill." (Exhibit A, p 660). 183After the debate, the councillors voted, by majority, in favour of the recommendation in the June report to grant development consent (Councillors Hughes and Seckold voted against the recommendation). 184On this evidence, I find that SEFR has not established that the issues of the downstream and upstream impacts of the development on anthropogenic climate change were not taken into account by the Council, as the collegiate body, in determining the development application. Accordingly, even assuming that these issues were elements of the public interest, SEFR has not established that the Council failed to take them into account and hence failed to properly consider the public interest under s 79C(1)(e) of the EPA Act.

Conclusion and orders 185SEFE has established the first, second and third grounds, but not the fourth ground, of challenge to the development consent. These successful grounds ordinarily would have the consequence of invalidating the development consent. SEFE submit, nevertheless, that the Court, either in its discretion or under s 25B of the Land and Environment Court Act 1979, should not declare the consent invalid for six reasons: "(a) First, the proposal is located in an already environmentally damaged location. (b) Secondly, the development is a relatively small one in the context of the scale of the Second Respondent's existing wood chip mill operation. (c) Thirdly, the development has environmental benefits in that it has energy recovery potential, and may reduce emissions generated by the existing burning of wood waste. (d) Fourthly, the development has already been ordered, tested and paid for, and the shed component fully constructed. (e) Fifthly, the development consent was granted by the Council on 14 June 2011, and the construction certificate was issued on 24 June 2011. The Second Respondent commenced construction of the shed on 27 June 2011, and completed it by 25 August 2011. Notwithstanding that, the applicant delayed in bringing its claim until 12 August, when construction was nearly complete. (f) Sixthly, given the scale and nature of the development, there is no real prospect of the development being refused by Council in the event that the DA is remitted back to Council" (para 61 of second respondent's outline of submissions). 186I disagree. The EPA Act reposes in the consent authority the duty to determine the development application in accordance with law, including by taking into consideration and forming the requisite mental state of satisfaction about specified relevant matters. I have found that the Council has failed to comply with its duty. It is the Council, not the Court, that is, in law, required to determine the development application by considering and weighing the relevant matters. The failures I have found established are not technical breaches of no materiality. The duty to determine the development application, in accordance with law, has not been fulfilled. The Council, as the consent authority with that duty, should now discharge the duty. I do not find that there is no real prospect that the Council, properly exercising its duty, will not make a different decision. In any event, however, the decision is for the Council to make and I should not substitute, in the guise of exercising a discretion to refuse relief, my decision as to the merits of the application: see similar concerns expressed in Warren v Electricity Commission of NSW (1990) 130 LGERA 565 at 602-604. The proper course is for the Council to consider and determine again, in accordance with law, the development application. 187I do not find that the fact that SEFE ordered, paid for and accepted delivery of the pellet plant prior to the grant of development consent, is a matter justifying declining declaratory relief. I do not find that the delay between the Council's determination of the development application on 14 June 2011 and the commencement of the proceedings challenging that consent on 12 August 2011 to be unreasonable or warrant declining granting declaratory relief. The speed at which the pellet plant was erected was in part a reflection of the fact that SEFE had already taken delivery of the pellet plant prior to obtaining development consent and the fact that it was relatively easily erected as a pilot plant. I do not consider that significant prejudice has been established by SEFE if the consent were to be declared invalid and the Council were to be required to consider and determine again the development application. 188Accordingly, the development consent should be declared invalid. 189The question of the costs of the proceedings was not argued. Ordinarily, these being Class 4 proceedings, the costs should follow the event. This would mean that there should be an order for costs of the proceedings in favour of the applicant. However, I will reserve the question of costs to afford the parties an opportunity to consider their position. If the parties reach agreement on the costs order to be made, consent orders can be filed and I will make orders in chambers in accordance with the consent orders. Otherwise, the parties should list the matter before me for hearing and determination of the appropriate costs order to be made. 190The Court:

Declares that development consent dated 14 June 2011 granted by Bega Valley Shire Council to development application No. 2011.0035 for the installation of a wood pellet manufacturing plant at Lot 16 DP 1066187, Edrom Road, Eden, is invalid and of no effect.
Reserves the question of the costs of the proceedings. 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: 19 December 2011

(1998) 100 LGERA 365

(2007) 158 LGERA 349

(2001) 113 LGERA 321

(2008) 161 LGERA 423

(1990) 130 LGERA 565

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