The Dubler Group Pty Ltd v Ku-ring-gai Municipal Council & Anor

Further, Amendment 10 adds cl 44 to SEPP 53. Clause 44 of SEPP 53 provides that: Despite clause 33, this clause and the amendments made to this Policy by State Environmental Planning Policy 53 - Metropolitan Residential Development (Amendment No 10) extend to development applications, and to the determination of development applications, made, but not finally determined, before the commencement of State Environmental Planning Policy 53 - Metropolitan Residential Development (Amendment No 10).

Clause 33 is found in Pt 6 - Transitional Provisions of SEPP 53 and is headed "Development applications made before commencement of Policy". Clause 33 provides as follows: A provision of this Policy does not apply to or in respect of the determination of a development application made, but not determined, before the commencement of the provision.

Thus cl 44 suspends the operation of cl 33 so that Amendment 10 applies to development applications made, but not finally determined (by this Court), before the commencement of Amendment 10. The Applicant argues, inter alia, that Amendment 10 cannot take away its right under cl 33 to have its development application dealt with in accordance with SEPP 53 as it existed at the time it lodged its development application with the Council so that its proposed development is permissible.

The written submissions prepared by the Applicant identified four separate grounds in support of the declaratory relief sought. At the hearing the Applicant informed the Court that it relies on the following two grounds: (i) that s 34(4) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") operates to preserve the right or privilege granted to the Applicant pursuant to cl 33 of SEPP 53 and that, accordingly, Amendment 10 cannot remove this right or privilege ("Ground 1"); and (ii) that the decision of the Minister pursuant to s 39(3) of the EP&A Act that the making of Amendment 10 was "of significance for environmental planning for the State" was not one which was reasonably open to the Minister to make ("Ground 2") and therefore the decision was void. Ground 1 8. Ground 1 requires me to determine whether the Applicant has in cl 33 of SEPP 53 an accrued right or privilege as referred to in s 34(4) of the EP&A Act.

9. Section 34(4) of the EP&A Act provides that: (4) The amendment or the alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect: … (b) any right, privilege, obligation or liability acquired, accrued or incurred under the instrument, or (c) any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation or liability, and any such investigation, legal proceedings or remedy may be instituted, continued and enforced as if the amendment, alteration, variation or repeal had not occurred .
10. The Applicant argues that cl 33 of SEPP 53 confers on the Applicant the right or privilege, which right or privilege accrued at the time the development application was made to the Council, to have the development application determined on the basis of SEPP 53 as it existed at the time the development application was made. The Applicant argues that this right or privilege is protected by s 34(4)(b) of the EP&A Act and cannot be removed by Amendment 10.

(i) Interpretation of cl 33 of SEPP 53 11. Before determining whether cl 33 of SEPP 53 grants to the Applicant such a right or privilege as the Applicant contends, it is first necessary to construe cl 33 to determine its meaning. (a) statutory construction, applying the Interpretation Act 1987 12. The Minister submits that cl 33 must be interpreted in light of the heading to cl 33, with the effect that it only applies to development applications lodged before the policy commenced. Section 35(2) of the Interpretation Act 1987 has the effect that the heading to cl 33, "Development applications made before commencement of Policy", is not part of SEPP 53. Section 35(5) of the Interpretation Act 1987 states that extrinsic aids to the interpretation of legislation can only be used if s 34 of the Interpretation Act 1987 applies. Section 34(2)(a) of the Interpretation Act 1987 provides that the heading to a provision is relevant extrinsic material which may be considered in interpreting the provision if s 34(1) of the Interpretation Act 1987 applies. Section 34(1) of the Interpretation Act 1987 relevantly provides that reference to extrinsic material for the purpose of interpreting the provision of a statutory rule may only be made: … (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision … leads to a result that is manifestly absurd or is unreasonable . The Minister argues that the grounds identified in s 34(1)(b) of the Interpretation Act 1987 are made out in relation to cl 33. 13. The Minister submits that the heading to cl 33 makes it clear that cl 33 is not intended to have any operation in relation to development applications lodged and amendments made to SEPP 53 after SEPP 53 commenced. The Minister submits that the proper construction of cl 33 suggests that it is a transitional savings provision limited to development applications made before SEPP 53 commenced on 26 September 1997. The Minister asserts that the interpretation put forward by the Applicant produces a manifestly absurd result in that the Applicant would be immune from changes to the law occurring after the date on which the development application is made.

14. The Applicant argued the meaning of cl 33 is clear and there is, accordingly, no basis for the heading to the clause to be read in interpreting the clause. The Applicant submits that the interpretation of cl 33 argued for by the Minister has the effect of depriving cl 33 of any operation and so cannot be the correct interpretation of cl 33. In this regard the Applicant notes that SEPP 53 provides a mechanism whereby certain developments, which would otherwise be prohibited under the terms of a local environmental plan, are rendered permissible with development consent. Before SEPP 53 commenced there could be no development applications "made, but not determined, before the commencement" of SEPP 53 to which SEPP 53 would apply as such development was previously prohibited. Accordingly the Applicant argues that cl 33 is rendered redundant if interpreted in the manner argued for by the Minister.

Finding on statutory construction 15. Clause 33 is in "Pt 6 - Transitional Provisions" of SEPP 53. Section 35(1) of the Interpretation Act 1987 has the effect that headings to parts of an instrument, such as SEPP 53, are taken to be part of the instrument. The heading to "Pt 6 - Transitional Provisions" does not provide much assistance in interpreting cl 33 given its clear wording. The wording of cl 33 refers to "a provision" of this policy. On its face cl 33 suggests that it applies to development applications lodged and amendments made to SEPP 53 after the commencement of the policy.

16. Even if, as the Minister argued, the heading to cl 33 is taken into account, that heading appears to directly conflict with the terms of the clause. In other words, it is not of much assistance in determining the meaning of cl 33 in my view.

17. Further, I note that cl 44, which was introduced by Amendment 10 into SEPP 53, provides that "Despite clause 33 …", Amendment 10 extends to development applications made but not determined before the commencement of Amendment 10. Clause 44 would seem therefore to support the interpretation of cl 33 argued for by the Applicant. I consider that cl 33 does apply to development applications lodged and amendments made to provisions of SEPP 53 after the commencement of the SEPP. However, it does not follow automatically that cl 33 grants to the Applicant a right or privilege to which s 34(4)(b) applies.

(b) statutory construction applying case law - Q & R Developments and Druitts Developments 18. The Applicant also relied upon the decision of Pearlman J in Q & R Developments Pty Ltd v Sutherland Shire Council (2001) 117 LGERA 438 to support its argument that cl 33 of SEPP 53 applies to development applications lodged after the commencement of the SEPP. It also argued the decision supported a finding that cl 33 grants it a right or a privilege to have its development application determined on the basis of SEPP 53 as it existed at the time the development application was made to the Council.

19. The Minister relied on the decision of Bignold J in Druitts Developments Pty Ltd v Gosford City Council (2001) 114 LGERA 61 to support his argument that cl 33 applied only to development applications lodged before the commencement of the SEPP. The Minister argues that the reasoning adopted in Druitts Developments that the operation of cl 16 should be confined to development applications made before the commencement of SEPP 5 should be applied to cl 33 of SEPP 53.

Finding re Q & R Developments/Druitts Developments 20. Both Druitts Developments and Q & R Developments concerned the interpretation of cl 26 of State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability ("SEPP 5") which is identical in its terms to cl 33 of SEPP 53 except that cl 26 is headed "transitional provisions" as opposed to the heading to cl 33 which reads "Development applications made before commencement of Policy". In Druitts Developments Bignold J was asked to determine, as a separate question of law in Class 1 proceedings, whether the applicant's development application, which was initially lodged with the Council on 30 November 2000, was to be determined by the Court according to the terms of SEPP 5 as amended on 1 December 2000, or as it was in force immediately before that amendment. Clause 26 of SEPP 5 was not affected by the amendments made to SEPP 5 on 1 December 2000. Bignold J held at [40] that cl 26 of SEPP 5 was a transitional provision made when an earlier version of SEPP 5 was repealed by the current SEPP 5. Accordingly His Honour held that the prima facie meaning and operation of cl 26 was "in respect of a development application 'made', but not determined before the commencement of the Policy" notwithstanding the fact that cl 26 did not refer to "the policy" but rather to "a provision of this policy". Bignold J held that at [41] this "natural construction" of cl 26 was supported by: … the clear fact (attested by both the heading to Part 4 of SEPP No 5 (which is part of the text: see s 35(1) of the Interpretation Act 1987) of cl 26 itself) that the provision is a transitional provision of the conventional kind when one legislative or delegated legislative regime is repealed (in whole or part) and is replaced by another regime. Accordingly Bignold J held that cl 26 of SEPP 5 did not apply to amendments of SEPP 5 made after the commencement of the policy.

21. Q & R Developments also concerned amendments made to SEPP 5. Like Druitts Developments, the applicant in Q & R Developments lodged a development application pursuant to SEPP 5 which was amended before the development application was determined. Similarly, in Q & R Developments cl 26 of SEPP 5 was unaffected by the relevant amendments made to SEPP 5. In relation to the issue as to which version of SEPP 5 applied to the determination of the development application before the Court, the respondent council in Q & R Developments relied on Druitts Developments to argue that cl 26 was confined to development applications made but not determined before the coming into force of SEPP 5 as a whole, so that cl 26 had no continued operation in relation to development applications which were governed by SEPP 5. Pearlman J accepted as correct a number of propositions as follows: (a) clause 26 was not, on its face, confined in the manner asserted by the Council as was made clear by the wording a "provision of this policy". Whilst cl 26 could have been removed by the relevant amendment the fact that it was not makes it clear that it was intended to run with the policy and was intended to apply to all amendments; and (b) if cl 26 was confined in the manner asserted by the Council it would operate to retrospectively remove from the applicant its right to have the development application dealt with as if the amendment had not been made contrary to the presumption that legislation will not operate retrospectively unless there is a clear statement to the contrary. Section 30 of the Interpretation Act provides that an amendment of an Act or statutory rule does not affect any right or privilege acquired under the Act.

Accordingly, Pearlman J held at [22] that "cl 26 does have a continuing affect, operating to have a development application dealt with under the legislative regime in existence before amendments to any provisions of SEPP 5 are made" and declined to follow the decision of Bignold J in Druitts Developments . 22. While I would have concluded in any event that cl 33 applies to development applications made after the commencement of SEPP 53, for the reasons set out in the previous section, I agree with the reasoning of Pearlman J in Q & R Developments. I do not, however, consider, for the reasons set out below, that the reasoning followed by Pearlman J in Q & R Developments is conclusive as to whether cl 33 encapsulates a right or privilege to which s 34(4)(b) applies, which right or privilege accrued at the time the Applicant's development application was lodged with the Council.

(ii) Does cl 33 confer a right or privilege? 23. As discussed above at par 21, Pearlman J made obiter remarks in Q & R Developments to the effect that it would have been open for cl 26 of SEPP 5 to have been removed by the amendment and that if this had occurred, the applicant's right would not have survived. In Q & R Developments the relevant clause had not been repealed or confined by any amendment such as cl 44 in this case. The Applicant argued that because Pearlman J stated at [20(2)] and [22] of her judgment that, if cl 26 of SEPP 5 had no continuing effect, the amendment would have a retrospective operation and would remove a right acquired under the statutory rule, Q & R Developments provides implied support for the Applicant's argument that a right or privilege under s 34(4) is founded in cl 33 of SEPP 53 and accrues at the time the development application was lodged with the Council.

24. The Respondents rely on Sofi v Wollondilly Shire Council (1975) 31 LGRA 416 and the cases which follow this decision, such as Burton v Drummoyne Council (1997) NSWLEC 160, as authority for the proposition that the Class 1 legal proceedings commenced by the Applicant must be determined on the basis of the legislative regime applying at the time the proceedings are determined. Accordingly, the Respondents argue that the Applicant has no right to have its development application determined by reference to the legislative regime which applied at the time the development application was lodged by the Applicant. The Respondents submit that the reasoning adopted in Sofi applies to the current circumstances regardless of the existence of cl 33 of SEPP 53. In this regard the Minister submitted that cl 33 was of no relevance to the issues raised in Ground 1 as, according to the Minister, cl 33 does not transform, or affect in any way, the nature of the "right or privilege" which flows from the making of a development application and the lodgement of an appeal.

25. In contrast to this argument, the Applicant submits that the existence of cl 33 of SEPP 53 distinguishes the present circumstances from those considered in Sofi and Sofi does not therefore apply. In Sofi there was no equivalent to cl 33 of SEPP 53 in the relevant planning scheme ordinance. In other words, Sofi did not consider the same facts as this case.

Finding 26. I do not consider Q & R Developments supports the Applicant's argument that a right or privilege under s 34(4) is founded in cl 33. I note that her Honour was not considering s 34(4) in her decision and her reference to a right is made in the context of undertaking a process of statutory construction on the operation of the clause in SEPP 5 before her in that case. In Sofi Waddell J considered the nature of the right or privilege which cl 34(4) refers to in the context of a merit appeal to a tribunal. Sofi establishes the long standing principle in this Court that no right accrues to an applicant on lodging an appeal to have that appeal determined by the law as it stood at the time the appeal was commenced, but rather on the basis of the law as it applied at the date of determination of the appeal. Sofi does not directly address the matters before me here.

27. Having said that, it is relevant to observe that Waddell J considered two cases to which I have been referred by the Respondents, Continental Liqueurs Ltd v Heublein & Bro Inc (1960) 103 CLR 422 and Director of Public Works v Ho Po Sang (1961) AC 901. Of particular relevance here is Ho Po Sang, in which the Privy Council distinguished between a "right" or "privilege" and a "mere hope or expectation" to found its decision that an applicant for a rebuilding certificate had no accrued right.

28. In addition to Ho Po Sang, the Minister and the Council relied on several cases relating to specific appeal rights contained in legislation which have vested in an individual before the conferring legislation is repealed, for example Esber v The Commonwealth (1991) 174 CLR 430, Ungar v City of Malvern (1979) VR 259, ACI Pet Operations v Comptroller of Customs & Anor (1993) 118 ALR 114.

29. In Esber the High Court held that the plaintiff did have an accrued right to redeem a compensation right because the appellant had, at the time legislation was repealed, the right to have his application in the relevant Tribunal determined. The Court stated at 440: Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment" …. Nor was it a mere matter of procedure …; it was a substantive right.

30. Ungar v City of Malvern concerned facts somewhat similar to those in Sofi in that an appeal was made to the Victorian Planning Appeals Tribunal in relation to the refusal of a permit. Before the appeal was heard the planning scheme was amended and a permit could not be obtained for that purpose. The Court held that the applicant had no right or privilege to have his application determined in accordance with the law as it existed at the time the appeal was instituted.
31. ACI Pet Operations Pty Ltd concerned a right to have a decision relating to a tariff concession judicially reviewed. The relevant legislation was amended so that an appeal right was no longer available. Foster J in the Federal Court concluded that a right had accrued to the applicant to have the decision judicially reviewed and, as legal proceedings in respect of that right had commenced, those legal proceedings could continue.

32. Fitzgerald JA at 21 in Byron Shire Council v Greenfields (1999) 105 LGERA 445 distinguishes matters of procedure or an entitlement to apply for the exercise of discretion to obtain a benefit, even if accompanied by a "hope or expectation" that the discretion will be favourably exercised (Ho Po Sang), from a material right. In Byron Shire Council Fitzgerald JA held that the respondent's entitlement to have the council apply for the Governor's approval to its publication of a notice of acquisition of the land in the Gazette was a substantive right which had accrued before the repeal of the legislative provision imposing that obligation on the Council.

33. While considering a similar planning context, Ungar, like Sofi, does not directly consider the circumstances before me. The abovenamed cases, apart from Byron Shire Council v Greenfields, consider circumstances where legal proceedings have been commenced in reliance on a particular legislative provision. The cases are of limited assistance in this context, because it is the particular legislative provisions in issue which are central to any decision on whether there is or is not an accrued right or privilege, which difficulty has been noted in Pearce & Geddes Statutory Interpretation (4th ed) at par 6.7. Further, the Applicant has argued that its right or privilege does not rely on the commencement of legal proceedings but rather on the lodgement of its development application with the Council in reliance on SEPP 53. Because of this, the Respondents' arguments and the cases relied on did not directly relate to the Applicant's arguments.

34. It is necessary to consider closely the wording of cl 34(4)(b) which refers to "any right, privilege …acquired, … accrued … under the instrument" to determine if in these circumstances the Applicant has by virtue of cl 33 accrued a right under the SEPP. In order for the Applicant to successfully argue that cl 33 confers a right or privilege which s 34(4)(b) protects, the Applicant must show that when its development application was lodged with the Council, the time the Applicant argues its right or privilege accrued, cl 33 gave it an enforceable accrued right on which it relied in making its development application to the Council. At the time of making its development application to the Council the Applicant had no need to rely on cl 33 to lodge its development application with the Council, so that I do not consider that a right or privilege within the meaning of s 34(4) then accrued to the Applicant under cl 33 at that point. I consider that at best the Applicant had a "hope or expectation", as referred to in Ho Po Sang, at the time of lodgement of the development application with Council that the SEPP would continue in its then existing form. No right or privilege within the meaning of s 34(4)(b) was conferred on the Applicant at the time of lodgement of the development application because of cl 33. It is therefore open to the Minister to amend cl 33 and to suspend its operation as he has done in cl 44 as cl 34(4)(b) does not apply.

35. Much clearer intent must be demonstrated in the wording of cl 33 if the argument that it is intended to confer a right or privilege which vests in an individual at the time a development consent is lodged for determination is to succeed. The Minister's submissions sought to distinguish the provisions of cl 33 from those of cl 4(4) in the Environmental Planning and Assessment Regulations 2000 ("the EP&A Regulations") which, it was said, was a provision which clearly sought to entrench the relevant provisions as a right, namely Sch 3 of the EP&A Regulations which sets out the categories of development which are declared to be designated development by the EP&A Regulations. Clause 4(4) of the EP&A Regulations provides that: Schedule 3, as in force when a development application is made, continues to apply to and in respect of the development application regardless of any subsequent substitution or amendment of that Schedule, and the application is unaffected by any such substitution or amendment.
36. That is an apt distinction in my view. While it is not necessary that I have a concluded view as to whether s 34(4) would apply to a similar clause if it appeared in an environmental planning instrument, the above wording is in terms which suggest such an argument is more likely to succeed. Given the absence of any accrued right or privilege the Applicant cannot overcome by reliance on s 34(4)(b) the fundamental principle that later repealing legislation displaces earlier legislation to the extent of any inconsistency. The Minister expressly intended to displace the operation of cl 33 in cl 44. I consider he is able to do so.

(iv) Principle in Sofi v Wollondilly Shire Council applies 37. As cl 33 does not embody a right or privilege to which s 34(4)(b) applies, the right the Applicant has is that found in Sofi as set out in par 26. Applying Sofi, the Applicant's appeal is subject to the changes made to SEPP 53 subsequent to the lodging of the Applicant's development application and before the determination of the merit appeal in this Court. The Applicant's development is therefore prohibited under the amended SEPP 53.

Finding on Ground 1 38. The Applicant is unsuccessful on Ground 1. Clause 33 of SEPP 53 does not contain a right or privilege preserved by s 34(4)(b) of the EP&A Act. Clause 44 applies to this Applicant's development application. Ground 2 39. The other ground which the Applicant relied on to challenge the validity of the amendments made to SEPP 53 is that the decision of the Minister to the effect that the making of Amendment 10 was "of significance for environmental planning for the State" was not one which it was reasonably open to the Minister to make. In this regard the Applicant argues that the effect of s 74(1) of the EP&A Act and the definition given in the EP&A Act to "environmental planning" is that Amendment 10 is itself a state environmental planning policy. Therefore s 39(3) of the EP&A Act must be satisfied before the Minister may recommend to the Governor the making of Amendment 10. Section 39(3) provides that the Minister may not recommend to the Governor the making of a state environmental planning policy unless the state environmental planning policy relates to "such matters as are, in his or her opinion, of significance for environmental planning for the State."

The Applicant argues that whilst SEPP 53 is undoubtedly of "significance for environmental planning for the State", Amendment 10: (a) only aims to exclude certain bushfire prone land and land from which there is an evacuation risk in the event of a bushfire from the operation of part 3 of SEPP 53, and (b) currently only applies to certain land in Ku-ring-gai and accordingly is of purely local interest and such matters are not of significance for environmental planning for the State.

Further, the Applicant submits that: (a) there is nothing in Amendment 10 which suggests that it is founded upon matters of significance for environmental planning for the State; and (b) the amendments effected by Amendment 10 could have also been achieved by amending the relevant LEP without any requirement to show that they were of significance for environmental planning for the State.

Accordingly, the Applicant submits that the Minister's opinion that Amendment 10 related to matters of significance for environmental planning for the State was not one which it was reasonably open to the Minister to hold. The Applicant acknowledged that such a challenge, based as it is on Wednesbury unreasonableness, poses a very high bar which the Applicant will have to pass in order to succeed on this ground.

The Respondents submitted that the Applicant has not met the high standards required for the Court to make a finding that the Minister's opinion was unreasonable in a Wednesbury sense. The Council submitted that Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1996) NSWLEC 237 shows that the fact that a SEPP is confined to a very small area of the State does not prevent it from being of significance for the environmental planning of the State. Similarly, the Council relied on the decision of IDA Safe Constructions Pty Limited v Woollahra Municipal Council (1981) 48 LGRA 62 where it was held at 81 that the fact that a SEPP will find expression in individual local instances does not deprive it of significance for environmental planning for the State but rather: "Such significance depends, not on its individual application but on the principles embodied in the policy."

In addition the Council notes that there are no matters which the Minister is required to take into account in forming the requisite opinion required by s 39(3) of the EP&A Act and that in these circumstances "it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power": Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. Finding on Ground 2 45. Section 74(1) of the EP&A Act provides that "an environmental planning instrument may be amended in whole or in part by a subsequent environmental planning instrument whether of the same or a different type." The EP&A Act defines "environmental planning instrument" to mean: a state environmental planning policy, a regional environmental plan, or a local environmental plan, and except where otherwise expressly provided by this Act, includes a deemed environmental planning instrument. The effect of these provisions is that Amendment 10 must be a new state environmental planning policy in its own right before it can operate to amend SEPP 53 and s 39(3) of the EP&A Act applies to the opinion formed by the Minister in deciding to make Amendment 10. Indeed this is not disputed by the Minister.

46. The Applicant argued it was not reasonably open to the Minister to hold the opinion that Amendment 10 relates to a matter of significance for environmental planning for the State. As admitted by the Applicant, it faces a high hurdle in demonstrating the necessary unreasonableness.

47. The relevant principles which apply are as follows: (a) whether the opinion held was so unreasonable that no reasonable Minister could ever have formed that opinion: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 220 - 230; (b) whether the opinion held was "… so devoid of any plausible justification that no reasonable body of persons could ever have reached" it: Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821; and (c) whether it was "…a decision which is so outrageous that its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it": Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 410.

48. The Wednesbury standard was described as "extremely confined" in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36. Brennan J, at 37, emphasised that: The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to doing administrative justice: interests which are not represented as well as interests which are represented must often be considered. Morevever, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.
49. Applying these principles I find that the opinion of the Minister to the effect that Amendment 10 concerned matters of significance for environmental planning for the State was not unreasonable in the Wednesbury sense. The Applicant accepts that SEPP 53 concerns matters of significance for environmental planning for the State. The joint tender bundle provided by the parties includes two submissions signed by the Minister on 18 December 2003 before making Amendment 10 being: (a) a submission to the Minister recommending that the Minister form the opinion that the proposed amendments to SEPP 53 are of significance for environmental planning for the State for the reasons set out in that submission. (b) a submission to the Minister recommending that the Minister agrees to recommend to the Governor the making of Amendment 10 for the reasons set out in that submission. The submissions to the Minister referred to above state that Amendment 10 does not diminish the main objectives of SEPP 53 being "the provision of housing in metropolitan areas that will broaden the choice of building types and locations available in the housing market" but instead "ensures that the housing being promoted by SEPP 53 is appropriately located, where the form of the development being excluded (dual occupancy), in the bushfire affected areas, is less likely to be occupied by a vulnerable population." Thus the Minister's opinion that Amendment 10 was of significance for environmental planning for the State would seem to be based on the role which Amendment 10 will play in ensuring that vulnerable populations, albeit vulnerable populations located within certain areas in Ku-ring-gai, are less likely to be located in bushfire prone areas.
50. The fact that Amendment 10 applies only to a small area of the State does not prevent it being of State significance. Further, the Applicant's argument that the SEPP could have been amended by an LEP to deal with this matter as a localised issue does not prevent the matter being the subject of a SEPP if the Minister forms the necessary opinion under cl 39(3).

51. A decision relied on by the Minister which I consider applies directly is Minister for Urban Affairs and Planning v Rosemount Estates (1996) 91 LGERA 31 where Coles JA said that the SEPP at issue in that case had "real connection" with the power conferred by s 37 and s 39 of the EP&A Act. The power to make a SEPP was described as a purposive power. In that case the Minister had formed the requisite opinion that the certainty and transparency of controls for the permissibility of mining was of significance for environmental planning for the State. The same reasoning applies to this case to suggest that the Minister acted reasonably.

52. The opinion held by the Minister that the role to be played by Amendment 10 in reducing the likelihood that vulnerable populations are to be located within bush fire prone areas is of significance for environmental planning for the State cannot, in my opinion, be regarded as being so unreasonable that no reasonable person (Minister) could make it. Accordingly, the Applicant has not made out its claim in relation to Ground 2.

53. As the Applicant has been unsuccessful in relation to both Ground 1 and Ground 2, this Class 4 application should be dismissed.

54. As the Applicant has been unsuccessful the usual costs order is that it should pay the Respondents' costs. As I have not heard any submissions on costs however, I propose that I make that costs order but that such an order not be effective for two weeks in case one of the parties wishes to apply for a variation of that order. Orders
55. The Court makes the following orders:
56. The Applicant's Class 4 application is dismissed.
57. The Applicant is to pay the Respondents' costs. This order does not come into effect for 14 days.
58. Exhibits may be returned.

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