of New South Wales
IN THE LAND AND No: 40011/89
ENVIRONMENT COURT Coram: Cripps J
OF NEW SOUTH WALES October 1989
JUDGMENT
JOHN RICHARD ASQUITH
on behalf of Wyrrabalong Regional Park Committee
v
THE MINISTER FOR PLANNING AND LOCAL GOVERNMENT
First Respondent
THE COUNCIL OF THE CITY OF GOSFORD
Second Respondent
LESTER JAMES BRIEN AND MAVIS JOYCE BRIEN
Third Respondent
THE DIRECTOR OF DEPARTMENT OF PLANNING
Fourth Respondent
His Honour: On 17 January 1989 John Richard Asquith, on behalf of the Wyrrabalong Regional Park Committee commenced Class 4 proceedings against the Minister for Planning and Local Government (the Minister) and the Council of the City of Gosford (the Council) seeking a declaration:
"that Gosford Local Environmental Plan No 219 published in the New South Wales Government Gazette No 153 on 14 October 1988 is invalid".
Later, the owners of the land the subject of LEP 219, Mr and Mrs Brien, were joined as third respondents and the Director of the Department of Planning as the fourth respondent. Mr and Mrs Brien have made a submitting appearance and do not wish to be heard unless an order for costs against them is sought by one of the parties to the litigation.
At all relevant times, Mr and Mrs Brien were the owners of approximately 8.4 ha of land known as Lot 2 DP712008 and known as "Hollydell Farm" at Forresters Beach within the City of Gosford. Use of the subject land is controlled by Interim Development Order No 122 being the relevant local environmental planning instrument. Prior to 14 October 1988, the western part of the land (approximately 4.4 ha) was zoned 7(a) and the eastern part (approximately 4 ha) was zoned 7(e). LEP 219 rezoned the land and the northern half (what was previously 7(a) to the west and 7(d) to the east) became 7(c3) and the southern half (which was previously 7(a) to the west and 7(d) to the east) became 7(a). Zone 7 is described as the conservation and scenic protection zone.
In zone 7(a) "Conservation", land may be developed with the consent of Council (but not otherwise) for:
"agriculture; dwelling houses; parks and gardens; public and other reserves; roads; subdivision".
Land zoned 7(c3) "Scenic Protection - tourist accommodation" ... may be developed with the consent of the Council (but not otherwise) for:
"Agriculture; caravan parks; clubs; commercial signs; convalescent hospitals; dwelling-houses; educational establishments; forestry; home industry; hotels; lawn cemetries; parks and gardens; public and other reserves; places of public worship; plant nurseries; recreation establishments; refreshment rooms; roads; roadside stalls; stock homes; tourist units; utility installations".
Land within 7(d) "Coastal Land Protection" may be developed with the consent of the Council (but not otherwise) for:
"Agriculture; dwelling houses; extracting sand industries; forestry; golf courses; home industries; mining; subdivision".
In October 1986 Mr and Mrs Brien made application to the Council that the land be rezoned from 7(a) and 7(d) (as it then was) to 7(c3) and 7(a)( as it later became). In October 1988, the Minister made LEP 219 generally in accordance with the draft plan after Mr and Mrs Brien had covenanted, inter alia, to dedicate more than half the land to the public.
The applicant submits that the Council committed approximately 15 breaches of the Environmental Planning and Assessment Act and the Director approximately 6. He submits that the breaches singularly and cumulatively are such that LEP purportedly made by the Minister was void. It was submitted separately against the Minister that he failed to give proper consideration to the making of the LEP and that he failed, when considering relevant reports and when determining whether to make the plan, to take into account relevant matters and/or he took into account improper or irrelevant matters. It was also submitted that the decision of the Minister to make the plan was manifestly unreasonable.
On 3 October 1986, Development Application Workshop submitted a 32 page application for rezoning on behalf of Mr and Mrs Brien. Mr and Mrs Brien wanted the land rezoned to make permissible a tourist complex of approximately 80 units comprising a motel, serviced
apartments, cabins, a restaurant and administration buildings.
The draft plan was the subject of a report by the Chief Town Planner dated 3 February 1987. The Planner referred to the Direction G12 made pursuant to s 117 of the Environmental Planning and Assessment Act which relevantly states:
"Draft Local Environmental Plans shall not alter or remove existing zonings or identification of land for scenic protection areas, environment protection areas, escarpment preservation areas, coastal protection areas, etc (except that these may be altered or increased where justified by an environmental study)".
The Planner was of the opinion that a formal environmental study was not necessary because "the site is generally cleared of vegetation and the application is accompanied by a detailed statement on the existing environment". In his report the Planner supported the rezoning and the development proposed by Mr and Mrs Brien conditional upon, inter alia, the dedication of all the proposed 7(a) land which was a little over half the subject land and which was covered with trees. There were also some trees on that part proposed to be rezoned 7(c 3). On 2 March 1987, the Town Clerk wrote to the Regional Manager enclosing a copy of the Town Planner's Report of 17 February 1987 which, inter alia, contained the information and opinions referred to in the earlier report prepared on 3 February.
On 4 March, the Town Clerk sent a copy of the draft plan and accompanying map to the Department and requested a Certificate pursuant to s 65 of the Act. On 1 April, the Council was advised by the Department that the s 65 Certificate could be issued under delegated authority by the Council's Chief Town Planner in accordance with the instrument of delegation dated 14 May 1986. By that instrument the Chief Town Planner was delegated to exercise the functions of the Director to issue a Certificate pursuant to s 65 of the Act except where the draft plan "is inconsistent with any State Environmental Planning Policy".
The Department considered whether an environmental study was required and concluded it was not. The officers of the Department had regard to the Chief Town Planner's report of 17 February 1987. On 8 April 1987, the Department referred to the fact that some slopes exceeded 20%, that there was vegetation cover on the land and that, accordingly, the Council should prepare a draft development control plan to satisfy the Department that anticipated development would proceed in a manner sensitive to the "environmental characteristics of the site". The Council was advised that the Department "has consistently sought to retain the existing rural character of the land as a dominant feature of the coastal landscape". It should be observed in passing that the Department had previously acquired Lot 1 in DP712008 being the land between the subject land and the ocean. I mention this matter to indicate that the Department was generally cognizant with the area.
On 9 April 1987, Mr Kettle, as delegate for the Director, certified that the draft plan could be exhibited. Thereafter, the draft plan and map was exhibited together with the s 65 Certificate, the public notice and extracts from the 32 page application of Mr and Mrs Brien in support of the rezoning application. The development committee met on 25 August 1987 and considered the public submissions received after the public exhibition. The Wyrrabalong Regional Park Committee (on whose behalf the present applicant brings these proceedings) objected and made reference to SEPP No 19. Other persons and groups made submissions opposing the establishment of a tourist complex. It was said that the whole area should become a park, that the land was vegetated and had steep slopes and was unsuitable for a tourist complex etc. Reference was also made to an announcement of the Premier in 1973 that the Government had a policy of bringing important coastal lands into public ownership if possible and placing restrictions on the future use of certain areas.
It was made clear to the Council by the Department that the rezoning would not be supported unless the owner agreed to dedicate all of the 7(a) land to the Council (this being a little over half the subject land and being that part which was covered with trees) and to prepare a development control plan to show what controls would apply to any development on the proposed 7(c3) land.
In November 1987 the Council considered a motion to adopt the recommendation that the rezoning be proceeded with. An amendment suggesting that the Council acquire the 7(a) land and defer the use of the 7(d) land was defeated. The Council resolved to request the owner to give further consideration to providing additional information in respect of the dedication "of a substantial area of the more environmentally sensitive land" and to provide a draft development control plan over the land proposed to be zoned 7(c3). The Council also resolved to ask the Department if it would be prepared to purchase the whole of the land under its Regional Open Space Acquisition Programme. The Department advised it was not prepared to purchase the land.
The Planner identified the choices open to the Council viz to refuse the application; to purchase the subject land to add to what was called the proposed Wyrrabalong Park; or to proceed with the rezoning and to have half the land dedicated as open space. The Planner recommended that the rezoning proceed provided that the 7(a) land be dedicated to the public and a development control plan was prepared. On 12 February 1988, the Council adopted a resolution that the rezoning application be supported if the "uncleared" portion of the site be dedicated as a public reserve without cost to Council. It is clear that the Council at this time had in mind not only the land to be zoned 7(a) but the north eastern part of the land proposed to be zoned 7(c3).
On 27 June 1988, the Council wrote to the Department and included the report of 25 August 1987, the report of the Director of Planning dated 17 November 1987, the 32 page rezoning application referred to above together with advice from the Lands Office concerning Wyrrabalong Regional Park and an agreement between the Council and Mr and Mrs Brien agreeing to dedicate the uncleared portion of the site to the Council.
The Minister for the Environment wanted the National Parks and Wildlife Service to investigate the proposal. On 9 September 1988, the Minister for the Environment wrote to the Minister for Planning and after noting that the National Parks and Wildlife Service had concluded its investigation, he advised that he was "in full agreement with the current rezoning arrangement". The Minister pointed out that a consequence would be that "some 60% of the Hollydell Farm area ie most of the naturally vegetated land that has been identified to be of conservation and recreational value, will be dedicated as public open space, at no public cost, and would be available for reservation under the National Parks and Wildlife Act". He went on, "I believe that of all possible alternatives this arrangement would produce the greatest public benefit, and I understand also it would be satisfactory to the owners".
In September 1988 Mr and Mrs Brien entered into a deed in which they convenanted, inter alia, "to dedicate within three months of the gazettal of the local Environmental Plan to the Council without cost to the Council that part of the Land shown edged red on the plan being Schedule V hereto;". The land edged red included all the land zoned 7(a) and part of the land to be zoned 7(c3). The deed was entered into prior to LEP 219 being made. Mr and Mrs Brien also covenanted to extend the sewerage work to serve the land, to extend the reticulated water supply, to construct roll curb bitumen etc. A development control plan for the land was prepared.
On 21 September 1988, the Director furnished a report to the Minister pursuant to the provisions of s 69 of the Act. Reference was made to the objectors and to the likely implications for the proposed Wyrrabalong National Park. Reference was also made to the inconsistency of the draft with s 117 Direction G12 and that the inconsistency had been justified. The Director observed that a major part of the land was to be dedicated to the Council free of cost for open space purposes and that the remainder could be "developed without affecting the integrity of the resulting coastal reserve". It was noted that the proposal had the support of the Minister for the Environment and that the plan would ensure "some 60% of the subject land, ... will be dedicated at no cost for open space purposes so complimenting the existing reserve system of the locality". It recommended that the plan be made. On 6 October 1980 the plan was made and was published in the Government Gazette on 14 October 1988.
There are slopes on the land in excess of 21%. Almost all this land will now become public land. Most of the vegetated land will be dedicated to the public. The land drains to the north towards the Wyong Shire Council area and is approximately 100 metres south of the southern boundary of the Shire. There are open forests and understudy floristic vegetation on the land which are probably remnants of communities more widely distributed over the general area. The land is used for passive recreational purposes by members of the public.
Part III of the Environmental Planning and Assessment Act 1979 deals with the making and amending of environmental planning instruments. Division 2 of the Act authorises the Minister to make state environmental planning policies with respect to matters of significance for environmental planning in New South Wales. Division 3 deals with regional plans. Of relevance to the present proceedings is SEPP No 19 entitled "State Environmental Planning Policy No 19 - Bushland in Urban Areas" which applies to the Gosford local government area. Section 117 of the Act empowers the Minister to give directions to public authorities to exercise their functions as specified in the Direction. Of relevance to the present proceedings is Direction G12 to which I have earlier referred.
Division 4 of Part III deals with the making of local environmental plans. A council may decide to prepare a draft local environmental plan (s 54). Ordinarily, the Council has an obligation to prepare an environmental study of the land to which the draft local environmental plan relates (s 57). However, where, as in the present case, an environmental planning instrument is amended by a subsequent environmental planning instrument, an environmental study is not required unless the Director directs to the contrary (s 74). In the present case, as I have mentioned, the Director did not direct an environmental study be undertaken.
Pursuant to s 62(a) the Council is obliged to consult with public authorities or bodies as, in its opinion, might be affected by the draft plan and where the draft plan applies to land "adjoining a boundary between the Council's area and another area" the council of that other area must be notified (s 62(b)). Public authorities are obliged, if requested, to furnish councils with appropriate information (s 63). The draft local plan is to be submitted to the Secretary of the Department with the names of public authorities etc the council has consulted with (s 64).
After the Secretary receives a copy of the plan, she may issue a certificate that the draft plan be publicly exhibited (s 65). After such a certificate has been received, the council is required to give public notice of the place at which and the dates on which the draft plan may be inspected (s 66(1)(a)).
Section 66(1)(b) imposes the following obligation. (The council) shall -
exhibit at the place, on the dates (i) a copy of that environmental study (ii) a copy of any State environmental policy, regional plan, or relevant under section 117, to the land to which the local environmental plan is (iii) if such a policy, plan or direction so apply - a statement to the that the policy, plan or referred to in (ii) substantially the draft local environmental plan that any submission made to section 67 should be writing to the council. Section 68 obliges the council to consider the submissions, and if it thinks fit, to arrange a public hearing. Section 68(4) provides that the council submit to the Secretary the details of all submissions, the report of a public hearing (if any), the draft plan and the reasons for any alterations and a statement to the effect that the public notification and exhibition have been complied with and that submissions have been considered. The council is also required to specify any environmental planning instruments and directions under s 117 that had been taken into consideration and to give details of any inconsistency between the draft plan and other planning instruments or directions and the reasons justifying the inconsistency.
Pursuant to s 69, the Director is obliged to furnish a report to the Minister as to whether the draft is inconsistent with any state policy or regional plan or direction under s 117 applying to the land to which the draft applies and if there is such an inconsistency whether it is justified. She is further required to report on the public participation process and the relationship between the draft and any other planning instrument or direction or any other matter relating to the draft as she thinks appropriate.
After considering the Director's report, the Minister may, pursuant to the provisions of s 70 make the plan in accordance with the draft as submitted or with such alterations as relate to matters of significance for the state or region, direct that in certain circumstances it be re-exhibited or decide not to proceed with the draft local environmental plan.
The regulations oblige councils to furnish the Secretary with the "details of the known environment (including social and economic factors)" of the subject land and, within 21 days, the Council's opinion as to whether an environmental study is necessary (s 54 (see cl (5)(f) and (g)). The regulations make provision for the manner and period of exhibition. For the purpose of facilitating the consultation process, the council is required by cl 12 to furnish any public authority which it considers likely to be affected a copy of the draft plan and study (if any). The regulations make provision for the form and content of the plan (regulations 16, 17 and 18).
Before turning to the submissions of the applicant, it is not inappropriate, in my opinion, to observe that the scheme of the Act is that local plans are to be prepared by local councils ie by the elected representatives of the local government area. The objects of the Environmental Planning and Assessment Act are, inter alia, to provide increased opportunity for public involvement and participation in environmental planning and assessment. The local environmental planning process begins with a resolution by the Council to prepare a local plan (assuming no ministerial direction) and finishes with the Minister making the plan submitted in accordance generally with the council's draft or refusing to make the plan. The intervening steps and procedures are designed to ensure that members of the public are notified of the nature and effect of the proposals and to ensure that the opinions of members of the public are considered by the council and the Department before the Minister makes, or refuses to make, the plan. It is important to remember, contrary to an assumption implicit in the applicant's submission, that local plans may be inconsistent with state or regional plans provided the inconsistency is justified. As Bignold J observed in Jessop v WRA Wilcock Pty Limited & Ors 23 December 1988, a local environmental plan can contain provisions inconsistent with other planning instruments including state policies (see ss 36, 68(4)(d)(iii), 69, 70 and 74). The present position is to be contrasted with s 61(e) of the Environmental Planning and Assessment Act as originally enacted. Section 61(e) obliged the council to ensure that the draft local plan was not substantially inconsistent with any state environmental planning policy etc. Section 61(e) was repealed in 1985.
In the present case, it is submitted that there have been breaches of regulation 5(f) and (g) and of the requirement imposed by s 62 because, it is said, the council should have consulted with the Coastal Council under the Coastal Protection Act, the Soil Conservation Service of New South Wales, the National Trust and the Department of Lands. Further, it is said that it relevantly failed to notify Wyong Shire Council. It is submitted that the s 65 Certificate was invalid because Mr Kettle exceeded his delegated authority. It is said that the Council acted in breach of SEPP No 19 - "Bushland" because it failed to have regard to the aims and requirements of the Policy. It is also said that the Director and Minister (whose predecessor made SEPP No 19) failed to have regard to SEPP No 19. It is said that the Council was in breach of cl 12 of the regulation because it failed to send documents to the Coastal Council, Soil Conservation, National Trust, Lands Department and Wyong Council. It is claimed that the Council failed to comply with s 66(1)(b)(ii) and (iii) because it failed to exhibit SEPP No 19 and s 117 Direction G12. Finally, it is submitted that Council failed to comply with the provisions of s 68(4)(d) because of its failure to exhibit SEPP No 19 and Direction G12.
It is alleged that the Director was in breach of obligations imposed on her because she should have considered that a local environmental study was necessary, that she failed to issue a s 65 Certificate because the person that did issue it had exceeded his authority, that she failed (as I have said) to consider SEPP No 19 and Direction G12 and did not have sufficient regard to the inconsistency of the draft plan with SEPP No 19 and the Direction G12. Finally, as I have said, it is submitted that the Minister, in the light of the breaches of the Act by the Council and the Director, was in breach of the planning Act because he purported to make the local environmental plan he was not authorised to make.
It is to be noted that it is not suggested that the resolution of the Council to prepare the local plan was not valid. It is no longer suggested that an environmental study should have been undertaken. It is common ground that the draft plan was advertised and exhibited. It is not disputed that submissions were considered. It is not suggested that the Director did not report at all and it is not said that the plan made by the Minister was otherwise than in accordance with the draft submitted to him by the Council.
In these circumstances, in my respectful submission, the applicant essays a difficult task to persuade the Court that the breach of any one of the procedural steps of the type nominated would have the effect of denying to the Minister the power to make a valid plan. To do so would be to impute to the legislature an unstated intention that the breaches by the Council and the Director, if they occurred, or any one of them precluded the Minister, as a matter of law from making a valid plan. It was suggested, for example, that to fail adequately to furnish "details of the known environment" to the Secretary when notifying him of the decision of the resolution to make a draft plan had the consequence that even if every other step in the plan making process were unchallengeable, the Minister had no power to make the plan.
It is alleged that the Council was in breach of regulation 5(f) and (g) being an obligation imposed on it pursuant to s 54. Section 54 requires, inter alia, the council to inform the Secretary of the decision to prepare a draft local environmental plan and the regulation provides that, inter alia, the Secretary shall be informed of the
of the known environment (including and economic factors) of the subject (g) the council's opinion as to whether an study is necessary before the plan is prepared, and the reasons indicating details and relevance of where council is of the opinion that an study is necessary, details of should advised by the Town Clerk of the resolution of the City Council to prepare the draft plan to rezone the land. The Town Clerk enclosed the Planner's 7 page report of 17 February 1987 which, he said, gave the details required by cl 5 of the regulation. It described the land, referred to the G12 direction and to the planner's recommendation to the Council that it should prepare a draft plan. The report is challenged by the applicant upon the ground that it includes statements which, it is submitted, are factually incorrect as, for example, that if the development went ahead there would be "no interference with highly vegetated areas" and that a formal environmental study was not necessary because the site is "generally cleared of vegetation and the application is accompanied by a detailed statement of the existing environment". It is said that the description was inaccurate because half the area was bushland. However, it must be remembered that the rezoning application was made and dealt with against the background that the development referred to in the application would proceed. In his report of 17 February 1987, the Planner recommended approval on condition that all the bushland in zone 7(a) be dedicated to the public. It was therefore not inaccurate to refer to those parts of the area upon which the physical buildings were to be erected as being "generally cleared". I do not think the circumstances that if the development proceeds there will be some loss of trees denies the correctness of that description. Accordingly, I am not satisfied that the Council was in breach of the obligations imposed by regulations 5(f) and (g).
It is also submitted that the council failed to comply with s 62(a) and (b).
Section 62 relevantly provides:
a local environmental plan, the council shall (a) such public authorities or bodies ... as, in opinion, will or may be affected by the (b) where the draft local environmental plan to land adjoining a boundary between council's area and another area - the (c) such other persons as the council determines".
It was submitted that the Council failed to consult pursuant to s 62(1)(a) with the Coastal Council established under the Coastal Protection Act, the Soil Conservation Service of New South Wales, the Wyong Shire Council, the National Trust of New South Wales and the Department of Lands. The applicant no longer asserts breach of obligation to consult with the Coastal Council for the reason that although the Coastal Council is established under the Coastal Protection Act, at the relevant time it was devoid of members. The applicant abandoned his allegation that the Council was in breach by reason of its failure to consult with the National Trust and the Department of Lands. However, he submits that the Council was in breach of its statutory obligation by failing to consider whether it should consult with the Soil Conservation Service of New South Wales and for not consulting with the Wyong Shire Council.
I accept the applicant's submission that the words "land adjoining a boundary" where appearing in s 62(b) refers to land that is "near to" the boundary of the local government area and not, as is submitted by the Council and the Department, to land that physically abuts the boundary (see Auckland Lai v Warringah Shire Council 58 LGRA 276. If I were to determine the matter, I would determine that the subject land relevantly adjoined the boundary. However, as the file demonstrates, in October 1986 the Council's attention was directed to the question whether the Wyong Shire Council should be advised. Although not proved, I am prepared to assume it was not. If, as I think, the words "adjoining a boundary" mean "near to a boundary", a council must have a discretion to determine whether land which does not physically abut a boundary is relevantly "near to" the boundary. The exercise of such a discretion, in proceedings to challenge the validity of a plan in the Class 4 jurisdiction of the Court, will not be displaced by the Court unless the Court is satisfied that it was not open to the Council acting reasonably to form such an opinion. (Hunter Valley Vineyards & Anor v City of Cessnock 7 October 1988 unreported). In the present case, the subject land was 100 metres from the boundary of the Wyong Shire Council's local government area. I am not persuaded that the Council's failure to inform the Wyong Shire Council, if that is what happened, was unreasonable in the Wednesbury sense (see Associated Provincial Picture Theatres v Wednesbury Corporation [1948] 1KB 223). Furthermore, I do not think the Council was under any obvious obligation to notify the Soil Conservation Service of the draft plan. The steeply sloped part of the land was to be retained in its vegetated state and to be dedicated to the public. I have not lost sight of the applicant's argument that the breach of s 62(a) alleged is that the Council failed to turn its mind to the question of whether it should consult with the Soil Conservation Service. In my opinion, however, it has not been demonstrated on the material before me that the failure of the Council to turn its mind to this matter (if that is what happened) was relevantly a breach of its obligation.
It is submitted that the certificate issued by Mr Kettle pursuant to s 65 was invalid because he exceeded his delegated authority. Section 65 provides that where the Department receives a draft local environmental plan, the Director may issue a certificate certifying that the draft plan may be publicly exhibited. Mr Kettle was delegated to perform the Director's function pursuant to s 65 provided the plan was not "inconsistent with any state environmental planning policy". It is alleged that the draft plan was relevantly inconsistent with SEPP No 19. SEPP No 19 - "Bushland in Urban Areas" purports to apply to Gosford and provides that when preparing draft local environmental plans for any land to which the Policy applies, councils must have regard to the general and specific aims of the Policy and give priority to retaining bushland unless it is satisfied that the significant environmental, economic or social benefits will arise which outweigh the value of the bushland. The aims and objectives of the Policy is to protect and preserve bushland because of its value to the community and the specific aims of the Policy are described as including, inter alia, the protection of remnants of plant communities now within urban area. It is submitted on behalf of the applicant that SEPP No 19 applied to Gosford by reason of cl 3 and that the draft plan was inconsistent with the Policy. I shall refer to the Policy in due course but for present purposes it is sufficient, in my opinion, to dispose of the argument with respect to s 65 by noting that the draft plan was not inconsistent with SEPP No 19 (or at least Mr Kettle was not required, in law, to decide that it was).
I leave to one side the attractive argument that the making of the draft local environmental plan could not be inconsistent with SEPP No 19 because it did no more than make permissible development on part of the land that which was previously not permissible. I accept that the draft was made upon an assumption that a tourist complex of the type envisaged in the application for rezoning would be put on the land. It was always the Council's view that development consent for the tourist complex should be conditional upon important bushland being dedicated to the public for its preservation as a recreational resource - one of the stated aims of the Policy. I need not therefore determine whether SEPP No 19 applies only to urban land within the Shire of Gosford or whether it applies to the whole of the land within Gosford's local government area. It would seem to me, however, that, by reason of cl 3, the Policy applies to the whole of the land within the Gosford City.
Mr Larkin has also submitted that the Council acted in breach of cl 10 of SEPP No 19 because it failed to have regard to the general and specific aims of the Policy, failed to give priority to the retention of bushland, failed to consider or satisfy itself that there was significant environmental, economic or social benefits which would arise and which would outweigh the value of the bushland. It is also submitted that having regard to all the circumstances, the Council's decision with respect to the draft plan was manifestly unreasonable. It would seem to me, with respect, that the documentary material belies this submission. The Council had regard to submissions made to it and to the report of its planning officers. One of the submissions, made, incidentally, by the group represented by the applicant in these proceedings, was that the Council had not properly considered the effect of the application of SEPP No 19. Further, of course, the Council was well aware of the nature of the subject land. Members of the Council had inspected the site. The Council's Planning Department viewed the application as an opportunity whereby most of the uncleared part of the subject land could become public land.
I am of the opinion that cl 10 of SEPP No 19 did not have application to the subject rezoning proposal because the rezoning proposal related to "rural land" as those words must be understood. The land is referred to as "rural land" on the map. Mr Larkin relies upon the circumstance that although IDO 122 was prepared with respect to rural land, the subject land is described on the plan as 7 - "Conservation and Scenic Protection" which, he submits, is to be contrasted with zone 1 - "Rural". He submits that if there is inconsistency between the plan and the map the plan, on general conveyancing principles, must prevail. He also submits that if the word "rural" is to be given its ordinary and not its technical meaning, the subject land would not be described as rural land because it was surrounded by urban development. I have already mentioned that I am not satisfied that the Council did not have regard to the general and specific aims of SEPP No 19 in its consideration of the application and that it did not make a proper appreciation of the importance of preserving bushland when considering the proposal. In these circumstances, it is of academic interest only to determine whether the land was relevantly rural land within the meaning of cl 12. It is not, however, inappropriate to note that the land had been a farm for a little over 100 years. I am prepared to conclude that the Council was bound to come to the conclusion that the subject land was not "rural land".
It is also submitted that the Council was in breach of cl 12 of the regulation because it failed to consider or form an opinion as to which public authorities were likely to be affected or have any interest in the plan etc. This submission is rejected for the same reason I have rejected the submission that the Council was in breach of s 62.
It is submitted that the Council was in breach of s 66(1)(b)(ii) and (iii) because it failed to exhibit a copy of SEPP No 19 ans s 117 G12 direction or any proper statement with respect thereto. SEPP No 19 was not placed on exhibition. In an answer to interrogatories asking what documents were placed on exhibition the Council specified documents and did not include the G12 direction. Later Mr Tomasetti sought to read an affidavit from an officer which, I was informed, was to the effect that it was Council's practice to exhibit s 117 directions but that the deponent had no knowledge one way or another whether the practice was followed in the present case. I declined to allow the affidavit to be read because it was not filed as required by the directions of the Court. I make the finding on the evidence that the s 117 direction G12 was not exhibited. Mr Larkin has submitted that SEPP No 19 relevantly applied to the land by reason of cl 3 and cl 10 of the Policy. I have already expressed the opinion that, in any event, the Council did have regard to the aims of the Policy. I am of the opinion, however, that both SEPP No 19 and the direction G12 were documents which should have been exhibited pursuant to s 66(1)(b) and that a statement should have been included in accordance with s 66(b)(iii).
Finally, it is alleged that the Council failed to comply with provision 68(4) of the Act. Section 68(4)(d) provides that the Council submit to the Secretary a statement
the effect that the provisions of sections 66 67 and this section relating to public in the preparation of the draft plan (ii) specifying the environmental planning instruments directions under section 117 that have been (iii) giving details of any inconsistency between the to in subparagraph (ii) and the reasons justifying 27 June 1988, the Council reported to the Secretary and included (1) s 65 certificate; (2) copy of the public notice pursuant to s 66; (3) the report of the Director - Planning dated 25 August 1987 pursuant to s 68; (4) the report of the Director - Planning of 17 September 1987 concerning the Department's advice of 22 September 1987; (5) the submission by Development Application Workshop; (6) the advice from the Lands Office; (7) the report of the Director - Planning of the meeting of the Council of 23 February 1988; and (8) the deed of agreement between the Council and Mr and Mrs Brien referred to above. Mr Larkin submits that because the Council did not exhibit SEPP No 19 and G12, it could not comply with the obligation under s 68. He submits the public could not have been adequately involved because the Policy and the Direction were not exhibited. The statement made no reference to what was exhibited. However, the reports which I have referred to make it plain that the application was advertised and submissions were received and considered. In my opinion, there was substantial compliance with the obligation imposed by s 68(d).
So far as the claim against the Director is concerned, it is submitted that the whole process was so infected by the breaches of the Council that by the time the matter was referred to the Director for report to the Minister that the process could not, in law, proceed further. I have already referred to the Director's report pursuant to s 69. It referred in terms to the inconsistency between the G 12 direction and the draft plan and that the inconsistency was justified. I do not think there was an inconsistency between SEPP No 19 and the draft plan for reasons I have referred to above. Accordingly, I do not find any breach of the obligation under s 69.
As I have said, the Council was in breach of its obligations under s 66(1)(b)(ii) and (iii) because it failed to exhibit SEPP No 19 and direction G12, both of which applied to the subject land. Upon the assumption that the Council did not direct its mind to the provisions of SEPP No 19 in terms, it is made clear from the files that the general aims and objectives of SEPP No 19 were to the forefront of Council's consideration of the matter. As I have said, I am not satisfied that there was a breach of s 62 or s 65 but I am prepared to assume that the Council should have notified the Soil Conservation Service and the Wyong Shire Council and that the s 65 certificate was flawed because Mr Kettle exceeded his authority. Furthermore, and contrary to my findings, I am prepared to assume that the Council was in breach of the provisions of s 68(4) of the Act because the report failed to mention that SEPP No 19 and Direction G 12 were not exhibited.
It must be assumed by the courts that the legislature intends that its legislative directions are to be obeyed. But it does not follow that because the legislature intends its direction to be obeyed, it also intends that an ultimate decision is a nullity because one or more of the procedural steps have been ignored or disobeyed. It would seem to me that a proper understanding of the nature, scope and purpose of the relevant parts of the Environmental Planning and Assessment Act make it plain that it cannot be assumed that the legislature intended that the failure to follow each and every procedural requirement would necessarily result in the decision of the Minister to make a plan being, in law, a nullity. The serious inconvenience or injustice, inherent in such an assumption, to persons eg landowners applying for rezoning and persons whose land has been rezoned and who have conducted their affairs upon the basis of the rezoning and who have no control over the activities of the council or the Director is obvious. It may be accepted that injustice or inconvenience must be assumed to stand behind the failure of a council, for example, to advertise and exhibit a draft local plan or to its failure to consider submissions from members of the public. That would be because those requirements are so central to the general nature, scope and purpose of the legislation that to ignore them would be to frustrate the overall legislative intention. But the same thing can scarcely be said about the failure of a council, for example, to inform the Secretary after it has resolved to prepare a draft local plan of the "details of the environment".
Furthermore, it would not follow that because breaches of certain legislative requirements do not deprive the Minister of the power to make a valid plan councils can ignore the requirements with impunity. Section 123 of the Environmental Planning and Assessment Act provides that any person can bring proceedings for an order to remedy a breach and the Court has a wide discretion, if satisfied that a breach has been committed, as to the orders it may make (see F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) 1985 55 LGRA 306).
It is a "breach of the Act" to fail to comply with a provision of the Act (see s 122 and Sydney City Council v Building Owners and Managers Association of Australia 55 LGRA 444).
If it is demonstrated that there has been a failure to substantially comply with the requirements of Part III, it can be assumed that the legislature intended that the Minister should not have the power to make the plan. The question would still remain, of course, whether the Court would declare invalidity. It may be that notwithstanding failure to substantially to comply with the procedural requirements, the Court would not make a declaration because of the very great public inconvenience and mischief that would flow therefrom. For example, assuming a plan was made without proper advertisement and without any consideration of public representation, the Court may, nonetheless, decline to declare invalidity upon the basis that, for example, hundreds of innocent people would suffer great financial hardship were the plan to be declared invalid.
In Jessop's case, Bignold J was required to consider, inter alia, whether the failure to comply with s 66(1)(b)(ii) of the Environmental Planning and Assessment Act invalidated a plan made by the Minister. Bignold J was of the opinion that there was no breach of s 66(1)(b)(ii). However, he also said:
that exhibit at the Laurieton office all the required material, I would not have held the to be fatal so as to invalidate the for so concluding. Firstly, I would not regard a involving As the heading to the section states the section concerned with the 'public exhibition of the the principal object of the section and the referred to in s 66(1)(b)(ii) is clearly and subsidiary material. In these as a matter of construction I would visited with s 66(1)(b)(ii) with Monaro Acclimatisation Society & Anor v The Minister for Planning & Anor 2 March 1989, Stein J considered a challenge to the validity of a plan made after there had been a failure to advertise a study and exhibit it pursuant to s 66(1)(b)(i). A submission was made that a s 117 direction had not been exhibited pursuant to s 66(1)(b)(ii). His Honour observed:
"Because of the breaches of the Act which I have it is unnecessary to determine the other I am not convinced that, assuming an exhibition, documentation was exhibited ... or the failure to exhibit the s 117 directions necessarily lead to invalidity. I make the comment in relation to the failure to comply ancillary subsidiary materials and I agree with the reasoning of Bignold J in Jessop's case that the requirement, for example, to consult imposed by s 62 is ancillary to the overall duty imposed by Division 4. The obligation under s 62(a) is for the council to apply its mind to such public bodies as might be affected and then to form an opinion as to whether those bodies should be notified and, if they should, to notify them. The consequence of the Council making a mistake by omitting from its consideration a statutory authority would, if the applicant's submissions are accepted, result in the plan made by the Minister being a nullity irrespective of what took place thereafter (although what took place thereafter would be relevant, of course, on the question of the exercise of the Court's discretion as to whether it should declare invalidity). Similarly, if the applicant's submission with respect to s 62(b) is correct, as I think it is, that "adjoining the boundary" means relevantly "near to" the boundary, it follows that the Council is required to make a value judgment with respect to any particular application. That being so, it cannot be assumed, in my opinion, that the legislature intended that a failure by a council to notify another council in circumstances requiring a value judgment would irretrievably taint the whole process.
Furthermore, I am not persuaded that the failure to issue a s 65 Certificate or to prepare a report pursuant to the provisions of s 68(4)(d) visit the plan with invalidity. It may be accepted that if the Director fails to prepare a report at all pursuant to s 69, such a failure would result in invalidity. However, it is not submitted that Mrs Kibble failed to furnish a report. The allegation is that she failed to consider whether SEPP No 19 or direction G12 was inconsistent with the draft local plan.
As I have said, I am of the opinion that such breaches as have been proved did not deny the Minister the power to make a valid plan. I have also expressed the opinion that even if, contrary to my opinion, there were other breaches of the type nominated by the applicant, they are not such as to affect the validity of the plan. I shall shortly set up my reasons for determining that, even if one or more of the breaches had been established, I would not declare the plan invalid. The plan was investigated by the Council and the Department for a period of two years. The rezoning process was initiated by the Council upon the recommendation of its planning staff. The draft plan was advertised and exhibited. Council members visited the site. The Minister cannot but have been aware of the provisions of SEPP No 19 which was made by his predecessor and he was made aware, in terms, of Direction G12 made pursuant to s 117. As I have said, I assume the Wyong Shire Council was not notified and did not know of the application. However, no information has been put before me suggesting that the Wyong Shire Council had any objections to the making of the Plan or that, if it did, what those objections were. The Minister delayed making the plan upon request from the Minister for the Environment until the proposal was investigated by the National Parks and Wildlife Service. The Minister for the Environment supported the proposal. It is not suggested that the Council, officers of the Council, the Director, officers of the Department or the Minister were motivated by bad faith or improper purpose.
For the abovementioned reasons, the formal order of the Court is application dismissed.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE MR JUSTICE J S CRIPPS.
Associate
oOo