Teys Australia Southern Pty Limited v Burns

8074 (Penny Sharpe)) Category: Principal judgment Parties: Teys Australia Southern Pty Limited (Applicant) Craig William Burns (First Respondent 13/40893) Geoffrey Lyford Ashley (First Respondent 13/40894) Wagga Wagga City Council (Second Respondent) Representation: Counsel: Mr A Galasso SC (Applicant) Mr P Larkin SC with Ms E Whitby (First Respondents) Submitting appearance (Second Respondent)

Solicitors: Henry Davis York (Applicant) Susan Hill & Associates (First Respondents) Lindsay Taylor Lawyers (Second Respondent) File Number(s): 40893 of 2013, 40894 of 2013

Judicial review challenges to grant of two development consents

1. The Applicant Teys Australia Southern Pty Limited challenges in different proceedings the grant of two development consents for subdivision by Wagga Wagga City Council (the Council) the Second Respondent to two different First Respondents in relation to different parcels of land. The basis for granting consent by the Council was effectively the same so that both proceedings can be dealt with together. The Council has filed a submitting appearance in both proceedings.
2. The Applicant owns and operates a meat processing facility (the facility) at Dampier Street, Wagga Wagga. The facility is situated within an area of land zoned IN1 - General Industrial under the Wagga Wagga Local Environmental Plan 2010 (the 2010 LEP). This area of industrial zoned land is known as the Bomen Industrial Estate. The First Respondents own land in the adjoining area known as Cartwrights Hill.
3. The Applicant seeks a declaration that the consent granted to Development Application DA 13/0192 for residential subdivision, on land at Lot 28 in DP 2655 on 25 July 2013, and the consent granted to Development Application DA 13/0183 for residential subdivision, on land at Lot 83 DP 751422 on 25 July 2013 by the Council are void and of no effect. Consequential orders restraining the First Respondents from conducting any development under the purported authority of the consents are also sought.
4. For the reasons which follow I consider both Class 4 proceedings should be dismissed as the judicial review challenges are unsuccessful.

Environmental Planning and Assessment Act 1979

1. The statutory scheme for the making and consideration of an environmental planning instrument (EPI) was amended significantly in amendments to Pt 3 Div 4 and Pt 4 Div 2 (s 79C(1)) which commenced on 1 July 2009. These amended provisions have not received much judicial consideration to date. Relevant sections of the Environmental Planning and Assessment Act 1979 (EPA Act) are: Part 3 Environmental planning instruments Division 4 LEPs 53 Minister may make environmental planning instruments for local areas (LEPs) (1) The Minister may make environmental planning instruments for the purpose of environmental planning: (a) in each local government area, and (b) in such other areas of the State (including the coastal waters of the State) as the Minister determines. (2) Any such instrument may be called a local environmental plan (or LEP). 54 Relevant planning authority (1) For the purposes of this Part, the relevant planning authority in respect of a proposed instrument is as follows: (a) the council for the local government area to which the proposed instrument is to apply, subject to paragraph (b), (b) the Director-General or any other person or body prescribed by the regulations if the Minister so directs under subsection (2). (2) The Minister may direct that the Director-General (or any other person or body prescribed by the regulations) is the relevant planning authority for a proposed instrument in the following cases: (a) the proposed instrument relates to a matter that, in the opinion of the Minister, is of State or regional environmental planning significance, (b) the proposed instrument makes provision that, in the opinion of the Minister, is consequential on the approval of the concept plan for a project under Part 3A, is consequential on the making of another environmental planning or other instrument or is consequential on changes made to a standard instrument under section 33A, (c) the Planning Assessment Commission or a joint regional planning panel has recommended to the Minister that the proposed instrument should be submitted for a determination under section 56 (Gateway determination) or that the proposed instrument should be made, (d) the council for the local government area concerned has, in the opinion of the Minister, failed to comply with its obligations with respect to the making of the proposed instrument or has not carried out those obligations in a satisfactory manner, (e) the proposed instrument is to apply to an area that is not within a local government area (subject to subsection (6)). (3) A relevant planning authority that is requested by the owner of any land to exercise its functions under this Division in relation to the land may, as a condition of doing so, require the owner to carry out studies or provide other information concerning the proposal or to pay the costs of the authority in accordance with the regulations. (4) The Minister may, in a direction under this section, require a council to provide studies or other information in its possession relating to the proposed instrument to be provided to the person or body specified in the direction as the relevant planning authority for the proposed instrument. (5) Two or more relevant local authorities may together exercise the functions under this Division of a relevant planning authority in connection with the making of a single principal or amending instrument in relation to the whole of their combined areas. (6) A reference in this section to a local government area includes a reference to an adjoining area that is not within a local government area and that is designated as part of that local government area for the purposes of this Division by the Minister by order published in the Gazette. Note. Section 117 enables directions to be given to councils or other relevant planning authorities on the exercise of functions under this Division in relation to the making of an instrument. 55 Relevant planning authority to prepare explanation of and justification for proposed instrument - the planning proposal (1) Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal). (2) The planning proposal is to include the following: (a) a statement of the objectives or intended outcomes of the proposed instrument, (b) an explanation of the provisions that are to be included in the proposed instrument, (c) the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117), (d) if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land - a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument, (e) details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument. (3) The Director-General may issue requirements with respect to the preparation of a planning proposal. 56 Gateway determination (1) After preparing a planning proposal, the relevant planning authority may forward it to the Minister. (2) After a review of the planning proposal, the Minister is to determine the following: (a) whether the matter should proceed (with or without variation), (b) whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal), (c) community consultation required before consideration is given to the making of the proposed instrument (the community consultation requirements), (d) any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument, (e) whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body, (f) the times within which the various stages of the procedure for the making of the proposed instrument are to be completed. (3) A determination of the community consultation requirements includes a determination under section 73A (or other provision of this Act) that the matter does not require community consultation. (4) The regulations may provide for the categorisation of planning proposals for the purposes of this section, and may prescribe standard community consultation requirements for each such category. (5) The Minister may arrange for the review of a planning proposal (or part of a planning proposal) under this section to be conducted by, or with the assistance of, the Planning Assessment Commission or a joint regional planning panel: (a) if there has been any delay in the matter being finalised, or (b) if for any other reason the Minister considers it appropriate to do so. (6) The relevant planning authority may, at any time, forward a revised planning proposal to the Minister. (7) The Minister may, at any time, alter a determination made under this section. (8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section. 57 Community consultation (1) Before consideration is given to the making of a local environmental plan, the relevant planning authority must consult the community in accordance with the community consultation requirements for the proposed instrument. (2) The planning proposal (as revised to comply with the determination under section 56 and in a form approved by the Director-General) is to be made publicly available during the period of community consultation. Detailed provisions may be summarised instead of being set out in full if the Director-General is satisfied that the summary provides sufficient details for community consultation. (3) During the period of community consultation, any person may make a written submission to the relevant planning authority concerning the matter (other than any matter that is mandatory under an applicable standard instrument under section 33A). (4) The relevant planning authority may (but need not) make publicly available, in accordance with the community consultation requirements, the submissions made concerning a matter (or a summary of or report on any such submissions). (5) If: (a) a person making a submission so requests, and (b) the relevant planning authority considers that the issues raised in a submission are of such significance that they should be the subject of a hearing, the relevant planning authority is to arrange a public hearing on the issues raised in the submission.(6) The relevant planning authority may arrange a public hearing on any issue whether or not a person has made a submission concerning the matter. (7) A report of any public hearing is to be furnished to the relevant planning authority and may be made publicly available by that authority. (8) The consultation required by this section is completed when the relevant planning authority has considered any submissions made concerning the proposed instrument and the report of any public hearing. 58 Relevant planning authority may vary proposals or not proceed (1) The relevant planning authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason. (2) If it does so, the relevant planning authority is to forward a revised planning proposal to the Minister. (3) Further community consultation under section 57 is not required unless the Minister so directs in a revised determination under section 56. (4) The relevant planning authority may also, at any time, request the Minister to determine that the matter not proceed. 59 Making of local environmental plan by Minister (1) The Director-General is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority. The Director-General is to consult the relevant planning authority, in accordance with the regulations, on the terms of any such draft instrument. (2) The Minister may, following completion of community consultation: (a) make a local environmental plan (with or without variation of the proposals submitted by the relevant planning authority) in the terms the Minister considers appropriate, or (b) decide not to make the proposed local environmental plan. (3) The Minister may defer the inclusion of a matter in a proposed local environmental plan. (4) If the Minister does not make the proposed local environmental plan or defers the inclusion of a matter in a proposed local environmental plan, the Minister may specify which procedures under this Division the relevant planning authority must comply with before the matter is reconsidered by the Minister. Part 4 Development assessment Division 2 The procedures for development that needs consent 79C Evaluation (1) Matters for consideration - general 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: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.

Previous legislation

1. Section 79C(1)(a)(ii) of the EPA Act as at 30 June 2009 provided: 79C Evaluation (1) Matters for consideration - general 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: (a) the provisions of: … (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and…
2. The court book was tendered (exhibit A). It contains the amended summonses, agreed statements of fact, agreed chronology and submissions, inter alia. Five volumes of documents were also tendered (exhibit B). The affidavit of Mr Gavin Shapiro solicitor dated 19 August 2014 was read. Mr Shapiro states that the five volumes of documents tendered are all the documents from the Council's files. There is no dispute about the documents in evidence or the chronology of events referred to by the parties
3. The parties agreed a statement of facts (SOAF), which has been expanded with uncontested facts referred to during the hearing, as follows: The 2010 LEP and the decision to defer Cartwrights Hill from inclusion in the Wagga Wagga Local Environmental Plan 2010 4. The Wagga Wagga City Council Planning Panel ("Wagga Wagga Planning Panel") was appointed under section 118 and 118AA of, and Schedule 5B to, the Environmental Protection [sic] and Assessment Act 1979 (the "Act") as the relevant planning authority to prepare and draft local environmental plans under section 64 and 68 of the Act, by order dated 7 November 2007. (It was not disputed that on 17 February 2010, the Wagga Wagga Planning Panel met to consider a report to the Wagga Wagga Planning Panel on the draft Wagga Wagga Local Environmental Plan 2008 (Draft 2008 LEP). The report recommended the exclusion of two areas from the Draft 2008 LEP, being: (a) Land at Cartwrights Hill; and (b) Land at Estella.) 5. At a meeting on 17 February 2010, the Wagga Wagga Planning Panel resolved to forward the draft Wagga Wagga Local Environmental Plan 2008 (the "Draft 2008 LEP") to the (then) Minister for Planning ("Minister"), with a request that the Draft 2008 LEP be made. 6. On 16 July 2010, the Minister made the Draft 2008 LEP (which on gazettal became the current 2010 LEP). 7. Two areas within the local government area of Wagga Wagga City Council (the "Council") were expressly excluded from land to which the 2010 LEP applies, being: (a) Land at Cartwrights Hill (the "Deferred Land"); and (b) Land at Estella. 8. The Deferred Land is subject to the planning controls in the Wagga Wagga Local Environmental Plan 1985 (the "1985 LEP"). 9. The First Respondents' land is within the Deferred Land. 10. Under the 1985 LEP, the First Respondents' land is zoned "Residential". Under the Wagga Wagga Development Control Plan 2005 (DCP), the First Respondents' land is sub-zoned Residential 2a, General (Urban Living Area). The minimum lot size in that sub-zone is ten dwellings per hectare. First Planning Proposal 11. On 21 June 2010, the Wagga Wagga Planning Panel met to consider a report in relation to the Deferred Land. The Wagga Wagga Planning Panel resolved, amongst other things, to place on informal public exhibition a concept proposal for the inclusion of the Deferred Land in the 2010 LEP by amending the 2010 LEP, rezoning that land and establishing controls in relation to minimum lot sizes. 12. From 5 July 2010 to 15 August 2010, the concept proposal for the amendment of the 2010 LEP was placed on informal public exhibition. 13. On 1 September 2010, the Wagga Wagga Planning Panel met to consider a further report in relation to the Deferred Land. At that meeting, the Wagga Wagga Planning Panel resolved, among other things, to formally place the concept proposal referred to in paragraph 11 on public exhibition ("First Planning Proposal"). 14. From 8 September 2010 to 5 October 2010, the First Planning Proposal was placed on formal public exhibition. 15. The First Planning Proposal proposed to rezone the First Respondents' land to R5 (Large Lot Residential) zone with a minimum lot size of 1 hectare. Changes to the First Planning Proposal and to the relevant planning authority for the Deferred Land 16. At a meeting held on 13 October 2010, the Wagga Wagga Planning Panel resolved to approve a number of changes to the First Planning Proposal following its public exhibition. 17. By way of letter dated 10 February 2011, the Minister advised the Chair of the Wagga Wagga Planning Panel that it could not be the relevant planning authority to prepare a planning proposal in relation to the Deferred Land. By way of the same letter dated 10 February 2011, and pursuant to an order published in the Government Gazette dated 25 August 2009, the Minister directed the Wagga Interim Joint Planning Panel (the "Interim JRPP") to be the relevant planning authority under section 23G of the Act. (it was not disputed that between February 2010 and October 2011 various studies and reports were prepared in relation to the Deferred Land. These reports and studies examined noise and odour issues in respect of industries within the Bomen Industrial Estate.) 18. At a meeting on 4 May 2011, the Interim JRPP resolved to prepare a planning proposal, based on the changes approved by the Wagga Wagga Planning Panel at its meeting on 13 October 2010, and to submit the planning proposal for gateway determination. 19. On 12 May 2011, Ian Grant of the Council sent a letter to Brett Whitworth, Regional Director, Southern Region, NSW Department of Planning. There were a number of documents attached to that letter, including: (a) an amended version of the First Planning Proposal; (b) maps accompanying the amended version of the First Planning Proposal; and (c) a copy of a letter referred to in paragraph 17. 20. On 14 September 2011, the Minister abolished the Interim JRPP and Wagga Wagga Planning Panel. A new planning authority for Wagga Wagga City was established called the Southern Joint Regional Planning Panel (the "JRPP") under section 23G of the Act, pursuant to powers granted to the JRPP by order dated 14 September 2011 and gazetted on 16 September 2011. (It was not disputed that the order also had the effect that JRPP became the relevant planning authority for the planning proposal.) Second Planning Proposal 21. By way of letter dated 28 October 2011, the Deputy Director-General of the Department of Planning and Infrastructure decided that the proposed rezoning of the Deferred Land (and the land at Estella) should proceed subject to a number of conditions (the "Gateway Determination"). One of the conditions required community consultation, as well as public exhibition of relevant odour studies. 22. At its meeting held on 8 February 2012, the JRPP resolved to place an amended planning proposal and supporting documents on public exhibition ("Second Planning Proposal") in accordance with the Gateway Determination. 23. The Second Planning Proposal proposed to rezone the First Respondents' land to R5 (Large Lot Residential) zone with a minimum lot size of 1 hectare. 24. From 20 March 2012 to 20 April 2012, the Second Planning Proposal and supporting documents was placed on public exhibition. 25. On 27 June 2012, the JRPP resolved to suspend consideration of the Deferred Land component of the Second Planning Proposal until the completion of a further report and investigations, arising from concerns about possible conflicts between the nearby Bomen Industrial Estate and further residential subdivision and development in Cartwrights Hill, particularly in relation to the issue of odour. 26. By way of letter dated 13 July 2012, the JRPP requested the Minister to make the amendments to the 2010 LEP to the land at Estella as proposed by the Second Planning Proposal and to grant an extension in time for completion of the amendment to the 2010 LEP in relation to the Deferred Land. 27. By way of letter on 28 September 2012, the Acting Director-General of the Department of Planning and Infrastructure amended the Gateway Determination to allow for further time for completion of the amendment to the 2010 LEP in respect of the Deferred Land by 9 months to 4 May 2013. Third Planning Proposal 28. Following further consultations and additional studies, a revised planning proposal was prepared for public exhibition ("Third Planning Proposal").The Third Planning Proposal only applied to the Deferred Land. It proposed to: (a) enlarge the area subject to the RU6 (Transition) zone; (b) alter a portion of Lot 4 DP700113 from R5 (Large Lot Residential) zone to RU1 (Primary Production) zone; and (c) impose a minimum lot size of 8 hectares for land within the proposed R5 (Large Lot Residential) zone. 29. At its meeting of 8 February 2013, the JRPP resolved, amongst other things, to place the Third Planning Proposal on public exhibition. 30. From 18 February 2013 to 18 March 2013, the Third Planning Proposal was placed on public exhibition. 31. The Third Planning Proposal proposed to rezone the First Respondents' land to R5 (Large Lot Residential) zone with a minimum lot size of 8 hectares. 32. By a report dated 16 May 2013 to the JRPP, the Council recommended that the JRPP, among other things: (a1) receive and note submissions; (a) approve the expansion of the RU6 (Transition) zone and the R5 (Large Lot Residential) zone (as described on the relevant map); (b) approve a minimum lot size of 8 hectares for the R5 (Large Lot Residential) zone; (c1) endorse the report; (c) authorise the lodgement of the Third Planning Proposal with the Director-General of the Department of Planning and Infrastructure, with a recommendation that the Minister make the proposed amendments to the 2010 LEP; (d) furnish a copy of the report and other relevant information to the Department of Planning and Infrastructure, in accordance with section 57 of the Act; and (e) advise the Department of Planning and Infrastructure that the JRPP has complied with section 58 of the Act in relation to public involvement in finalising the Deferred Land; and (f) endorse the preparation of a supplementary planning proposal to adjust problematic zoning edges on the western edge of the R5 Large Lot Residential zone. Following the exhibition of the Third Planning Proposal , the JRPP met on 16 May 2013 to consider the Third Planning Proposal . A report was prepared by the Council which recommended, amongst other things, the making of the Local Environmental Plan in accordance with the Third Planning Proposal (including with a minimum lot size of 8 hectares for the proposed R5 Large Lot Residential Zone). 33. At a meeting held on 16 May 2013, the JRPP resolved to, among other things: (a) request a further report on appropriate zonings for the Deferred Land; (b) request the Council to investigate the appropriateness and extent of a minimum lot size of less than 8 hectares in the R5 (Large Lot Residential) zone; and (c) request the council to commission further odour and noise impact studies. 34. The JRPP requested the above be completed within three months of the date of the meeting. 35. By letter dated 17 July 2013, the Executive Director - Rural and Regional Planning of the Department of Planning and Infrastructure amended the Gateway Determination to allow for further time for completion of the amendment to the 2010 LEP in respect of the Deferred Land by an additional 8 months to 4 January 2014. The granting of Development Consent 36. On or around 12 April 2013, the First Respondent (Burns) lodged a development application ("DA 13/0183") with the Council seeking development consent for the subdivision of the First Respondent's land into five residential lots and one residue lot and access road. Each of the five residential lots was proposed to have an area of approximately 800 square metres, with the residual lot proposed to extend to an area of 11.7 hectares. 36. On or around 16 April 2013, the First Respondent (Ashley) lodged a development application ("DA 13/1092") with the Council seeking development consent for the subdivision of the First Respondent's land into two residential lots. One lot was proposed to have an area of approximately 0.12 hectares, while the other lot was proposed to have an area of approximately 1.9 hectares. 37. An officer of the Council, Amanda Gray, produced a report assessing DA 13/0183 (Burns). The report was dated 25 July 2013 by the relevant planner, Ms Gray, and approved by the Council's Development Assessment Coordinator, Cameron Collins on 26 July 2013. 37. An officer of the Council, Amanda Gray, produced a report assessing DA 13/0192 (Ashley). The report was dated 25 July 2013 by the relevant planner, Ms Gray, and approved by the Council's Development Assessment Coordinator, Cameron Collins on 26 July 2013. 38. On or around 25 July 2013, development consent was granted to DA 13/0183 (Burns) by the Council, under delegation. Cameron Collins, Council's Development Assessment Coordinator, was the decision maker that granted development consent under delegation. 38. On or around 25 July 2013, development consent was granted to DA 13/1092 (Ashley) by the Council, under delegation. Cameron Collins, Council's Development Assessment Coordinator, was the decision maker that granted development consent under delegation. 39. On or around 22 August 2013, the Council publicly notified the grant of development consent to DA 13/0183 (Burns). 39. On or around 22 August 2013, the Council publicly notified the grant of development consent to DA 13/1092 (Ashley). 40. On 19 November 2013, the Applicant commenced these proceedings in the class 4 jurisdiction of the Land and Environment Court of New South Wales. 41. As at the date of this Agreed Statement of Facts the amendments to the 2010 LEP relating to the Deferred Land have not been gazetted.

History of second and third planning proposals for Cartwrights Hill

1. A more detailed consideration of the processes taken in relation to the second and third planning proposals (to adopt the parties' descriptions of particular documents) is now set out as this is relevant to the first ground of appeal. In the course of the hearing the Applicant accepted that the so called first planning proposal cannot be a proposed instrument under the Pt 3 Div 4 (including s 79C(1)(a)(ii)) as the Wagga Wagga Planning Panel was not the correct planning authority at that time, inter alia.
2. On 28 October 2011, the Deputy Director-General of the Department of Planning and Infrastructure (the Department) determined under s 56(2) of the EPA Act that the proposed amendment to the 2010 LEP (Planning Proposal PP_2011_WAGGA_001_00) (the so called second planning proposal) to rezone land at Cartwrights Hill (deferred area 1) from 1 Rural, 2 Residential, 3 Business, 5 Special Uses (Community Building) and 6 Open Space to R5 Large Lot Residential Zone with a 1 hectare minimum lot size, RU6 Transition Zone with a 200 hectare minimum lot size, SP2 Infrastructure Zone and IN1 General Industrial Zone (as well as rezoning of other land at an area known as Estella, Referred Area L) should proceed subject to a number of conditions (the gateway determination). One of the conditions required community consultation of the planning proposal, as well as public exhibition of relevant odour studies (exhibit B vol 2 tab 27).
3. The documents that were publicly exhibited in relation to Cartwrights Hill and Estella from 20 March 2012 to 20 April 2012 as part of the so called second planning proposal were (exhibit B tab 30): 1. a letter from the SJRPP to the Department dated 14 February 2012; 2. maps including Attachment A Cartwrights Proposed Zoning Map and the Wagga Wagga Local Environmental Plan 2010 - Attachment A Cartwrights Hill Minimum Lot Size Map which proposed that the First Respondents' land be zoned R5 - Large Lot Residential with a minimum lot size of 1 hectare; 3. 2010 LEP Deferred areas - additional information report; 4. a report titled "Odour Modelling and Impact Assessment: Bomen Industrial Estate, Wagga Wagga", prepared by Holmes Air Sciences dated 31 January 2008; 5. a letter from Holmes Air Sciences to the Council dated 13 October 2009; 6. Minutes of the SJRPP meeting of 8 February 2012 dated 13 February 2012; 7. a letter from the Deputy Director-General to the SJRPP dated 28 October 2011 attaching the Gateway Determination; 8. proposed addition to planning proposal - deferred areas; 9. a letter from the Department to the SJRPP dated 21 February 2012; 10. a letter from the Department to the Council dated 21 February 2012; 11. Planning Proposal - Wagga Wagga LEP 2010 Deferred areas containing Pt 1 objectives or intended outcomes, Pt 2 explanation of the provisions, Pt 3 justification and Pt 4 community consultation; 12. an extract of 1985 LEP; 13. statement of consistency with s 117 directions; and 14. 2010 LEP deferred areas - intent of planning proposal and strategic planning principles.

Ground One: Failure to consider a mandatory consideration under s 79C(1)(a)(ii)

1. In assessing a development application, the consent authority is required to take into account a number of matters under s 79C of the EPA Act. This includes, under s 79C(1)(a)(ii), "any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved)."
2. The Applicant and First Respondents agreed following further written and oral submissions that the real issues in each set of proceedings in relation to this ground to be determined are: Ground One 1. Whether the Second Planning Proposal, or alternatively the Third Planning Proposal, constituted a "proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority," for the purposes of s 79C(1)(a)(ii) of the EP&A Act (paragraph 36 of the Applicant's Amended Summonses), and whether the relevant processes under Part 3 Division 4 of the EP&A Act were followed such that it could constitute such a "proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority." 2. In the alternative to 1, whether: (a) the Second Planning Proposal constituted a "proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority," which was subsequently varied (including by the two maps at the third and fourth folios of Tab 39); and (b) if so, whether the Second Planning Proposal as subsequently varied (including by the two maps at the third and fourth folios of Tab 39) constituted a valid "variation" in accordance with section 58(1), 58(2) and 58(3) of the EP&A Act. 3. Whether, in its consideration of the respective development applications, the Council was under an obligation to take into account the First Planning Proposal, or alternatively the Second Planning Proposal, or alternatively the Third Planning Proposal, or all of them (paragraph 37 of the Applicant's Amended Summonses), or alternatively the Second Planning Proposal as subsequently varied (including by the two maps at the third and fourth folios of Tab 39). 4. Whether, in its consideration of the respective development applications, the Council failed to take into account the First Planning Proposal, or alternatively the Second Planning Proposal, or alternatively the Third Planning Proposal, or all of them (paragraph 37 of the Applicant's Amended Summonses), or alternatively the Second Planning Proposal as subsequently varied (including by the two maps at the third and fourth folios of Tab 39). 5. Alternatively, whether the Council failed to give any or sufficient weight to the First Planning Proposal, or alternatively the Second Planning Proposal, or alternatively the Third Planning Proposal, or all of them (paragraph 38 of the Applicant's Amended Summonses), or alternatively the Second Planning Proposal as subsequently varied (including by the two maps at the third and fourth folios of Tab 39). 6. Whether the subject development consents are void and of no effect as a result of the alleged failure in paragraph 4 or 5.

A. Is there a proposed instrument relevant to s 79C(1)(a)(ii) assessment?

Applicant's submissions

1. The Applicant submitted that the second and third planning proposals were to be considered together as part of an evolving process which gave rise to a proposed instrument to which s 79C(1)(a)(ii) applied, contrary to the approach of the assessing council officer in the report dated 25 July 2013. When considered together the requirements in s 55(2)(a)-(e) were satisfied and were the documents placed on public exhibition as required by s 57(1). A planning authority has a wide power to vary a planning proposal under s 58(1), and that is what occurred in this case. There is no need to have the Minister's approval via a gateway determination for a variation of a proposal under s 58(1) as a precondition to consultation under s 58(3). The same evolving gateway proposal was placed on public exhibition in the second and third public exhibition periods. Alternatively, the second or third planning proposals are separately planning proposals to which s 79C(1)(a)(ii) refers.

Planning proposal not withdrawn

1. The First Respondents' assertion of withdrawal of the Cartwrights Hill component of the planning proposal cannot be maintained. The minutes of the meeting of the SJRPP of 27 June 2012 (exhibit B tab 33) record the decision of the panel to "defer" consideration of the Cartwrights Hill planning proposal, and to request a further report on submissions and investigation into the adequacy of the buffer around the Bomen Sewage Treatment Plant (STP). The minutes, being the record of the SJRPP's decision, demonstrate that it did not determine to "withdraw" the planning proposal.
2. Further, while the second page of the letter from the SJRPP to the Regional Director (exhibit B tab 34) does include the word "withdraw" in one reference to the planning proposal, the balance of the letter makes it clear that the decision of the SJRPP was to defer consideration, and seek a further report and investigation. Indeed, the letter was sent to the Regional Director, Southern Region of the Department for the express purpose of requesting more time for completion of the Cartwrights Hill component of the planning proposal, which is anathema to withdrawal. There was no request for a withdrawal. In any event, the meeting minutes, not the letter, are the true record of the SJRPP's decision.
3. Finally, under s 58(4) of the EPA Act, there is a process which planning authorities can avail themselves of if they wish planning proposals not to proceed. That section states that the relevant planning authority may request the Minister to determine that the matter not proceed. This did not occur in the present case.

First Respondents' submissions

1. As a matter of fact, no document which could be an "instrument" for the purposes of s 79C(1)(a)(ii) ever existed.
2. Importantly, at no time in the new statutory scheme in Pt 3 Div 4 prior to s 59 is the proposed instrument or a draft of the proposed instrument required to be brought into existence. In this case at no time has such a proposed instrument been brought into existence. Both the text of the provisions and extrinsic materials (the second reading speech and explanatory note) demonstrate that the legislative intention was to provide additional flexibility in plan making. No longer is there a requirement to formulate any proposed instrument until towards the end of the process.
3. "Proposed instrument", an otherwise undefined term, is found in each of the provisions of Pt 3 Div 4 and s 79C(1)(a)(ii). By reason of s 55, "proposed instrument" must be taken to mean the proposed EPI. The "planning proposal" is defined in s 55 as "a document that explains the intended effect of the proposed instrument and sets out the justification for the making of the proposed instrument". It is not the "proposed instrument", or a draft of it.

Second planning proposal was withdrawn

1. The publicly exhibited report confirms that the second planning proposal was explicitly "withdrawn". The evidence shows that the Department, via the Regional Director, was also advised that the second planning proposal was explicitly "withdrawn".

Proposed instrument relevant for purposes of s 79C(1)(a)(ii) assessment

1. As already noted, there has been little judicial consideration of the new statutory scheme for the making of EPIs and the assessment of these under s 79C. A similar issue arose before two Commissioners in Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366 and they concluded at [80] that: An interpretation that required consideration of a proposed environmental planning instrument only after the stage of final drafting would be contrary to the purpose of a provision such as s79C(1)(a)(ii) which is intended to ensure that individual applications are considered in the context of both existing and future planning approaches.…Once a proposed instrument has passed the two threshold requirements of s79C(1)(a)(ii), namely, public consultation and notification to the consent authority, whether or not it has reached the penultimate stage of drafting before making if it is an environmental planning instrument for a local area, it is a "proposed instrument", and must be considered in accordance with s79C(1)(a)(ii). The stage which a "proposed instrument" has reached, and the extent to which its approach or likely provisions have been settled, would in our view be relevant factors to consider in determining how much weight to give it.
2. Recently in DeAngelis v Pepping [2014] NSWLEC 108; (2014) 203 LGERA 61 Adamson AJ considered the public participation requirements of Pt 3 Div 4, a different question to that before me.

Previous statutory scheme compared to current Pt 3 Div 4

1. Previously a council could decide to prepare a draft local environmental plan (LEP) and inform the Director-General of Planning of that intention (s 54). Under s 55 the Minister provided directions to a council for the preparation of an LEP. The council consulted with affected public authorities and submitted a draft LEP to the Director-General (s 64). The Director-General could issue a certificate permitting public exhibition of the draft LEP (s 65). Public exhibition requirements were specified in s 66 and submissions could be made by the public under s 67. Submissions from the public were considered and alterations could be made (s 68). If alterations were made there was no mandatory requirement for a further certificate or re-exhibition of the draft LEP before submission to the Director-General (s 68(3B)). The Director-General reported to the Minister about the draft LEP (s 69) which the Minister made under s 70. Section 79C(1)(a)(ii) previously stated that when determining a development application a consent authority must take into account any draft EPI that was or had been placed on public exhibition, details of which had been notified to the consent authority.
2. The recent amendments to Pt 3 Div 4 make significant changes in the procedures for making LEPs. The first matter already noted above in par 9 is that the planning authority can be separate from the consent authority, as in this case. The Minister determines to make an LEP under s 53. A planning authority is the council for its local government area (s 54(1)(a)) unless the Minister identifies another body under s 54(2) (s 54(1)(b)), here the SJRPP. A planning proposal is prepared, the contents of which are specified in s 55(2)(a)-(e), and referred to the Minister and a gateway determination is made that it can proceed under s 56. Community consultation requirements are specified by the Minister (not the statute as previously) under s 56(2)(c). Community consultation must occur under s 57. Under s 58 the planning authority may vary proposals or not proceed. Provision for drafting of an LEP occurs in s 59(1) and the Minister makes the LEP under s 59(2)(a). The current scheme is intended to provide greater flexibility in the plan making process according to the explanatory note (Environmental Planning and Assessment Act 2008 p 1) and the second reading speech (New South Wales, Parliamentary Debates, Legislative Council, 17 June 2008, 8074 (Penny Sharpe)).

Draft LEP instrument not required by s 79C(1)(a)(ii)

1. The First Respondents argued that despite these changes in the statutory scheme the reference to proposed instrument in s 79C(1)(a)(ii) could be met only by a specific draft instrument. As I agree with and largely adopt the Applicant's submissions on why no specific draft LEP is invoked by the term proposed instrument in s 79C(1)(a)(ii) I will set out these submissions as part of my finding. The First Respondents' approach erroneously construes the provisions of s 79C(1)(a)(ii) by reference to provisions of the EPA Act which are now repealed. Section 79C in terms refers to "any proposed instrument". Part 3 Div 4 concerns the making of LEPs. Previously, the plan-making process for a LEP explicitly required the exhibition of a draft LEP. Part 3 does not now provide for the exhibition of (and hence public consultation) in relation to a draft LEP. Draft LEP as a specific term first appears in s 59(1), after public exhibition and community consultation. Within the scheme of the EPA Act a draft LEP is not required to be the subject of public consultation. Community consultation within Pt 3 is limited to the circumstances of s 57 in a regime which does not require a LEP to be drafted at that stage.
2. In the planning proposal and gateway process, the concept of "proposed instrument" is embedded within those elements which are then the subject of public consultation. In s 55(1) the planning proposal is "a document that explains the intended effect of the proposed instrument and sets out the justification for the making of the proposed instrument". The planning proposal is to contain details of the proposed instrument: s 55(2)(a), (b), (c), (d), (e). The Minister then makes a gateway determination of "whether the matter should proceed": s 56. Pursuant to s 57(2), "the planning proposal is to be made publicly available…", and any person may make a written submission concerning the matter: s 57(3). Importantly, consultation is completed, as prescribed by s 57(8) "when the relevant planning authority has considered any submissions made concerning the proposed instrument and the report of any public hearing." No draft instrument is required to be placed on public exhibition. Within the scheme of the EPA Act it is the planning proposal which details the proposed instrument to be contained and exhibited. That is the "proposed instrument" referenced in s 79C(1)(a)(ii). Later in the plan making process s 59 does refers to "the drafting of any required local environmental plan".

Proposed instrument exists for purposes of s 79C(1)

1. Turning to whether one or more proposed instruments to which s 79C(1)(a)(ii) apply came into existence before consideration of the two subdivision DAs, the SOAF refers to the planning documents in evidence produced by the Council as the first, second and third planning proposals. It is agreed the first planning proposal cannot satisfy the definition of proposed instrument and I will not refer to it again in this ground. It remains relevant to the second ground of review. Amended issue 3 incorrectly refers to it.
2. As identified in the documents in evidence, in October 2011 the Department issued a gateway determination to the SJRPP as the relevant planning authority for amendments proposed to the 2010 LEP for two deferred areas, Estella and Cartwrights Hill. The proposal under consideration for Cartwrights Hill was to change the existing zones to R5 Large Lot Residential with a one hectare minimum lot size and part to RU6 transition zone with a 200 ha minimum lot size (exhibit B tab 27).
3. The documents constituting the second planning proposal contain narrative text and plans which generally meet the description of what is required for a planning proposal by s 55(2)(a)-(e). The documents at exhibit B tab 30 were placed on public exhibition between 20 March 2012 and 20 April 2012. A document "Planning Proposal - Wagga Wagga LEP 2010 Deferred Areas" addresses the criteria in s 55(2)(a)-(c) under the headings "Part 1 - Objectives or Intended Outcomes"; "Part 2 - Explanation of the Provisions"; "Part 3 - Justification"; together with the additional documents "Statement of Consistency with Section 117 Directions"; a document "WWLEP 2010 Deferred Areas - Intent of the Planning Proposal and Strategic Planning Principles"; and "WWLEP 2010 Deferred Areas - Additional Information Report"; and relevant maps. This is accepted by the First Respondents as material addressing the criteria in s 55(2)(a)-(d) in relation to a one hectare minimum lot size for Cartwrights Hill. No submissions were directed to s 55(2)(e), therefore the Court has assumed that this is not in issue.
4. On 5 July 2012 the SJRPP resolved to defer the matter of Cartwrights Hill in order to obtain a further report on the submissions and an investigation into the adequacy of the buffer around the Bomen STP (exhibit B tab 33). This was confirmed in the letter dated 13 July 2012 to the Regional Director at the Department (tab 34) which also requested the making of the Estella component. Documents called the third planning proposal in the evidence were prepared and exhibited (listed above at par 18).

Notification of planning proposal

1. No procedure for notification of a proposed instrument is identified in the EPA Act or Environmental Planning and Assessment Regulation 2000. There is no specific document or communication evidencing notification by the SJRPP of the proposed instrument(s) to the Council. The Applicant relied on the following in relation to the second planning proposal: 1. Exhibit B tab 26. On 12 May 2011 the Council, through its Manager Strategic Planning sought gateway determination of a planning proposal for the deferred areas. 2. Exhibit B tab 27. Gateway determination dated 28 October 2011 was produced from the Council's file. 3. Exhibit B tab 28. On 8 February 2012 the SJRPP resolved to publicly exhibit the second planning proposal. The record of decision (first document in tab 28) records that members of the SJRPP included three Councillors (of the Council). Attendees at the meeting included the General Manager, the Director Planning, the Manager Strategic Planning, and the Executive Assistant to the Director of Planning, all being officers of the Council. More specifically, item 3 refers to "Council briefing on referral documentation", specifically addressing the exhibition material for the 2010 LEP deferred areas amendment. 4. Exhibit B tab 29 represents the exhibition of the draft amendment to 2010 LEP. It is a newspaper advertisement published by the Council, by its name. 5. The submissions received in response to the exhibition (exhibit B tab 31) are all addressed to the Council. 6. The report concerning the second planning proposal and exhibition (exhibit B tab 32) was prepared by the Council. 7. On 5 July 2012 the SJRPP met to consider the planning proposal. The minutes (exhibit B tab 33, first document) record two of the members as councillors, and also record as in attendance the General Manager, Director Planning, Manager Strategic Planning, Executive Assistant to the Director of Planning, and the Strategic Town Planner, all of the Council. The meeting was at the Council.
2. For the third planning proposal the following identifies the knowledge (and hence notification) of the Council as the Applicant submitted: 1. The report and minutes of meeting comprising the last two bullet points of the previous paragraph. These documents are specifically referenced in the first two bullet points on page 2 of the letter dated 13 July 2012 from the SJRPP to the Minister (exhibit B tab 34). 2. Exhibit B tab 36, comprises the report to the SJRPP on 8 February 2013. The report to the SJRPP was prepared by the Council. In s 4 (p 9) of the report, the topic of "Submissions to Public Exhibition 3" is addressed, including a column headed "Council officer response" to submissions raised. Within this tab, two expert reports (odour and acoustic) were prepared for the Council and included in the report to the SJRPP. 3. Meeting of the SJRPP on 13 February 2013 (exhibit B tab 37). Two of the members are recorded as being Councillors, and in attendance are four officers of the Council. 4. Exhibit B tab 38 a newspaper advertisement for the exhibition of the third planning proposal was issued by the General Manager of the Council, for the Council by its name. 5. Exhibit B tab 40 is a report to the SJRPP of the exhibition of the third planning proposal. The report to the SJRPP (16 May 2013 - first substantive document within exhibit B tab 40) was prepared by the Council.

Planning proposal not withdrawn

1. The second planning proposal was not withdrawn by the SJRPP. The relevant resolution of the SJRPP dated 27 June 2012 (exhibit B tab 33) deferred consideration of the Cartwrights Hill planning proposal and requested a further report on submissions and investigations into the adequacy of the buffer around the Bomen STP. That the word withdrawn was referred to in a letter dated 13 July 2012 has no legal consequence. This was not a formal step taken by the SJRPP. The material decision is that revealed by the resolution in the SJRPP meeting on 27 June 2012.

Conclusion on issues 1 and 2

1. I have already held above at par 45 that the Applicant's case is best characterised as the alternative issue 2. The second planning proposal as varied by the two maps in the third planning proposal in relation to Cartwrights Hill is a proposed instrument that has been notified to the consent authority. The First Respondents' submission that the planning proposals have no role to play, other than as potentially relevant or permissible considerations under s 79C (the second ground of judicial review), is not correct.

B. Obligation to consider planning proposal as proposed instrument - meaning of "as of relevance" in the chapeau to s 79C

Issue 3

1. The third issue identified is whether the Council was under an obligation to take into account a proposed instrument under s 79C(1)(a)(ii) on the facts of this case. This issue as raised in argument concerned the construction of the term "as of relevance" in the chapeau of s 79C. This was construed by the First Respondents as meaning that it is entirely for the decision-maker to determine which of the prescribed matters in s 79C are of relevance to the development application and consider these matters in determining whether development consent should be granted, relying on Manousaki v Randwick Municipal Council (1988) 66 LGRA 330 in the Court of Appeal. This construction was opposed by the Applicant who stated that such an (incorrect) application of Manousaki would impermissibly neutralise authorities such as Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 and Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 102 LGERA 52. Whether I need to determine a less than straightforward (and substantial, the parties referred collectively to some eighteen cases) construction question depends on the answer to issues 4 and 5 of whether in fact the Council acting through its officers did take into account or give weight to a proposed instrument. As I conclude below that the proposed instrument was taken into account, there being clear reference to the planning proposal in the assessing officer's report, it is unnecessary to further consider this issue.

C. Taking into account/attribution of weight to proposed instrument

Issues 4 and 5

1. The next issues to consider are whether the Council failed to take into account the proposed instrument as described in the second planning proposal as varied, or failed to give sufficient or any weight to that proposed instrument as identified in issues 4 and 5. It is obvious but necessary to state that the decision-maker was a council officer acting under delegation, Mr Collins (SOAF par 38). The Council's assessing officer was Ms Gray. The relevant parts of the council officer's report dated 25 July 2013 for the Burns DA are set out in full in par 10. The particular focus of this part of ground one is the discussion of s 79C(1)(a)(ii). This is headed "the provisions of any draft environmental planning instrument" and the three paragraphs in the report are set out in full.

Applicant's submissions

1. Under s 79C(1)(a)(ii) any proposed instrument that is or has been the subject of public consultation is required to be taken into account by a consent authority. Such an instrument was the subject of the planning proposals which existed at the time of assessment of the DAs. The planning proposals as amended following the grant of the gateway determination comprised a proposed instrument for the purpose of s 79C(1)(a)(ii) (as held above). The Council by its delegated officer failed to consider this, an error in decision-making which vitiates the consent per Parramatta City Council v Hale (1982) 47 LGRA 319 at 388, Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 at [29]. Mere advertence to a mandatory relevant consideration is not sufficient: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Basten JA at [73]-[79], Anderson v Director General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 Tobias JA at [51]-[60] (TS 57-58). The Council officer's report fails to correctly consider the second and third planning proposals as mandatory relevant considerations.
2. Alternatively, the Council failed to give any weight, or adequate weight, to the planning proposal. The council officer report dated 25 July 2013 in the section considering s 79C(1)(a)(ii) did not give any weight to the planning proposal. At the time development consent was granted by the Council the planning proposal had been on public exhibition on several occasions, the subject of a number of panel meetings and been the subject of numerous reports. The general planning approach was known, being to zone the First Respondents' lands R5 (Large Lot Residential). The primary uncertainty was whether the First Respondents' lands would have a minimum lot size of one hectare or eight hectares. Either would have meant the development proposed in the DA was not permissible under the terms of the proposed instrument.
3. Even if the draft instrument was taken into account it is a well established principle that determining the weight to be given to a draft instrument (here the planning proposal) depends on the extent to which that draft instrument can be said to be imminent and certain per Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138. There is a difference between relevant consideration and mandatory relevant consideration. Separately there is weight. Here the Council did not consider s 79C(1)(a)(ii) considerations existed so that there was no decision about relevance or weight of any proposed instrument.

First Respondents' submissions

1. The weight to be attributed to a draft EPI may be greater if there is greater certainty that it will be adopted: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 per Spigelman CJ at [5]-[7], Ipp JA at [88]. The Court in Terrace Tower also repeated the well established proposition that misattribution of weight to a planning instrument by a consent authority is not an error of law, so long as legally irrelevant factors are not taken into account: per Mason P at [57], applying Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41.
2. Even the giving of no weight to a matter does not involve an error of law. In Hoskins v Waverley Council [1999] NSWLEC 236, Lloyd J considered a case in which a commissioner of this Court overtly gave "no weight" whatsoever to a draft LEP. The commissioner had held (at [5]) "I do not consider the DWLEP 14 to be certain or imminent and I have given it no weight in my consideration of the present application." At [15] Lloyd J stated: in the present case the Commissioner described the facts which led him to the view that he should not give DWLEP 14 any weight. It could not be said that the decision to give DWLEP 14 no weight was one which, on those facts, no reasonable mind could not have come. I am not satisfied, in his careful consideration of the place of DWLEP 14 amongst the various matters for consideration, that the Commissioner committed any error of law in attributing to it an absence of weight.
3. A decision to give no weight to an issue is a legally different concept to a failure to take a mandatory matter into account. A matter may be taken into account, even though it is afforded no weight. That is what occurred in this case.
4. The council report correctly states that there are no draft EPIs. The report is correct as a matter of fact, and is correct having regard to the legislative scheme to which reference has been made.

No failure to take into account proposed instrument (issue 4)

1. I have held above that a proposed instrument existed at the date of approval of the two DAs under challenge on 25 July 2013. The council officer's report does not accurately reflect the wording in s 79C(1)(a)(ii) in that these are titled "the provisions of any draft environmental planning instrument". The reference to draft EPI does not reflect the current terms of that section. I should identify that the first sentence in the council officer's report that no draft EPIs apply to the site or the proposal is literally correct as there was no draft LEP then in existence.
2. The discussion in the second longer paragraph is generally correct, as the First Respondents submitted. The paragraph identifies that a number of reports and a planning proposal have been prepared, exhibited and presented to the SJRPP. The officer correctly identifies that as at July 2013 further reports have been requested. The conclusion in the last sentence of the second paragraph is that until the SJRPP determines the deferred matter there is no draft LEP to be considered. That statement is literally correct.
3. The third paragraph correctly identifies that a report was prepared for the planning panel (the SJRPP) in May 2013 recommending R5 Large Lot Residential with a minimum lot size imposed of eight hectares. The report states that were that proposal to proceed these applications would be prohibited. The conclusion in the last paragraph that the third planning proposal as prepared for the SJRPP in May 2013 was not approved and so carries no weight in terms of assessment under s 79C is criticised as failing to take into account the proposed instrument as required by s 79C(1)(a)(ii). The conclusion that until such time that the SJRPP have made their determination on the deferred matter there is not considered to be a draft LEP that can be considered is accurate.
4. The obligation in s 79C(1)(a)(ii) is to consider a proposed instrument. The contents of the report suggest that a proposed instrument such as existed at the time of the decision was taken into account. The report of the officer should not be read as if drafted by a lawyer (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368) so that the absence of reference to the words "proposed instrument" is not indicative of error. Read in context the word proposal in the third paragraph should be inferred to be a reference to a proposed instrument particularly as these are referred to in the planning proposals.

Attribution of weight (issue 5)

1. Turning to the argument of a failure to attribute weight to a relevant consideration by the council officer, the statement in the third paragraph that as the proposal for lot sizes is smaller than eight hectares the DA would be prohibited, but the proposal carries no weight in terms of assessment under s 79C because it was not approved by the SJRPP, is possibly the key sentence. The extent to which weight is given to a relevant factor is generally a matter for the decision-maker, here the assessing council officer advising the delegated decision-maker per Peko-Wallsend at 41, cited in Premier Customs by Macfarlan JA at [22].
2. Both parties referred to cases determined in relation to the previous statutory scheme where courts considered whether a draft EPI was certain or imminent. Whether a draft instrument was imminent or certain was not explicitly stated in the previous form of s 79C(1)(a)(ii). In Terrace Tower Spigelman CJ held that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft, at [5]. There is no limit placed on a decision-maker or court considering the likelihood of a particular proposed instrument as found in a planning proposal. In Hood the commissioners considered that the stage a planning proposal had reached and the extent to which the likely provisions had been settled were relevant factors to consider in determining how much weight to give it, at [80]. I agree but in this case the assessment of the likelihood of a proposed instrument being made is a matter for the council officer not the Court in these judicial review proceedings.
3. The Applicant submitted that the only uncertainty was whether the proposed instrument would specify a one hectare or eight hectare minimum lot size but the resolution of the SJRPP to defer consideration of the Cartwrights Hill area and seek more reports does not support the inference that these were the only options which the SJRPP might consider. As identified in the SOAF par 33 the SJRPP resolved to prepare a further report on appropriate zonings for the deferred land, ask the Council to investigate the appropriateness and extent of a minimum lot size of less than eight hectares in the R5 (Large Lot Residential) zone and ask the Council to commission further odour and noise impact studies inter alia. The view of the council officer Ms Gray that no decision had been made (or was likely to be made) by the SJRPP anytime soon was a view open to the officer given the decision the month before in May 2013 by the SJRPP to defer the third planning proposal of an eight hectare minimum lot size and seek more reports. That view was likely to be informed by the lengthy planning history for the Cartwrights Hill area outlined in the assessment report and which would be apparent from the Council's files given its involvement at all stages of the processes undertaken by the SJRPP.

Ground Two: Failure to consider relevant considerations under s 79C(1)(b) (c) (d) (e)

1. This ground is articulated in the summons relating to DA 13/0192 as follows (the same is said of DA 13/0183): 40. In its consideration of the Development Application, the Council failed to take into account the likely impacts of that development, including economic impacts in the locality pursuant to s79C(1)(b) of the EP&A Act. Particulars (a) Council Officer's Report for DA 13/0192 (b) The Council failed to take into account the impact of the development on the Facility 41. In its consideration of the Development Application, the Council failed to take into account the suitability of the site for the development pursuant to s79C(1)(c) of the EP&A Act. Particulars (a) Council Officer's Report for DA 13/0192 (b) The Council failed to take into account the impact of the Facility on the land the subject of the Consent 42. In its consideration of the Development Application, the Council failed to take into account submissions made in accordance with the EP&A Act or the regulations, pursuant to s79C(1)(d) of the EP&A Act. Particulars (a) Council Officer's Report for DA 13/0192 (b) The Council failed to take into account the submission by the Environment Protection Authority (c) The Council failed to take into account the submission lodged by the Applicant on 24 May 2013. 43. In its consideration of the Development Application, the Council failed to take into account the public interest pursuant to s79C(1)(e) of the EP&A Act. Particulars (a) Council Officer's Report for DA 13/0192 (b) The Council failed to take into account the informal exhibition of a planning proposal, the First Planning Proposal, the Second Planning Proposal and/or the Third Planning Proposal, as comprising matters constituting or relevant to the public interest. 44. In the circumstances set out above, the Council breached sections 79C(1)(b), 79C(1)(c), 79C(1)(d) and 79C(1)(e) of the EP&A Act. Accordingly, the development consent to DA 13/0192 is void and of no effect.

Applicant's submissions

1. The Council was also bound by s 79C of the EPA Act, to take a number of other considerations into account in assessing the DAs, including: 1. economic impacts in the locality pursuant to s 79C(1)(b) of the EPA Act; 2. the suitability of the site for the development pursuant to s 79C(1)(c) of the EPA Act; 3. submissions made in accordance with the EPA Act or the regulations, pursuant to s 79C(1)(d) of the EPA Act; and 4. the public interest pursuant to s 79C(1)(e) of the EPA Act.
2. The Council failed to take the above four considerations into account. Specifically: 1. The purported consideration of the economic impact of the DA in the council officer's report did not consider any impacts of increased subdivision, and thereby increased receptors, on the nearby Bomen Industrial Estate. This is despite the potential conflict between these land uses being the very reason that the Deferred Land was excluded from the making of the 2010 LEP and despite it being the core issue raised by the Environment Protection Authority (EPA) in its submission on the DA. 2. In considering the suitability of the site for the development, the council officer's report merely stated that, "The subject site is suitable for the proposed development." This consideration was plainly inadequate, and amounted to a failure to give due consideration to the issue. In considering the suitability of the site, the council officer's report did not give any consideration to the conflict between the Bomen Industrial Estate and the First Respondents' Lands. 3. The consideration in the council officer's report of submissions lodged on behalf of the EPA, and the Applicant, is inadequate and flawed. The submission of the EPA states that the Council should minimise potential land use conflicts through informed planning decisions, and that it should consider the findings of the specialist odour and noise studies commissioned by the Council in respect of the Deferred Land. The council officer's report, at p 7-8, notes that the most recent odour study recommended that the Council not introduce any further receptors into the area, and further, notes that an independent review of the findings of previous odour reports was being undertaken. However, in direct contradiction to those earlier statements, and the recommendations of the EPA, the council officer's report concluded, at p 8, that, "At this point in time there are no grounds to refuse the subdivision application based on risk of odour pollution." 4. The public interest is not a fixed or defined concept but rather takes into account matters of a wide ambit. The orderly and economic development of land is one aspect of the public interest. This is achieved through adherence to the EPA Act, and the processes and procedures established under the EPA Act, which includes the requirement for a consent authority to consider the mandatory requirements under s 79C of the EPA Act in assessing a development application. In this instance, there is also a public interest in preventing land use conflicts, and ensuring that one of the largest employers in the local government area can continue to operate. Additionally, the submissions, discussed in par (c) above, also comprise an aspect of the public interest. These public interests are to be contrasted with the private interest of developers, in this case the First Respondents, in realising a capital gain from subdivision of his land. It is therefore apparent that the Council failed to have proper regard to the public interest

Impacts and suitability

1. The council officer's report contains a section entitled "(b) - The likely impacts of the development" (exhibit B tab 48, p 6-9). In that section, the council officer's report considers the following matters: 1. Context and setting; Site Design and Internal Design; Access, transport and traffic, Services, Heritage, Man Made Hazards, Natural Hazards, Construction, Noise and Vibration, Pollution and Offsite Environment Effects, Social and Economic Impacts; Cumulative Impacts, The Principles of Ecologically Sustainable Development. 2. As to Social and Economic Impacts, the council officer's report states that: ... the proposal will have a positive social impact as additional residential lots are provided in the locality. The subdivision of existing lots will have a positive individual economic impact on landowners but also be of wider economic benefit in terms of new development within the locality. 1. As to Noise and Vibration: the reports expressly referred to the Atkins Acoustics study which considered the impact of noise from Bowen Industrial Estate across the area of Cartwrights Hills, which was one of the reports which had been provided to the SJRPP on 16 May 2013 (exhibit B tab 40 attachment 18). Based, however, on the location of the site, the council officer's report concludes: The report goes on to identify that when the blowers operate at 75%, the noise affected land is limited to that of north of Old Bowen Road. With measures such as a 75% operation during certain times of day the subject lot would not be noise affected. As previously referred the findings of the Planning Panel are not yet concluded and those findings include an assessment of recent noise and odour reports. An independent consultant has been appointed to review the findings of the reports and this is still being undertaken. At this point in time there are no grounds to refuse the subdivision application based on risk of noise pollution. 1. Pollution and Off Site Environmental Effects: the Council expressly considered the Todoroski Air Sciences November 2012 report undertaken to determine the impact of odour from the Bowen Industrial Estate across Cartwrights Hill. The council officer's report concludes: The findings of the report suggest that odour levels within Cartwrights Hill are above the set criteria and that odour complaints are likely from residential receptors. It goes on to suggest that whilst industries are working towards ameliorating odour emissions it would be prudent for WWCC to not introduce further receptors into the area that appear to suffer from odour complaints. As previously referred the findings of the Planning Panel are not yet concluded and those findings include an assessment of recent noise and odour reports. An independent consultant has been appointed to review the findings of the reports and this is still being undertaken. At this point in time there are no grounds to refuse the subdivision application based on risk of odour pollution.

Submissions made under s 79C(1)(d)

1. The council officer's report directly addressed each of the grounds of objection made by the Applicant. The submission of the EPA (exhibit B tab 47 and 52) referred the Council to the SJRPP's deferral of its decision "pending the submission of a report including additional studies to be undertaken by independent bodies" and suggested that "the findings of the specialist noise and odour reports" should be considered.
2. In responding to the EPA submission, the council officer's report comment as follows: Refer to the impact section earlier in the report for a review of these studies.
3. This is a reference to the section of the council officer's report entitled "(b) - the likely impacts of the development".
4. The implications of the existing reports in relation to odour and acoustics for the DAs was specifically assessed in a manner which was open to the Council. The Council was under no legal obligation, in relation to the merits, to delay its determinations until it received still further reports.
5. It was open to the Council respond to the submissions it received by assessing the merits of each of the specific concerns (acoustics, odour, economics, site suitability, and so on) raised by the submissions. It has not been shown that the Council failed to take those submissions into account.

Public Interest

1. The Applicant's "public interest" ground, in so far as it refers to the merits, reveals the Applicant's view of the public interest. The Applicant's view of the merits is irrelevant to any issue in the proceedings. The council officer's report expressly addresses the public interest (exhibit B tabs 48 p 10 tab 53 p 10). There is no foundation for any allegation that the Council failed to take the matter into account.

No failure by the Council to consider mandatory relevant considerations in s 79C(1)(a)

1. Judicial review of administrative decisions requires the Court to consider whether the decision-making process suffers from the failures alleged by an applicant seeking review. The Applicant submitted that numerous matters in s 79C(1)(b)-(e) were required to be considered by the Council before deciding to grant approval to the two DAs and were not. The Court cannot consider the merits of a particular decision in considering the grounds of judicial review per Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36.
2. There is no obligation for a consent authority to give reasons under the EPA Act. The consent authority here a council officer acting under delegation, did not prepare a statement of reasons about his decisions to approve the two DAs. In the absence of reasons the assessment report of another council officer is effectively taken to be the reasons and analysed for error. Excerpts of this report are set out above in par 10. There is material on the Council's files which relates to the DAs, all of which files were produced to the Court according to the affidavit of Mr Shapiro referred to in par 7.
3. I held above in ground one in relation to notification of a proposed instrument to the Council at par 51 that the Council was aware of the second and third planning proposals being prepared by the SJRPP (which I found were part of one evolving process). Councillors were participating on the SJRPP during the lengthy unfinished process and council officers attended SJRPP meetings and provided numerous reports to the SJRPP, which reports are on the Council's files. The extensive consideration of the appropriate land uses in Cartwrights Hill is identified in the SOAF commencing in 2010 with the decision to defer Cartwrights Hill from amendments to the LEP (the draft 2008 LEP). This history suggests that the Council and its officers were well aware of the potential for land use conflicts between the Bomen Industrial Estate and Cartwrights Hill. That context does inform the council officer's report. Having regard to the May 2013 Council's report to the SJRPP, the community submissions referred to and the resolution of 16 May 2013 of the SJRPP to request further independent studies, it was open to the Council to reach the conclusions on economic impact and suitability of the site as identified in the reports, as the First Respondents submitted.

Orders

1. The Court makes the following orders: 1. Summonses in proceedings numbered 40893 of 2013 and 40894 of 2013 are dismissed. 2. Costs reserved.

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: 20 January 2015