Weal v Bathurst City Council & Anor

Court of Appeal (NSW)|2000-04-06|Before: Mason P, Priestley JA, Giles JA, Bignold J, Talbot J, Like Giles JA

The applicant is to supply to Council a preliminary soil contamination report certifying that the land is suitable for the proposed use without further testing or treatment. In the event that further testing or treatment is required, indicating the need for site remediation, then a Remediation Action Plan is to be prepared and implemented subject to the satisfaction of Council and the Environment Protection Authority."

69 A further 69 conditions were stated as conditions "which are to be satisfied after conditions 1 & 2 are satisfied". They included conditions taking up the "safeguards" or "requirements" to which I have referred in the Terra Sciences report. 70 The only conditions in the 69 conditions with some bearing upon noise impact were - (a) condition 31, in part requiring that materials and construction for the container storage area be chosen "so as to ensure mechanical interlocking of aggregate and to minimise noise and dust generation"; (b) condition 51, that the landscape plan required pursuant to condition 50 to the satisfaction of the Parks Manager make provision inter alia for a 3 metre high landscaped mound along the southern and eastern boundaries of the site and planting of suitable trees and shrubs: the stated reason was "to ensure that the landscaping provided for the development helps to mitigate the visual and aural impact of the development in an effective way"; (c) condition 59 calling for - "Submission of an environmental management plan, for approval by the Director, Planning and Development, outlining site management practices to minimise impacts of the following: noise, dust, lighting and water quality.

Note: This plan is to be submitted within 3 months of operations commencing on the site.

REASON: To ensure that the impact of the site's operations on the environment are minimised. (Section 90(1)(b) of the Environmental Planning and Assessment Act 1979, as amended)"; (d) condition 65, that the southern doors to the warehouses were to be closed and "access to the area limited" during night-time operations: the stated reason was "to mitigate night time noise impacts"; and (e) condition 66, requiring signage to reduce speeds; the stated reason was "to reduce the risk of noise and dust pollution". 71 There were no conditions such as specifying maximum noise emissions or specifying the levels of plant and equipment to be operated or operated at different times, with a view to ensuring that noise emission from the activities of the terminal not only could satisfy reasonable daytime and night time noise levels (see the conclusion in the Herring/Benbow noise assessment) but did satisfy those levels. This may be further explained as follows. 72 The Terra Sciences report, based on the Herring/Benbow noise assessment, had predicted that for night time operations the acoustic design objectives would be satisfied at two of the chosen points but exceeded at a third by 2 dB(A), the increase being described as not disturbing. The modelling assumed a shunting train, with coupling connection noise, between warehouses 6 and 7; two small fork lifts within each of warehouses 6 and 7; one shunting siren within each of warehouses 6 and 7, at the northern entries; the southern door closed; and "access limited". It was noted that "the movement of trucks and associated activities would be reduced". The assumed level of plant and equipment for daytime operations was much greater, particularly with trucks entering the site, a truck in the container area, more small fork lifts, and trucks under the awnings adjacent to the warehouses. The predicted noise with the increased plant and equipment was also much greater. 73 Departure for night time operations from the assumed levels of plant and equipment, or the manner of operation inherent in the assumption, could bring increased noise; so could departure for day time operations. No conditions prevented departure, or noise emission greater than the predictions for that reason or from (for example) a particularly noisy fork lift. Condition 65 did require that doors be closed and access limited (whatever that meant), but that would not ensure appropriate noise emissions. 74 Save that the EPA thereafter issued "a pollution control approval" in respect of the development, the nature or terms of which were not made known, there was no evidence indicating satisfaction of condition 1 of the deferred commencement conditions.

The Council's task 75 Under the Environmental Planning and Assessment Act 1979 ("the EPA Act") as it then stood, in determining a development application the consent authority was required to take into consideration such of a number of specified matters as were of relevance to the development the subject of the application (s 90(1)). The development application was determined by the granting of consent to the application, either unconditionally or subject to conditions, or the refusing of consent to the application (s 91(1)). 76 A condition could be imposed inter alia if it related to any matter referred to in s 90(1) of relevance to the development the subject of the consent (s 91(3)). In some circumstances the condition could be that there be later satisfaction of the consent authority or a person specified by it, or by specifying an outcome or objective to be achieved - "A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction of the consent authority or a person specified by the consent authority" (s 91(3A)). "A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b) clear criteria against which achievement of the outcome or objective must be assessed. The condition must specify the means by which the outcome or objective may be achieved." (s 91(3B)). 77 These conditions were distinct from conditions of a deferred commencement consent. Development consent could be granted "subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition" (s 91AA(1)). If the applicant then produced evidence to the consent authority sufficient to enable it to be satisfied as to the matter, the consent authority had to notify the applicant whether or not it was satisfied (s 91AA(5), (6)), and, if satisfied, of the date from which the consent operated (s 92(3)). 78 To return to the matters a consent authority was required to take into consideration, in this case the matters for the Council in s 90(1) of the EPA Act included the noise impact of the development: see paras (b) and possibly (h) and (o) of s 90(1) - "(b) the impact of that development on the environment (whether or not the subject of an environmental impact statement) and, where harm to the environment is likely to be caused, any means that may be employed to protect the environment or to mitigate that harm". "(h) the relationship of that development to development on adjoining land or on other land in the locality". "(o) the existing and likely future amenity of the neighbourhood."

79 But the Council was required to consider many other matters, of wide scope, including those in paras (d) and (r) of s 90(1) - "(d) the social effect and the economic effect of that development in the locality". "(r) the public interest".

80 The terms of s 90(1) were mandatory: the Council was obliged to take into consideration relevant matters from the catalogue of matters in s 90(1), and to weigh them up in determining the development application. It had to inform itself sufficiently to be able to take into consideration the matters of relevance to the determination of the development application. With particular reference to para (b) of s 90(1), it had to be aware not only of the impact and the likely harm but also of available protective or mitigating means: so the conditions to be included in the consent were an integral part of the consideration (Parramatta City Council v Hale (1982) 47 LGRA 319 at 338-9, 340,342; King v Great Lakes Shire Council (1986) 58 LGRA 336 at 384). Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration (Parramatta City Council v Hale at 335-6, 339; King v Great Lakes Shire Council at 384; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-5). 81 Importantly, however, in obedience to s 90(1) the Council could not confine its consideration to the impact of the development on the environment, but had to take into consideration all other relevant matters. The Council had to balance possibly competing interests, in circumstances such as those in the present case including the public and private interests in preventing harm to the environment and the public and private interests in permitting gainful use of the land.

The Court's role 82 Mr Weal applied to the Land and Environment Court in Class 4 proceedings, relevantly to review the exercise by the Council of its function as a consent authority. Review is not appeal on the merits. Sufficiently for the present case, the Court was to enquire whether in making its determination the Council took into consideration all relevant matters and no irrelevant matters, and whether in weighing up all relevant matters the Council reached a Wednesbury reasonable decision (that is, a decision not so unreasonable that no reasonable person could have come to it, see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223). The Court would not substitute its determination for that of the Council. A determination successfully impugned would be set aside, and it would be for the Council to determine the development application afresh according to law. A court must proceed with caution when reviewing an administrative decision on the ground that the administrative body does not properly weigh up the relevant considerations, lest it exceed its supervisory role by reviewing the decision on its merits (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42 per Mason J). 83 Where there is no direct evidence of the consent authority's consideration of the development application, it may not be easy for a person in the position of Mr Weal to establish that it failed to take into consideration a relevant matter or took into consideration an irrelevant matter. That will often be established only by inference, and the inference should be drawn only after anxious consideration by the court (Parramatta City Council v Hale at 345; Currey v Sutherland Shire Council at 373).

Discussion 84 There is no doubt that the noise impact of the development was a relevant matter for the Council's consideration, and a significant one. The Council was well aware of its significance to the development application. The Council responded to its significance in part by conditions 31, 51, 59, 65 and 66 in the development consent, but principally by condition 1 of the deferred commencement conditions ("condition 1"). The conditions in the development consent played a minor part, as the presence of condition 1 itself showed. In the result, the noise impact of the development, including specification of any means of alleviating it, would be regulated by the EPA approval. 85 The noise impact of the development was not an aspect ancillary to its core purpose within s 91(3A) of the EPA Act, even if there had been a condition in the consent to the effect that the development was to be carried out to the satisfaction of the EPA. Nor was condition 1 a condition pursuant to s 91(3B). It was not suggested in the appeal that either s 91(3A) or s 91(3B) sustained what the Council did. 86 In my opinion, while the Council clearly enough adverted to the noise impact of the development, it should be found that it did not take it into consideration as required by s 90(1) of the EPA Act. 87 The Council was provided with the Terra Sciences report. Terra Sciences said that the Herring/Benbow noise assessment concluded that the noise impact would not be significant or intrusive (Terra Sciences' words, but with details in the summary taken from the Herring/Benbow noise assessment). It also said that the EPA thought the Herring/Benbow assessment was unsatisfactory, albeit without time for a proper review, and the conflict was hardly removed by Herring/Benbow's preparedness to defend its noise assessment. 88 Terra Sciences' solution was to recommend a deferred commencement condition of obtaining EPA approval under the Noise Control Act. Its concluding opinion that there were no environmental or planning reasons which prevented the development on the site must have been qualified accordingly. Terra Sciences did not recommend conditions in the consent calculated to protect the environment from the noise impact or mitigate its effect. It described noise as the critical issue, and proposed dealing with noise by EPA approval, but it did not know what noise impact or what means of alleviating noise impact the EPA might come up with in the approval process. 89 The Director's report of 27 February 1998 adopted the same solution. It began with a perhaps inaccurate summation of the Terra Sciences report. The Herring/Benbow noise assessment had not shown that the terminal would comply with the requirements of the Noise Control Act, nor had Herring/Benbow been as forthright as the words "will withstand any degree of scrutiny" suggest, and there was more than "a slight difference of opinion in respect of noise standards"; further, Terra Sciences' "careful consideration" had not solved the differences of opinion, but had ended with leaving the problem to the EPA approval. This may not matter, since the Council had the Terra Sciences report. However, the Director told the Council that noise impact was "not a matter which Council needs to be overly concerned with at this time as the consultants [sic] report adequately addresses the issue". The Terra Sciences report addressed the issue not by a process of reasoning to a likely noise impact, resolving the difference of opinion, and to means of alleviating the impact, but by leaving it to the EPA approval. The Council was being invited to do the same. 90 And the Council accepted the invitation. There was no evidence of the consideration of the development application by the Council, that is, the collegiate body, beyond the resolution of 4 March 1998. Although the resolution recorded the opinion that there were no environmental or planning reasons which prevented the development on the site, obviously taken from the Terra Sciences report, that opinion had to be qualified in the same way as Terra Sciences' opinion. The Council's reference to "conditions which address the issues raised in the Consultants [sic] report" must have been intended to take up the recommended deferred commencement condition of obtaining EPA approval. 91 With all due caution, in my view it should be inferred that the Council did not come to a view as to the noise impact of the development or means that might be employed to mitigate the noise impact. It was clear that there would be a noise impact, and that some means of controlling it was required. The Council had an unresolved conflict between Herring/Benbow and the EPA, and it was told that it need not be overly concerned with noise impact because it could leave its extent and how to control it to the EPA: see in particular the Director's statement, "It would then be up to the acoustical engineer to substantiate the findings of the acoustical report before the EPA would issue its approval". It did so. It did not give the development application the consideration required by law, but left the critical matter of noise impact to the EPA: cf King v Great Lakes Shire Council at 384-5; Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79 at 89; Leichhardt Municipal Council v The Minister (1992) 77 LGRA 64 at 75-6. 92 The facility of a deferred commencement consent, introduced into the EPA Act in 1993 in s 91AA and taken up by the Council, does not overcome the inference. 93 In Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (11 December 1996, unreported) Talbot J observed that s 91AA was not intended to allow the consent authority to leave unresolved and for future determination issues, known and unknown, in respect of the impact of the development. In Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294 at 309 Bignold J felt unable to embrace this, and regarded s 91AA as capable of yielding an "in principle" consent so that matters such as ultimate or detailed design could be reserved: his Honour thought that what could be the subject of deferred commencement conditions should be developed on a case by case basis. In Cameron v Nambucca Shire Council (1997) 95 LGERA 268, delivered on the same day as Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council, the consent authority had granted a deferred commencement consent conditioned upon a satisfactory traffic impact study. In holding that the consent authority had not taken traffic into consideration as required by s 90(1)(j) of the EPA Act Talbot J gave effect to what he had said in Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2), although without referring to it, saying (at 275-6) -

"The deferring of consideration of a matter which a consent authority is required to consider pursuant to s 90 of the Act is not something which is authorised by s 91AA. Section 91AA contemplates that some act must be performed before the consent operates. Specific works may be required as a prerequisite to the commencement of development. Those works may be on or off the site and either carried out by the applicant for development consent or a third party. The consent authority may require concurrence or confirmation from another authority or person, with the appropriate expertise or power, that the council's assessment of a particular aspect of the development is the correct one. Section 91AA is not, in my opinion, a panacea to overcome the necessity to consider a requisite matter pursuant to s 90 or the requirement to finally determine the development application pursuant to s 91. A condition that the consent is not to operate until the consent authority is satisfied as to any matter does not mean that the consent is not a final one. A deferred commencement consent is a final consent when it is granted, even though the date from which the consent operates must not be endorsed on a notice, as required by s 92(3)(a), until the applicant satisfies the consent authority as to the matters specified in the condition." 94 I respectfully agree with Talbot J that s 91AA did not free the consent authority from the obligation to consider all relevant matters as required by s 90(1). Section 91AA enabled the consent authority to stipulate for a state of affairs on the basis of which it decided to grant consent, but its consideration had to include an understanding of the state of affairs and an evaluation of the relevant matters with that understanding. The consideration would be given effect in part by a condition of the deferred commencement consent, if that could be done reasonably and consistently with proper consideration. The vice in the present case is that, for the reasons I have given, I do not think that there was the proper consideration. 95 Some aspects of the development might have been left for later resolution, consistently with consideration in accordance with s 90(1) of the EPA Act. The landscape plan to which condition 51 referred is an illustration, and such a condition is authorised by s 91(3A) and possibly apart from that provision (see Scott v Wollongong Shire Council (1992) 75 LGRA 112 at 117-8; Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at 628-30). But the Council's immediate and own consideration of the noise impact of the development, including the means of controlling it, was important. The Council had to weigh up all relevant matters calling for consideration and, having done so, determine the development application. Unlike the EPA, its concerns went well beyond protection of the environment, for example to the matters in paras (d) and (r) of s 90(1) - as the letter of 19 February 1998 to the EPA pointed out. How could it exercise its function without such consideration of the critical issue of noise as would permit it to balance the noise impact, as controlled, with all other relevant matters? If it left noise impact to the EPA approval process, it did not know what to put in the scales. 96 There would have been nothing wrong, in an appropriate case, in a consent authority including as a condition of a consent that the applicant obtain (in the words of the Council's letter of 19 February 1998, describing its practice) "the necessary licences/approvals from the EPA". But that could only have followed consideration, in accordance with s 90(1), of the matter to which the licence or approval related, with the obtaining of the licence or approval where noise impact was in question a reasoned means of controlling, or contributing to controlling, reasoned understanding of the noise impact. And the condition could, depending on the circumstances as a whole, suggest that the consent authority had failed to discharge its duty under s 90(1), see Jungar Holdings Pty Ltd v Eurobodalla Shire Council. 97 It may be noted that the Council did not include in the consent a condition that the applicant comply with the EPA approval. By following the deferred commencement consent route, the Council granted a consent which would operate upon the approval being obtained (since the Council's satisfaction could only be as to obtaining, not as to content). The consent would continue to operate whether or not the approval was later modified, whether or not the operator of the terminal failed to renew it, and whether or not the operator of the terminal failed to comply with the requirements of the approval. This adds, in my view, to the inference that the Council did not give proper consideration to the noise impact of the development. 98 This led to an issue in the appeal which should be recorded, although I do not think it necessary to resolve it. 99 Under the Noise Control Act as it stood in 1998 the occupier of any scheduled premises had to obtain, under pain of committing an offence against the Environmental Offences and Penalties Act 1989, a licence under the Pollution Control Act 1970. It was common ground that the terminal would be scheduled premises (see s 18(1) of the Noise Control Act). The EPA was the licensing authority under the Pollution Control Act. By s 17D(1)(a) of that Act, it could grant the licence either subject to conditions or unconditionally. By s 17B(2), in exercising its functions under s 17D the EPA was obliged to take into consideration the whole of the pollution of all kinds caused or likely to be caused by the activity conducted or to be conducted by the applicant, the impact of that pollution on the environment, and the practical measures that might be taken to prevent, control, abate or mitigate that pollution and to protect the environment from its consequences. By s 17E, the licence remained in force for one year, and application could be made for renewed licences for successive yearly periods. 100 However, on 17 December 1997 the Royal assent had been given to the Protection of the Environment Operations Act 1997. It was to commence on proclamation, and had not been proclaimed when the Council granted the consent. On commencement it would repeal the Noise Control Act and the Pollution Control Act (see s 324 and schedule 3). It made alternative provision for the protection of the environment, amongst other things by prevention of pollution, but under its provisions the EPA would no longer be the licensing authority in relation to the emission of noise from the terminal. The regulatory authority in relation to noise control, in the absence of a regulation otherwise providing, would be the local authority, in the present case the Council, and it would act not by licensing in which conditions could be imposed but by noise control notices the contravention of which would be an offence. That was why the EPA said in its letter of 17 February 1998 that "the responsibility for controlling any noise impacts from the operation … may not always rest with the EPA". 101 The consent granted by the Council was valid for five years. So, it was said, by following the deferred development consent route the Council had granted a consent which, if EPA approval fell away with the changes in the legislation, would operate without any control over the noise impact at all. Condition 1 referred to "relevant approvals by the EPA". The Council was aware of the changes in the legislation, they were likely to become effective within the five years, and it should not have followed the deferred development consent route because with the changes in the legislation there might no longer be relevant approvals by the EPA. 102 Questions of the operation of the consent and the old and new legislation arose. On one view, if EPA approval was not obtained the consent would never become operative. This issue went more to Wednesbury unreasonableness than to proper consideration of the development application. Wednesbury unreasonableness need not be addressed. The appeal should be upheld on the ground that the Council failed properly to take into consideration the noise impact of the development.

Further evidence? 103 After judgment was reserved in the appeal the Council applied for leave to adduce fresh evidence on the appeal. The evidence was that on 22 March 1999 the Council issued to SCT, again over the hand of its General Manager, notice of modification of the consent by the addition of a number of conditions including, as condition 72, that the developer was to "actively manage the development to minimise nuisance caused by noise" and in that regard meet specified requirements. The principal requirements were as to maximum noise levels in dB(A) at particular locations for day and night-time operations, restriction on the hours of container stacking, construction of noise barriers and confinement of loading and unloading operations behind the barriers, creation of a noise management plan and a reactive noise management plan with certain criteria, and the conduct of operations "in a manner and location as prescribed in the Revised Noise Assessment (Dick Benbow and Associates, December 1998)". 104 This was not fresh evidence. It emerged that the Council had raised the modification with Mr Weal prior to the hearing before Bignold J, that Mr Weal had expressed apprehension that introduction of the modification into the hearing would mean an adjournment, and that the Council had decided "not to run that risk and to run the proceedings without tendering the modification". For the purposes of the application on appeal the Council's position was that the modification relevantly cured any failure of consideration at the time of the original consent because s 96(4) of the Act provided that a reference to a consent in the Act was a reference to the consent as modified; it suggested that the reasoning of Lloyd J in MLC Properties v Camden Council (1997) 96 LGERA 52 at 59 supported this view. Mr Weal's position was that there was no curative effect, and that in any event that the modification itself was open to challenge. I would infer that these positions were conveyed between the parties prior to the hearing before Bignold J. 105 Not surprisingly, Mr Weal opposed the application because the Council had made a deliberate decision not to rely on the modification before Bignold J and further because both the validity of the modification and whether it had a curative effect required evidence and a contested hearing. 106 This was and is not a satisfactory situation. Unknown to Bignold J, the parties permitted him to engage in an incomplete exercise. Any decision in this appeal might be of a moot point. I was at one time attracted to receiving the further evidence and determining in the appeal, with further submissions from the parties, the curative effect of the modification if valid. I have concluded that this could not properly be done, and that it should not be done on an assumption of validity. The application should be refused and the appeal should be disposed of in accordance with these reasons, and the parties should be left to litigate further as they may be advised.

Orders 107 We were informed that SCT has not developed the land. A declaration that the consent was void will no doubt be sufficient, without injunctive relief; if consequential relief is required, application can be made in the Land and Environment Court. 108 I propose the following orders - (1) Dismiss the first respondent's application to adduce fresh evidence on the appeal. (2) Appeal allowed. (3) Set aside the orders made by Bignold J dismissing the application and as to costs. (4) Declare that the development consent 980154 granted to the second respondent by the first respondent on or about 18 March 1998 for the development of an intermodal transport terminal on the property lots 5, 6 and 7 DP 581954 is void and of no force and effect. (5) Order the respondents to pay the appellant's costs of the proceedings before Bignold J and of the appeal.

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.

CITATION : Weal v Bathurst City Council & Anor [2000] NSWCA 88 FILE NUMBER(S) : CA 40509/99 HEARING DATE(S) : 6 April 2000 JUDGMENT DATE : 24 November 2000

(1998) 100 LGERA 365

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