Woolworths Limited v Wyong Shire Council & Ors

58 The Council argued that cl 59(1) was not a protectionist provision. Rather it operated to enable a retail centre to be established in Wadalba to prevent the expansion of retail centres that might exceed the environmental capacity of the land. In any event, councils have the power to make delegated legislation that has an anti-competitive outcome. If they did not, then all business or shopping centre zones would be invalid. Secondly, the Council submitted that even if the effect of cl 59(1) is protectionist, the purpose of cl 59(1) is not. Relying on Kentucky Fried Chicken Pty Limited v Gantidis (1979) 140 CLR 675 at 687 the Council argued that it is not the operation of the clause that matters, but rather whether an irrelevant consideration was taken into account when making the planned amendment to the LEP. Thirdly, the Council submitted that if the question is whether the purpose for making the LEP was anti-competitive, that question is directed to the Minister's conduct, not the Council's, as it is the Minister who has made the plan pursuant to s 70 of the EP&A Act. In the absence of any evidence in relation to the Minister's decision, the Applicant must fail. Finally, the Council argued that the establishment of a local shopping centre and the protection of the local shopping centre from competition was a legitimate purpose. The Council submitted that it was in the public interest that such prohibitions are available to ensure that the local shopping centre consent is implemented for the benefit of the locality. (ii) Clause 59(1) does not relate to the subject matter of the legislation 59 The Council argued that cl 59(1) is entirely within the subject matter, scope and purpose of the EP&A Act particularly having regard to the objects stated in s 5(a)(i), s 5(a)(ii) and s 5(a)(vii). On its face, cl 59(1) controls development by prohibiting the Council from granting consent to more than one local shopping centre in Wadalba. The operation and effect of cl 59(1), therefore, related to the control of the expansion of retail uses within the Wadalba area. (iii) Clause 59(1) is not reasonably capable of reference to the power given to the decision-maker 60 For similar reasons, the Council submitted that cl 59(1) of the LEP is reasonably capable of reference to the power given to the decision-maker. This power is contained in s 70 of the EP&A Act which authorises the Minister to make a local environmental plan. The Council argued that it might be offended if the Minister made the wrong plan, or the wrong Minister made the plan, but there is nothing on its face which suggests that the amending LEP was not made in accordance with or pursuant to s 70 of the EP&A Act. Equally, cl 59(1) is clearly capable of reference to the power of the Council to prepare a draft LEP pursuant to s 54.

(b) Clause 59(1) offends a limitation within the EP&A Act which is essential, indispensable, imperative or inviolable 61 Contrary to the Applicant's submission, the Council submitted that cl 59(1) did not offend against essential, indispensable, imperative or inviolable legislative constraints. The Council argued that the only grounds protected by this principle are those that breach the rules of natural justice, and those that breach an essential principle of the EP&A Act, such as public participation in the development consent process. Finding 62 Section 5 of the EP&A Act sets out the objects of that Act which are relevantly: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (ii) the promotion and co-ordination of the orderly and economic use and development of land, (iii) the protection, provision and co-ordination of communication and utility services, (iv) the provision of land for public purposes, (v) the provision and co-ordination of community services and facilities, and (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and (vii) ecologically sustainable development, and (viii) the provision and maintenance of affordable housing, and … 63 Section 24 of the EP&A Act provides that: Without affecting the generality of any other provisions of this Act, an environmental planning instrument may be made in accordance with this Part for the purposes of achieving any of the objects of this Act.

64 Section 26 of the EP&A Act provides that: (1)Without affecting the generality of section 24 or any other provision of this Act, an environmental planning instrument may make provision for or with respect to any of the following: (a) protecting, improving or utilising, to the best advantage, the environment, (b) controlling (whether by the imposing of development standards or otherwise) development, … (a) Challenges to cl 59(1) under the Hickman categories of error 65 There is significant overlap in the arguments related to the three challenges to cl 59(1) arising from the Hickman principles. It is appropriate that I deal with these three arguments together.

66 Consistent with the Hickman principles, the error must be manifest for it to avoid the operation of s 35. Applying my findings at par 45, when cl 59(1) is read in the context of the LEP and the objectives of the EP&A Act it is clear that it has been made for a bona fide purpose, does relate to the subject matter of the legislation, and is reasonably capable of reference to the power given to the decision-maker. It clearly deals with limitations on a particular kind of development and the Council has broad powers to deal with the regulation of development in LEPs. While the Applicant made lengthy submissions to which the Council responded and which have been summarised above, it is arguably unnecessary to explore these in the depth that I am about to do as the Hickman principles have been satisfied and cl 59(1) cannot be challenged. 67 The essence of the Applicant's case is that cl 59(1) breaches s 24 of the EP&A Act because it does not have the effect of achieving the objects of that Act and cannot therefore be within the Council's power to make an LEP under it. Particular reliance was placed on a three step approach derived from McEldowney v Ford, Esmond Motors and Tanner per Brennan J. Firstly, to be valid the effect of the clause must be to achieve the objects of the Act as required by s 24. The Respondents do not dispute this proposition. Secondly, the meaning of the environmental planning instrument must be determined including the true scope of the measure, its operation and legal effect in the circumstances in which it is intended to apply. Thirdly, cl 59(1) must be considered to see if it is an environmental planning instrument, that is, gives effect to the objects of the Act. All these steps are closely related. The parties differ on the second and third aspects.

68 It is self evident that the objects of the EP&A Act and s 26 provide wide powers to a council and to the Minister to prepare and make an LEP which controls development. It is not appropriate to consider cl 59(1) in isolation from the rest of cl 59, the LEP in general and the planning exercise undertaken by the Council as it is necessary to understand the scheme within which the clause is intended to operate. Clause 59(1) is not inherently flawed because it refers only to the granting of consent, which the Applicant argued was an indiscriminate prohibition. Clause 59(1) is intended as a broad prohibition on a second local shopping centre in Wadalba, which is a legitimate purpose under the EP&A Act. The limits the Applicant argued were necessary, for example, that the local shopping centre must be adequate and operational (see par 47 above), are not required in order to render cl 59(1) meaningful and operative.

69 The Council has undertaken a lengthy and orderly planning process to arrive at its view on the appropriate retail hierarchy for Wyong Shire as part of the development of greenfield areas such as Wadalba as detailed at par 53 - 55. The Applicant's argument that the clause is anti-competitive and protectionist could apply to any zoning which seeks to limit particular development in certain locations. While it may be unusual to provide as cl 59(1) does for only one kind of development at a time in a particular locality, I consider that is a legitimate implementation of the planning responsibilities of the Council undertaken in accordance with the EP&A Act. Support for this can be found in the cases identified by Errol Investments.

70 In Shell Company v Randwick Municipal Council (1959) 4 LGRA 348 Sugerman J stated at 362: Notwithstanding… in earlier cases, it would now seem that the circumstances that an additional service station would result in an undue aggregation of service stations in a particular locality may be a relevant town-planning consideration within the competence of a council as a responsible authority under the Ordinance.

71 In Shell Company v Manly Municipal Council (1961) 7 LGRA 87 Sugerman J considered whether a development consent should be granted for an application to build a petrol station in an area where there were eleven petrol station within one mile of the subject site. Sugerman J stated at 94 to 95 that: It is, then, understandable that an undue multiplication of their numbers in a given locality may become a matter of concern to responsible authorities. As has been pointed out in a number of recent decisions, town planning considerations may thus enter into the matter, so that it becomes not merely a question of rationalising trade or industry on general economic grounds but one of making the best use of available land.

72 Errol Investments relied on Gantidis per Stephen J (with whom Gibbs, Mason and Aickin JJ agreed) at 687 as follows: If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. 73 Stephen J also stated at 687: However, the mere threat of competition to existing businesses if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration. 74 Fabcot Pty Limited v Hawkesbury City Council (1997) 93 LGERA 373, relied on by the Applicant, concerned circumstances where the Court was considering whether to grant development consent in a merit appeal before this Court. Lloyd J held at 378 that: "… economic competition between individual trade competitors is not an environmental or planning consideration to which the economic effect described in s 90(1)(d) [now s 79C(1)(b)] is directed." I note that Lloyd J at 378 - 379 also adopted the above passage of Stephen J in Gantidis. Gantidis is an appeal from the merits review by the Victorian Planning Tribunal about a particular proposal. The two Shell decisions relied on above were also made in the context of whether a particular development ought be approved. 75 The arguments in all these cases need to be considered carefully in the circumstance here. The issue is what the Council has chosen to put in the planning instrument which will regulate future development, a quite different scenario to a planning appeal about an individual development. Arguably the rational use of land which here includes consideration of the appropriate supply of retail outlets across the Wyong Shire is a legitimate matter about which Council can make provisions in their LEPs under s 24 of the EP&A Act. The considerations in this context are not the same as those required to be considered under s 79C in relation to a development application. In my view, s 24 of the EP&A Act, which requires a council to have regard to the objects of the EP&A Act when making environmental planning instruments, means a council has very broad powers when making an LEP. The cases at par 70 - 73 provide authority for the point that in certain circumstances it will be appropriate to consider as a town planning matter the appropriate level of retail outlets in a particular area when assessing the merits of an application. This confirms that it is even more appropriate for a council to consider such matters as town planning issues when exercising its power under s 24 in making an LEP. 76 I accept the Council's arguments that cl 59(1) considered in the context of the LEP and the Council's attempts to define and implement a retail hierarchy strategy for Wyong Shire is within power and not directed at a protectionist objective. Applying the three step process identified in par 67 I consider cl 59(1) does seek to achieve the objects of the EP&A Act as required by s 24, its operation and legal effect are within the scope of the EP&A Act and it is an environmental planning instrument within the meaning of the Act. In terms of the Hickman principles, cl 59(1) is a valid exercise of power, does clearly relate to the EP&A Act and its objects and is clearly capable of reference to the power under s 24 of the EP&A Act to make an LEP. There is no manifest "defect" and the Hickman principles are not offended by cl 59(1).

(b) Clause 59(1) offends a limitation within the EP&A Act which is essential, indispensable, imperative or inviolable 77 Neither of the ultra vires grounds of review raised by the Applicant (APOC par 14(a) and (b)) fall into the category of a failure to observe an essential, indispensable, imperative or inviolable requirement of the legislation. While the Applicant framed its arguments to fit within this description I consider it was simply a restatement of the earlier grounds of review and is not a separately arguable ground on the facts of this case. I agree with the Council's argument at par 61 above as to the scope of this limitation. 78 Section 35 of the EP&A Act applies so that the Applicant is prevented from challenging the validity of cl 59(1) on the basis of the two grounds (i) and (ii) in par 11. The Applicant is therefore unsuccessful on the first issue.

(Issue 2) The Council did not have jurisdiction to grant development consent due to the operation of cl 59(1) (APOC par 63A) 79 On 29 September 2000, Landco (NSW) Pty Limited lodged development application no. 2917/00 for a mixed residential, commercial and retail development on land in Wadalba. The Development Application Assessment Report stated that: The proposal is to construct Wadalba Local Centre, including commercial, retail, residential and home business components… The commercial component is proposed to consist of a small supermarket, greengrocer and coffee shop with home office spaces also available… 80 On 11 May 2001, the Council determined development application no. 2917/00 by the grant of consent ("the May 2001 consent"). The consent was not proceeded with and lapsed in May 2003.

Applicant's submissions 81 The Applicant submitted that the development consent granted in relation to the Errol DA was invalid because the Council did not have jurisdiction to grant the consent having already granted development consent once. Clause 59(1) of the LEP states that the Council shall not grant consent for more than one local shopping centre on areas of land zoned 2(e) in Wadalba. On a proper construction of the effect of cl 59(1) of the LEP the Council only had power to grant consent for one local shopping centre, and had no jurisdiction to grant consent to any further applications. Clause 59(1) operates in this way irrespective of whether the consent granted is taken up, completed, lapses or is surrendered and clearly has "absurd" results. The intentions of the Council in making cl 59(1) are not relevant, what must be considered is its effect. Council's and Errol Investments' submissions 82 The Council and Errol Investments submitted that the Council was entitled to grant consent to the Errol DA in circumstances where there was no local shopping centre in the relevant zone. On the proper construction of cl 59(1) of the LEP, the Council's power to grant consent lapsed only when a local shopping centre had been established, or when a consent had commenced. The Council and Errol Investments relied on s 33 of the Interpretation Act 1987 ("the Interpretation Act") and the cases of Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1980) 147 CLR 297, Kingston & Anor v Keprose Pty Limited (1987) 11 NSWLR 404, Minister for Resources & Anor v Dover Fisheries Pty Limited (1993) 116 ALR 54 at 63 per Gummow J and Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385 to argue that the underlying purpose of the clause must govern its construction and that the Court should favour a construction of cl 59(1) that is consistent with the intent of the LEP and avoids absurdity and impractical results. Finding 83 If the literal interpretation argued for by the Applicant is applied this would mean that even if a development consent is not proceeded with and no shopping centre built, then the Council is unable to approve another shopping centre in Wadalba. In making this point the Applicant relied on cases that considered the grant of consent as distinct in fact and law from the implementation of the consent (Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 at 144; Hayden Theatres Pty Limited v Penrith City Council and Ors (Bignold J, NSWLEC, 1 April 1998, unreported)). That distinction I do not consider to be material in the context of interpreting this LEP. 84 It is clearly the intention of the instrument that there be one operational local shopping centre in Wadalba. I agree with the Council and Errol Investments that cl 59(1) means that the Council must not grant consent so as to permit the development of more than one local shopping centre. While there are two possible interpretations of cl 59(1) the latter interpretation is clearly more consistent with the intent of the LEP. I consider that the "absurd results" argument put forward by the Applicant confirms the latter interpretation is appropriate. The Applicant argued that on one "bizarre" construction of cl 59(1) of the LEP, a developer could deliberately obtain consent for a local shopping centre and fail to utilise the consent, thereby exhausting the operation of cl 59(1). I agree that this would be a bizarre operation of cl 59(1) and consider that, for this reason also, the Applicant's interpretation of cl 59(1) should not be applied. It is clearly not the intention of the LEP that a developer could exhaust the operation of cl 59(1) in this fashion. 85 Further support for this approach is found in the Interpretation Act which was amended by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 on 16 June 2005 to specifically provide that an environmental planning instrument is an instrument within the meaning of the Interpretation Act. Section 33 of the Interpretation Act states: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 86 In Cooper Brookes, Mason and Wilson JJ stated at 320 that: Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute…

The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

87 In Kingston, McHugh JA stated at 423 that: A purposive and not a literal approach is the method of statutory construction which now prevails… In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. The Acts Interpretation Act 1901 (Cth), s 15AA, and the Interpretation Act 1987 (NSW), s 33, both require this approach to statutory construction.

88 In Dover Fisheries, Gummow J (with whom Hill and Cooper JJ agreed) stated at 63 that: In dealing with an apparent conundrum such as that presented by paras (a) in O 79 and O 80, the court should strive to avoid a capricious or irrational result and seek to give each provision a field of operation. In AMP Inc v Utilux Pty Ltd [1972] RPC 103 at 109, Lord Reid said that, it being improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result.

89 In Allianz, McHugh J at 395 [45] - 397 [49] and Gummow, Hayne and Heydon JJ at 403 [80] and 408 [101] gave substantive effect to the objects of the Motor Vehicles Act 1988 in determining the definition of "injury" under s 3 of the Act. All these cases suggest that a purposive approach to construction is preferable, particularly where a literal approach such as the Applicant argued results in absurdity. The Applicant is unsuccessful on this ground as I consider the Council did have jurisdiction to grant development consent to the Errol DA. (Issue 3) Clause 59(3) of the LEP is not subject to cl 59(1) of the LEP (APOC par 18, 19) 90 Clause 59(3) of the LEP states that: Notwithstanding any other provision of this plan, a person may, with the consent of the Council, carry out development for the purpose of a local shopping centre on land on which development is restricted by subclause (1) or (2) where: (a) the gross floor area of any building or buildings used for the purposes of a shop does not exceed 1,000 square metres, and (b) the gross floor area of any building or buildings used for the purposes of commercial premises does not exceed 200 square metres.

Applicant's submissions 91 The Applicant argued that cl 59(3) is a source of power pursuant to which the Council can grant consent to a local shopping centre development, provided that it complies with the gross floor area ("GFA") requirements and any State Environmental Planning Policy 1 - Development Standards ("SEPP 1") objection can be upheld. The Applicant argued that cl 59(1) should be construed as an "other provision" of the LEP and is thus to be read subject to cl 59(3). Clause 59(3) then enables consent to be granted to development for the purpose of a local shopping centre irrespective of cl 59(1) provided that the development complies with the requirements contained in cl 59(3). The Applicant accepted that this interpretation would essentially read cl 59(1) out of the LEP.

Council's submissions 92 The Council argued that cl 59(3) of the LEP is not a freestanding power. The Council agreed with the Applicant's submission on the construction of cl 59, that cl 59(3) is the source of power to grant consent and that cl 59(1) is a constraint of that power. If it were otherwise, and cl 59(1) were construed as an "other provision", then that would defeat the purpose of cl 59.

93 The Council argued that it is the underlying purpose of the clause which must govern its construction (Interpretation Act s 33; Allianz at 395 [44] - 398 [55] per McHugh J and 402 [77], 403 [80], 404 [81] and 408 [101] per Gummow, Hayne and Heydon JJ). The purpose of the clause is plainly to permit that which the plan otherwise prohibits, that is a (single) retail shopping centre but only on land within an urban release area that does not infringe certain land area restrictions, subject to the operation of SEPP 1.

94 Clause 59(1) must therefore be construed in harmony with cl 59(3), which means that the power to grant consent in cl 59(3) must be exercised subject to the constraints in cl 59(1). The Applicant's "alternate construction" should be rejected. Finding 95 I agree with the Council's submissions in this matter and consider that cl 59(3) must be read subject to cl 59(1) for the reasons given by the Council. Clause 59(3) cannot therefore be a separate basis for the issuing of development consent to a further local shopping centre in Wadalba. The Applicant fails on this ground. (Issue 4) Clause 59(1) is a development standard and can be varied (APOC par 20) Applicant's submissions 96 The Applicant argued that cl 59(1) is a development standard and can therefore be varied pursuant to SEPP 1. The Applicant submitted that as cl 59(1) required that only one local shopping centre could be provided in the Wadalba area, cl 59(1) specified a requirement or fixed a standard in respect of development and was therefore a development standard. Following the two step process outlined by Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319 at 343 [96] - [98] the first step was satisfied because cl 59 did not prohibit development for the purpose of a local shopping centre under all circumstances, and permitted one local shopping centre in the areas prescribed in cl 59(1). In relation to the second step, the Applicant argued that as cl 59 specified that the Council could only grant consent to one local shopping centre, cl 59(1) specified a standard in respect of an aspect of development.

Council's submissions 97 The Council argued that cl 59(1) is plainly not a "development standard" within the meaning of s 4(1) of the EP&A Act. Clause 59(1) is not a provision of an environmental planning instrument "in relation to the carrying out of development". It is a prohibition directed to the grant of consent for development. Nor does it relate to an aspect of development, but to development as a whole. It does not fix any standard in respect of any aspect of the development (see Poynting at 343 [98]; North Sydney Municipal Council v P D Mayoh (No 2) (1990) 71 LGRA 222 at 232). Finding 98 Section 4(1) of the EP&A Act defines development standards as: … provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development… Section 4(1) of the EP&A Act also provides a list of various aspects of development in respect of which development standards may be made.

99 The meaning of development standard has been considered in the Court of Appeal in Mayoh, Poynting, Lowy v The Land and Environment Court of NSW & Ors (2003) 123 LGERA 179 and the more recent decision of this Court in Georgakis v North Sydney [2004] NSWLEC 123. In Mayoh, Mahoney JA stated at 234: I do not think that cl 14A(a) is a provision 'in relation to the carrying out of development ...'. There is, in my opinion, a distinction in the provisions between a provision which in form provides: 'On land of characteristic X no development may be carried out' and a provision which in form provides: 'On such land development may be carried out in a particular way or to a particular extent.' The provision in cl 14A(2) is, I think, of the latter kind. If cl 14A(1)(a) provided merely that 'no building shall be erected on land in Zone No 2(c) if ...' the position would, in my opinion, be clear. In fact cl 14A(1)(a) prohibits erection on the land described in par (a) not of all buildings but only of 'a residential flat building'. But it remains correct, I think, to say that, in respect of the land referred to in par (a) what is done is to prohibit the erection of the relevant kind of building, not to make a provision in relation to 'the carrying out of' development of that or any other kind. If regard be had to purpose, the purpose of the provision was, I think, to proscribe development by buildings which would overshadow smaller buildings at the particular place. This is not a matter relating to 'development standards' but to the carrying out of development at all. 100 In the Court of Appeal decision in Poynting, Giles JA considered a number of decisions in his judgment and at 343 [96] - [98] set out two steps as follows: A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of "development" in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step. Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr , to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of `development standards', there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development.

If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard. In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of "development standards" in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in Woollahra Municipal Council v Carr ) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances.

101 In Lowy Giles JA applied his reasoning in Poynting and also stated at 203 [116]: It has been said many times that whether a provision is a development standard depends on the particular provision seen as part of the planning instrument as a whole. Rather than be caught up in a raft of decisions on their own facts and fine distinctions, I consider it better to address the LEP by regard to principle and its own structure and provisions. Mason P agreed with Giles JA in Lowy . 102 In Georgakis McClellan J considered these decisions in deciding if the requirement in State Environmental Planning Policy 5 - Housing for Older People or People with a Disability that there be written evidence that residents would have access to a transport service 400m from the site was a development standard. He states at [38] and [39]: Notwithstanding that the relevant clause in Poynting defined, albeit by reference to specified dimensions of the allotment, whether the particular development is permissible on the land, the court, taking "the wider view", held that it was a development standard. In Mayoh , permissibility was defined by reference to the attributes of adjoining land. In Poynting , permissibility was defined by attributes of the land itself. It would seem that the difference is significant when determining whether the provision contains a development standard.

It was submitted by the council in the present case that the reasoning in Mayoh remains the guiding principle when resolving whether a particular provision contains a development standard. Of this proposition Giles JA said in his detailed reasons in Lowy that "it may not be entirely correct." If his Honour had in mind the "wider view" adopted in Poynting , with respect, I doubt that the approach in Mayoh now completely reflects the law.

103 McClellan J went on to apply the two step process identified by Giles JA in Poynting to conclude that the provision before him was a development standard. It is not necessary for the purposes of this judgment that I further consider whether Mayoh does reflect the law as it is appropriate that I apply the approach identified in the recent Court of Appeal decisions in Poynting and Lowy.

104 It is necessary as emphasised in Lowy and several other cases to consider the relevant provision in the context of the LEP as a whole when considering the two step process identified by Giles JA in Poynting. In the 2(e) zone of the LEP a general store is permissible development but shops are prohibited. By virtue of cl 59(1) only one local shopping centre is allowed in Wadalba and other specified centres. 105 The Applicant has argued that cl 59(1) is not a prohibition within the first step identified in Poynting so that the second step applies. As cl 59(1) fixes a standard in respect of an aspect of the development it is a development standard. If the Applicant is correct and cl 59(1) is not a prohibition within the first step in Poynting I do not agree that cl 59(1) fixes a standard in relation to an aspect of the development under the second step. Limiting an entire development to only one in number does not relate to an aspect of the development in my view nor is it a standard for a development, rather it is a strict limitation of the number of developments to one. In the context of the LEP it is clearly not intended that cl 59(1) fix a standard nor is it a matter falling under the definition of "development standard" in s 4 of the EP&A Act. 106 I consider there is also an approach to the two step process in Poynting which is different to the Applicant's arguments at par 96 above. If the development is characterised as a second local shopping centre in Wadalba, then applying the first step in Poynting the answer is clearly that cl 59(1) prohibits such development under all circumstances so that it is not necessary to consider the second step in Poynting. 107 I consider that cl 59(1) is not a provision of an environmental planning instrument in relation to carrying out an aspect of development and that it is a prohibition directed to the grant of consent for development. Clause 59(1) does not concern itself with any aspect of development, but to development as a whole. Accordingly, cl 59(1) is not a development standard. The effect of cl 59(1) is that if a local shopping centre already exists in Wadalba a second local shopping centre is prohibited. 108 The Applicant is unsuccessful in relation to all its arguments regarding cl 59(1). It is therefore necessary to consider the issues raised in relation to the validity of the Errol development consent. Validity of Errol development consent 109 The validity of the consent granted by the Council to the Errol DA on 28 October 2004 is challenged on the following bases: (5) The Council failed to consider the Woolworths DA in granting consent; (6) The Council did not delegate its power to grant consent to Mr Butt; (7) The Council did not properly undertaken the exercise in relation to the SEPP 1 objection; (8) The Council failed to consider cl 10(3) of the LEP in granting consent; (9) The Council failed to consider the requirements of DCP 49 in granting consent; (10) The Council took into account an irrelevant consideration by considering proposals to amend the LEP and DCP 49 in granting consent; (11) The Council failed to consider acoustic impacts of the Errol DA; (12) The Council failed to consider traffic impacts of the Errol DA. (Issue 5) The Council failed to consider the Woolworths DA in granting consent to the Errol DA (APOC par 35-41) 110 The Woolworths DA lodged on 7 October 2003 sought approval for a supermarket of 3,565sq m GFA and a service station, requiring a rezoning application to be lodged ("the rezoning application"). Between 24 November 2003 and 23 August 2004 various issues concerning the Woolworths DA and the rezoning application were communicated by the Council to the Applicant.

111 The Errol DA lodged on 16 April 2004 was for the construction of a mini supermarket comprising approximately 1,200sq m GFA retail and approximately 300sq m GFA "back of house". Between 8 July 2004 and 26 August 2004, issues concerning the Errol DA were communicated by the Council to Errol Investments and four amendments to the Errol DA were lodged with the Council by Errol Investments.

112 On 22 July 2004, Errol Investments lodged amended plans relating to the Errol DA with the Council. The main amendments to the plans were that they relocated the proposed supermarket on the Errol site from the south-eastern corner near the existing school to the north-western corner of the Errol site. The amended plans also redesigned the Orchid Way elevation, redesigned the delivery entry and exit, and removed two canopy trees and the medium density-sized trees to the east of the Errol site. The car park was now located opposite the school and the proposed residential areas. 113 At the Ordinary meeting of Council on 28 July 2004 a Woolworths representative, Mr Peter Thomas, addressed the Council on the Woolworths DA and the rezoning application. On that occasion Mr Thomas addressed some of the Council's concerns about the Woolworths DA, including its inconsistency with the preferred use of the site pursuant to DCP 49, the exceedance of the controls contained in cl 59 of the LEP, the establishment of support services around the supermarket and the negative economic impact on the Wyong town centre. 114 On 28 July 2004, the Council resolved: That Council defer consideration of rezoning application 4/03 until it can be resubmitted to the same Council meeting as reports on [the Woolworths DA] and [the Errol DA] to enable fair and open assessment of the best retail option for the residents of Wadalba.

115 On 11 August 2004, the Council resolved to amend cl 59 of the LEP to allow for one supermarket with a GFA not exceeding 2,000sq m, a service station with a GFA not exceeding 200sq m, and retail support shops of 200sq m in the Wadalba Village area. This amendment was confirmed by resolution of the Council minutes dated 25 August 2004. The resolution meant that the rezoning application made by the Applicant was effectively refused.

116 On 25 August 2004, the Council resolved: "That the minutes of previous Ordinary Meeting of Council held on 11 August 2004 be received and confirmed with the following amendments:

375 Notice of Rescission - Proposed Rezoning - Lot 195 and 198 DP 1006789 Figtree Boulevard, Wadalba

Part 3a the insertion of the word "and" at the end of the sentence and the resolution now reads as follows, as indicated below:

RESOLVED on the motion of Councillor STEVENS and seconded by Councillor VEUGEN:

1 That Council refuse to support Rezoning Application 4/03 being the preparation of a draft Local Environment Plan to enable the development of a 3,565 [square] metre supermarket, a service station and associated carparking on Lots 195 and 198 DP 1006789 Figtree Boulevard, Wadalba due to the following reasons: a It is inconsistent with Council's goal of develop[ing] a Local level Town Centre to primarily service the current and future Wadalba population; and b It will act to delay the development of retail and support services, i.e. cinema, discount department store and specialty retailing, in the Warnervale Town Centre; and c It will have a negative impact on the Wyong Town Centre and therefore be inconsistent with Council's goal of maintaining economic viability of the centre; and 2 That the applicant be advised of the Council's decision. 3 That Clause 59 of WLEP 1991 be amended to provide in the area of Wadalba Village for: a one single supermarket with a gross floor area not exceeding 2,000 square metres; and b a maximum of 200 square metres of small associated retail floor area; and c service station building with a gross floor area not exceeding 200 square metres. And absolutely prohibits development exceeding these areas. 4 That the Department of Infrastructure Planning and Natural Resources be advised of the decision within 28 days. 5 That the Department of Infrastructure Planning and Natural Resources be requested to issue a certificate pursuant to Section 65 of the Environmental Planning and Assessment Act, 1979 to permit exhibition of the draft Local Environmental Plan. 6 That upon receipt of the Section 65 Certificate, the draft Local Environmental Plan be advertised for 28 days and referred to appropriate authorities for comment. 7 That a report be submitted to Council advising of results of the public exhibition of the draft Local Environmental Plan.

117 On 20 August 2004, following the Council's resolution of 11 August 2004, Errol Investments lodged a further amended SEPP 1 objection and Economic Impact Assessment with the Council. On 26 August 2004, Errol Investments lodged an amended Development Report and Statement of Environmental Effects.

118 On 23 August 2004, in response to the Council's resolution on 11 August 2004, the Applicant lodged with the Council an amended Woolworths DA and an objection pursuant to SEPP 1. The amended plans reduced the supermarket area from 3,565sq m to 2,000sq m, added specialty shops totalling 200sq m, reconfigured the carparking and increased the width of landscaping strips and boundary setbacks. On 20 September 2004, the Woolworths DA was amended to exclude the service station and was re-exhibited and re-notified on 21 September 2004. Between 25 August 2004 and 12 October 2004, issues concerning the Woolworths DA were communicated by the Council to the Applicant and a number of amended documents related to the Woolworths DA were lodged with the Council.

119 On 6 September 2004, the Health and Development Department of the Council prepared a report to the Council's Development Management Panel in relation to the Errol DA ("the Health and Development Department Report"). 120 On 12 October 2004, the Applicant lodged a Statement of Environmental Effects for the amended Woolworths DA submitted on 23 August 2004. The Applicant also lodged proposed development plans, an economic impact assessment, a traffic impact assessment, stormwater drainage concept and landscape plan.

121 On 13 October 2004, Mr Butt, the Director of the Health and Development Department of the Council submitted a report for the Ordinary Meeting of Council recommending approval of the Errol DA ("the Director's Report"). The Director's Report included reference to the Woolworths DA to the effect that: (a) Clause 59 of the LEP only permits consent being granted for one local shopping centre in Wadalba and that only one of either the Woolworths DA or the Errol DA could therefore be approved. (b) The Woolworths DA had been amended to comply with the Council's resolution of 11 August 2004 and that the amended application was currently being assessed and would be forwarded to the Council for determination in the coming months.

122 At the Ordinary meeting of Council on 13 October 2004 a Woolworths representative, Mr Peter Thomas, again addressed the Council on the suitability of the Errol DA. On that occasion Mr Thomas stated that he believed that the best outcome for Wadalba in terms of the planning principles and the resolution of Council on 11 August 2004 was a 2,000sq m supermarket, 200sq m of shops and a 200sq m petrol station. Accordingly, in Mr Thomas' view, the Woolworths DA should be preferred to the Errol DA. In closing, Mr Thomas informed the Council that this was a opportunity for the Council to consider the best possible outcome for the citizens and residents of Wadalba and what best served their needs.

123 On 13 October 2004, the Council at the Ordinary Meeting of Council, resolved in respect of the Errol DA: 1 That [the Errol DA] be referred to the General Manager for determination having regard to the matters for consideration detailed in Section 79C of the Environmental Planning and Assessment Act and other relevant issues with an indication that based on the information available to it, Council favours approval of the application subject to appropriate conditions including: a the hours of operation being 24 hours b the car parking be approved as submitted 2 That the concurrence of the Director General of the Department of Infrastructure, Planning and Natural Resources be assumed for the use of State Environmental Planning Policy No 1 to vary the development standard of clause 59(3) of Wyong Local Environmental Plan 1991 to permit the proposed development. 3 That the Department of Infrastructure, Planning and Natural Resources be advised of the use of the Policy. 4 That Development Control Plan No 49 be varied in relation to the design guidelines contained within section 10 to permit the development. 5 That Development Control Plan No 49 be amended in conjunction with the preparation of the draft LEP, including the development of a new Masterplan to reflect the previous resolution of Council. 6 That those who made written submissions be advised of Council's decision. 124 On 28 October 2004, Mr Butt determined the Errol DA by the grant of consent subject to numerous conditions.

Applicant's submissions (i) Failure to consider a relevant consideration 125 The Applicant argued that before granting development consent to the Errol DA the Council was required, at the same time the Errol DA was under consideration, to also consider the Woolworths DA. By deferring assessment of the Woolworths DA and determining to grant development consent to the Errol DA the grant of consent was invalid because the Council had misdirected itself about the operation of cl 59(1) and failed to consider a relevant consideration.

126 The Applicant argued that the Council was required to consider the Woolworths DA at the same time as the Errol DA because of the operation of s 5 and s 79C(1)(a) to (e) of the EP&A Act and cl 2 (the objects clause) and cl 59 of the LEP. In the context of the objects of the EP&A Act, the Applicant argued that when utilising its power under cl 59(1) of the LEP, which permits a consent authority to grant consent to only one local shopping centre in Wadalba, the Council was required to consider the likely impacts of the development, the suitability of the site for the development and whether any other proposed local shopping centre in Wadalba might equally or better function as a local shopping centre in the area.

127 The Applicant argued that in the unique context of cl 59(1) of the LEP the Council erred in granting development consent to the Errol DA because, knowing that it could exercise its power under cl 59(1) once, the Council declined to address whether the Woolworths DA might equally or better function as a local shopping centre than the Errol DA. It misdirected itself as a result. (ii) Refusing to consider the Woolworths DA was manifestly unreasonable 128 The Applicant argued in the alternative that by refusing to consider the Woolworths DA the Council's actions were manifestly unreasonable because the Council made a decision without attempting to obtain information which was readily available and relevant to that decision: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 -170.

Council's and Errol Investment's submissions (i) Failure to consider the Woolworths DA 129 The Council and Errol Investments argued that the Applicant's submissions ignored a fundamental principle of administrative decision-making, that the decision-maker must consider each application on its merits, not influenced by extraneous considerations. The Council's duty therefore was to consider the Errol DA and the issues pertinent to that application in isolation from extraneous matters.

130 The Council had no obligation to delay its determination of the Errol DA so that the Woolworths DA could be dealt with at the same time. The Council and Errol Investments argued that this would in fact have deprived Errol Investments of its right to have its application determined on the merits. Notwithstanding this, the Council submitted that it had discharged any duty it may have had to the Applicant to afford it an opportunity to be heard in relation to the Errol DA, particularly during the Council meetings that took place on 28 July 2004 and 13 October 2004 when Woolworths representatives addressed the Council.

131 If the Court disagreed with the Council on these points, the Council and Errol Investments submitted that in any event as a practical matter the Woolworths DA was not capable of assessment until 12 October 2004, the day before the Errol DA was to be considered by Council. This was because the Woolworths DA lodged in 2003 was well in excess of the identified maximum GFA required and was not amended to accommodate recommendations made by an independent economic analyst, Mr Peter Leyshon, and other matters until 12 October 2004. This was only the day before the Errol DA was to be considered and ultimately approved by the Council.

(ii) Refusing to consider the Woolworths DA was manifestly unreasonable 132 The Council submitted that its conduct could not be said to be manifestly unreasonable as it was not devoid of plausible justification. In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Mason CJ and Deane J stated at 290 that: Just as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course. The plausible justification was that Errol investments was entitled to have its application determined on the merits without further delay. Finding 133 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J stated at 39 to 40 that: What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors -- and in this context I use this expression to refer to the factors which the decision-maker is bound to consider -- are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: see Reg v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd, adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury, and Water Conservation and Irrigation Commission (NSW) v Browning. 134 Where a statute prescribes certain matters which must be taken into account then those matters must be given weight as a fundamental element of a decision. The Applicant argued that these unique circumstances, being cl 59(1), whereby only one local shopping centre could be approved and the lodgement of two DAs for a local shopping centre in Wadalba, suggest that there was a mandatory requirement to consider the Woolworths DA at the same time as the Errol DA. 135 There is no specific requirement under the EP&A Act that requires the Council to take into account the Woolworths DA in the circumstances here. It is therefore necessary as decided in Peko-Wallsend to consider the relevant provisions of the EP&A Act and the LEP provisions to determine if this is a mandatory relevant matter which the Council should have complied with in the circumstances of this case. The provisions of s 79C of the EP&A Act are broadly phrased to require the Court to take into account specific matters such as the public interest. A large number of matters can therefore be validly considered by the Council, if it so chooses. Whether matters are mandatory relevant considerations in this context are harder to identify. 136 Section 79C(1) of the EP&A Act did not require the Council to consider the Woolworths DA, nor did it require a comparative evaluation of the competing development applications. Rather s 79C(1) directs the decision-maker's attention to the merits of the Errol DA. The Council was not obliged to postpone the decision to consider the Errol DA in order to consider the Woolworths DA. This is particularly highlighted in circumstances where the Woolworths DA was only in final form the day before the Errol DA was determined, making it particularly difficult for there to be a simultaneous consideration had the Council been so minded. 137 In Hayden Theatres v Penrith City Council Bignold J considered the submission raised by the applicant that the council had erred by failing to consider a development application for a cinema lodged by the applicant when determining to grant consent to a development application for a cinema lodged by a third party. Bignold J stated at 27 that: In my judgment this argument is entirely misguided and most especially so in relation to s90(1)(d) which directs attention to "the social effect and the economic effect of that development (ie the development the subject of the development application) in the locality" and not to the social and economic effect of some other development While the planning instrument in Hayden Theatres did not have a provision such as cl 59(1) I consider this reasoning applies to s 79C and its application in this case. 138 The Council's decision on 25 August 2004 to rescind an earlier motion to consider together the Errol DA and Woolworths DA (at that stage a 3,565sq m supermarket proposal) was made because it was inconsistent with the Council's goal of developing a local level town centre for Wadalba, amongst other reasons (see par 116 above). These reasons are perfectly consistent with the Council's responsibilities for planning under the EP&A Act. That leads to a consideration of a further difference between the two DAs that needs to be borne in mind. The Errol DA relates to Block D which pursuant to cl 10.4 of DCP 49 is identified as a site for retail, commercial and residential use in the Wadalba town centre. The Woolworths DA relates to Block B, which was not proposed for retail activity but rather for motel use. In terms of the planning for the Wadalba Town Centre the two blocks were identified as having different purposes. I do not consider it was therefore a matter of the Council being required to consider two similar applications for a shopping centre in order to choose between them as there was an important difference between the two different sites to which the DAs related.

139 The Applicant argued the following matters were mandatory relevant matters for the Council to consider because of the operation of s 79C and cl 59(1): (i) whether the Errol DA was capable of functioning as the one local shopping centre for the locality; (ii) whether it will function as one local shopping centre; (iii) the risk that the consent will be taken up and held, not activated, therefore sterilising retail development in Wadalba; (iv) whether there is a reasonable likelihood of any other proposed shopping centre being developed in Wadalba which might function equally or better than the proposal considered.

140 I have already held that cl 59(1) is not beyond power and should be interpreted as meaning that the Council must not grant consent so as to permit the development of more than one local shopping centre (par 84 above). It follows that I do not accept that the Council is necessarily bound to consider at the time the Errol DA was before the Council matters (ii), (iii) and (iv) identified by the Applicant. I consider that given the information before it, it did consider matter (i), was well aware that it could only approve one local shopping centre (ii), had sought advice from its expert about the economic impact of the proposed Errol supermarket on the wider Wyong area and having considered the Errol DA was suitable was not required to consider (iii). Nor was it required as a mandatory relevant consideration to consider (iv) given that the Errol DA related to the site nominated in cl 10.4 of DCP 49 as the appropriate site for a retail facility. 141 I agree with the Errol Investments argument that it was for the Council to determine what additional matters it might take into consideration. It was not impermissible for the Council to take into account consideration of the Woolworths DA, and it appeared on the evidence that the Council had done so to the extent of being aware of the nature of the application and hearing submissions from the Applicant's representative at the October meeting as to why its development application should also be considered before the decision to approve the Errol DA was made.

142 If the Council were required to afford procedural fairness to the Applicant, a matter I make no conclusive finding about, sufficient opportunity was provided to the Applicant to discharge any such duty. It is clear from the Council file in evidence that the Applicant was kept fully informed of how its DA and the Errol DA were proceeding, was invited to address relevant Council meetings and availed itself of those opportunities. 143 There has been no failure to consider the Woolworths DA nor did the Council misdirect itself about the need to do so. Further, there is simply no basis for a finding that the Council has acted manifestly unreasonably in approving the Errol DA without undertaking at the same time a direct comparison with the Woolworths DA. To succeed, the Applicant has to establish that the Council's decision was unreasonable within the principle established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. In Weal Mason P said at 188 [27]: The test is stringent. When, "the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another 'a court should proceed with caution… lest it exceed its supervisory role by reviewing the decision on its merits' ( Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 per Gleeson CJ and McHugh J, quoting Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42). The decision must amount to an abuse of power ( Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36) or be so devoid of plausible justification that no reasonable person could have taken that course ( Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290). See also Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31. This test has not been satisfied in the circumstances of this case. Clearly there was also a plausible justification for the Council to make the decision to approve the Errol DA as identified in Teoh at 290.

(Issue 6) Delegation by the Council to Mr Butt (APOC par 42-44) 144 On 1 October 2004, the Council's General Manager, Kerry Yates delegated his authority to determine certain development applications, to Mr Butt, the Director, Health and Development ("the delegation"). The delegation stated that the Director had delegated power to:

1. Determine Development Applications, including modifications, in accordance with Council's policies except as follows: a. a value exceeding $2 million…
2. …
3. Vary Council's policies and codes relating to Health & Development matters to an extent not exceeding 20%.
4. With the formal concurrence of the Mayor and General Manager, vary Council's codes and policies relating to the Director's field of expertise exceeding 20%.
5. In accordance with the decisions of the Development Management Panel: a. Determine application for Development Consent up to a value of $7 million where: i. the application largely complies with the Council's Codes and Policies… e. Variation of the Council's Codes and Policies relating to Health and Development matters that do not exceed 25%
6. With formal concurrence of the Mayor and the General Manager, determine application for Development Consent with a value in excess of $7 million
7. …
8. …
9. Determine construction certificates/development applications referred to the General Manager by Council for determination… 145 On 13 October 2004, the Council resolved that the Errol DA be referred to the General Manager for determination and favoured approval of the application subject to appropriate conditions. The General Manager referred the Errol DA to Mr Butt, Council's Director of Health and Development and on 28 October 2004, Mr Butt determined the Errol DA by the grant of consent. Applicant's submissions 146 The Applicant submitted that the grant of consent by the Council was invalid on the basis that there was an improper exercise of his delegated power by the Council officer Mr Butt. Firstly, the value of the proposed Errol DA exceeded $2,000,000, the limit of Mr Butt's delegation power in cl 1. The application form for the Errol DA stated that the total project value of the proposed development was $2,300,000. 147 Secondly, Mr Butt could not have possibly known whether the SEPP 1 variation of cl 59(3)(a) of the LEP exceeded 20 per cent as required by cl 3 and cl 4 or 25 per cent as required by cl 5.

148 Because there is a conflict between cl 1, 5 and 9 of the delegation the Applicant argued that, pursuant to Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, cl 9 should be read with cl 1 of the delegation which states that the Director may only determine development applications up to $2,000,000. Accordingly, Mr Butt did not have power to grant consent to the Errol DA. Council's and Errol Investment's submissions 149 The Council submitted that Mr Butt had the authority to determine the Errol DA pursuant to cl 9 of the delegation. The Council argued that cl 9 operated to give the Director power to determine any development applications referred to the General Manager by resolution of the Council. The Council submitted that cl 9 provided a separate and independent source of authority to determine development applications. The authority to determine development applications under cl 9 was not expressed to be subject to cl 1 or any other clause of the delegation. Accordingly, the Council argued that Mr Butt did have the delegated power to determine the Errol DA. Finding 150 In Project Blue Sky McHugh, Gummow, Kirby and Hayne JJ stated at 381 - 382 that: A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. This passage relied on by the Applicant addresses circumstances where there appears to be conflict between different provisions in the same instrument. No such conflict arguably exists here where each clause of the delegate's authority authorises the delegate in different contexts specified in the delegation. Each clause of the delegation is separate from the other. 151 I agree with the Council's and Errol Investment's submissions that cl 9 of the delegation is a separate head of power pursuant to which Mr Butt was able to approve the Errol DA. This interpretation is reinforced by having regard to cl 5 and cl 6 of the delegation which gives the Director authority to determine development applications outside the limit of $2,000,000 in cl 1. Accordingly I consider that Mr Butt did have the delegated power to determine the Errol DA under cl 9 of his delegation. The Applicant fails on this ground.

(Issue 7) Failure to properly undertake the exercise in relation to the SEPP 1 objection (APOC par 45-52) 152 Clause 3 of SEPP 1 states: This Policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act. 153 Clause 7 of SEPP 1 states: Where the consent authority is satisfied that the objection is well founded and is also of the opinion that granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3, it may, with the concurrence of the Director, grant consent to that development application notwithstanding the development standard the subject of the objection… 154 Clause 59(3) of the LEP provides that: Notwithstanding any other provision of this plan, a person may, with the consent of the Council, carry out development for the purpose of a local shopping centre on land on which development is restricted by subclause (1) or (2) where: (a) the gross floor area of any building or buildings used for the purposes of a shop does not exceed 1,000 square metres, and (b) the gross floor area of any building or buildings used for the purposes of commercial premises does not exceed 200 square metres. 155 The definition of gross floor area is provided in cl 7 of the LEP: gross floor area means the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the outer face of the external enclosing walls as measured at a height of 1,400 millimetres above each floor level, excluding: (a) columns, fin walls, sun control devices and any elements, projections or works outside the general lines of the outer face of the external wall, (b) lift towers, cooling towers, machinery and plant rooms and ancillary storage space and vertical air-conditioning ducts, (c) car parking needed to meet any requirements of the Council and any internal designated vehicular or pedestrian access to the car parking, and (d) space for the loading and unloading of goods. 156 In a series of emails dated 17 June 2004 from Mr Martin Johnson, an employee of the Council, to Mr John Dawson of the Stevens Group, a company related to Errol Investments, the Council officer stated that "toilets, storage and loading areas may be deducted from the total floor space".

157 Errol Investments lodged an amended SEPP 1 objection dated 19 August 2004. The SEPP 1 objection stated that the proposal presented to the Council for consideration was for 1,500sq m of retail floor space and sought a variation of 500sq m on the allowable area of 1,000sq m. There is no reference to a back of house area in the SEPP 1 objection. The amended Development Report and Statement of Environmental Effects dated 26 August 2004 stated that the development comprised approximately 1,200sq m of retail floor space and approximately 300sq m "back of house" giving a total floor space of 1,500sq m. The Director's Report stated that the proposal consisted of "a 1,500sq m supermarket (1,200sq m retail and 300sq m "back of house")". 158 The Applicant relied on the evidence of Mr Andrew Darroch, urban planner, sworn 8 April 2005. In relation to the GFA of the Errol DA, Mr Darroch stated that in his view there was no factual basis for the Council to consider that the GFA of the Errol DA was only 1,200sq m.

159 Errol Investments objected to the admissibility of Mr Darroch's evidence and submitted that Mr Darroch's evidence should not be relied upon as he did not base his opinion on all relevant material which was before the Council. If Mr Darroch's evidence were admissible, Errol Investments submitted that the evidence of Mr Ian Stewart, town planner, sworn 17 May 2005 should be considered. Mr Stewart stated in his affidavit that in his opinion the Council was supplied with sufficient information to conclude that the GFA for the Errol DA was 1,200sq m for the purposes of the SEPP 1 objection. Applicant's submissions 160 The Applicant submitted that the determination to grant consent to the Errol DA was invalid on the basis that the Council did not and could not properly inform itself as to the GFA of the proposed supermarket and therefore whether the variation to the GFA of 1,000sq m ought be granted.

161 The Applicant argued that while the loading areas may be deducted from the GFA pursuant to the definition in cl 7, toilets and storage areas, except for ancillary storage areas, may not. In addition, the Applicant argued that the GFA provided by Errol Investments did not account for the 300sq m "back of house" area of the Errol DA as the GFA of the proposed supermarket was really 1,500sq m. As a result, the Applicant argued that the Council did not properly inform itself of the amount of the variation to cl 59(3)(a) sought by Errol Investments. It was therefore unable to assess Errol Investments' SEPP 1 objection, or alternatively, that the Council was misdirected as to the amount of the SEPP 1 variation. Consequently the approach to the variation of the standard in cl 59(3) was manifestly unreasonable. Council's submissions 162 The Council submitted that the Applicant had not shown that the Council had misconstrued the definition of GFA in the LEP. The Council noted that at the time of the determination of the Errol DA, the Council had before it a detailed SEPP 1 objection and a detailed consideration of the issues relevant to the SEPP 1 objection in the Director's Report to the Ordinary Meeting of Council dated 13 October 2004. The conclusion in the Director's Report was that the GFA was 1,200sq m on the basis that areas of loading and unloading, ancillary storage and plant rooms were to be excluded. This meant that the variation was 20 per cent from the standard of 1,000sq m in cl 59(3) of the LEP.

163 The Council submitted that even if the Applicant demonstrated some error in the exercise relating to the SEPP 1 objection, it could not be said that the error was material to the decision. Even if the Council considered the GFA to be 1,500sq m in light of the Council's resolution to amend the LEP to permit a supermarket with a GFA of 2,000sq m, it is unlikely that the Council would have declined to approve the Errol DA. Further, the Council submitted that the underlying purpose of the standard in cl 59(3) of the LEP was not to limit bulk or amenity but to provide for local retail facilities in Wadalba and to maintain the designated retail hierarchy, as recognised in the Director's Report. In those circumstances, it did not matter whether the extent of the variance was 20 per cent or 50 per cent, where the Council officer had reached the opinion on reasonable grounds that the proposed development would not undermine the purpose of the standard. Errol Investments' submissions 164 Errol Investments submitted that the Council did not misdirect itself in its consideration of the SEPP 1 objection. Errol Investments noted that its SEPP 1 objection dated 19 August 2004 specified a retail floor space of 1,500sq m, and that the proposal exceeded the development standard by 500sq m. Errol Investments argued that the Director's Report stated that the objection was well founded and that consideration was based upon there being a variation of 500sq m (this statement is incorrect as the Director's Report states that the GFA is 1,200sq m, representing a variation of 200sq m). In these circumstances the Council did not fail to properly inform itself about the amount of the variation, nor did the Council misdirect itself as to the amount of the SEPP 1 variation. Finding (i) admissibility of expert evidence 165 As the parties have sought to rely on expert town planning evidence on this and other issues it is necessary to consider whether such evidence is admissible in judicial review proceedings.

166 In King v Great Lakes Council (1985) 58 LGRA 366, Cripps J stated in judicial proceedings at 371: I reject the submission that in such a challenge as is before me expert planning material is not admissible unless it is established that that material was actually before the council when it determined the matter or was deemed to be before the council because it was contained within council's files at that time. In my opinion, evidence is admissible to establish what a council, in the proper discharge of its duty, ought reasonably to have done in the course of the decision-making process. Where, as here, the breach alleged is the failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports or consultations would have revealed. That is to say, evidence is admissible as to what a council acting reasonably ought to have done. It may be accepted that councils are not normally obliged to consult with independent town planners, or to solicit independent planning opinions about the appropriateness of the grant or refusal of consent. But that circumstance does not preclude the admission into evidence of what a council, acting reasonably, ought to have done with respect to a particular development application. To understand the basis and validity of the challenge, the court needs to understand the environmental consequences of the action or inaction of the council.

167 In ULV Pty Ltd v Scott & Ors (1990) 19 NSWLR 190, Priestley JA (with whom Kirby P and Samuels JA agreed) considered at 204 that the scope of an expert's evidence in judicial review proceedings may be limited to an opinion whether, on the materials before the council, a proper planning decision could be made. Further, Priestley JA stated at 205 that: if such evidence … is indeed admissible in such a case, a condition for its admissibility must be that the opinion given in evidence must be based on a full understanding of the materials present to the decision-maker's mind at the time when the decision was made.

168 In Caldera Environment Centre Incorporated v Tweed Shire Council (Talbot J, NSWLEC, 13 July 1993, unreported) Talbot J considered these and other cases and identified six circumstances in which the Court could go beyond the material actually before the council. Talbot J stated at 10: In exercising its function of judicial review this Court is not entitled to go beyond the material before the consent authority except to the limited extent already discussed (see King v Great Lakes , Hastings and ULV v Scott ). Trespass into the field of merits is forbidden as one can see from the decision in Minister for Aboriginal Affairs v Peko Wallsend Ltd and Others 162CLR 24 at 40-42 and Chan Yee Kin v The Minister for Immigration and Ethnic Affairs 169CLR 379 at 391 and 392. The limited extent to which the Court can go beyond the material actually before the council might be summarised as follows:- 1. Where there is a failure to make inquiries, receive reports or consult with authorities, evidence is admissible as to what inquiries, reports or consultations would have revealed. 2. To show what a council acting reasonably ought to have done. 3. To achieve an understanding of the environmental consequences of the action or inaction of the council. 4. To explain factors, principles or materials relevant to the determination. 5. In a challenge to the reasonableness of the decision where all of the relevant material before the council is in the possession of the witness to explain what was before the council. 6. As to the existence and nature of information said to be relevant to the decision where council proceeds to a decision without making any attempt to obtain that information. ( Prasad v The Minister for Immigration 65 ALR 549 at 563 Jacfin Pty Ltd v The Taft Entertainment Company Pty Ltd & Ors No. 40033 of 1985 Stein J 3 October 1985 Unreported and Hale ).

169 Applying the first five criteria in Caldera set out above to the evidence of the two town planners, the evidence does not go to a failure to make inquiries, to achieve an understanding of the environmental consequences of the Council's behaviour or explain principles relevant to the determination. The only basis on which the town planners' evidence could possibly be included is to show what a council acting reasonably ought to have done. In order to satisfy criterion (v) in Caldera it is necessary that all relevant material before the Council is in the witness' possession. As pointed out in Errol Investment's submissions that does not appear to be the case for Mr Darroch as there were further explanations of the back of house area before the Council not referred to by him. I do not consider that criterion (v) in Caldera has been satisfied and do not consider this evidence should be admitted. Given that two qualified experts arrived at contrary views on whether the Council acted reasonably, it is of limited assistance in any event if the evidence is admitted. It follows that I will not have regard to Mr Stewart's evidence. (ii) Finding on SEPP 1 objection 170 The SEPP 1 objection relied on by Errol sought (accurately) a variation from the 1,000sq m size limit in cl 59(3)(a) by 500sq m. The Director's Report however changes this to state that a 200sq m variation only was sought because he did not consider the "back of house" area needed to be counted. It was clear however that the whole building was 1,500sq m and that the retail area was 1,200sq m. The Council must have been well aware of this fact. There is no evidence that the Director's conclusion that the GFA was 1,200sq m was incorrect as he does not refer to toilet areas being excluded, the only obvious error in the email from the Council employee of 17 June 2004. Even if toilet areas are excluded from the GFA calculation under cl 7 of the LEP the difference in the GFA between the SEPP 1 application and the Director's Report, if that is incorrect, is somewhere between 200sq m and 500sq m but is likely to be much closer to 200sq m. 171 In the circumstances I consider it cannot be sensibly argued that the Council was misdirected in any material way. It was very clear what the Errol DA before the Council related to. Whether the variation of the development standard in cl 59(3)(a) was 20 per cent or closer to 50 per cent (which is unlikely) was not material in the circumstances for the reasons articulated by the Council in par 163. Nor was the Council's decision to grant the variation under SEPP 1 manifestly unreasonable in these circumstances. The relevant test of manifest unreasonableness is set out at par 143 above and is stringent. This test has not been satisfied in the circumstances of this case. The Applicant fails on this ground.

(Issue 8) The Council failed to consider cl 10(3) of the LEP (APOC par 53-55) 172 Clause 10(3) of the LEP states that: Except as otherwise provided by this plan, the Council must not grant consent to the carrying out of development on land to which this plan applies unless, in the opinion of the Council, the proposed development is compatible with the objectives of the zone within which the development is proposed to be carried out. 173 The objectives of the 2(e) zone are: (a) to cater for a range of housing types appropriate to a greenfield urban release area and not exceeding a height of 2 storeys, and (b) to provide for other uses which: (i) are compatible with the residential environment and afford services to residents at a local level, and (ii) are unlikely to adversely affect residential amenity or place demands on services beyond the level reasonably required for residential uses, and (c) to provide home-based employment where such will not: (i) involve exposure to view from any public place of any unsightly matter, or any raw material, equipment, machinery, product or stored finished goods, or (ii) have a material adverse impact on residents, and (d) to ensure development includes appropriate water sensitive urban design. Applicant's submissions 174 The Applicant submitted that the determination to grant consent to the Errol DA was invalid because as a pre-condition to the granting of consent, the Council was required to form an opinion that the proposed development was compatible with the objectives of the 2(e) zone as required by cl 10(3) of the LEP. The obligation under cl 10(3) requires the Council to take the zone objectives into consideration when determining a development application. The Applicant noted that the Director's Report made no reference to the zone objectives of the LEP and that there was no evidence that the Director otherwise formed an opinion that the development was compatible with the objectives. Relying on the decisions of Currey v Sutherland Shire Council (1998) 100 LGERA 365, Franklins Limited v Penrith City Council & Anor [1999] NSWCA 134 and Manly Council v Hortis (2001) 113 LGERA 221, the Applicant argued that the absence of any reference to the clause or opinion required to be formed requires the inference to be drawn that the Council gave no consideration to cl 10(3) or the pre-condition it contained. Council's and Errol Investment's submissions 175 The Council submitted that it was not required to form an opinion that the proposed development was compatible with the objectives of the 2(e) zone because cl 10(3) is subordinate to cl 59(3) of the LEP. The Council argued that as cl 10(3) operates "except as otherwise provided in this plan", the formation of the requisite opinion is only a pre-condition to the exercise of the power of the Council where the LEP does not otherwise provide. The clear intention of the LEP is that where the pre-conditions set out in cl 59(3)(a) and (b) are satisfied the Council may grant consent without forming an opinion under cl 10(3).

176 The Council submitted that even if the Council had erred in failing to form the requisite opinion under cl 10(3) of the LEP, the error did not materially affect the decision to grant consent. As one of the objectives of the Errol DA was to cater for non-residential uses which were compatible with the residential environment, afforded services to residents at a local level and the Errol DA was unlikely to adversely affect residential amenity or place demands on services beyond the level reasonably required for residential uses pursuant to objective (b) of the 2(e) zone, any error made by the Council in processing the development application did not necessarily vitiate the consent.

Finding 177 Clause 59 does not expressly state that cl 10(3) need not be complied with. I agree with the Council and Errol Investments that if cl 59(3) (a) and (b) are satisfied the Council may grant consent without forming an opinion under cl 10(3) for the reasons stated at par 175. 178 If I am wrong and the words "unless otherwise specified in this plan" suggest that there must be specific expression of the intention to exclude cl 10(3), which cl 59(3) does not include, the drafting of cl 59(3) in the LEP and the other provisions of cl 59 suggest that these are directed at achieving the objectives of the 2(e) zone, in particular objectives (b)(i) and (ii) as set out in par 173 above. I therefore agree with the Council's and Errol Investment's submission that the failure to expressly state an opinion in relation to cl 10(3) is not sufficiently material in these circumstances to vitiate the consent. 179 The next two grounds are closely related because of the way the Council's decision-making process took place.

(Issue 9) The Council failed to consider the requirements of DCP 49 in granting consent (APOC par 56-58) 180 Clause 10.4 of DCP 49 proposes that Block D be used for "retail/commercial and residential" and requires that buildings on Block D are to be in the form of terrace houses that are parallel to and address the street. The rear building is to be set back eight metres from the rear boundary. Buildings are to be divided into bays with rear projections to reflect separate uses of each premises. Car parking is at the rear of the site. The form and character of the village core (Blocks C, D, E and F) is described as: Treatment of Corners The four corners of the intersection of Fig Tree Boulevard and the community axis provides the main focus for the retail core of the Wadalba Local Centre . Each building corner is to address the street with shop entries and shop windows and provide a visual feature at the junction of the adjacent 'street wall' frontages of the terrace buildings. 181 The Errol DA does not satisfy any of the requirements in terms of its building form. The carpark sits on one of the corners of Figtree Boulevard and the community axis, therefore not confining cars to the rear of the Errol site. 182 The Council passed a resolution on 11 August 2004 to amend cl 59 to allow a larger supermarket with a GFA of 2,000sq m, a service station of 200sq m and retail shops of 200sq m in the Wadalba Town Centre. In the Director's Report dated 13 October 2004 on the Errol DA, reference is made to this resolution as supporting a decision to approve the Errol DA as follows: While initially the proposed development was seen to be contrary to Council's LEP and inconsistent with Development Control Plan 49, the recent resolution of Council to prepare a draft LEP to permit a supermarket within Wadalba has resulted in the proposed supermarket being considered a favourable outcome for retail development in Wadalba.

Applicant's submissions 183 The Applicant submitted that the Council erred by failing to consider the requirements of cl 10.4 of DCP 49 relating to the type of development permitted in Block D. The relevant obligation under s 79C(1)(a)(iii) of the EP&A Act is that the consent authority must take into consideration the relevant provisions of any DCP. The Applicant argued that DCP 49 must be taken into account and given weight as a fundamental or focal point of the decision-making process (Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [69] - 603 [77]; Stockland Development v Manly Council (2004) 136 LGERA 254 at 271 [86] - 272 [87]).

184 The Applicant argued that as the Errol DA did not address the requirements of cl 10.4 of DCP 49 and is for retail use only rather than commercial/retail, then the Council erred by failing to consider the requirements of cl 10.4 of DCP 49. Council's and Errol Investment's submissions 185 The Council and Errol Investments submitted that the Council had not failed to consider cl 10.4 of DCP 49 by reference to the Director's Report. They argued that the Director's Report showed that the Council was entirely conscious of the fact that the Errol DA did not comply with DCP 49, that the Council had considered DCP 49 and that the Council had requested an explanation from Errol Investments in relation to the non-compliances.

186 The Council and Errol Investments submitted in addition that while the Council was obliged to take DCP 49 into account, the Council was able to depart from its controls after giving close attention to its provisions, relying on North Sydney Council v Ligon 302 Pty Limited (1996) 93 LGERA 23, Zhang, and Cobden-Jones v Woollahra Municipal Council (2002) 118 LGERA 41. The Council and Errol Investments argued that the Council was only required to give "proper, genuine and realistic consideration" to the provisions of DCP 49, and argued that it had in fact done so. Relying on Peko-Wallsend at 40 per Mason J, the Council also argued that it was not the role of the Court to review the weight that ought to have been accorded to a relevant consideration by the decision-maker. That is a matter for the decision-maker alone to determine.

(Issue 10) The Council misdirected itself in considering proposals to amend the LEP and DCP 49 (APOC par 59, 60) Applicant's submissions 187 The Applicant submitted that the Council erred in placing determining weight on its resolution of 11 August 2004 to amend cl 59 of the LEP. The Applicant submitted the Council misdirected itself by making its decision not by reference to the LEP but rather by asking itself the question whether the development would be permitted under an amended LEP. The 11 August 2004 resolution of the Council was ad hoc, incomplete, passed without any assessment of the planning consequences for Wadalba local centre and without any community consultation. Accordingly, the resolution failed each criteria for the assignation of any weight to a draft policy as enunciated by McClellan J in Stockland at 271 [86] - 272 [87]. 188 It is clear from the authorities that a consent authority must apply the law in force at the time of decision: Dubler Group v Minister (2004) 137 LGERA 178 at 184 [20]; Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 at 622; Nalor Pty Ltd v Bankstown City Council (1980) 42 LGERA 111 at 115.

189 Alternatively, the Applicant argued that the decision of the Council to grant consent to the Errol DA was manifestly unreasonable given the extent of its variance from DCP 49. The Applicant submitted that no reasonable person applying DCP 49 could have come to the same decision as the Council, which was perverse by the Council's own decision-making criteria. Council's and Errol Investment's submissions 190 The Council argued that there was no error on the part of the Council in having regard to the resolution to amend the LEP. Relying on Peko-Wallsend at 40 per Mason J, the Council argued that it was not the role of the Court to review the weight that ought to have been accorded to a relevant consideration by the decision-maker. That is a matter for the decision-maker alone to determine.

191 Errol Investments submitted that while it was true that a consent authority must apply the law in force at the time of a decision, this was irrelevant to the present circumstances. Errol Investments argued that the Council did apply the law in force at the time of the decision. Finding on (9) and (10) 192 I consider grounds (9) and (10) are closely connected and should be considered together. It is clear from the extract from the Director's Report set out at par 182 above that the major reason why cl 10.4 of DCP 49 was not applied was because of the Council resolution on 11 August 2004 to amend cl 59 of the LEP to allow a larger supermarket of 2,000sq m, service station and retail shops in the Wadalba town centre. It is clear that giving effect to such a resolution would require changes also to cl 10.4 of DCP 49 because the areas for retail activity would need to be expanded beyond Block D. Accordingly the Errol DA was likely to conform to the LEP and DCP 49 if so amended in the future. During the Ordinary Meeting of Council on 13 October 2004, the Council resolved: That the Development Control Plan No 49 be amended in conjunction with the preparation of the draft LEP, including the development of a new Masterplan to reflect the previous resolution of Council. 193 The Health and Development Report to the Council's Development Management Panel dated 6 September 2004 and the Director's Report dated 13 October 2004 provide evidence of the Council's rationale for departing from DCP 49. These reports note that a local shopping centre as envisaged under DCP 49 would struggle financially and, therefore, in keeping with the resolution to amend cl 59 of the LEP, the Errol DA was supported despite its inconsistency with the built form envisaged in cl 10.4 of DCP 49. In addition the reports note that while the Errol DA did not comply with the design requirements of DCP 49, an attempt had been made to integrate the shopping centre with the future development within the town centre and the proposed design was in keeping with the character of the area. 194 The Director's Report dated 13 October 2004 as detailed in par 92 of the Council's written submissions clearly demonstrates that the Council was fully informed and able to give proper, genuine and realistic consideration to DCP 49. Ultimately it concluded that cl 10.4 would not be followed in large part, although some parts of DCP 49 were said to be applied in relation to incorporating building features sympathetic to the school site. 195 The Council having considered DCP 49 clearly gave parts of DCP 49 less weight than this Court or the Court of Appeal gave in Zhang, Stockland and Ligon. Zhang, Stockland, Ligon all have facts which are materially different so that applying the reasoning in those cases does not lead to a conclusion that there has been a failure to adequately consider DCP 49 in this case. In Stockland McClellan J at 272 [87] refers to the situation where a DCP which can be demonstrated, either inherently or by the passage of time, to bring about inappropriate planning solutions should be given less weight. His Honour said at 272 [87]: A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies. 196 Here the Council has arguably made considerable efforts over a long period to endeavour to get the "right" retail hierarchy in place and as part of that process has come to the view that the retail plan for Block D of the Wadalba Town Centre as set down in cl 10.4 of DCP 49 will not work in its entirety because it will not produce an economically viable retail mix. Its resolution of 11 August 2004 is the first step in a process to bring about a change in the LEP and then, presumably, DCP 49 to reflect the Council's view of a better retail mix for Wadalba. 197 The Council has undertaken a lengthy and detailed analysis of the retail needs, and developed a retail strategy for, Wyong Shire (see par 53 - 55 above). This process is continuing to evolve, as demonstrated by the decision making in relation to the Errol DA. That process is likely to result in DCP 49 requiring change in relation to the form of retail development envisaged for the Wadalba Town Centre.

198 Detailed economic impact studies have also been prepared for Wadalba. The Council engaged the services of Leyshon Consulting to provide an opinion on the economic viability and impact of the Errol DA having regard to the provisions of DCP 49. Leyshon Consulting provided a report entitled "Opinion on Proposed Supermarket Development - Wadalba Village" dated 8 June 2004 ("the Leyshon Report") detailing the economic rationale for departing from the requirements of DCP 49. The Leyshon Report provided an opinion on the economic effects of a proposal to develop a small supermarket of approximately 1,500sq m at the site.

199 The Leyshon Report concluded that while on its face the Errol DA appeared to be contrary to the planning intentions of DCP 49, it was acceptable in terms of its economic impact on the existing and proposed retail hierarchy in Wyong, and that the potential impacts were of an acceptable level. Further, the Errol DA was consistent with the objective of the Council to establish a local shopping centre on the Wadalba Village site.

200 An Economic Impact Assessment prepared by Castlecrest Consultants for Errol Investments was submitted to the Council on 20 August 2004. While it did not specifically consider the acceptability of the proposal with reference to DCP 49, it also concluded that the economic effect of the Errol DA was acceptable, and had a high propensity to produce significant positive benefits in the local economy. 201 In addition to a thorough analysis of the economic impacts of the Errol DA, the Council has also clearly undertaken an adequate analysis of the planning aspects of the Errol DA. While the supermarket does not conform to the built form envisaged in cl 10.4 of DCP 49 the Council has considered the planning impacts of the proposal. 202 The Applicant argued that the Council is obliged to apply the law in force at the time of the decision, a well settled principle. This does not mean that the Council must apply all the terms of a DCP in preference to other matters. Zhang requires that a DCP be given "genuine, and proper consideration" which I consider the Council did. DCP 49 is not binding in its entirety as a matter of law. 203 The limits of the power of a court of judicial review has been clearly stated by Mason J in Peko-Wallsend where His Honour said at 40 to 41: 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 that discretion and a decision made within those boundaries cannot be impugned: Wednesbury Corporation.

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 McKellar (1981) 38 ALR at p375; Reg v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at p205; Elliott v Southwark London Borough Council [1976] 1 WLR 499 at p507; [1976] 2 All ER 781 at p788; Pickwell v Camden London Borough Council [1983] QB 962 at p990 . 204 The Council has arguably placed greater weight on its resolution to amend cl 59 to allow a different form and larger size of retail development than the form envisaged in cl 10.4 of DCP 49. It is a matter for the Council how it chooses to apply a DCP provided that Zhang is complied with. That includes, having given it the necessary consideration, not applying DCP 49 if acting reasonably, and lawfully, the Council considers it should not. I consider the Council has acted reasonably and lawfully in approving the Errol DA as it did. 205 I do not make this finding in the Council's favour lightly and do so here because of the particular circumstances of this case. In different circumstances where such a resolution could not be considered as part of an ongoing and thorough planning exercise undertaken by the Council there may well be grounds for a successful appeal. Here however, the Council was aware of the extent of departure from cl 10.4 of DCP 49 and was able to give cl 10 of DCP 49 genuine and realistic consideration, as required by Zhang. In the planning and economic context before it the Council was able to determine the need to depart from a DCP where to apply it may produce unsatisfactory results in the Council's view.

206 The Applicant also argued that the decision of the Council to grant consent to the Errol DA was manifestly unreasonable given the extent of its variance from DCP 49. The basis for the argument that the Council acted manifestly unreasonably is that DCP 49 must be binding. I have held that it is not in the circumstances here. The stringent test for determining whether a decision is manifestly unreasonable is set out at par 143 above. That test is clearly not met given my earlier finding that the Council was able to approve the Errol DA. 207 The Applicant fails on grounds 9 and 10. (Issue 11) The Council failed to consider acoustic impacts of the Errol DA (APOC par 61, 62) 208 The Errol DA proposed that the hours of operation of the local supermarket be 24 hours. On 16 April 2004 the Applicant lodged its Development Report and Statement of Environmental Effects. The Report states: 19.4 Noise Effects The proposed mini supermarket development does not immediately abut any residential homes. However, the Wadalba Village precinct does anticipate some residential development to be constructed in the immediate locality in the future. Therefore, any future residential development would anticipate some noise effects as a result of the mini supermarket operations and would be designed accordingly. This is especially so as the land is zoned for retail activities.

209 On 22 July 2004, Errol Investments lodged amended plans with the Council. The amended plans proposed to relocate the service driveway on Orchid Way closer to the school opposite. The amended plans also included a road boundary fence on Orchid Way to form an acoustic shield around the loading dock area of the supermarket.

210 On 26 August 2004, Errol Investments lodged an amended Development Report and Statement of Environmental Effects. The Report adopted the statements contained in the original Development Report and Statement of Environmental Effects dated 16 April 2004 in relation to noise effects referred to at par 208 above.

211 On 6 September 2004, the Health and Development Department of the Council considered the issue of noise in the Health and Development Department Report to the Council's Development Management Panel in relation to the Errol DA. The Health and Development Department Report states at p 35: Noise and Vibration The supermarket is proposed to be open 24 hours a day, 7 days a week. Given this is a local shopping centre within a residential precinct, 24 hour operation is considered to be excessive as the supermarket would generate higher noise levels than would normally be generated within a residential area particularly late at night and early in the morning, when background noise levels are low. It is therefore recommended that, at this stage, the operating hours be restricted to between 7:00 am to 10.00 pm. All deliveries, loading and unloading should be restricted to within these hours.

212 On 13 October 2004, Mr Butt, the Director of the Health and Development Department of the Council submitted the Director's Report to the Ordinary Meeting of Council in relation the Errol DA. The Director's Report adopted the statements of the Health and Development Department Report in relation to noise and vibration, at p 35.

213 During the Ordinary Meeting of Council held on 13 October 2004 Councillor Welham stated that: …[F]rom having been in a retail background I thought [a] 7.00 am start was quite restrictive to the community that is likely to service this supermarket. A lot of those people that live in Wadalba are commuters that would be on the expressway by 7.00 am heading towards Sydney and by us putting on a prohibition on it opening prior to 7.00 am just causes them heartache and dilemma so we looked [at] options for that. I don't believe the Bi-Lo will actually trade 24 hrs in that location but I do think that they should have the flexibility to be able to service that community as appropriate… 214 The Council resolved that the Errol DA be referred to the General Manager for determination and favoured approval of the application subject to appropriate conditions including that the hours of operation of the local supermarket be 24 hours.

Applicant's submissions 215 The Applicant submitted that (i) in determining to grant consent to the Errol DA, the Council failed to consider the acoustic impacts of the Errol DA which were a relevant consideration under s 79C(1)(b) of the EP&A Act. The Health and Development Department Report dated 6 September 2004 and the Director's Report dated 13 October 2004 recommended that the hours of operation, deliveries, loading and unloading should be restricted to between 7.00am and 10.00pm. No conditions of consent were imposed by the Council to limit the level of noise, the hours of operation or the hours of deliveries. The Council failed to obtain an assessment of the likely acoustic impacts of the Errol DA. Alternatively, (ii) the determination to grant consent without any conditions regulating the hours of operation and deliveries to the supermarket was manifestly unreasonable. 216 The Applicant sought to rely on the affidavit of Mr Graham Atkins, acoustic engineer, sworn 13 April 2005. Mr Atkins gave evidence in relation to the assessment and consideration of acoustic issues by the Council in relation to the Errol DA. In his affidavit, Mr Atkins referred to the Environment Protection Agency's Industrial Noise Policy, Environmental Criteria for Road Traffic Noise, Environmental Noise Control Manual and Noise Guide for Local Government as the relevant documents setting out the noise criteria designed to control noise impacts from development. Mr Atkins noted that while the amended Development Report and Statement of Environmental Effects dated 26 August 2004 stated that the Errol DA complied with the requirements of the Industrial Noise Policy in relation to plant, the report failed to address the noise impacts associated with 24 hour use of mechanical plant, car park, road traffic, deliveries, garbage pickups and on-site customers. Mr Atkins concluded that the Errol DA did not contain a detailed assessment of noise impacts and was inadequate for determining the extent of noise impacts likely to result from the proposed development. In his affidavit he stated that: …[T]here is insufficient fact and data in the DA and supporting materials considered in the Council Report for any person to determine the extent of noise impact that would arise from the Development. The information I have reviewed fails to address and quantify background noise levels, sources of noise from the proposed Development, identify existing and future noise receptor locations or quantify the extent of likely noise impacts.

Council's submissions 217 The Council submitted that it had not failed to consider acoustic impacts on the basis that the potential noise impacts of the Errol DA were the subject of detailed consideration in the Development Report and Statement of Environmental Effects dated 16 April 2004, and the amended Development Report and Statement of Environmental Effects dated 26 August 2004. Both reports came to the conclusion that while there would be some noise effects on any future residential development, any noise associated with the mechanical plant would comply with the requirements of the Environment Protection Agency's Industrial Noise Policy. Errol Investments' submissions 218 Errol Investments argued that both the Director and the Council, apart from being familiar with the local area, were aware of the proximity of the Errol DA to existing and proposed residential development and the potential noise impacts of the Errol DA. The supermarket proposed was not unusual in nature, and would not produce noise effects outside the ordinary experience of the councillors. Further, the walls of the school building opposite are devoid of windows. The Director's Report noted what acoustic impacts may result from the Errol DA, and the revised plans submitted by Errol Investments on 22 July 2004 specifically provided for acoustic shielding around the loading dock. The circumstances suggested that the Council had, in fact, considered the acoustic impacts of the Errol DA.

219 Errol Investments submitted that Mr Atkins' evidence was inadmissible. His opinion was irrelevant to judicial review proceedings as it invited the Court to substitute Mr Atkins' opinion for that of the decision maker. In addition, Errol Investments submitted that Mr Atkins' evidence should not be admitted because his opinion was not based upon all of the relevant circumstances and matters that were before the Council at the time of the decision, and did not purport to give evidence of what standard procedures the Council should have applied in the circumstances. Finding (i) Admissibility of expert evidence 220 I set out earlier at par 166 - 168 above the relevant law in relation to the limited admissibility of evidence in judicial review proceedings. In this case I consider Mr Atkins' affidavit can be admitted as it satisfies criteria (i) and (iv) in Caldera at par 168. The affidavit states that there are relevant noise control guidelines developed by the Department of Environment and Conservation which have not been applied, including the Industrial Noise Policy, Environmental Criteria for Road Traffic Noise, Environmental Noise Control Manual and the Noise Guide for Local Government which need to be considered where a 24 hour supermarket operation is contemplated. No noise measurements were taken in any of the reports relied on by the Council which would enable an assessment of noise impacts. Mr Atkins predicted the impacts likely to occur are sleep disturbance at adjacent residential properties and also noise impacts within classrooms at the school opposite.

(ii) Failure to take into account a relevant consideration in s 79C 221 Numerous cases in this Court have had to consider the extent of council consideration of development applications. The relevant principles in relation to this issue are contained in Parramatta City Council v Hale (1983) 47 LGRA 319 and Weal v Bathurst City Council (2000) 111 LGERA 181. The decision of the Court of Appeal in Hale established that a failure by a consent authority to give "real" consideration to the provisions in an environmental planning instrument which a consent authority is required to take into account in determining a development application, is an error of law which renders that development consent invalid (per Moffitt P at 344). However, Hale is also authority for the proposition that an inference that a consent authority failed to give real consideration to such a matter can only be drawn after "anxious consideration" (per Moffitt P at 345). In Hale Moffitt P stated at 338 to 339 that: …section 90(1) requires that the relevant matters set out in pars (a) to (s) of that subsection shall be "taken into consideration" "in determining (the) development application". The "determination" to which s 90(1) refers is made clear by s 91(1). An exercise of the power to determine an application necessarily require [sic] the authority to consider the alternatives referred to in s 91(1). Therefore, if it is to make a determination to grant consent, it will be bound to consider whether the consent should be conditional or unconditional…

It follows that, where a s 90(1) matter is relevant… on the question whether conditions should be imposed on the consent, if given, and, if so, what should be the conditions. Hence where, as in the present case, the development is likely, indeed certain, to cause harm to the environment… an obligation, (and in that instance a very serious one), is imposed on an authority, minded to give its consent, "to take into consideration" "any means that may be employed to protect the environment or to mitigate (the) harm" "in making the determination", as to whether conditions should be imposed and if so the terms of them.

222 In Weal Giles JA said at 201 [80]: Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration ( Parramatta City Council v Hale at 335-6, 339 ; King v Great Lakes Shire Council at 384; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-5).

223 Recently these authorities were considered in Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257 where McClellan J set out at 266 - 267 [37] a distillation of the principles in Hale and Weal including: · the onus falls upon the challenger to satisfy a court that the relevant discretion has miscarried; · when exercising its decision-making power, an administrative body must give "proper, genuine and realistic consideration" to the merit of the matter: see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292; Paramanamtham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64. Mere advertence to a matter may not be sufficient. Zhang at NSWLR 601; · legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment from the development; · generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it; ...

224 While I consider there was a failure to take into account some aspects of potential noise impacts from the proposed supermarket I do not consider it is an issue which goes fundamentally to whether development consent ought to have been granted on this site. I consider the Council could be presumed to have sufficient knowledge of the site and its surrounds, and the nature of the development to be able to determine its suitability for a supermarket with normal operating hours in light of the school opposite and future neighbouring residential property. I also take into account that the Council was aware that an acoustic wall around the loading area was proposed as part of the development and that the school buildings opposite have largely blank walls on the side opposite the supermarket. 225 I consider, taking into account Mr Atkins' evidence, that there was insufficient information about the impacts of the 24 hour operation of the supermarket on neighbouring residential properties to enable an adequate consideration of the impact on those properties. Essentially this concerns the issue of whether the supermarket should operate 24 hours or have more limited hours. As is clear from the case law above, it is necessary that the Council have before it sufficient information to enable it to properly assess the matter. While the Director's Report did refer to the potential noise impacts from a 24 hour operation on neighbouring property there was no noise assessment of that impact before the Council in order to understand the magnitude of that impact. Further, the Council imposed no conditions which would ameliorate the impact in relation to deliveries and hours of operation despite the Director's Report recommending that such operations should be restricted to between 7.00am and 10.00pm, apart from requiring in condition 71 that deliveries should be made outside school peak usage periods. This condition appears more directed to amelioration of traffic impacts than noise impacts. The only other condition dealing with noise concerns hours for construction works (condition 47). 226 I consider the Applicant is successful on this ground in relation to the 24 hour operation of the supermarket proposed in the Errol DA. This is an issue which pertains to the adequacy of development consent conditions rather than whether development consent ought be granted at all.

(iii) The decision to grant consent was manifestly unreasonable 227 Given my finding above it is unnecessary that I determine this issue.

(Issue 12) The Council failed to consider certain traffic impacts of the Errol DA (APOC par 63) 228 On 16 April 2004 the Applicant lodged its Development Report and Statement of Environmental Effects. The original plans positioned the local supermarket at the intersection of Orchid Way and Edward Stinson Street on the south-eastern corner of the Errol site opposite the existing school. The proposed entry and exit driveway was located on Edward Stinson Street between Figtree Boulevard and Orchid Way, and a separate loading dock entry to service delivery vehicles was proposed on Orchid Way. The loading dock entry was designed to facilitate delivery vehicles reversing into the loading dock from Orchid Way.

229 Annexed to the report was a Traffic Assessment Report prepared by B.J. Bradley & Associates (Traffic Engineers) dated 6 April 2004 ("the traffic assessment report"). The traffic assessment report recommended approval of the Errol DA on the basis that it would not have a significant effect on traffic capacity, safety, or level of service on the affected roads.

230 On 26 May 2004, Mr Brad Parkes, the Council's Assistant Transportation Engineer, sent a memorandum to Ms Jenny Chisholm, the Council's Assessment Officer, in relation to traffic issues surrounding the Errol DA. In the memorandum Mr Parkes noted the following: · The proposed loading area for the shopping centre requires vehicles to reverse from the street. This is unacceptable and the applicant should reconfigure the design so that vehicles are entering and exiting the site in a forward direction. · The applicant should reconfigure the design to ensure that heavy vehicle movements to and from the site are safe. The applicant is to provide plans indicating the turning circles of the service vehicles. · Preferably the movements of servicing vehicles should be minimised in Orchid Way via strategic access location and internal road layout. … · All access to the site must comply with the Standard requirements for sight distance to both pedestrians and vehicles. The applicant is to demonstrate this is achieved.

231 On 15 June 2004, Mr Tim Shelley, the Council's Major Applications Team Co-ordinator, sent a letter to Errol Investments outlining several deficiencies in the Errol DA. In his letter, Mr Shelley stated: In terms of the actual layout and design of the carpark, a preliminary review has identified concerns in relation to the loading area. In this regard, the proposed location requires service vehicles to reverse into the site from the street, which is unacceptable as all vehicles need to be able to enter and leave the site in a forward direction. Further to this, the location of staff parking within the loading area also encourages reversing from the site…

As an advice, any redesign of the carpark would also need to ensure that heavy vehicle movements are minimised in Orchid Way due to the location of the school and pedestrian crossing, that the carpark and sight distances comply with Australian Standards and that road and footway construction is provided in accordance with DCP 49.

232 On 22 July 2004, Errol Investments lodged amended plans with the Council. The amended plans located the local supermarket at the intersection of Orchid Way and Figtree Boulevard on the north-western corner of the site. The proposed entry and exit driveway remained on Edward Stinson Street, between Figtree Boulevard and Orchid Way. The loading dock entry proposed on Orchid Way for service and delivery vehicles access was also re-located closer to the school opposite.

233 On 26 August 2004, Errol Investments lodged an amended Development Report and Statement of Environmental Effects. Errol Investments did not undertake a new traffic assessment report that considered the amendments proposed in the amended plans lodged on 22 July 2004. Rather, Errol Investments relied on the traffic assessment report submitted with the original Development Report and Statement of Environmental Effects dated 16 April 2004. The amended Development Report and Statement of Environmental Effects stated that: 12.2 Traffic Movements The proposed vehicle and delivery arrangements for the new village shopping centre are shown on the amended architectural plans… and detailed within the previously lodged Traffic Assessment Report prepared by B.J Bradley & Associates dated April 2004. As mentioned above, Council's attention is drawn to the agreement between Errol Investments and Wyong Shire Council whereby truck sizes have been reduced to accommodate the amended loading dock arrangements.

Delivery vehicles and waste vehicles will service the complex from the rear loading dock area on the north eastern side of the proposed building.

234 On 6 September 2004, the Health and Development Department of the Council considered the issue of traffic in the Health and Development Department Report to the Council's Development Management Panel in relation to the Errol DA. The Health and Development Department Report states at p 34: Access, Transport and Traffic

The proposal was considered by the Local Development Committee and has since been assessed by Council's Transport Engineers. After a number of amendments in order to achieve forward in/forward out movements from the loading area, the design is considered to be satisfactory subject to appropriate conditions. This includes limiting the delivery vehicles to 14 metres to ensure adequate turning areas, signposting the entry and exit points, limiting landscaping and screening to maintain sight distances, placing kerb stops to car spaces within the carpark and extending the traffic island between the entry and exit to the loading dock to reduce the width of the footpath crossing... 235 The Health and Development Department Report further states at p 38: · The location of the service area is inappropriate and will impact on pedestrian crossing and other vehicles.

Comment: Access to the service area is located approximately 20 metres from the pedestrian crossing and is unlikely to cause unacceptable interference with this facility. In terms of gaining access to the service area, the design ensures that trucks can safely enter and leave the site in a forward direction. The consent will be conditioned to restrict the size of trucks to ensure safe movements and to prohibit reversing movements over the footpath. 236 On 13 October 2004, Mr Butt, the Director of the Health and Development Department of the Council submitted the Director's Report to the Ordinary Meeting of Council in relation the Errol DA. The Director's Report adopted the statements of the Health and Development Department Report in relation to Access, Transport and Traffic at p 34.

237 On 28 October 2004, the Council determined the Errol DA by the grant of consent including conditions of consent in relation to: · extending the traffic island between the entry and exit to the loading dock to reduce the width of the footpath crossing (condition 24). · limiting entry and exit of trucks to the site in a forward direction and limiting deliveries to outside school peak usage periods (condition 71). · Limiting the delivery vehicles to 14 metres to ensure adequate turning areas (condition 76). 238 The Applicant relied on the affidavit of Mr Darroch who stated that the traffic assessment report undertaken by the Council did not accurately describe the traffic impacts likely to arise from the Errol DA and that an amended traffic assessment report, based on the amended plans, ought to have been considered. Errol Investments objected to Mr Darroch's evidence on the grounds of relevance. If Mr Darroch's evidence were to be allowed, Errol Investments sought to rely on the evidence of Mr Stewart, who was of the opinion that the Council had sufficient information to properly assess the Errol DA without the need for an amended traffic assessment report. In his view the alternative layout in the amended plans improved casual surveillance of pedestrian movements along Orchid Way and Edward Stinson Street.

Applicant's submissions 239 The Applicant submitted that in determining to grant development consent to the Errol DA, the Council failed to consider the traffic impacts of the Errol DA in relation to the shifting of the courtyard exit of the loading dock closer to the school opposite. Having obtained a traffic assessment report in April 2004, the plans submitted by Errol Investments were amended to relocate the entry to the loading dock. The Council was obliged to obtain a further traffic assessment report in order to assess the impacts of the amendments. In determining to grant development consent to the Errol DA, the Council did not take into consideration, the traffic impacts associated with the amendments, including shifting of the entry and exit of the loading dock closer to the school opposite, which were a relevant consideration under s 79C(1)(b) of the EP&A Act. Council's and Errol Investments' submissions 240 The Council and Errol Investments argued that an amended traffic assessment report was not necessary to determine whether relocating the supermarket away from the school pedestrian crossing would improve potential traffic impacts of the Errol DA. The evidence established that traffic impacts were considered in the Director's Report, the amended plans provided by Errol Investments and in condition 71 of the consent to the Errol DA which required that "deliveries are only to be made outside school peak usage periods". There was sufficient material before the Council for a decision to be made about the potential traffic impacts of the development.

241 Errol Investments submitted that the evidence did not support a contention that traffic impacts, particularly in relation to the school, were not considered.

Finding (i) Admissibility of expert evidence 242 I set out earlier at par 166 - 168 above the relevant law in relation to the limited admissibility of evidence in judicial review proceedings. As is clear from Caldera there is only a limited role for such expert evidence. The role of such evidence is not to have an expert put him or herself in the Council's shoes and give his opinion about that decision. I consider the evidence of Mr Darroch and Mr Stewart does not satisfy the criteria in Caldera and cannot be relied upon as it is irrelevant. The evidence does not go to a failure to make inquiries or to achieve an understanding of the environmental consequences of the Council's behaviour or explain principles relevant to the determination. The only basis it could possibly be included is to show what a council acting reasonably ought to have done but since this ground of appeal does not raise the issue of whether the Council acted unreasonably the evidence is not relevant.

(ii) Failure to consider relevant matters 243 As stated in Hale, Weal and Centro Properties (see par 221 - 223 above) proper, genuine and realistic consideration requires that the decision-maker have an understanding and appreciation of the scope of the matters being taken into consideration. I agree with the Council's submissions that there was sufficient material before the Council as is clear from the history set out at par 228 - 238 above, to enable the councillors to be aware of the potential traffic impacts of the development so that they were in a position to give "proper and genuine" consideration to the issue of traffic. The Applicant fails on this ground.

Section 25B of the Land and Environment Court Act 1979 244 My findings in relation to issue 11, whether the Council failed to consider acoustic impacts of the Errol DA (APOC par 61, 62) at par 221 - 226 above, mean that consideration ought be given to whether s 25B of the Land and Environment Court Act 1979 ("the Court Act") should apply. If I do apply s 25B, the further question then arises of what the appropriate order ought to be. The parties made submissions on the application of s 25B at the hearing as follows. Council's and Errol Investment's submissions 245 If the Court found that the consent granted by Council to the Errol DA was invalid on the basis that the Council failed to consider the acoustic impacts of the Errol DA the Council and Errol Investments submitted that the Court, in its discretion, should decline to make a declaration of invalidity and should instead make an order suspending the operation of the consent. Pursuant to s 25A of the Court Act, an order may be made under s 25B where the invalidity arises from any steps preliminary to the granting of consent. Accordingly, in these circumstances it is appropriate for the Court to make an order under s 25B of the Court Act. This is consistent with WRF Property Pty Ltd v Armidale Dumaresq Council [2003] NSWLEC 223 where Talbot J utilised s 25B to remedy defects in the imposition of conditions by a council.

Applicant's submissions 246 The Applicant's primary submission at the hearing was that s 25B of the Court Act was not available for the numerous breaches alleged by the Applicant as these did not fall within the scope of s 25A(2) of the Court Act, not being a step preliminary to the granting of development consent. Moreover, the nature of the breaches was such that they could not be isolated from the process of consideration and decision-making mandated by the EP&A Act. The Applicant argued that it was not for the Court to substitute the consent authority's decision with its own (Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84; Centro Properties Ltd v Warringah Council (No 2) (2003) 132 LGERA 45; Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257).

247 It appears I have sufficient submissions on this issue but now that I have found that there is a deficiency in only one respect, consideration of noise impacts for 24 hour operation, the Applicant may wish to reconsider its submissions. If not, I will simply consider the submissions already made about s 25B in light of my decision in this judgment as there is no need for the parties to repeat these.

248 The parties should advise me within 14 days of whether they wish to make further submissions and the timetable for doing so and the appropriate form of orders under s 25B in the event that I decide to make these. The parties should also advise the Court what they seek in relation to costs orders.

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.