Weal -V- Bathurst City Council & Ors [1999] NSWLEC 132

The Council (and to the lesser extent to which it is involved, Specialized Container Transport) deny each of these allegations. They alternatively plead that in the exercise of discretion, the Court would not grant the relief claimed.

It will be seen that except for the allegations made against the Council of (i) partiality or bias; and (ii) unauthorised delegation, the Applicant's legal challenge to the development consent is formulated by reference to established principles for judicial review of administrative action, namely (i) failure to consider relevant matters; (ii) consideration of irrelevant matters; and (iii) legal unreasonableness in the "Wednesbury" sense. These principles are fully expounded in the oft cited judgment of Mason J (as he then was) in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162CLR 24 at 39 to 42 which has been consistently applied by this Court in judicial review proceedings.

The Applicant also relies upon a variant to its "failure to consider" allegation, namely that some matters for consideration were in the nature of conditions precedent: vide pars 17-21 of the Points of Claim. It will be convenient to consider this basis for legal challenge when considering the allegation of "failure to consider"

I propose to determine the Applicant's legal challenge by addressing the several bases in the following order - (i.) failure to consider relevant matters; (ii.) consideration of irrelevant matters; (iii.) Wednesbury unreasonableness; (iv.) partiality or bias; (v.) unauthorised delegation; (vi.) fettering discretion; and (vii.) lack of certainty and finality in the development consent.

However, it is first necessary to note the relevant facts, noting that the evidence was predominantly documentary (as is conventional in judicial review proceedings), being documents in possession of the Council at the time it determined the development application. There is no conflict or dispute concerning the primary facts established by this evidence. There is, however, dispute as to the meaning or legal significance of some of these primary facts and as to the ultimate inferences of fact to be drawn from the primary facts. The relevant facts essentially relate to the development consent and it is meaningful to state the primary facts by reference to the development consent.

B. PRIMARY FACTS RELATING TO THE DEVELOPMENT CONSENT

The primary facts can be meaningfully stated by reference to the following chronological sequence of events:- (i.) relevant background to the development application being made by Specialized Container Transport; (ii.) the making of the development application; (iii.) the Council's processing of that development application; (iv.) the Council's determination of the development application; (v.) the grant of the development consent; (vi.) facts subsequent to the grant of the development consent.

The relevant facts can be taken from the following pleadings in the Applicant's Points of Claim which are relevantly admitted by the Council: 3. The First Respondent (hereinafter called the Council ) is the registered proprietor of land situated at White Rock Road Kelso and being Lot 5, Lot 6 and Lot 7 in Deposited Plan 581954 and having an area of about 14.735 hectares (hereinafter called the Council land ). 4. The Applicant's property is situate on White Rock Road Kelso and directly opposite the Council's land. 5. Prior to February 1996 the Council entered into negotiations with the Department of Defence to lease the Council land from the Commonwealth of Australia with an option to purchase the Council land. 6. Subsequent to February 1996 the Council entered into a Lease with the Commonwealth of Australia with an option to purchase the Council land. 7. Council determined to have the Council land developed as a rail freight terminal. (i) On April 17, 1996 the Council resolved: (a) authority be given to the General Manager to engage a suitable consultant to prepare the specification referred to in 1.6 (item 2) at a cost not exceeding $30,000, to be funded from the Land Reserve; (b) such brief including specific performance measures to be achieved by final developer/purchase, covering:-

• requirement of Uncle Ben's - access to siding for manufacturers - prices to be charged for storage/transport of containers - capacity to service regional manufacturers' transport needs - frequency of services to Sydney/other capital cities - requirement that land acquired (all/part) must be used as container terminal - return to Council - either through leasing of land or purchase - local involvement in development is a Council preference, subject to Council's legal obligations (c) on completion of (a), a further report be submitted to Council, detailing the final specification, and recommending that tenders be called for the sale/lease of all/part of the land, for development as a container terminal, subject to the specification. (ii) The Council on December 11, 1996 resolved: (a) Council confirm its support for the concept of land tenure detailed in the General Manager's report, but that the report remain confidential until negotiations have been completed; (b) Council direct the General Manager to prepare a brief and call expressions of interest for the establishment of an intermodal transport terminal on land it is in the process of purchasing from the Department of Defence, in Kelso; (c) the Consultant's report entitled A Study into the Viability of Establishing a Container Terminal in Kelso prepared by Maunsell Pty Ltd be provided to any person/group purchasing the brief; (d) a fee of $500 be charged for a brief, including the feasibility study.

8. The Council advertised for expressions of interest for the establishment of an intermodal transport terminal on the Council's land and entered into negotiations with the Second Respondent (hereinafter called SCT ).
9. The Council subsequently exercised the option to purchase the Council land and acquired the Council land by contract dated April 21, 1997 from the Commonwealth of Australia at a purchase price of $545,000.00 with completion taking place on or about June 2, 1997.
10. The Council on August 20, 1997 determined that the Second Respondent was its preferred freight terminal operator and agreed to sell and/or lease the Council land to the Second Respondent.
11. Upon the Council land there are presently erected a number of old storage sheds and a rail siding in disrepair. Otherwise the Council land is vacant.
12. The Council land is zoned and at all material times was zoned 4(a) Industrial under the provisions of the Bathurst Local Environmental Plan 1997. Prior thereto it was also zoned 4(a) Industrial under the Bathurst Local Environmental Plan 1987 which came into force on 27 March 1987.

On 11 September 1997, Specialized Container Transport lodged with the Council a development application for the development of proposed rail terminal on the Council owned land at Kelso (the development application). The development application was supported by a " town planning brief " prepared by Fourth Edition (1997) comprising some 13 typed A4 pages describing the proposed development and the development site. That brief contains the following statements in respect of noise impacts of the proposal under the heading " 2.01 SITE SELECTION CRITERIA ":

SCT is currently undergoing a development for a similar larger facility at Canningvale WA; for this project a noise assessment was conducted and this assessment indicated that the proposed rail freight facility in the Canningvale WA location, will not cause any impacts in terms of noise. (refer attached extract of the report in Appendix A).

Based on the previous assessment indicating compliance of the WA terminal which is of a similar (larger) nature, this development at Kelso falls well within environmental controls and has the following added benefit being;

Residential properties are of a greater distance away from any possible noise sources, ie; the nearest Residences in the area are 100 metres plus from the nearest railway sidings compared to the 60 metres minimum at the WA Terminal.

In fact, the town planning brief accompanying the development application did not include the Appendix. Rather, the accompanying letter indicated that " the Noise assessment document will follow in the next few days ".

It appears that the referenced Appendix material was never submitted to the Council. Instead, on 28 October 1997, the second Respondent submitted to the Council a two page typed letter from Herring Storer Acoustics, a firm of consulting acoustical engineers practicing in Perth, Western Australia. That letter contained comments and recommendations with regard to noise emission from the proposed operations impacting on "residences in the vicinity" based upon the Consultant's (i) understanding of locality plans and site plans for the Kelso proposal; (ii) understanding of acceptable noise levels, having regard to NSW standards; and (iii) extensive studies and modelling for a freight terminal at Canning Vale, Western Australia.

After providing details of the acoustical modelling undertaken for the Canning Vale operation, the letter continued:

In order to accurately evaluate resultant noise levels for another site, then noise modelling would have to be carried out using actual ground level contours, with noise sources located in positions representative of normal operations at that site. This would include the proposed 3 metre high bund to extend from the southern corner, north to the creek along White Rock Road. For noise sources less than 3 metres above the ground, a barrier such as this would provide additional attenuation in the order of 5-10 Db(A) dependent on heights and distances of both " source " and " receiver " in relation to the top of such a barrier. Such a barrier would be beneficial both acoustically and visually if " line-of-sight " is interrupted. The above assessment provides indicative predictions, based on extensive measurements and modelling, which show that noise associated with the proposed Bathurst facility is manageable in order to comply with the regulatory criteria pertaining to the subject site and environs.

As will be noted under the next heading, ultimately the second Respondent submitted to the Council in February 1998 a Noise Impact Assessment of the proposed development jointly prepared by Herring Storer Acoustics and Dick Benbow and Associates Pty Ltd which concluded that " the noise emissions from the activities of the proposed facility could satisfy reasonable daytime and nightime noise levels ".

(iii) The Council's processing of the development application

Following receipt of the development application, the Council on 18 September 1997 gave public notice that the development application was available for inspection at the Council's offices between 20 September 1997 and 4 October 1998 and inviting any submissions thereon.

The Council publicly exhibited the development application, though apparently not required to be so by the EP&A Act or the LEP.

Seven written submissions were received to the public exhibition, including five from neighbouring residents (including the Applicant) who objected to the proposal on various grounds, including noise pollution. The location of each of the objector's properties in relation to the development site is shown on the plan being Annexure A hereto.

The Applicant's objection took the form of a five page typed submission made by his Solicitor, Mr Boesen.

The written submissions were summarised by the Council's Director of Planning and Development (Council's Director) in his written report to the Council held on 5 November 1997, immediately prior to the conduct of a public Discussion Forum arranged by the Council to discuss the development application to which Forum the persons who had made written submissions were specifically invited to attend. His report to the Council enclosed a full copy of all submissions received and noted that he would submit a further report to the Council following the Discussion Forum.

The Council's Director's summary of the representations made on behalf of the Applicant is in the following terms: (e) Writer Ryan Boesen Solicitors on behalf of Mr W Weal and Ms C Saals of White Rock Road. · Mr Boesen's clients are concerned at the adverse impact the development would have on the amenity of the neighbourhood and wished to lodge an objection to the development as proposed. · Concerned about the lack of a noise impact statement available to be considered in conjunction with the application. Council is requested not to consider the application until an appropriate noise impact statement has been provided, and secondly, interested persons have been given the opportunity to examine and consider the document. · Requests that the application be referred to an independent body or consultant for assessment and report to the Council because of Council's role as land owner and resultant potential for bias. · Concerned that Council may see the potential to approve this application as providing it with an opportunity to pay back the Solicitor's clients and other residents in the White Rock Road area because of their objections to the original Primac proposal. · Council needs to carefully consider the application under Section 90 of the Environmental Planning and Assessment Act. A detailed assessment by Mr Boesen is provided. · If approved the development would give rise to similar noise and dust problems created by Burkes Transport activities at Gilmour Street, Kelso. · Respectfully suggests that Council should require an environmental impact statement to be prepared and be available to residents before Council considers the application. · Submits that Council is in serious danger of considering an application which is flawed by inadequate detail and assessment and incorrect conclusions.

At its meeting held on 19 November 1997, the Council received a brief written report of what had transpired at the Discussion Forum held on 5 November 1997. Additionally, it received and adopted the recommendation contained in the written report of the Council's Director. The Report was in the following terms:

This matter was the subject of a Discussion Forum held on Wednesday, 5 November 1997. Normally, following the Discussion Forum on a particular development application, a report is prepared by the Director, Planning and Development and submitted to Council for its consideration at the following Council meeting. However, because of the controversy surrounding the intermodal transport terminal and the fact that Council is the land owner (but not the developer), there are a number of issues which require consideration.

Should a development application be approved on this land, Council would enter into negotiations with the successful applicant in respect of land tenure. Council would be expected to maximise its return to the ratepayers. Therefore, because of Council's position as land owner, it must be seen to be impartial when dealing with the Development Application.

Council, therefore has a number of options available to it, outlined below.

Option 1: Council can determine the application in the normal manner, whereby the Director, Planning and Development would submit a report and Council would consider that report and determine the application.

Option 2: Council can request a Commission of Inquiry and/or a public hearing conducted by the Office of the Commission of Inquiry Environment and Planning.

Option 3: Council could engage a private consultant to consider the application, prepare a report and submit it to Council for its consideration.

In respect of Option 1, there may be a perception by those opposing the development that Council was not impartial in its determination of the application. This may give grounds for a class IV action against the Council. Should this situation arise, it would result in a considerable delay to the development proceeding.

Option 2 would satisfy the question of impartiality but it also would result in considerable delays in the application being determined. The Office of the Commission of Inquiry would have to fit Council's application into its schedule, conduct the hearing and prepare a report. This could be expected to take three to four months.

Option 3 would also satisfy the question of impartiality, as an independent consultant would consider the application, prepare a report, submit it to Council, Council would consider that report and make its determination in respect of the application. This could be expected to take two to three weeks.

The cost of engaging a private consultant is expected to be in the vicinity of $10,000.00.

Following the receipt of legal advice, option 3 is considered to be the most effective means of determining this particular application as it addresses the question of perceived impartiality and would take the minimum time.

There was widespread local press, reporting and discussing the Council's decision to engage a private consultant to prepare an assessment of the development application.

A few days later the Council accepted the quotation by Terra Sciences Pty Ltd in the sum of $5,300 to prepare a report on the development application, the Council having previously invited quotations from that Company (located in Bathurst) and from Mitchell McCotter (a Sydney based Consultancy). In accepting Terra Sciences' quotation, the Council had advised that it would brief the Consultant with (i) "the development application and supporting information"; (ii) all submissions received by Council as a result of the public exhibition of the development application (iii) the report of the Council's Director to the Discussion Forum held on 5 November 1997 and (iv) any other information in Council's possession which the Consultant required to assess the development application. It also advised that any further information should be sought directly from Specialized Container Transport.

The Council also advised that it would expect the Consultant to have completed the required assessment under s 90(1) of the EP&A Act within two weeks of the Consultant being in possession of all necessary information required for such assessment.

On 23 December 1997, the Applicant's Solicitor again wrote to the Council making further representations on behalf of the Applicant concerning adverse noise impact likely to be suffered by the Applicant from the operations of the proposed development and urging the Council to insist upon an acoustical assessment of the proposed development in relation to nearby properties. The Applicant's Solicitor noted that he had forwarded a copy of his letter to each of the Councillors "so that they are aware of our client's concerns" and suggested that a copy of the letter be briefed to the Council's Planning Consultant. (This request was complied with by the Council.)

In his letter to the Council, the Applicant's Solicitor raised the issue of the application of the Noise Control Act 1975 in the following extracts:

We believe that the proposed terminal would, by definition, probably be scheduled premises under the Noise Control Act, 1975 and would require pollution control approval and hence the appropriate licence to be issued by the Environmental Protection Authority to operate.

We note from information obtained from the Environmental Protection Authority there has been no approach by Council to the Environmental Protection Authority and we believe Council or the consultant should have immediate discussions with the Environmental Protection Authority concerning this.

On 12 January 1998, the Council received a letter from the EPA (the EPA) concerning the proposed development which included the following advices in respect of noise impacts:

The proponents have provided the EPA (EPA) with a very brief overview of the proposal and were requested to return with their full proposal so that the EPA could advise them of our requirements and of applicable limits. To date the proponents have not responded to this offer.

The EPA has received a large number of representations from persons likely to be affected by the proposal and the EPA has followed events presented in the media.

Although the EPA does not have any definitive information of this proposal, our experience with similar developments at Blayney and more recently at Parkes enables us to provide some preliminary advice.

The premises will be scheduled premises under the Noise Control Act and will require the EPA's approval before any earthworks are commenced onsite. During construction the emissions would have to comply with the limits as set out in the EPA's Environmental Noise Control Manual. In relation to noise emissions during operation, including vehicle movements to and from the facility, the following limits would be applicable:-

• 7.00 am to 7.00 pm 45 dBA * 7.00 pm to 10.00 pm 40 dBA * 10.00 pm to 7.00 am 35 dBA

The noise would be referenced to the nearest of most affected residence or school (including dormitories) and must be free of tonal, impulse or other annoyances. If these were present, the above limits would need to be reduced by 5 to 10 dBA.

On 28 January 1998 the Council's Director reported to the Council on progress having made by the Council's Planning Consultant, advising that the Consultant was " still awaiting information to be submitted to them by the applicant before the report can be prepared and submitted to Council ". The Report indicated that Specialized Container Transport had engaged consultants to prepare the necessary reports for the Council's Planning Consultant and that it was expected that a report would be available for consideration by the Council by " early February 1998 ".

On 18 February 1998, the Council noted the Report of its General Manager which stated as follows:

Council's Director, Planning and Development spoke with Mr Geoff Smith (applicant) concerning the status of a noise report and traffic report required by the consultant prior to a report being submitted to Council. At the time of drafting this item (10 February 1998), Council was advised that the noise report was approximately one week from completion and that negotiations were being held to determine the exact content of the traffic study. The submission of the consultant's report to Council is dependent upon the consultant being provided with both reports by the applicant.

The completion of the above reports and submission of them to the consultant is beyond the control of Council.

On 17 February 1998 the Council received a further letter from the EPA. Since the Applicant places considerable reliance upon this letter and upon the Council's reply dated 19 February 1998, it is necessary to set forth the entire contents of both letters.

I refer to the proposed rail/road container terminal proposed for White Rock Road, Kelso.

The EPA (EPA) wrote to Bathurst City Council on 8 January 1998 about this proposed development and the lack of detailed information available on issues which involve the EPA. Because of recent media interest in the proposed rail/road terminal, the EPA has had to answer inquiries from the public concerned about the environmental impacts of the proposal.

The EPA also advised Council that the proposed development would be a scheduled premises under the Noise Control Act and that the EPA would be responsible for ensuring that noise from the operation is controlled. Accordingly, should Council grant development consent then the proponent would require a Pollution Control Approval from the EPA.

I must remind Council that the responsibility for controlling any noise impacts from the operation, should it become established, may not always rest with the EPA. Currently the container terminal is a scheduled premises. However, this designation may change with the yet to be announced Protection of the Environment Operations Regulations, in which case the responsibility to control noise will revert to with Bathurst City Council.

Regardless of any future changes in legislative responsibility, it is imperative that the EPA be provided any noise reports about the proposed terminal, so that we may submit our comments to Council for consideration in the consent process.

The EPA considers that several aspects of the development are relevant to the environmental legislation which it administers. As such the EPA wishes to make a meaningful contribution to the planning process by providing Bathurst Council with advice on matters of environmental protection.

Therefore it is essential that Council, before determining development consent, seek the EPA's views on matters of environmental protection, such as potential air, water and noise pollution and the handling of wastes (including sewage) from the proposed operation.

I trust that Council will provide the EPA with the necessary documents provided by the proponent in support of the development and take our comments into consideration.

Should you wish to discuss this matter further I can be contacted at the EPA's Bathurst regional office on 63 321 838.

You should be aware that Council's consideration of this Development Application must be in accordance with the legislative requirements of the Environmental Planning and Assessment Act 1979, and, in particular, Section 90 of that Act.

Council has a statutory responsibility to determine applications within 40 days of their being lodged.

Additionally, under Section 90, Council has to consider a whole range of matters, not just matters in which the EPA may have an interest.

Obviously Council will be dealing with the Development Application in the correct legal manner. It also will be taking into account its other responsibilities to the community of Bathurst, in terms of job creation and economic development - matters which the EPA (probably fortunately) does not need to consider.

Council also is aware that the development, should it proceed, will be a scheduled premises under the Noise Control Act 1975.

Council's practice in these matters always has been that, where it intends to approve of such an application, it imposes a condition requiring the applicant to obtain the necessary licences/approvals from the EPA.

Council is not an agent for the EPA and intends to continue its current practice, until any legislative amendments require a change.

Should the Council resolve to approve this particular Development Application, and subsequently the EPA refused to issue a required approval, then it will be up to the EPA to justify its position, both to the public, the Council and the applicant. It would be entirely inappropriate for this Council to act as your agent in this matter.

36. Sometime in February (and before 25th) a Noise Impact Assessment of the proposed development was prepared on behalf of Specialized Container Transport and submitted to the Council's Planning Consultant, (and I infer, a copy was contemporaneously submitted to the EPA). The Assessment was prepared as a joint report by the aforesaid Perth Acoustical Consultants and by the Sydney Acoustical Consultants, Dick Benbow and Associates Pty Ltd. (For convenience I shall hereafter refer to the Noise Impact Assessment as the " Benbow Noise Assessment "). The Benbow Noise Assessment contains the following Executive Summary:

The proposed rail intermodal facility would be located in the industrial area adjacent to the main western railway line and opposite residences in Lee Street and White Rock Road at Kelso in the City of Bathurst, NSW.

A noise impact assessment has been conducted following EPA noise control guidelines to determine the potential noise impact from the operations of the proposed terminal.

Existing background noise levels have been measured over a seven day period at three residences near to the site to determine the acoustic design objectives for the proposed terminal. EPA noise control guidelines outlined in the Environmental Noise Control Manual have been applied to the proposed terminal. These guidelines expressed as acoustic criteria are detailed in the body of the report. The purpose of the acoustic criteria is to prevent an undue increase in noise that would exceed the acoustic criteria and cause annoyance or an unacceptable impact on the acoustic criteria and cause annoyance or an unacceptable impact on the acoustic amenity of the nearest residences.

The preferred site layouts, building design and operations are then examined and the likely noise emission level for daytime and night time are calculated. The predicted noise levels are determined by measuring noise source levels at other similar operations. These levels are used to derive the sound power levels of the equipment and operations that are used in the noise prediction model.

The acoustic model is then used to predict the noise levels at the residents. The ENM model was used to prepare sets of noise contour diagrams that show the equivalent of the average maximum noise levels, the LA10 noise levels, that would be generated by the proposed terminal throughout the residential area adjoining the industrial estate.

When the predicted noise levels exceed the acoustic design objectives, further installation of control measures, re-layout of the site or reduced operations in a specific area of the site are then considered so that the predicted noise levels would satisfy the EPA acoustic criteria.

This process of refinement of the design of the proposed terminal has been completed by Herring Storer Acoustics who have extensive practical and detailed acoustic design knowledge of rail intermodal facilities.

The findings of this report are that the noise emissions from the activities of the proposed facility could satisfy reasonable daytime and night time noise levels.

During periods of adverse weather conditions, which could potentially cause an increase in noise levels, the noise control designs would limit the increase at the nearest residences to 2 - 3 Db(A). The combined noise levels from the site during these adverse weather conditions would not be excessive and would not cause disturbance or annoyance.

The acoustic design of the proposed facility has included an extensive set of noise controls to protect the acoustic amenity of nearest residences. A pollution control application to the EPA would be required. It is recommended that a noise compliance study be undertaken on completion of commissioning of the facility.

37. The Benbow Noise Assessment is in the conventional form of expert noise impact assessments. Its contents comprise the following Sections or Chapters in a typed document comprising some 70 pages:- (i.) Introduction (ii.) Acoustic Criteria (iii.) Existing Acoustic Environment (iv.) Description of Proposed Development (v.) Predicted Noise Levels (vi.) Appendices

38. The Introduction states that "the noise impact assessment examines the existing background noise levels and applies the EPA noise control guidelines to develop a set of acoustic design objectives for the proposed facility".

39. The Introduction states that the background noise measurements (and compilation of the report) were undertaken by the Sydney Consultant and "the acoustic design and production of operational noise levels" had been undertaken by the Perth Consultants "who have detailed experience with practices of this type".

40. In the Section or Chapter dealing with "Acoustic Criteria", it is stated that those criteria "are based upon the guidelines provided in the NSW EPA Environmental Noise Control Manual" and that the assessment had also made reference to the draft document "Assessment of Noise, Vibration and Blasting Impacts" prepared by the Department of Urban Affairs and Planning.

41. In the Section or Chapter dealing with "Existing Acoustic Environment", it is stated that the purpose of the chapter "is to provide the results of the measurements of the existing levels of noise at the proposed site and at the nearest residences", the results of such measurements being used "to establish the acoustic design objectives for the proposed development". The chapter states that "Figure 3.2 shows the location of the nearest residences and background noise monitoring locations".

42. A copy of Figure 3.2 is annexed hereto and marked "B"

43. The Chapter describes the three residential locations (A, B and C) as follows:

Location A: Residence near the corner of Lee Street and Hampden Park Road. The residence is opposite the industrial area on the other side of Lee Street.

Location B: Residence on White Rock Road (No. 21). The residence is opposite the proposed site - approximately opposite the midpoint of existing warehouses No. 5 and No. 6.

Location C: Residence on White Rock Road (No. 71, Lot 26). The residence is opposite the proposed site and existing warehouse No. 7.

(I should note, at this juncture, evidence given by the Applicant that Location C, which represents his dwelling, is incorrectly plotted on Figure 3.2 , inasmuch as the plotted location is shown to be more distant from the proposed development site than in fact his dwelling is located. I shall later return to this evidence which was not challenged by the Respondents.)

44. Chapter 5, which deals with "Predicted Noise Levels" is said to reproduce a report prepared by the Perth Consultants. It includes noise contour and single point calculations for three daytime and four night-time scenarios. (The different scenarios reflect different forms or degrees of noise control devices eg Scenario 7 involves the construction of a 3m high barrier wall along the eastern boundary, southern doors to warehouses being closed and no operations under awnings).

45. Tables 5.2 and 5.3 present the summary of results at Locations A, B and C for all 7 scenarios by reference to the different specified acoustic design objectives relevant to each of the three locations. The text at pp 25 to 31 (inclusive) then contains comment on these results.

46. On 25 February 1998, Dick Benbow and Associates Pty Ltd forwarded to the Council's Planning Consultant and the EPA by facsimile transmission, replacement pages 29, 30, 31 and 32 to the Benbow Noise Assessment. These pages concern the "Results of the Noise Modelling" and contain the aforesaid tabular results for the 7 scenarios at each of the Locations A, B and C, together with comment on those results.

For location A the daytime acoustic design objectives could be satisfied for scenario 3, ie with noise controls in place.

For location B, the daytime predicted noise level would exceed the acoustic design objective by 4dB(A) and the operation of the facility would be audible but would not be considered to be disturbing.

For location C there is a slight exceedence of 3dB(A) above the design objective. Comments made above for B would also be relevant to this location.

For night time operations at locations A and C with scenario 7 in place, the acoustic design objectives are satisfied.

For locations B and C with Scenario 7 in place, there is slight exceedence of the acoustic design objectives during adverse weather conditions and the noise emission level would be slightly audible but not disturbing to residents.

On 26 February 1998, the EPA wrote to the Council's Planning Consultant in the following terms:

I refer to your recent discussions with Mark Clyne of the Bathurst Office of the EPA (EPA), in relation to the noise impact assessment of the proposed Rail Intermodal Facility at Kelso. I also refer to your request for the EPA to conduct a review of the noise assessment document.

Given the time provided (less than 2 days) by Terra Sciences a full assessment of the noise report was not possible.

A preliminary assessment was carried out and it appears that the document is unsatisfactory in addressing the control of noise from the site. In particular, there is concern with the design criteria and calculations presented in the report. In addition there are concerns with issues of intermittent noise sources, such as sirens, which have not been adequately addressed.

For a full assessment, the report needs to be reviewed by the EPA's specialist Noise Branch before any final comment can be made on the suitability of the document in identifying and dealing with noise impacts from the proposed development.

On the same day, or the next day ( 27th February 1998 ) the Council's Planning Consultant delivered to the Council his written report containing his planning assessment of the development application. The Report is some 33 typed pages with some 50 pages of Appendices.

Upon receipt of the Report, the Council issued a Media Release at 4.30 pm on 27 February 1998 stating that the Council had received the Consultant's Report and that it would be included in the Council's agenda for its meeting to be held on Wednesday 4 March 1998. Members of the public were invited to obtain a copy of the agenda from the Council's office from 9.00 am the following Monday.

The Planning Consultant's Report is in the conventional form of a planning assessment of a development application in terms of the EP&A Act s 90.

Section 4 of the Consultant's Report contains his consideration of the proposed development by reference to each of the paragraphs of the EP&A Act s 90(1).

I shall confine quotation from the Report to matters raised by or relevant to, the Applicant's allegations in support of his legal challenge, namely - (i.) the relevant provisions of the LEP; (ii.) the relevant provisions of the DCP; (iii.) the environmental impacts of the proposed development, especially its noise impact; and (iv.) the relationship between the proposed development and neighbouring developments (especially the rural/residential development situate to the south and east of the development site, including the location of the Applicant's residence).

In relation to the LEP, the Consultant's Report enumerates the express aims of the LEP and of the objectives of zone 4(a) Industrial under the LEP and notes that in determining the development application, the "Council should be satisfied that the proposals and any measures to mitigate against potential adverse impacts, are generally consistent with the relevant aims and objectives".

In relation to the DCP, the Consultant's Report enumerates the express aims and objectives of the DCP and notes compliance with the building setback requirements, and the floor space ratio and access and manoeuvring area requirements specified by the DCP.

In relation to the environmental impacts of the proposed development, the Consultant's Report identifies the following potential impacts - (i.) noise; (ii.) dust; (iii.) water pollution; and (iv.) lighting.

In relation to "noise impact", the Report summarises in 2 ½ pages the Benbow Noise Assessment before stating the following:

Generally the Noise Impact Statement concludes that subject to the inclusion of specified noise control measures within the design of the facility, noise impacts associated with the facility's operations would not be significant or intrusive.

The Noise Impact Statement was referred to the Bathurst Regional Office of the EPA for comment. Their response forms Appendix 4, and is summarised as follows: · following a preliminary assessment it is their opinion that the document is unsatisfactory in addressing the control of noise from the site; · concern expressed regarding the design criteria and calculations; · concerns regarding intermittent noise sources (eg sirens); and · it will be necessary for the report to be reviewed by the EPA's specialist Noise Branch before any final comment can be made.

Contact was made with the specialist noise consultant who indicates that the findings of his report are sound due to: · adoption of a conservative approach; · the use of real data (ie acoustic tests carried out at SCT's operations in Western Australia); and · the noise design objectives were based on the EPA's planning criteria.

The specialist noise consultant indicated that he is prepared to defend the findings of the Noise Impact Assessment as required.

Noise is considered to be the critical issue that must be addressed in this development. Given that the proposal is defined as Scheduled Premises under the Noise Control Act, it will not be permitted to commence until EPA approval is obtained.

Should Council be of a mind to approve the development application, it is recommended that a deferred commencement condition via the provisions of Section 91 AA of the EPA Act, 1979 be imposed, stating that the consent cannot commence until the EPA Approvals under the Noise Control Act, 1975 are obtained by the applicant.

. (It is to be noted that the reference to Appendix 4 is a reference to the letter from the EPA to the Consultants dated 26 February 1998 that I have earlier recited.)

Concerning the relationship between the proposed development (and the development site) and neighbouring developments and lands, the Consultant's Report considers this issue in several ways (in addition to its consideration in terms of noise impact) namely: (i.) impact on the landscape or scenic quality of the locality (EP&A Act s 90(1)(c)); (ii.) social and economic effects (EP&A Act s 90(1)(d)); (iii.) character, location appearance of development site (EP&A Act s 90(1)(e)); (iv.) relationship to development on adjoining land etc (EP&A Act s 90(1)(h)); (v.) capacity of the road system (EP&A Act s 90(1)(j)); (vi.) existing and future amenity of the neighbourhood (EP&A Act s 90(1)(o)); (vii.) submissions from the public (EP&A Act s 90(1)(p));

Constraints on time and space obviously do not allow for full quotation of the Consultant's Report. Rather, to illustrate the thoroughgoing manner in which the issue was considered, I shall confine quotation to what the Report says in relation to (i) impact on landscape or scenic quality and the locality; and (ii) relationship to adjoining development or land, as contained in pars 4.4 and 4.14 respectively: 4.4 Impact of the Development on the Landscape Or Scenic Quality of the Locality (Section 90(1)(c)).

The development is proposed to be located in an industrial area that is well defined by the prevailing land use zone and established industrial development.

The scenic quality of the locality can be described as semi urban due to the site being located on the fringe of agricultural, industrial and rural residential land use zones.

The proposal will alter the existing landscape due to the demolition of three of the existing warehouse buildings; modification of the remaining warehouse buildings; and the establishment of a container storage area.

To minimise impacts in this regard, the applicant has proposed a 10 metre wide landscape screen along the White Rock Road and Lee Street frontages of the site. The applicant has also altered the original proposal by reducing the stack height of containers from 4 down to 3 (maximum height of 7.2 metres).

Due to the existing industrial development towards the northern end of the site, it is considered that the proposed development in this location will not have an adverse impact on the scenic quality of the area. The development would represent a continuation or infilling of the industrial development that occurs in this particular location.

The development of that part of the site which lies south of the Lee Street/White Rock Road intersection, will alter the landscape to a more significant degree, particularly if container storage occurs to the scale indicated in the applicants Figure 3.1

Although existing buildings will be used, this part of the site will become more industrial in appearance. However, given that it is within an industrial zone, established since 1972, it is not unreasonable to expect that ultimately the appearance of the locality would be subject to change.

Notwithstanding this, the proposal should be treated in a manner that enables it to integrate with the existing landscape and protect the visual amenity of surrounding development. This may be achieved by: · limiting container storage to the areas shown in blue on Figure 3.1 of the applicants information; · for that part of the site which is south of the existing creek which traverses the site the container stacking height to be limited to a maximum of two containers. The remaining container storage areas are limited to a stacking height of three containers; · the establishment of a 3 metre high landscaped mound along the southern and eastern boundaries of the subject land. In regard to the eastern boundary, the mound should extend for the full length of the site, making adequate provision for the employee access point, and maintenance of site distance at the Lee Street/White Rock Road intersection; · landscaping of the mound with evergreen species suitable to the Bathurst area. Such plantings should include shrubs as well as trees of intermediate and taller height to maximise screening of the site; · the width of the mound to be increased from 10 metres to 18 metres to allow the batters to have a 1 in 3 slope which is considered more suitable for maintenance; · landscaping along the remainder of the White Rock Road frontage at Lee Street frontage of the site utilising species with the attributes listed above; · provision of irrigation system to all landscape areas; and · retain existing trees where practical, although it is acknowledged that the landscaped mound will necessitate the removal of existing pines along the eastern boundary.

Should Council approve the development, conditions requiring the above safeguards should be imposed. It is also recommended that Council impose an additional condition that requires the applicant to submit a detailed landscaping plan to be accepted by Council prior to commencing any works. Council may choose to ensure compliance by requiring payment of a performance bond, refundable upon satisfactory establishment of the landscape works. 4.14 Relationship of the Development on Adjoining Or Other Land in the Locality [Section 90 (1)(h)]

As mentioned previously in this report, the development is considered acceptable in terms of the existing industrial development that occurs adjacent to and around the northern end of the site.

The key issues to be addressed by the development relate to the southern part of the site which is on the fringe of various land uses including the Scots School grounds and the Wallaroi Rural Residential Estate. In particular the proximity of existing residences to the south east of the site constrain the use of the site with regards to noise and visual amenity. The design and operational safeguards detailed in Sections 4.3 and 4.4 of this report would need to be implemented to allow the development to integrate to an acceptable level in the locality.

The Consultant's Report expressed the following " Conclusion " and " Recommendations ":

This assessment has identified that the use of the site for the purposes of an intermodal freight facility is suitable for approval subject to the strict implementation of all of the safeguards and mitigative measures suggested in this report.

Following due consideration of all matters for consideration under Section 90 of the Environmental Planning and Assessment Act 1979, Terra Sciences Pty Ltd is of the opinion that there are no environmental or planning reasons which prevent the development of an intermodal freight terminal on the subject site. It is therefore recommended that the application be approved subject to the imposition of conditions Council considers appropriate and particularly including conditions which address the issues raised in this report.

(iv) The Council's determination of the development application

Following delivery of the Consultant's Report, the Council's Director prepared a report to the Council dated 27 February 1998 for consideration by the Council at its meeting to be held on 4 March 1998.

The Director's Report (which included as an Attachment the Consultant's Report) included the following advice:

It is evident from the content of the report that those matters requiring consideration under Section 90 Matters for Consideration of the Environmental Planning and Assessment Act 1979, have received careful attention from the consultant.

The report has shown that those areas of greatest concern to a minority of nearby residents (White Rock rural residential area), can be addressed by the imposition of appropriate conditions of development consent. One area of concern is the potential for the development to generate excessive noise. In order for the Consultant to properly assess this issue, it was necessary for the applicant to have an acoustical report prepared. This report was prepared by a qualified acoustical engineer and shows that the terminal, at full operating capacity, will comply with the requirements of the Noise Control Act 1975.

A letter from the EPA (EPA), requires comment (refer to appendix 4 of the Consultant's report). In respect of noise emanating from the site, the acoustical engineer has advised Council's consultant that the acoustical report is correct and will withstand any degree of scrutiny.

Notwithstanding the fact that there is a slight difference of opinion in respect of noise standards, the Consultant has given it careful consideration in the merit section (refer to section 90(1)(b) of the Environmental Planning and Assessment Act 1979).

Additionally, the proposed terminal is a scheduled premises under the Noise Control Act and will therefore require EPA approval before commencing operations. Council would impose a condition requiring this approval to be sought. 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 is not a matter which council needs to be overly concerned with at this time as the consultants report adequately addresses the issue.

It is strongly recommended that Council adopt the recommendation of its Consultant so this important project for Bathurst and the region can proceed.

At its meeting held on 4 March 1998, the Council considered the Director's Report and resolved as follows:

that, as Council is of the opinion that there are no environmental or planning reasons which prevent the development of the intermodal freight terminal on the subject site, Council direct the Director, Planning and Development, to approve DA980154, subject to conditions to be determined by him, and particularly including conditions which address the issues raised in the Consultants report, and further , that a condition of development approval be that the development be connected to Council's sewer main, and that the General Manager report on the cost of such a condition, and how it can be funded.

On 18 March 1998, the Council, pursuant to EP&A Act (s 91AA and s 92) gave written Notification to Specialized Container Transport of its determination of the development application by granting a deferred commencement consent, subject to two conditions in respect of which the Notification stated that they " must be satisfied before consent can operate " and subject to 69 other specified conditions in respect of which the Notification stated that they " are to be satisfied after Conditions 1 and 2 are satisfied ".

Conditions 1 and 2 (the deferred commencement conditions) are in the following terms:

1. This consent shall not operate until the applicant satisfies the Council that the relevant approvals by the EPA have been obtained.

REASON: Because of representations to that effect made by that body. (Section 90(1)(n) of the Environmental Planning and Assessment Act, 1979, as amended.) 2. 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 EPA.

It is not necessary to recite the terms of the other 69 conditions of development consent (they involve some 21 typed pages) other than to say that they include all of "the safeguards and mitigative measures" suggested in the Planning Consultant's Report.

The foregoing summary of primary facts, is, as I have noted, entirely the product of the documentary evidence. It is common ground that all of that documentary evidence was in existence, and in the Council's possession, at the time when the Council passed its resolution at its meeting held on 4 March 1998 and when the Council gave the Notification pursuant to the EP&A s 92 of its determination granting the development consent.

However there are three further facts to be noted which concern facts (including opinion) that occurred subsequent to the date when the development consent was granted. These facts must now be briefly mentioned.

(vi) Facts subsequent to the grant of the development consent

Firstly, it is common ground that after the grant of the development consent, the EPA, on 31 July 1998, granted pollution control approval, pursuant to the provisions of the Pollution Control Act 1970 in respect of the approved rail/road terminal. That approval was subject to numerous stipulated conditions.

This fact was received into evidence subject to relevance, and in conceding the fact, the Applicant made it plain that he did not accept the correctness or accuracy of the decision of the EPA to grant the pollution control approval.

Secondly, there is the fact established by the Applicant's uncontested evidence that his residence is located much closer to the development site than is indicated by the plotted Location C in the Benbow Noise Assessment. He measured on the ground his residence to be some 75m distant from the development site, whereas the plotted Location C measures, by scale, some 160m from the development site.

Thirdly, there is the opinion evidence (unchallenged) by Mr Neil Gross, an acoustical engineer, that the incorrect location of the Applicant's residence in the Benbow Noise Assessment is a "significant error", resulting in increases of between 2 and 5 dB(A) (depending upon the relevant scenario) above the levels measured and predicted in the Benbow Noise Assessment.

Having stated the primary facts, it is now possible to consider each of the Applicant's claims. In considering them, I shall also state my findings, by way of inference, of secondary facts and ultimate facts.

C. DID THE COUNCIL FAIL TO TAKE INTO CONSIDERATION RELEVANT MATTERS?

The Applicant asserts that in its consideration and determination of the development application, the Council failed to properly consider three relevant matters: (i.) the objectives of the LEP including in particular the objectives for Zone No 4(a) Industrial; (ii.) the objectives of the DCP; and (iii.) the noise impact of the development.

In my judgment, the Applicant has not established any of its allegations of failure to consider relevant matters.

In relation to the objectives of the LEP and of the 4(a) Industrial zone and of the DCP, the development proposal, on its face, satisfies the requirements of those instruments. The objectives, and the need for their satisfaction, were expressly raised in the Planning Consultant's Report.

Moreover, the Applicant's relevant pleading is based upon an erroneous understanding of the LEP. Contrary to paragraphs 18 to 22 of the Points of Claim, the LEP does not require the Council to be satisfied that proposed development satisfy the aims and objectives of the zone. Rather, cl 6(2) of the LEP provides as follows: The objectives of the zone are required to be taken into account by the Council before development consent is given to the carrying out of development within that zone. The Council must not grant consent for development unless it is satisfied that the proposed development is consistent with one or more of the objectives of the zone within which it is to be carried out. (emphasis added.)

One of the express objectives for Zone No 4(a) Industrial is " (f) to provide and protect a passenger and freight transport corridor, transport terminals and other associated facilities ". The approved development, on its face, fell precisely within the terms and ambit of this objective.

It follows that the Council must have been satisfied that the proposed development was "consistent" with this objective.

It further follows that not only has the Applicant failed to establish its allegation that the Council failed to consider the relevant objectives, but its allegation of a failure to fulfil the condition precedent to the power to grant development consent to the proposed development, likewise has not been established.

This brings me to state why, in my judgment, the Applicant's allegation that the Council has failed to consider the noise impact of the proposed development, has not been established.

This allegation (and related allegations) is, of course, the cornerstone of the Applicant's case. It is for that reason that I have so fully stated the relevant primary facts and why I must now give detailed reasons for my conclusion.

Yet, at this very point, the evidence is unmistakably clear that noise impact was fully considered by the Council and its agents. Indeed, the Planning Consultant's Report noted that "(N)oise is considered to be the critical issue that must be addressed in this development".

Not only did the Planning Consultant require Specialized Container Transport to prepare a Noise Impact Assessment, but having obtained the Benbow Noise Assessment, the Consultant, having accepted its conclusions, nonetheless, in deference to the less than positive response from the EPA, (i) took the issue raised by the EPA up with the Acoustical Consultant (ii) satisfied himself that the demurs raised by the EPA could be adequately answered, and (iii) recommended the imposition of a deferred commencement condition effectively postponing the operation of any development consent until the necessary approval had been obtained from the EPA under the Noise Control Act 1975. (In point of law, the requisite approval was required under the Pollution Control Act 1970, but nothing turns on this standard feature of the existing pollution control laws, including the Noise Control Act).

Faced with these intractable facts which entirely shut out even the possibility of the reasonable acceptance of the Applicant's allegation that the Council failed to consider the noise impact of the proposed development, Counsel for the Applicant necessarily had to formulate his argument on a different footing. This he sought to do by relying upon (i) the apparent mistake in the plotting of the Applicant's residence (as Location C) in the Benbow Noise Assessment; (ii) the imposition by the Council of the deferred commencement condition requiring the obtaining of necessary approvals from the EPA; and (iii) the absence of other conditions of development consent imposing appropriate acoustical standards for the operation of the approved development in a manner that did not unreasonably interfere with the amenity of neighbouring developments (and more especially, the nearby rural/residential development).

So formulating his argument, Counsel for the Applicant invited the Court to find, as an ultimate fact, that the Council had not properly considered the noise impact of the proposed development.

Although the Applicant's argument is plausible (particularly in the light of the uncontested fact, recognised by the Council's Planning Consultant, that the noise impact of the proposed development was the critical issue to be addressed) I am of the opinion that it must be rejected. In rejecting it, I would emphasise the precise content of the Applicant's pleading and note in particular, that there is no independent claim in the pleading based upon mistake of fact (I shall later return to this doctrine).

So far as concerns the apparent error in plotting the Applicant's residence as Location C in the Benbow Noise Assessment, I do not think that such error vitiates the overall assessment of noise impact of the proposed development. More relevantly, I do not think that that apparent error produces the factual or legal result that the noise impact of the proposed development was not properly considered by the Council.

The legal requirement that a decision-maker properly consider a relevant matter does not mean that the consideration must be based upon a perfect understanding or presentation of the matter, free of factual error. Of course, some errors (either of law or fact or both) may be vitiating, but I do not think that the apparent error made in plotting the Applicant's residence in the Benbow Noise Assessment is such an error or produces such a legal consequence. The nature and consequence of the factual error was the subject of very little evidence. However, I accept Mr Gross's uncontested opinion that the noise levels at the Applicant's residence would be increased beyond the levels predicted by a margin of 2 to 5dB(A), depending upon the various daytime and night-time scenarios considered in the Benbow Noise Assessment.

In concluding that the apparent factual error does not vitiate the Benbow Noise Assessment, or more particularly, the Council's consideration of noise impact, it must be borne in mind that the noise impact assessment is of the operation of the entire proposed development on the entire relevant environment. Obviously the Applicant's residence, because of its geographic proximity, forms an important part of that overall environment. However, the Applicant's residence is not the closest residence to the development site and the noise objectives propounded by the Benbow Noise Assessment relate to the "closest residences" (It is conventional practice in NSW for noise objectives or criteria to be formulated by reference to the residence located closest to the noise source, and on that account being most susceptible to the noise impact of the development.)

Moreover, the Council's assessment of the noise impact of the proposed development is not confined to its apparent acceptance of the Benbow Noise Assessment, but includes the Council's decision (accepting the recommendation of its Planning Consultant) to impose the deferred commencement condition requiring Specialized Container Transport to satisfy the Council that the relevant approval of the EPA is obtained before the development consent granted by the Council becomes operative.

In imposing that deferred commencement condition, the Council had earlier been advised (by the EPA and by its Planning Consultant and by its Director) that the proposed development constituted "scheduled premises" under the Noise Control Act and that accordingly, approval from the EPA would be required before the proposed development could commence to operate. Moreover, the Council's Director, in his written report to the Council meeting held on 4 March 1998 had noted in respect of the EPA's comments on the Benbow Noise Assessment:

It would then be up to the acoustical engineer to substantiate the findings of the acoustical report before the EPA could issue its approval

The relevant approval of the EPA contemplated by the deferred commencement condition was " a pollution control approval " issued under the Pollution Control Act 1970, Div 2 of Part 3A such approval being required in respect of " the doing of the thing specified in Noise Control Act 1975 s 27(2)(a) " .

That sub-section provides as follows: (2) The occupier of any premises: (a) shall not: (i) in or on those premises carry out any work that would cause those premises to be scheduled premises; or (ii) on any land construct any building development for use for a purpose that would cause the land or buildings to be scheduled premises

Section 4(1) of the Noise Control Act defines "scheduled premises" as meaning:

any premises of a class for the time being described in the Schedule

The Schedule to the Noise Control Act includes the following relevant descriptions:

1. Any premises: (b) on which there is any crane, conveyor, loader, unloader or pumps used or likely to be used in connection with the transport of goods, including raw materials, either in bulk at a rate in excess of 100 tonnes per day or in container units each of which weighs 5 tonnes or more when loaded.

…………. 3. Any premises: (b) used for the operation of railway systems, whether of the State Rail Authority or any other person……………

Even if it be assumed that the mistake in the Benbow Noise Assessment as to the precise location of the Applicant's evidence in relation to the development site, was undetected by the Council in its consideration of the noise impact of the proposed development (and it can only be an assumption since the Council had earlier been informed by the Applicant's Solicitor that his residence was located 72m from the noise source), it is not necessarily to be assumed that such mistake would go undetected by the EPA in its consideration of the Benbow Noise Assessment. Under existing environmental legislation and administration, the EPA is the pre-eminent authority in respect of noise control including its role in propounding noise criteria and objectives.

Indeed, the Council was already on notice that the EPA, in its "preliminary assessment" of the Benbow Noise Assessment, was of the opinion that "the document was unsatisfactory in addressing the control of noise from the site. In particular, there is concern with the design criteria and calculations presented in the requirement": vide EPA's letter dated 26 February 1998 to the Council's Planning Consultant.

Moreover, , it was (I infer) because of the differences of opinion between the EPA and the acoustic Consultant that both the Council's Planning Consultant and the Council's Director had recommended to the Council that it impose the deferred commencement condition recognising that the acoustic consultant would ultimately have to substantiate his opinions to the EPA. Although the Council and its agents, were satisfied with the Benbow Noise Assessment, they all knew that ultimately the EPA (which had raised a preliminary demur) must be satisfied before it would grant the requisite pollution control approval. However, this common knowledge did not induce, or result in, an abdication of planning responsibility vested in the Council to consider the noise impact of the proposed development.

In this respect, it is to be noted that the Pollution Control Approval granted to Specialized Container Transport by the EPA on 31 July 1998, imposed daytime and night-time noise control requirements in relation to the residence at Location A specified in the Benbow Noise Assessment (being the residence nearest to the development site) and additionally, imposed daytime and night-time noise control requirements "when measured or computed at any point within one metre of any other residence or other noise sensitive premises such as schools and dormitories". These additional requirements apply to "residences" (other than the residence shown as Location A in the Benbow Noise Assessment) and accordingly, the requirements are not infected by the mistake as to the location of the Applicant's residence as plotted in the Benbow document. In other words, the EPA did not relate its requirements to the Benbow Noise Assessment plottings of the residences at Locations B and C.

For all the foregoing reasons, I would reject the Applicant's claim that the Council failed to properly consider the noise impact of the proposed development, by virtue of the mistake in the Benbow Noise Assessment, as to the precise location in relation to the development site of the Applicant's residence (plotted as "Location C").

In passing, I would wish to say a little more concerning the effect in the law of judicial review of a mistake of fact made by an administrator etc. The subject is admirably discussed in an article by Timothy Jones in the 1990 volume of Public Law at pp 507-526 under the title "Mistake of Fact in Administrative Law". In the article, the author notes the emergence of two models of judicial review in respect of the approach to be taken by courts to mistakes of fact made by administrators as what he calls (i) the "expansive review" advocated by Professor Wade "decisions based upon wrong facts are a cause of injustice which courts should be able to remedy") and (ii) "limited review" as expressed by Lord Brightman in the decision of the House of Lords in Pulhofer v Hillingdon London Borough Council (1986) AC 484 518:

Where the existence or non-existence of a fact is left to the judgment and discretion of a public body … it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

The author proceeds to note that if courts are ultimately reluctant to accept that mistake of fact is an independent ground for judicial review, nonetheless some mistakes of fact may be corrected by applying the established judicial review principles of (i) taking into account irrelevant considerations; or (ii) the " no evidence " principle.

The author cites as an example of applying the first-mentioned principle the decision of the English Court of Appeal in Simplex GE (Holdings) v. Secretary of State for the Environment (1988) 57 P&CR 306.

The author's conclusion (at 525) is that "mistake of fact can act as a vitiating factor precipitating judicial intervention" but that the suggested doctrine should reflect the following characteristics: (i.) the mistake is a cardinal mistake of fact or one which the administrator would not have made the decision but for the mistake; (ii.) the mistake must be "an established and relevant" mistake and not one that merely reflects a reasonable interpretation in preference to a competing interpretation; and (iii.) the mistake is of a kind that suggests a failure of the administrator to fulfil his legal duty.

Professor Wade cites Mr Jones' Article (together with the decisions of the English Court of Appeal and House of Lords in Secretary of State for Education and Science v. Tameside Metrop Borough Council (1977) AC 1014) in support of his statement:

Mere factual mistake has become a ground of judicial review described as misunderstanding or ignorance of an established or relevant fact or acting upon an incorrect basis of fact : Administrative Law 7th ed at pp 316/317

Professor Wade's robust views for the development of an independent ground for judicial review, of mistake of fact, are not wholly embraced by the authors of the 5th edition of de Smith's Judicial Review of Administrative Action (1995) in their discussion of the topic in Section 5-091 to 5-096 .

They (Lord Woolf and Jeffrey Jowell QC) commence their discussion with the comment "….despite the ideal conception of judicial review, it cannot be unqualifiedly asserted that reviewing Courts have no part to play in the assessment of fact".

After noting Lord Brightman's dicta in Pulhofer attempting to restrict judicial review on questions of fact to situations where the public body is acting "perversely", the authors note the existence of "isolated suggestions that review of fact should be permitted", noting in particular the judgment of Lord Wilberforce in Tameside.

Their views, I think, are encapsulated in the following passage at Section 5-094.

In general it is right that courts do leave the assessment of fact to bodies which are primarily suited to gathering and assessing the evidence. Review must not become appeal. On the other hand it should be presumed that Parliament intended inferior bodies rationally to relate the evidence and their reasoning to the decision with which they are charged with making. (See further, Chap. 13 below ). The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision upon any evidence. In this limited context material error of fact has always been a recognised ground for judicial intervention.

Whatever be the emerging view in England, the present position in Australia, is I think, to be found in the leading judgment of Mason CJ in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321, especially at 355 to 360.

In the context of the Administrative Decisions (Judicial Review) Act 1977, the Chief Justice commences his discussion of the subject with the following statement at 355:

Findings of fact, including inferences, may be reviewed under the AD(JR) Act for error of law (s 5(1)(f) and on the ground " that there was no evidence or other material to justify the making of the decision (s 5(1)h).

The Chief Justice next examines the common law, according to the Australian authorities, while noting the apparently different position emerging from the English cases. The Chief Justice's " brief summary of the authorities relating to review for error of law " served as a prelude to his consideration of the grounds of review prescribed by the Commonwealth Act. After considering the relevant grounds, the Chief Justice makes the following observations at 358/360:

The Federal Court has expressed its agreement with statements made by the House of Lords to the effect that courts exercising judicial review should leave the finding of facts to the public body appointed for that purpose by the legislature except where the public body acts " perversely ": see Reg. v. Hillingdon London Borough Council; Ex parte Puhlhofer (62); see e.g., Broadbridge v.Stammers (63); Apthorpe v. Repatriation Commission (64) . In this context, perversely signifies acting without any probative evidence: see Television Capricornia Pty. Ltd v. Australian Broadcasting Tribunal (65); Smith v. General Motor Cab Co. Ltd (66). Thus, it has been held that the A.D. (J.R.) Act does not permit general review of findings of fact, in the absence of error of law: Borkovic v. Minister for Immigration (67). In particular, in Western Television Ltd v. Australian Broadcasting Tribunal (68) Pincus J. held that the presence of s. 5(1)(h) and (3) meant that an error of law within the meaning of s. 5(1)(f) could not include a mere lack of evidence, as distinct from a complete absence of evidence.

However, in several decisions it has been suggested that findings of fact which are unreasonable or arbitrary may be reviewed under s.5(1)(3) and (2)(a) and (b): see Singh v. Minister for Immigration and Ethnic Affairs (69); Independent F.M. Radio Pty Ltd v. Australian Broadcasting Tribunal (70); Minister for Immigration, Local Government and Ethnic Affairs v. Pashmforoosh (71). In the last-mentioned case, Davies, Burchett and Lee JJ. Said.

Thus, decisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power. The making of, or failure to make, a particular finding of fact in the course of the reasoning process may equally be attacked on any such ground. The taking into account of a fact found unreasonably or the failure to take into account a fact that a reasonable decision-maker would have found and taken into account provides a ground of review under ss.5(1)(e) and 5(2)(a) and (b) of the A.D.(J.R.) Act (Emphasis added.)

This statement is unobjectionable to the extent that a finding of fact constitutes a decision such that it can be reviewed for unreasonableness and on other appropriate grounds. But if the finding does not constitute a decision , it is beyond review independently of such a decision . In accordance with what I have already said, a finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing.

Yet a further perspective on the question is provided by the following passage from the decision of the High Court of Australia in Craig v. South Australia (1995) 184 CLR 163 at 179 which recognises that " in some circumstances" a mistaken factual conclusion may constitute " jurisdictional error ":

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

In my judgment, the relevant mistake in the Benbow Noise Assessment, even if undetected by the Council, does not involve any jurisdictional error on the Council's part.

The second and third arguments advanced on behalf of the Applicant can be considered together, namely that (i) by imposing the deferred commencement condition requiring approval of the EPA; and (ii) by not imposing other conditions to control noise emissions from the approved development, it can be inferred that the Council has not properly considered the noise impact of the proposed development.

In my judgment, even if these two facts were established (the second is clearly contrary to a number of conditions expressly imposed by the Council in granting the development consent eg Conditions 31, 32, 51, 59, 65, 66 and 70, all of which impose requirements designed to minimise noise impacts on nearby residents etc) they would not justify the inference that the Council had failed to properly consider the noise impact of the proposed development.

The Applicant, in developing its argument, relied upon the decision of Hemmings J in Jungar Holdings Pty Ltd v. Eurobodalla Shire Council (1989) 70 LGRA 79 where his Honour held at 89:

The Council obviously was satisfied that it had sufficient information to assess the appropriateness of the development proposed in the subject application. Regrettably, I do not share that opinion. In many respects, Council as the consent authority did not even attempt to discharge its duty properly pursuant to s90 to consider matters relevant to the development. That it did not do so is also confirmed by the conditions imposed in the consent. With respect to many matters essential for a proper determination of the application it merely deferred to the expertise of others.

In my opinion, the inappropriateness of the Council's decision is highlighted by condition (b) and the reasons stated for imposing it. Without any attempt to identify the level of odour, the Council purported to approve its emission from the premises and transferred responsibility to the SPCC to minimise it in order to afford some protection.

(Condition (b) was in the following terms (86):

Compliance with the requirements of the State Pollution Control Commission in accordance with the State Pollution Control Act. Details of such to be provided prior to the release of the building application.

Reason: To minimise any pollutant emissions and afford some protection to the surrounding environment)

There is no doubt that Hemmings J in Jungar Holdings inferred from the existence of the conditions that the Council had not properly considered relevant matters.

However, when regard is had to other matters contained in his Honour's judgment, it would be quite wrong to place undue emphasis upon this "confirming" inference. For example, later at 89, his Honour described the environmental impact statement that had accompanied the proposed development (as "designated development") as "….a pathetic document comprised mainly of general statements, inadequate particulars or description of the development proposed, and made inadequate or no assessment of impact".

Ultimately, his Honour held that the inadequacies of the environment impact statement remained at the close of evidence (and had not been made good by the evidence) and that he was "unable to make any real assessment" of the impact of the development: pp 89 and 90.

Moreover, it must be emphasised that Jungar Holdings was not a judicial review case at all - rather, it was an objector's appeal under the EP&A Act s 98 against the Council's decision to grant development consent to an application to carry out "designated development", namely an abattoir.

Additionally, it is to be noted that Jungar Holdings was decided before s 91AA was added to the EP&A Act by Act No. 32 of 1993 as to the significance of which see Canyonleigh Environment Protection Society Park v. Wingecarribee Shire Council (1997) 95 LGERA 294 at 309 to 311.

Concerning s 91AA, and the deferred commencement condition the Applicant relies upon the decision of Talbot J in Cameron v. Nambucca Shire Council (1997) 95 LGERA 268 (delivered co-incidentally upon the same day as the judgment in Canyonleigh was delivered) especially the following passages at 275/276:

The deferring of consideration of a matter which a consent authority is required to consider pursuant to s90 of the Act is not something which is not authorised by s91AA.

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 s90 or the requirement to finally determine the development application pursuant to s91. 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 s92(3)(a),until the applicant satisfies the consent authority as to the matters specified in the condition.

It is not necessary in the present case to consider whether, (as has been suggested in the Law Book Company's annotations to s 91AA ) the decision in Canyonleigh adopts a broader view of the scope and effect of s 91AA than was ascribed to it in Cameron . This is because of my finding, by way of inference from the primary facts, that the Council did not defer its consideration of the noise impact of the proposed development. In particular, for the reasons given earlier, the imposition of the deferred commencement condition did not involve any deferment of the Council's consideration of the noise impact of the proposed development.

In this respect, the facts of the present case are radically different from the facts found in Jungar Holdings, which is distinguishable on the facts (quite apart from the fact that it was not a judicial review case).

The primary facts, support my ultimate finding that the Council properly considered the noise impact of the proposed development. That consideration necessarily included (i) an acceptance of the conclusion in the Benbow Noise Assessment that "emissions from the activities of the facility could satisfy reasonable daytime and night-time noise levels", and (ii) an acceptance of the Council's Planning Consultant's recommendation (supported by the Council's Director) to impose a deferred commencement consent, the reason for such recommendation being the existence of the preliminary demur raised by the EPA in its response (given to the Council's Planning Consultant) to the Benbow Noise Assessment, which although satisfactorily answered by the Acoustic Consultant (so far as the Council's Planning Consultant was concerned) nonetheless was seen as ultimately being required to satisfy the EPA in its regulatory function under the Noise Control Act and the Pollution Control Act.

The Applicant mounted an interesting submission based upon the exchange of correspondence between the EPA and the Council that I have earlier recited which predated the Council's determination of the development application. Generally speaking, the correspondence reveals an obvious tension or friction between the two public authorities concerning their respective functions in relation to the development application made by Specialized Container Transport. In particular, the EPA was seeking to be involved in the development control process (so I infer, because it was receiving considerable public complaint and enquiry about the proposed development) and the Council was insisting that it was the "consent authority" under the EPA Act with the statutory responsibility to determine the development application.

There is no need to further rehearse the contents of the correspondence except to repeat the following extract from the letter dated 16 February 1998 from the EPA, which extract immediately follows the statement that the proposed development was "scheduled premises" in terms of the Noise Control Act and that in consequence, "should Council grant development consent, then the proponent would require Pollution Control Approval from the EPA":

I must remind Council that the responsibility for controlling any noise impacts from the operation, should it become established, may not always rest with the EPA. Currently the container terminal is a scheduled premises. However, this designation may change with the yet to be announced Protection of the Environment Operations Regulations, in which case the responsibility to control noise will revert to with Bathurst City Council .

It will be recalled that the Council's letter in reply had stated:

Council also is aware that the development, should it proceed, will be a scheduled premises under the Noise Control Act 1975.

Council's practice in these matters always has been that, where it intends to approve of such an application, it imposes a condition requiring the applicant to obtain the necessary licences/approvals from the EPA.

Council is not an agent for the EPA and intends to continue its current practice, until any legislative amendments require a change.

Founding himself on the statement from the EPA that the present regulatory noise control regime " may change with the yet to be announced…Regulations ", Counsel for the Applicant submitted that the Council ought to have anticipated what the Regulations to be made pursuant to the Protection of the Environment Operations Act 1997 might ultimately provide, and so avoided that risk by imposing a regime of conditions of development consent similar in effect to the controls on noise emissions that the EPA would be likely to impose on the grant of any pollution control approval (such as were imposed on the grant of the Pollution Control Approval on 31 July 1998).

The Applicant sought to buttress the argument by reference to the provisions of the Protection of the Environment Operations Act 1997 and in particular, by reference to the provisions contained in the Protection of the Environment Operations (Savings and Transitional) Regulation 1998 as published in Government Gazette No. 178 of 24 December 1998.

It is not necessary to recite the relevant provisions of the Protection of the Environment Operations Act 1997 or the Regulation made thereunder other than to note that at the time of the grant of the development consent in March 1998, although the Act had received royal assent, it had not yet commenced to operate, and the Regulation had not been published (that occurred on 24 December 1998 on the same day that it was proclaimed that the Act would commence on 1 July 1999).

It may be accepted for present purposes that upon commencement on that day of the Act and the Regulation, the approved development will not involve the conduct of "scheduled activities" and hence will not require licensing or approval from the EPA and that the Pollution Control Approval granted by the EPA on 31 July 1998 to the approved development, will be "terminated". It is also accepted that on that day the Council will become the appropriate regulatory authority for "non-scheduled activities" within the City of Bathurst: vide s 6(2) of the Act. However, it is not to be assumed that there will arise a situation where the approved development is not subject to noise control or that there will be a gap or vacuum in relevant noise controls.

Can it be inferred from the fact that the Council, in granting the development consent subject to the deferred commencement condition and other conditions relating to minimising noise impact (but not including the noise control criteria and controls such as were imposed by the EPA in granting the Pollution Control Approval to Specialized Container Transport on 31 July 1998) that the Council had failed to properly consider the noise impact of the proposed development?

In seeking such a positive inferential finding, the Applicant necessarily invites the Court to peer into the future (ie from the perspective pertaining at the date of the granting of the development in March 1998 to the future date of commencement of the Act and Regulation on 1 July 1999) on the basis of advice contained in the letter dated 16 February 1998 from the EPA advising the Council that the then present noise control regime vesting principal responsibility in the EPA "may change" in the future, in which case "the responsibility to control noise will revert to the Council".

In my judgment, this submission, without the benefit of hindsight is altogether too speculative and the primary facts upon which it is founded are altogether too equivocal to justify the inference that the Council has failed to properly consider the noise impact of the proposed development because it did not guard against the risk that at some future date the EPA may cease to be the regulatory authority for noise control of the approved development with the possible consequence that any noise control requirements imposed upon the requisite Pollution Control Approval might cease to apply. I am not prepared to draw such inference, especially in the light of all of the evidence earlier recited and considered in detail, concerning the manner in which the Council considered the noise impact of the proposed development in its determination of the development application.

For all of the foregoing reasons, I find that the Applicant has not established that the Council failed to properly consider the noise impact of the proposed development.

D. DID THE COUNCIL TAKE INTO ACCOUNT IRRELEVANT CONSIDERATIONS?

The Applicant's allegation (as pleaded in par 25 of the Points of Claim) is that the Council took into account irrelevant considerations, namely its commercial interests by virtue of (i) its ownership of the development site; and (ii) its contractual arrangements with Specialized Container Transport.

No particular evidence was adduced in support of this allegation other than what is revealed in the documentary material and what is admitted in the pleadings. I have earlier rehearsed (see par 12) the background facts to the lodging of the development application.

My consideration of the documentary material indicates that there is no basis for substantiating the Applicant's present allegation.

Indeed, the Council's Planning Consultant's assessment is introduced by the following statement:

Given that Bathurst City Council is the owner of the site, the purpose of this report is to provide Council with an independent assessment of the application with particular reference to the heads of consideration under s 90 of the Environmental Planning and Assessment Act 1919.

The Council's Planning Consultant's assessment of the social and economic effects of the development (s 90(1)(d) of the EP&A Act ) include the following opinions:

The development has the potential to generate positive economic effects in the locality by way of: · increased employment opportunities; · minor economic spinoffs during the construction phase due to purchase of materials locally, and use of local contractors and labour; · establishing Bathurst as a significant link for national freight movement; and enhancing the diversity of Bathurst's industrial function. · There does not appear to be any negative economic effects that would arise and impact upon the locality. It (sic ) such effects were to occur, it is reasonable to suggest that the impacts would be of greatest significance to the applicant. · Any positive social effects relate mainly to the economic benefits that the proposal may generate. However, it is also reasonable to suggest that the facility has the potential to encourage a greater use of rail freight as opposed to road haulage.

The Applicant attaches significance to the following words in the Council's Director's report to the Council meeting on 4 March 1998:-

It is strongly recommended that Council adopt the recommendation of its Consultants so this important project for Bathurst and the region can proceed.

In my judgment, there is nothing untoward in the Director's description of the proposed development as " an important project for Bathurst and the region ".

It is consistent with the Council's Planning Consultant's assessment of the social and economic effects of the proposal. It was entirely appropriate and unexceptional for the Council's Director to describe or to regard, the proposal as "an important project for Bathurst". Such description carries no implication whatsoever that the Council, in adopting the recommendation of its Planning Consultant and of its Director, was having regard to its commercial interests as the owner of the development site.

The Applicant has utterly failed to substantiate this allegation. In passing, I should add that I am unpersuaded by the Applicant's submission that the Council acted with undue haste. It is true that the consideration process was hastened in February and March 1998. However, the process had begun in September 1997 and overall took six months - hardly hasty!

E. WAS THE COUNCIL'S DETERMINATION UNREASONABLE IN THE "WEDNESBURY" SENSE?

The Applicant's pleading in amended par 24 of the Points of Claim alleges that:

It was not reasonably open to the Council to form the opinion that the development as conditioned by the conditions of consent would adequately protect the area and the surrounding residences from noise.

In a fundamental sense, this pleading is misconceived. The Council was not under any duty to form the opinion formulated in the pleading. Its duty under the EP&A Act (s 90) was to " determine " the development application by " taking into consideration " relevant matters. Those matters included " the environmental impact " of the proposed development including any " means that may be employed to protect the environment or to mitigate any harm to the environment ". Consideration of such matters does not demand or require a given result, such as is assumed by the Applicant's pleading.

In large measure, this basis of attack is similar to the Applicant's allegation that the Council did not properly consider the noise impact of the proposed development. It follows, that my conclusions holding that that separate attack fails, in large measure sounds a similar fate for the present basis of attack on the Council's decision to grant the development consent.

In adjudicating upon the Applicant's present claim, it is necessary to bear steadfastly in mind the Court's limited role in judicial review, as is expounded in the following passage from the judgment of Mason J (as he then was) in Peko Wallsend at 40/41: (d) the limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation (41)

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, 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: Sean Investments Pty Ltd v. MacKellar (42); Reg. v. Anderson; Ex Parte Ipec-Air Pty. Ltd. (43); Elliott v. Southwark London Borough Council (44); Pickwell v. Camden London Borough Council (45). I say generally because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is " manifestly unreasonable ". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation (46), in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. (41) [1948] 1 K.B., at p. 228). (42) (1981) 38 A.L.R., at p. 375. (43) (1965) 113 C.L.R. 177, at p. 205. (44) [1976] 1 W.L.R. 499, at p. 507; [1976] 2 All E.R. 781, at p. 788. (45) [1983]

The salutary caution that courts must not exceed their supervisory role is perhaps even more emphatically expounded by Brennan J (as he then was) in his judgment in Attorney-General for NSW v Quin (1990) 170 CLR 1 at 35 to 38 (inclusive). Although the extended passage should be consulted I shall confine quotation to his Honour's statements of (i) the scope and extent of the judicial review jurisdiction and (ii) the limitations of the doctrine of "Wednesbury unreasonableness".

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

There is one limitation , Wednesbury unreasonableness (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [[1948 ] 1 KB 223], which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment [[1986] AC 240 at 249]. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined.

156. The former passage in Quin was cited in the joint judgment of Brennan CJ and Toohey, McHugh and Gummow JJ in Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 in support of the proposition:

…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

157. The second passage quoted from Brennan J's judgment in Quin was expressly applied by the NSW Court of Appeal in Minister for Urban Affairs and Planning v Rosemount Estates Pty Limited (1996) 91 LGERA 31 - see at 41 per Sheller JA and at 76 per Cole JA.

158. In Rosemount Cole JA at 79 cites with approval a passage from the judgment of Potts J sitting in the Queen's Bench Division of the English High Court in R v Secretary of State for the Environment: ex parte Greenpeace Ltd (1994) 4 All ER 352. The passage referred to principally involves an extended quotation from the speech of Lord Lowry in Brind v Secretary of State for the Home Department (1991) 1 All ER 720. The passage is illuminating and but for its length, I would wish to quote it in full. I only quote the end portion of Lord Lowry's speech:

A less emotive, but subject to one qualification, reliable test is to ask: Could a decision-maker acting reasonably have reached this decision? The qualification is that the supervising court must bear in mind that it is not sitting on appeal, but satisfying itself whether the decision-maker has acted within the bounds of his discretion. For that reason it is fallacious for those seeking to quash administrative acts and decisions to call in aid decisions of a Court of Appeal reversing a judge's finding, it may be on a question of what is reasonable. To say what is reasonable was the judge's task in the first place and the duty of the Court of Appeal, after giving due weight to the judge's opinion, is to say whether they agree with him. In judicial review, on the other hand, the task of the High Court is as described above, and the task of the Court of Appeal and, when necessary, this House is to decide whether the High Court has correctly exercised its supervisory jurisdiction. (Lord Lowry's emphasis) .

159. Before leaving English authority I would refer to the speech of Lord Hoffman in Tesco Stores Ltd v Secretary of State for the Environment (1995) 2 All ER 636 at 657 where his Lordship emphatically restates that decisions made by planning authorities based upon the planning merits of the case are not reviewable in the exercise of judicial review jurisdiction:

Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British Planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.

160. Finally I should note that since the time when Priestley JA in giving the judgment of the Court of Appeal in ULV Pty Ltd v Scott (199) 69 LGRA 212 at 229 discerned a difference in the formulation of the test of Wednesbury unreasonableness between that propounded by Mason J in Peko-Wallsend and that propounded by the House of Lords in Nottinghamshire County Council v Secretary of State for the Environment (1986) AC 240 and in Puhlhofer v Hillingdon London Borough Council (1986) AC 484, (noting that the English cases appeared to adopt a higher test) the two later decisions of the High Court that I have referred to, would appear to have moved into closer, if not identical, alignment with the English authorities.

161. Having regard to the now well-established judicial strictures on the nature and extent of "Wednesbury" unreasonableness, I am of the opinion that the Applicant's present allegation has not been substantiated. Rather it is, in truth and in substance, merely a complaint about the merits of the Council's planning decision. As such, it falls clearly beyond the scope of judicial review. The answer to the crucial question whether, on the established facts, a decision-maker could reasonably have reached the decision made by the Council, in my judgment, must be answered resoundingly in the affirmative.

162. In so concluding, it is to be noted that not only is the Applicant's present allegation entirely contrary to the primary facts established by the documentary evidence, but it is entirely unsupported by any evidence.

163. At best, the allegation is founded upon a view of the primary facts, that in my opinion, is not justified in terms of the drawing of ultimate inferences from those facts, for the reasons that I have earlier given, in rejecting the Applicant's claim that the Council did not properly consider the noise impact of the proposed development.

164. At worst, the allegation is mere assertion, albeit clothed in the legal language of judicial review, based upon the Applicant's obvious dissatisfaction with the merits of the Council's planning determination.

165. It may be readily accepted (as the Applicant has argued) that instead of imposing (i) the deferred commencement condition requiring approval by the EPA to the proposed development and (ii) the other conditions minimising the noise impact of the proposal, the Council could have imposed a noise control regime similar to that imposed by the EPA as conditions of its Pollution Control Approval granted in respect of the approved development on 31 July 1998, namely prescribing absolute noise levels at the nearest residential receptors of the noise generated by the approved development.

166. However, this is to say no more that that as a matter of planning merit and discretionary planning judgment, the Council could have imposed different (and more rigorous) conditions in relation to the minimisation of noise impact. But this is simply to comment upon (or even to criticise) the Council's determination on the planning merits. As such, it is unavailing comment in judicial review proceedings.

167. As I have earlier pointed out, the Applicant's criticism of the Council for not avoiding the risk of future changes to the regulatory functions of the EPA in the statutory regime of noise control, is based upon hindsight of events occurring well after the Council's determination was made (and I might add, in respect of events that are still yet to occur i.e., the commencement on 1st July 1999 of the Protection of the Environment Operations Act 1997). It is surely an extraordinary proposition for the Council to be criticised for making its determination in accordance with the existing legislative regime for noise control of scheduled premises under the Noise Control Act. Indeed, the reliance upon such an argument highlights the difficulty obviously recognised and encountered by the Applicant in mounting its judicial review challenge to the Council's grant of the development consent.

168. For all the foregoing reasons, this claim must fail.

169. The Applicant's allegation (as pleaded in par 28 of the Points of Claim) is that the Council, in determining the development application, was in a conflict situation between (i) its duty as the consent authority under the EPA Act and (ii) its interest as the owner of the development site.

170. However, the Applicant's allegation is not supported by any evidence that that conflict remained unresolved or that it tainted the Council's determination granting the development consent.

171. Indeed, the evidence is to the contrary. It is to be recalled that it was the Applicant's Solicitor who had urged the Council to engage an independent consultant to assess the development application and that the Council, recognising the possibility of the perception of bias, decided to engage an independent planning consultant to assess the development application.

172. This having occurred, the evidence satisfies me that the conflict or potential conflict of interest on the Council's part was entirely and satisfactorily resolved, and that the Council's grant of the development consent was untainted by any such conflict.

173. The Applicant has wholly failed to establish his claim.

G. WAS THE DELEGATION TO THE COUNCIL'S DIRECTOR UNAUTHORISED?

174. I have earlier recited the Council's resolution passed at its meeting held on 4 March 1998 (see paragraph 63).

175. The Applicant asserts that this resolution constitutes a delegation of a function of the Council and is relevantly unauthorised by virtue of it being contrary to the provisions contained in Local Government Act 1993 (s 377 and s 378).

A Council may, by resolution, delegate to the general manager or any other person or body (not being another employee of the council) any of the functions of the council other than the following:

177. There follows an extensive enumerated list of functions which does not include the function of determining a development application under the EP&A Act .

The general manager may delegate any of the functions of the general manager, other than this power of delegation.

179. The Applicant submits that the scheme of the two sections is (i) to preclude the Council from making a direct delegation to an employee other than the general manager but (ii) to allow the general manager to delegate to another employee of the Council any of his functions or to sub-delegate any of his delegated functions.

180. The Applicant submits that because the Council's resolution passed on 4 March 1998 purports to delegate a function directly to the Council's Director, it is invalid and the determination of the Council's Director granting the development consent is on that account itself invalid.

181. In my judgment, the Applicant's arguments must be rejected for the reason that properly construed, the Council's resolution did not delegate to the Council's Director the Council's function, as consent authority under the EP&A Act, to determine the development application. Rather, the Council was directing him, as an employee, to undertake a task, as its agent, (namely to determine within the circumscribed instructions, the conditions to be imposed upon the development consent that he was directed to grant). The existence of Local Government Act 1993 (s 377 and 378) does not operate, in my judgment, to deny the Council the power to give such a direction to its employee: cf Peko Wallsend at pp 37 and 38 where Mason J stated:

The presence of an express statutory power of delegation does not necessarily exclude the existence of an implied power to delegate or, to express it more accurately, to act through the agency of others. By way of illustration there are cases which establish that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his Department: Carltona Ltd v. Commissioners of Works (26); In re Golden Chemical Products Ltd (27). This principle partly depends on the special position of constitutional responsibility which Ministers occupy and on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally: O'Reilly v. State Bank of Victoria Commissioners (28). The principle was applied in that case to the power given to the Commissioner of Taxation by s. 264 of the Income Tax Assessment Act 1936 (Cth) to issue a notice requiring a person to furnish information, attend and give evidence, and produce documents, notwithstanding that the Commissioner had an express statutory power of delegation which he did not exercise in favour of the person who in fact issued the notice. (27) [1976] Ch. 300. (28) (1983) 153 C.L.R. 1, at p.11.

182. For completeness, I should add that had I accepted the Applicant's argument that the Council's resolution had created an unauthorised delegation to the Council's Director, and that was the only successful claim of all the several claims made by the Applicant in these proceedings, in the exercise of judicial discretion I would not have granted the declaratory relief claimed by the Applicant.

H. DID THE COUNCIL'S RESOLUTION FETTER THE DISCRETION VESTED IN THE COUNCIL'S DIRECTOR?

183. In posing this question, it is, of course to be understood that only an impermissible or an unreasonable fetter would legally taint the Council's resolution.

184. In my judgment, the Applicant's claim has not been substantiated.

185. Properly construed, the Council's resolution did not as I have earlier held, involve any delegation of the Council's function as consent authority in terms of the EP&A Act to determine the development application. Rather, the Council's direction to the Council's Director is to be understood as a direction to him to implement the Council's decision which accepted the conclusions and recommendations of the Council's Planning Consultant.

186. Such implementation would necessarily involve the adoption of all of the suggested safeguards and the mitigative measures recommended by the Council's Planning Consultant, and the obvious manner in which they were to be implemented was by way of the imposition of conditions of development consent.

187. To that extent, the Council did impose a fetter on the Council's Director's discretion. However, it was eminently a reasonable fetter, because it arose out of the Council's acceptance of the detailed planning assessment of the proposed development made by the Council's Planning Consultant in his comprehensive written report.

188. For these reasons, I hold that the Applicant has not substantiated his claim.

I. DOES THE DEVELOPMENT CONSENT LACK THE REQUISITE CERTAINTY AND FINALITY?

189. The Applicant's pleading in paragraph 27(c) is postulated on the premise that the Council's resolution granted the development consent.

190. In my judgment, the pleading is misconceived, both in fact and in law.

191. As to the facts, the Council's resolution does not, by and in itself, purport to grant development consent. Rather, in terms, it directs the Council's Director to grant the development consent, subject to the conditions of consent as determined by himself, but having regard to (in the sense of adopting and implementing) the safeguards and mitigative measures recommended by the Council's Planning Consultant.

192. As to the law, the development consent which was in the form of a deferred commencement consent, was not granted until it was notified to Specialized Container Transport in the s 92 Notice dated 18 March 1998.

193. In notified form, the deferred commencement consent was not lacking the requisite certainty and finality for development consents granted under the EP&A Act.

194. Although the development consent did not come into existence until it was so notified, the Council's resolution passed on 4 March 1998 nonetheless was a crucial element in the grant of the development consent. Although not itself the grant of development, it was virtually entirely determinative of the ultimate outcome.

195. Once the true nature and effect of the Council's resolution and its subsequent implementation (by way of the grant of the deferred commencement consent) are appreciated, the Applicant's claim that the resolution was legally flawed because it lacked the necessary finality and certainty, must be held to fail.

196. For all the foregoing reasons, the application must be dismissed. As requested by the Applicant, I reserve the question of costs.

197. Accordingly, I make the following orders:
198. Application be dismissed.
199. Exhibits be returned.
200. Question of costs be reserved. --------------OoO-------------- I HEREBY CERTIFY THAT THE PRECEDING 197 PARAGRAPHS ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT OF THE HONOURABLE JUSTICE N R BIGNOLD.

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.