Land and Environment Court New South Wales Medium Neutral Citation: Elanor Investors Limited v Sydney Zoo Pty Ltd (No 5) [2020] NSWLEC 93 Hearing dates: 9, 10, 11, 12 and 13 March 2020 Date of orders: 17 July 2020 Decision date: 17 July 2020 Jurisdiction: Class 4 Before: Pepper J Decision: Further amended summons dismissed with costs. See orders at [227]. Catchwords: JUDICIAL REVIEW: competition between two zoos – proper construction of development consent – whether differentiation conditions incorporated into a development consent – principles of construction of development consents –– whether alleged conditions of consent breached – whether distribution of marketing material is "development" for the purposes of planning legislation – if alleged conditions breached whether an appropriate exercise of discretion to grant relief – differentiation conditions not part of consent – no breach of alleged differentiation conditions – further amended summons dismissed with costs. Legislation Cited: Environmental Planning and Assessment Act 1979 ss 1.5, 4.2(1), 4.15(1), 9.45, 9.46 Land and Environment Court Act 1979 s 16 Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Bardsley-Smith v Penrith City Council [2013] NSWCA 200; (2013) 195 LGERA 34 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263; (2017) 96 NSWLR 434 Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83; (2017) 223 LGERA 43 Crouch Developments Pty Ltd v D & M (Australia) Pty Ltd [2008] WASC 151 Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; (2008) 158 LGERA 429 Georges River Council v Stojanovski [2018] NSWLEC 125 Glaser v Poole [2010] NSWLEC 143 Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147 Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No 5) [2020] NSWLEC 9 Oshlack v Irongates Pty Ltd (1997) 130 LGERA 189 Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205; (2005) 144 LGERA 119 Ryde Municipal Council v The Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 Shell Co of Australia Ltd v Parramatta City Council (No 2) [1972] 2 NSWLR 632 Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437; (2014) 88 NSWLR 449 The Owners – Strata Plan No 4983 v Canny [2018] NSWCA 275; (2018) 233 LGERA 432 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 Wingecarribee Council v CSR Limited (unreported, Land and Environment Court of NSW, Stein J, 11 November 1993) Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Category: Principal judgment Parties: Elanor Investors Limited (Applicant) Sydney Zoo Pty Limited (Respondent) Representation: Counsel: Mr R Lancaster SC with Mr N Eastman (Applicant) Mr N Williams SC with Mr J Hutton (Respondent) Solicitors: Gilbert + Tobin Lawyers (Applicant) Addisons (Respondent) File Number(s): 2018/359630 Judgment TABLE OF CONTENTS Topic Paragraph No Two Zoos Compete for Business [1] Relevant Legislative Provisions of the EPAA [13] The Evidence of the Parties [15] Sydney Zoo is Granted Development Consent [17] Conditions of Consent [57] Featherdale's International Visitor Market [69] Marketing Strategy of Sydney Zoo [76] The Difference Between Nett and Retail Rates [78] 2018 Rate Card (Version 1) [82] 2019 Rate Card (Version 1) [83] 2019 Rate Card (Version 2) and the 2019 Marketing Letter [91] 2020 Rate Card [99] Attempts by Sydney Zoo to Secure Agreements with International Tour Operators [100] Issues for Determination [104] The Distribution of Marketing Material is Not "Development" under the EPAA [105] The Proper Construction of the Consent [110] The Asserted Breaches of the Alleged Conditions of Consent [116] The Differentiation Conditions Were Not Incorporated into the Consent [122] There Was No Type of Facility Condition [147] There Was No Pricing Condition [155] There Was No Animal Encounter Condition [161] The Differentiation Conditions Were Not Breached by Sydney Zoo [169] There Was No Breach of the Purported Type of Facility Condition [172] There Was No Breach of the Purported Pricing Condition [180] There Was No Breach of the Purported Animal Encounter Condition [196] Even Assuming Breach of the Consent, the Court Declines to Grant the Relief Sought [199] Conclusions, Costs and Orders [224] Annexure A Two Zoos Compete for Business 1. Featherdale Wildlife Park ("Featherdale") is located at Lot 258 in DP 752051 known as 217-229 Kildare Road, Doonside ("the Featherdale site"), and has been operating at that site since 1972. It employs 55 full-time staff, three part-time staff, 40 casual staff and 52 volunteer staff. 2. The applicant, Elanor Investors Limited ("Elanor"), owns Elanor Funds Management Limited, the registered proprietor of the Featherdale site, and wholly owned Featherdale between June 2013 to 29 November 2019. Elanor established the Elanor Wildlife Park Fund ("the Fund") and seeded the Fund by selling Featherdale to the Fund in November 2019. 3. At around the same time, the Fund acquired the Mogo Zoo (now Mogo Wildlife Park) business located at Tomakin Rd, Mogo. 4. The respondent, Sydney Zoo Pty Ltd ("Sydney Zoo"), was the proponent for the State Significant Development Application SSD 7228 ("DA"). The DA proposed to develop and operate a new zoological facility (branded by Sydney Zoo as "Sydney Zoo") on Lot 101 DP1195067 (now Lot 11 in DP 1247378) (the "Sydney Zoo site"). The Sydney Zoo site is located approximately three kilometres south of the Featherdale site on land leased form the Western Sydney Parklands Trust in Bungarribee, Western Sydney. 5. Sydney Zoo opened to the public on 6 December 2019. 6. Sydney Zoo operates under development consent SSD 7228 granted by the Planning Assessment Commission of NSW ("PAC") on 8 September 2017 ("the consent"). Prior to the consent being granted, there were communications between the PAC and Sydney Zoo concerning the "differentiation" of the product that Sydney Zoo was offering from that offered by Featherdale. The PAC was concerned about adverse social and economic impacts in the locality if there was not sufficient differentiation between Sydney Zoo and Featherdale. Concessions were made by Sydney Zoo that found expression in the conditions of consent, especially conditions B2 to B9. 7. Elanor contends that the differentiation obligations proposed by Sydney Zoo were central to it persuading the former NSW Department of Planning and Environment (now the Department of Planning, Industry and Environment) ("Department") and the PAC that any adverse socio-economic impacts in the locality arising from a new zoo could be mitigated to an acceptable level. In other words, the differentiation obligations were fundamental to the Department's decision whether or not to recommend approval of the DA and the PAC's decision whether or not to grant consent. 8. According to Elanor, however, after the consent was granted and prior to the opening of Sydney Zoo, it became aware of advertising and marketing material that indicated that Sydney Zoo was conducting itself in a manner that breached, or threatened to breach, a number of the consent conditions relating to differentiation. This conduct is, or has the potential to, harm Elanor's business. 9. Therefore, by further amended summons filed on 5 March 2020, Elanor seeks declaratory and injunctive relief in relation to breaches of the Environmental Planning and Assessment Act 1979 ("EPAA") including: 1. declarations that Sydney Zoo carried out "development" (as defined in s 1.5 of the EPAA) other than in accordance with the consent contrary to s 4.2(1)(b) of the EPAA; 2. orders that Sydney Zoo cease distributing certain identified marketing material, as well as any other non-identified marketing material, that would be in actual or apprehended breach of the consent; and 3. orders that nominated persons who have received the impugned marketing material are provided a notice in a form to be agreed by the Court. 1. Several of the breaches alleged by Elanor were abandoned by it prior to the hearing commencing. For example, Elanor no longer alleges non-compliance with conditions B2 to B9 of the consent. Rather, it alleges breaches of differentiation obligations (conditions) that it claims are derived from the documents submitted by Sydney Zoo to the PAC which are expressly referred to in condition B2 of the consent. 2. The non-compliance is said to arise from Sydney Zoo causing or permitting the distribution of marketing material attached to the amended summons. The alleged conditions relate to the type of facility, pricing and the animal encounters offered by Sydney Zoo. 3. In my opinion, the further amended summons must be dismissed principally for the following reasons: 1. first, the distribution of marketing material is not "development" within the meaning of s 1.5 of the EPAA that is prohibited under s 4.2(1)(b) of that Act; 2. second, the conditions that Elanor contends were breached never, upon the proper construction of the consent, formed part of the consent; and 3. third, even if they did, Sydney Zoo has in any event complied with all binding differentiation conditions in the consent. Relevant Legislative Provisions of the EPAA 1. The relevant legislative provisions to which the Court must have recourse are limited in compass. First, s 1.5 of the EPAA defines the term "development" as: 1.5 Meaning of "development" (1) For the purposes of this Act, development is any of the following— (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. … (3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1). 1. Second, s 4.2(1) of the EPAA states that: 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless— (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. The Evidence of the Parties 1. In addition to several volumes of documentary material, Elanor relied on a large number of affidavits (10) (especially having regard to the confined issues for determination in the proceedings), namely: 1. an affidavit of Mr Glenn Willis sworn 21 December 2018. Mr Willis is the Chief Executive Officer and Managing Director of Elanor Investors Group, of which Elanor is a member. He is also a director of Elanor. Mr Willis deposed to Elanor's concerns regarding the existence of a new zoo in close proximity to Featherdale, in particular, its belief that it would undermine the commercial feasibility of Featherdale. It was Mr Willis's view that the new zoo would adversely impact the profitability of Featherdale, especially if it did not comply with the differentiation obligations contained in the consent. Specifically, he understood that an 84% reduction in visitors due to the development of Sydney Zoo was estimated; 2. three affidavits of Mr Tony Chiefari sworn 21 December 2018, 5 August 2019 and 29 January 2020. Mr Chiefari is the General Manager of Featherdale. Relevantly, in his first affidavit Mr Chiefari deposed to Featherdale's market, stating that the majority of visitors to the facility were international. He also deposed to the marketing that Sydney Zoo had engaged in and gave his opinion as to what the alleged price condition required Sydney Zoo to do. In his second affidavit Mr Chiefari further deposed to Featherdale's market, Sydney Zoo's marketing strategy and the adverse impact of Sydney Zoo's lower advertised trade rates. In his third affidavit he responded to the evidence of Sydney Zoo and deposed to the fact that because Sydney Zoo was offering rates that were lower than Featherdale's, Featherdale had to reduce its rates thereby reducing its commercial feasibility; 3. three affidavits of Ms Sara Ang sworn 21 December 2018, 6 August 2019 and 30 January 2020. Ms Ang is the Director of Sales and Marketing at Featherdale and reports to Mr Chiefari. In her first affidavit she described Featherdale's marketing strategy, stating that there was a difference between how a wildlife park for Australian native animals (Featherdale's offering) and a zoo were marketed. She deposed to the international and domestic marketing strategy of Featherdale and the impact that Sydney Zoo's marketing was having on Featherdale. Ms Ang gave similar evidence in her second affidavit, albeit updated and in greater detail. And in her third affidavit she proffered her opinion on the difference between a zoo and a wildlife park and responded to Sydney Zoo's evidence; 4. an affidavit of Mr Chad Staples sworn on 21 December 2018. Mr Staples is the Director of Life Sciences at Featherdale. His affidavit described the social, educational and conservation programs provided by Featherdale; and 5. two affidavits of Ms Lili Zhai sworn 18 January 2019 and 29 January 2020. Ms Zhai is a Business Development Manager at Featherdale. Her first affidavit annexed examples of the marketing material being distributed by Sydney Zoo. Her second affidavit gave evidence of the lower rates being offered by Sydney Zoo. 1. Sydney Zoo's evidence in response was more confined. It relied upon: 1. an affidavit of Mr David Tremain affirmed 12 December 2019. Mr Tremain is a registered surveyor engaged by Sydney Zoo to provide a survey of the site; 2. two affidavits of Mr Jonathon Burgess affirmed 12 December 2019 and 27 February 2020. Mr Burgess is the Managing Director of Sydney Zoo. In his first affidavit, Mr Burgess detailed the approval history of the zoo and the difference between Featherdale and Sydney Zoo. Specifically, he noted that Sydney Zoo is a much larger and more expansive facility than Featherdale (almost six times the size), has a number of exotic animals presented within themed safari-like exhibits, as well as some Australian animals integrated within an Aboriginal cultural experience, and primarily (but not exclusively) targets a domestic market. In Mr Burgess's second affidavit, he responded in detail to the third affidavit of Mr Chiefari and the third affidavit of Ms Ang; and 3. two affidavits of Mr Christopher Rivett affirmed 12 December 2019 and 5 March 2020. Mr Rivett is the Head of Marketing at Sydney Zoo. He is responsible for setting and implementing Sydney Zoo's marketing strategy. He deposed in his first affidavit that Sydney Zoo was always intended to be a full service zoo which predominantly caters for the local Sydney market with a particular focus on Western Sydney residents. In his opinion, there was no clear distinction between a "wildlife park" and a "zoo" from a marketing perspective. On the contrary, there were, he noted, a number of similar facilities that referenced both "wildlife park" and "zoo" in their offering. These facilities also offered the opportunity to get up close to animals, including Australian animals. As for the rate cards attached to the further amended summons, Mr Rivett deposed that to the extent that those cards were still operative or made public, they were unlikely, in his view, to cause tour operators to believe that Sydney Zoo's native animal experience was the main event or major focus, or that the Aboriginal Cultural Program was a minor part of the Bungarribee wildlife experience offered at Sydney Zoo. In Mr Rivett's second affidavit, he stated that although the 2018 rate card was valid until 31 March 2020, its distribution ceased on 20 December 2018. Sydney Zoo had, however, agreed to honour the rate for operators that had been issued with it. It is Sydney Zoo's intention to move all suppliers to the current standard nett rate of $15.00. Sydney Zoo is Granted Development Consent 1. Because of the nature of the conditions of the consent said by Elanor to have been breached by Sydney Zoo, it is necessary to set out in some detail the planning approval history giving rise to the grant of consent by the PAC, much of which was uncontentious and was contained in an agreed statement of facts. 2. On 11 August 2015 a Request for the Secretary's Environmental Assessment Requirements was lodged with the Department by JBA Urban Planning Consulting Pty Ltd ("JBA") on behalf of Sydney Zoo. On 16 September 2015 the Secretary of the Department issued the Secretary's Environmental Assessment Requirements. 3. In December 2015 an Environmental Impact Statement ("EIS") for Sydney Zoo was submitted to the Department by JBA. At Appendix S of the EIA was a report prepared by KPMG in October 2015, viz, Contribution of Sydney Zoo to the Economy of NSW ("the first KPMG report"). 4. The EIS and documents accompanying the DA were placed on public exhibition by the Department from 10 December 2015 to 8 February 2016. A total of 56 submissions were received by the Department, including an objection from Elanor prepared by Urbis dated 15 February 2016. 5. In response to the submissions, the Sydney Zoo SSD 7228 – Response to Submissions ("JBA RTS") was prepared by JBA on behalf of Sydney Zoo and submitted to the Department in May 2016. The JBA RTS appended the following supporting technical reports, relevantly: 1. Appendix B: Community Consultation Report; 2. Appendix O: Socio-Economic Impact Assessment Report prepared by KPMG dated 9 May 2016 ("the second KPMG report"); and 3. Appendix P: Submission #7 – Specific Responses. 1. Section 5.9 of the JBA RTS addressed the "Socio-economic Impacts" of the proposed zoo on Featherdale. In particular, it examined the submissions that (contrary to the first KPMG report submitted with the EIS) approval to Sydney Zoo would result in unacceptable economic and social impacts, including a detrimental tourism and employment effect, and that it would result in direct competition with Featherdale. It referred to the second KPMG report and observed that it "addresses the socio-economic impacts of the Sydney Zoo on the surrounding region and Featherdale." 2. The JBA RTS explained the Sydney Zoo's product offering was "significantly differentiated from that of Featherdale" and that the competitive threat to the latter's business was relatively low because: ∙ Sydney Zoo having a much broader animal collection with minimal focus on birds, with no plans to have an aviary. Featherdale has an estimated 70% of species and exhibits dedicated to bird species. ∙ Sydney Zoo will be a longer visitation time (3-4 hours), and will have a different purchase decision driver; ∙ Sydney Zoo's admission fees will be higher than those of Featherdale's; and ∙ The Australian Animals collection at Sydney Zoo is to be presented in the context of an Aboriginal cultural experience, whereas Featherdale models itself as providing an opportunity to get "up-close" with Australian wildlife. These differing presentations and strategies further differentiate the facilities where there is the greatest potential for overlap. The Zoo is seeking to provide a different animal experience for the community through the provision of exotic animal species as the main feature of the Zoo. While Australian native animals are proposed in part, it is noted that exotic species are generally under represented within the Western Sydney area, with Featherdale Wildlife Park providing a native Australian experience rather than exotic species. Subsequently, the Sydney Zoo seeks to differentiate itself through the provision of, in the majority, exotic species. Native Australian landscaping and vegetation features will be implemented where appropriate. 1. In section 8.0 "Revised Mitigation Measures" were, however, provided in the JBA RTS. The JBA RTS concluded that "the Zoo will provide for employment and educational opportunities and will not adversely impact on the local or regional economy" and stated in the Community Consultation Report (at Appendix B) that "the proposal will deliver considerable public benefits including a $36 million investment in Western Sydney tourism, $45 million boost to the NSW economy with almost 745,000 visitors expected per year." 2. Appendix P to the JBA RTS set out in table form Sydney Zoo's specific responses to the submissions. In respect of the contention that the EIS did not take into consideration the timing of the procurement of exotic animals and that therefore in its first two to three years Sydney Zoo might operate with mostly native animals, which would provide "similar experiences and sourcing patronage from similar markets as Featherdale", the JBA RTS responded as follows: The Sydney Zoo product is differentiated from Featherdale and as a result the competitive threat to the Featherdale business should be relatively low. Sydney Zoo makes this statement on the basis that: ∙ Sydney Zoo will be less specialised, having a much broader animal collection and with little focus on birds. There are no current plans to have an aviary in Sydney Zoo, which is a significant part, if not a majority of the exhibits by number at Featherdale. ∙ Sydney Zoo will be longer visit time, at 3-4 hours, and so has a different purchase decision driver. ∙ Sydney Zoo admissions will be priced more expensively than Featherdale. 1. To refute the submission that it was an unrealistic assumption that all Sydney Zoo visits would be new, and would not be diverted from existing facilities such as Featherdale, the JBA RTS referred to "visitor analysis in Section 6 of the KPMG Socio-Economic Impact Assessment (Appendix O) and subsequent analysis in Section 7 which presents economic impacts of different mixes of visitor sources." 2. And in relation to the claim that Sydney Zoo could "substantially reduce the annual visitation at Featherdale…by as much as -50% to -84%", the JBA RTS referred to the second KPMG report and noted that: 3) Budget – families are often budget conscious and would therefore be unlikely to visit two animal attractions within the same period Sydney Zoo's price position is intended to be higher than that of Featherdale. If the market is price sensitive then Featherdale will be at competitive advantage to Sydney Zoo in this area. Indeed Elanor highlights "Affordable ticket prices and fee [sic] parking (relative to Taronga Zoo and other animal attractions)" as one of the positive features identified by the focus group (ref P2 of the Urbis report). 1. A response to the JBA RTS was prepared by Urbis on behalf of Elanor and submitted to the Department on 10 June 2016. 2. On 22 August 2016 a supplementary letter to the Department was submitted by JBA on behalf of Sydney Zoo ("Supplementary Information"). The Supplementary Information included the following relevant attachments: 1. Attachment F: Detailed Socio-Economic Response prepared by Sydney Zoo and JBA; and 2. Attachment G: Sydney Zoo Marketing and Comparative Materials. 1. At section "6.0 SOCIO-ECONOMIC IMPACTS" in the Supplementary Information, reference was made to Attachment F and it was noted that Sydney Zoo would deliver a much needed iconic tourism and recreation facility to Western Sydney. Further information regarding "the context and key characteristics of the Sydney Zoo proposal, including a comparison of Sydney Zoo to Featherdale, clearly demonstrating the obvious and substantial differences between the two facilities" was found at Attachment G. 2. Attachment F stated that: ∙ Where there is the potential for overlap in the Australiana exhibits, actively sought to differentiate the Proposal's presentation by: ∙ utilising different exhibit formats – for example, not including aviaries which are a significant component of the Featherdale exhibitry; and ∙ incorporating an Aboriginal heritage and cultural enrichment strategy that is integrated into the Australiana exhibit. This is something that Featherdale does not do. 1. Table 1 of Attachment F set out Sydney Zoo's response to various issues raised by Elanor in the response to the JBA RTS prepared by Urbis. Issue 6 raised the concern that there was no evidence presented in support of the claim that the Sydney Zoo product was differentiated from Featherdale and that "the results of the focus group research conducted by Urbis, confirms this is not the case". Sydney Zoo's response was detailed and relevantly stated (footnotes omitted): The Applicant does not agree with this opinion. The issue was comprehensively addressed in the referenced sections of the RTS and Appendices. The Applicant submits that the differences between the two facilities and consequently, their differing appeal, are clear from a summary comparison: Table 1B: Comparison assessment of Sydney Zoo and Featherdale Sydney Zoo Featherdale Facility Zoological facility Wildlife Park … Australian Animals (smaller marsupials and mammals) Yes – integrated with Aboriginal cultural experience; less than 1.5ha Yes – focus on petting/"up-close" experience; 100% of facility … Reflecting the longer visitation time, larger facility size/amenity and broader animal collection, the Proposal will be priced more expensively than Featherdale and is likely to appeal to a different market and/or satisfy a different tourism/recreation demand. The Urbis Report summarised feedback for Featherdale from focus groups. A review of the positive features identified by the focus groups is set out below together with the Applicant's comments on the applicability of the identified features to the Proposal. This helps to further highlight the significant differences between the two facilities. Featherdale Feature Comment Opportunity to get close to animals Prime focus of Featherdale, esp. Australian animals. Not a prime focus for Sydney Zoo; 'safari' style experience and Australian animals will be presented primarily via Aboriginal cultural experience Affordable ticket prices and free parking (relative to Taronga Zoo and other animal attractions) Sydney Zoo will be priced comparatively with Taronga Zoo as a full-service facility Natural look and feel of enclosures, thus feel like a natural habitat Sydney Zoo intends to develop world class modern enclosures and visitor amenities and will be on a much larger scale than Featherdale, reflecting larger size of facility and different animals (African Highlands, African Grasslands, Sth East Asian, Aquarium, Insectarium) … The Applicant also notes that Featherdale will have the key competitive advantage of being lower in price. Price is one of the key favourable attributes highlighted in the Urbis Report for visitors in valuing Featherdale: "Other positive features identified by the focus group respondents include: Affordable ticket prices and free parking (relative to Taronga Zoo and other animal attractions)". The Applicant has made the Proposal's full service offering and subsequent pricing strategy clear. Pricing strategy is evidently a critical differentiator when families are presented with a choice of attractions. 1. Issue 11 concerned the native animal offerings by the two facilities and was in these terms: It is Elanor's position that the key differentiation between Featherdale's customer attractions to other facilities is the interaction between visitors and native animals. The proposed Sydney Zoo includes native animal exhibits, and it is Elanor's position (as supported by the extensive focus group analysis carried out by Urbis) that, in practice, this will materially impact the economic viability of Featherdale, and result in overall adverse social and economic impacts in the locality. 1. In response Sydney Zoo said: The Applicant disagrees with Elanor's conclusion which has been addressed in the items above. The Proposal is significantly differentiated based on price, time of stay, amenity, the animal collection and the display strategy. In the Proposal's Australian animals section, the Applicant has sought to further differentiate the Proposal through the inclusion of an Aquarium and insectarium, as well as through the display strategy – for example, by not including aviaries which are a significant component of the Featherdale exhibitry. The Proposal will be a major Zoo, similar in scale to Taronga, Perth and Auckland Zoos. It will be twice the size of Adelaide Zoo. As a major facility and attraction the Proposal will seek to provide an integrated, full complement of animals. In order to further differentiate the Proposal's offering from Featherdale, the Applicant has sought to incorporate an Aboriginal cultural advancement strategy into the Australiana exhibit which seeks to contextualise Aboriginal culture with the Australian Animals. The Applicant is doing this in partnership with Muru Mittigar. The Sydney Zoo board has ratified a 10% FTE Aboriginal employment target for the Proposal to deliver this. Featherdale does not have a similar strategy. 1. The Department engaged HillPDA to undertake a peer review of the economic impacts of Sydney Zoo. On 31 August 2016, HillPDA released its Review of Economic Impacts ("HillPDA review"). A response to the HillPDA review was prepared by Urbis on behalf of Elanor and submitted to the Department on 18 October 2016. 2. On 3 November 2016 a supplementary submission was prepared by Urbis on behalf of Elanor entitled Socio-Economic Impact of the Sydney Zoo – Additional Evidence. 3. On 22 November 2016 the Department completed its Environmental Assessment Report ("EAR"), recommending that the PAC, as delegate for the Minister for Planning ("the Minister"), approve the DA subject to conditions. 4. The EAR discussed the economic impacts of the Sydney Zoo proposal. It observed that the EIS highlighted the differences between the proposed development and the "nearby offerings", and that the assessment concluded that "there would be sufficient scope within the tourist market to enable the introduction of a new facility that could operate in conjunction with existing nearby facilities." It further noted that Sydney Zoo considered that the proposed development would differ from Featherdale because it "includes the exhibition of a wide range of international species in safari-like setting with a lesser focus on Australian native animals." 5. The EAR noted that the HillPDA review had concluded that there would be no economic impact on the locality that could not be mitigated by Sydney Zoo: The review concluded there would be sufficient population in Greater Sydney to sustain both facilities. Under Section 79C(1)(b) of the EP&A Act the Department is to consider "the likely impacts of (that) development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality". If Featherdale's operations were to be impacted by the operation of the Sydney Zoo, it would be unlikely the result of an 'economic impact in the locality'. The findings note that in the circumstance where Featherdale is unable to remain viable as a result of Sydney Zoo, this is likely a result of competition rather than economic impact upon the locality. The principles of the Draft SEPP (Competition), state that a consent authority is not to take into consideration the commercial viability of a proposed development nor the commercial viability of other businesses unless the proposed development is likely to have an overall impact on the extent and adequacy of local community services and facilities. Given the proposed development would unlikely result in an economic impact that would reduce the adequacy of local community services or facilities, the HillPDA review concluded there would be no economic impact upon the locality that could not be mitigated by the Sydney Zoo. … To minimise and manage the economic impacts of the proposed development, the Department has recommended conditions that require the Applicant to: ∙ detail how the proposed development will differ from existing recreational facilities and businesses; ∙ undertake ongoing engagement with identified key stakeholders and community members (including a commitment to face-to-face meetings at least four times per year); and ∙ provide initiatives that will be implemented to encourage and enhance the continued operation of the proposed development in conjunction with existing local recreational facilities and businesses. The Department concludes that where there is an impact from the proposed development on other facilities, this is likely to be as a result of competition rather than an economic impact upon the locality. The Department considers that both Sydney Zoo and Featherdale should seek to work in a complementary manner rather than as competitors to boost the tourism offering of Western Sydney, potentially resulting in an increase in economic contribution to the region. The Department's recommended conditions that encourage differentiation between the facilities and ongoing consultation with each other to develop a regional tourism offering will help to deliver this. 1. The EAR was sent to the PAC by letter dated 22 November 2016. 2. The PAC held a public meeting in respect of the DA on 14 December 2016. 3. On 1 February 2017 the PAC wrote to the Department requesting additional information in relation to the social impacts of the DA. 4. Meanwhile a Social Impact Assessment was prepared by the University of Technology Sydney ("SIA"). 5. The Department replied to the PAC by letter that attached a document entitled Part A – Department's Response to the Planning Assessment Commission ("Part A Response"). The Part A Response observed that to ensure the co-existence of Sydney Zoo and Featherdale, the differentiation conditions recommended by the Department, especially proposed condition B6, should be imposed: Economic impacts upon the locality The Department sought an independent review of the potential economic impacts of the proposed Sydney Zoo upon Featherdale Wildlife Park. As indicated within the Department's recommendation, the review indicated that there would be sufficient population within Greater Sydney to sustain both facilities and that an [sic] any impact experienced by Featherdale Wildlife Park would be unlikely to be the result of an economic impact upon the locality. The review indicated that if the experiences at both facilities were differentiated, there may be potential for the facilities to capitalise on each other, potentially to the economic benefit of both facilities. Whilst this may be the case, the Department recommended conditions to minimise the economic impact upon the locality that would require the Applicant to: ∙ detail how the proposed Sydney Zoo would differ from existing recreational facilities and businesses; ∙ undertake ongoing engagement with key stakeholders and community members; and ∙ detail initiatives to be implemented to encourage and enhance the continued operation of the proposed development in conjunction with existing facilities. The Department considered the potential impacts of the proposed Sydney Zoo on Featherdale Wildlife Park to the extent that those impacts may reduce the services provided to the locality by Featherdale Wildlife Park, such as local school education programs and native wildlife rehabilitation programs. Impacts in terms of potential reduced visitor revenue or operations of Featherdale Wildlife Park was not, in the Department's view, a relevant planning consideration. Social impacts upon the locality The Department has reviewed the Social Impact Assessment (SIA) prepared by Public Policy and Governance at the University of Technology, Sydney (UTS) on behalf of Sydney Zoo. The SIA expanded the social assessment undertaken for the EIS and also considered the Department's peer review undertaken by HillPDA. The SIA was prepared by appropriately qualified and experienced social impact assessors from UTS and was undertaken in accordance with the Department's Draft Guidelines for Social Impact Assessment and the NSW Government Guide to Cost Benefit Analysis. The SIA assessed the social, education and conservation programs carried out in the locality and details the potential impacts upon these programs, both positive and negative, as a result of Sydney Zoo. The SIA included engagement with experts from the zoo and wildlife park industry, past employees of Featherdale, current employees of Sydney Zoo, international tourism operators, social and education service providers, and surveys of 650 people. Consultation with these stakeholders, individuals and groups assisted in the determination of the impacts and informed the likelihood and significance of these impacts. The SIA assessed three scenarios of operation: ∙ Co-existence – Sydney Zoo is approved and co-exists with Featherdale; ∙ Sydney Zoo Only – Sydney Zoo is approved and Featherdale exits the market; and ∙ Featherdale Only – Sydney Zoo is not approved and the status quo is maintained. The SIA concluded that neither Sydney Zoo nor Featherdale provide a unique offering to the zoo/wildlife park market that existing facilities around the State and country do not already provide, however the two establishments do provide differing offerings to one another. In the 'Featherdale Only' scenario, potential positive social impacts such as additional employment opportunities, delivery of NSW Government policy priorities for Western Sydney and additional education programs may not be realised. In the 'Sydney Zoo Only' scenario, the change in offering of social programs to the locality would be temporary and negligible. Results of the SIA indicated there would be sufficient interest in the different offerings of the two facilities and within the market for both facilities to co-exist. The SIA concludes that the most likely outcome would be the co-existence of both facilities. To best ensure the co-existence of the two facilities, the SIA supported the conditions recommended by the Department, particularly the differentiation (recommended condition B6) and the adaptive management strategies (recommended conditions C8 and C9). The Department's review of the SIA supported the conclusion that there would be sufficient market for both Sydney Zoo and Featherdale to co-exist. Furthermore, it is the Department's view that with the implementation of conditions, the potential negative social impacts of the proposed Sydney Zoo would be mitigated and minimised. Conditions recommended by the Department included that the Applicant: ∙ differentiate the offering of the proposed Sydney Zoo to that of the existing Featherdale Wildlife Park; ∙ involve the surrounding community during construction and operation of the proposed development; ∙ encourage the development of a regional tourism offering; and ∙ develop adaptive management strategies to address any anticipated or unanticipated social issues that may arise. 1. Proposed condition B6 referred to in the extract above was in the following terms: B6. Australian native animals shall comprise less than 1.6 hectares of the overall exhibited animal collection and shall be displayed as part of an Aboriginal Cultural Experience (See Condition C21). This area is to be in accordance with the area designated for Australian animals presented within the Site Plan (see APPENDIX A). Any additional Australian native animals can be displayed as part of educational sessions or 'micro displays' within the commercial facilities across the site (i.e. restaurants, cafes and shops). 1. In April 2017 Sydney Zoo submitted its Response to the Planning Assessment Commission's request for further information to the PAC. 2. On 26 July 2017, on behalf of Elanor, Urbis submitted a letter to the PAC in reply to Sydney Zoo's Response to the PAC's request for further information and the SIA. 3. Then on 10 August 2017, Sydney Zoo submitted a letter to the PAC entitled The Sydney Zoo – D440/16 – amendment of proposal ("the 10 August 2017 letter"). The letter was expressly stated not to be a "binding proposal or submission". It went on to describe how Sydney Zoo would ensure that its product offering was materially differentiated from Featherdale across a number of areas, including the animals exhibited and the fact that its Australian animal collection would be displayed as part of an Aboriginal cultural experience. The letter noted that Featherdale's koala interaction, a separately charged experience as of September 2016, was substantively similar to several other zoos and wildlife parks in Sydney. However, Sydney Zoo acknowledged the PAC's desire that there be "some material differentiation between the Sydney Zoo koala exhibit and Feaderdale's Koala offering". In this regard it stated that it had "not yet developed" its market position, but as a "full service, broad appeal facility our positioning will similarly focus more broadly, thereby allowing Featherdale to continue to occupy the niche of "getting close to the animals"." Accordingly (footnotes omitted): Sydney Zoo therefore proposes that under our operating plan, for a period of three years, Sydney Zoo is limited to offering koala interactions that align with the product offerings at Taronga Zoo and WILDLIFE Sydney Zoo (i.e. no touching), as an integral part of the proposed main koala exhibit… 1. The term "interactive program" was defined in a footnote to the 10 August 2017 letter to mean "activities supervised by one or more keepers which encourage a member of the public to touch, feed and/or have close contact with an animal, either inside or outside the animal's normal enclosure." A walk-through animal enclosure was not considered to be an interactive program. 2. The letter was signed by Mr Burgess as the Managing Director of Sydney Zoo. Given the importance of this letter it is appended to this judgment at annexure "A". 3. On 8 September 2017 the PAC: 1. published its Determination Report dated 8 September 2017, detailing its assessment and the reasons for its decision ("Determination Report"); and 2. granted consent to the DA subject to the conditions specified in Schedules B to D. 1. In the Determination Report, the PAC stated that in reaching its decision it had "carefully considered" the following material: ∙ all information provided by Sydney Zoo; ∙ the Department's assessment report; ∙ advice and recommendations from government agencies; ∙ all written and verbal submissions; ∙ additional information provided to the Commission and described above in Section 4; ∙ State Environmental Planning Policy (Western Sydney Parklands) 2009, including the matters clause 12 requires the Commission to consider; ∙ section 79C of the Environmental Planning and Assessment Act 1979 (EP&A Act) and the matters it requires the Commission to consider. 1. In section "5.2 social and economic impacts", the PAC remarked that: The concern expressed by the community and Featherdale led the Department to commission an independent assessment of the potential economic impact on Featherdale that might result from Sydney Zoo. The independent assessment, prepared by HillPDA, indicated there would be sufficient demand across wider Sydney to sustain both facilities. However, it also found this would not necessarily mean that Featherdale could absorb an impact on its visitation numbers. It said that if Featherdale were to close, this would be a result of competition. Legal authorities suggest that care should be taken in considering the economic impact of a proposed development upon private traders when assessing the economic and social impacts of that development. According to these authorities, the relevant issue in a planning context is the broader social and economic impacts stemming from any economic impact on existing businesses, rather than the fact of increased competition. The Commission's approach to this issue has been informed by those authorities. 1. The Determination Report summarised Sydney Zoo's social impact mitigation measures as follows: Sydney Zoo's social impact mitigation measures The social impact assessment also highlighted several mitigation strategies, in the first instance to help avoid the loss of any social goods provided by Featherdale, and secondly to make-up for any such losses, if they occur. First, Sydney Zoo would collaborate with other attractions located nearby, including Featherdale, to develop a wildlife-based tourism precinct and identity with the object of improving visitation at all facilities in the area. Sydney Zoo said the Department's recommended condition C9 reflects this strategy and includes, additionally, a requirement for Sydney Zoo to detail how it would be different from existing recreational facilities and recreational businesses. The Commission made further inquiries of Sydney Zoo about the nature of the arrangements proposed by Sydney Zoo to differentiate the offerings, in order to comply with condition C9, particularly in relation to Featherdale. In response to the Commission's request, Sydney Zoo proposed (Appendix 6): ∙ at least two-thirds of the exotic species collection would be present upon the zoo opening to the public (so that Sydney Zoo does not open as a native-only facility, like Featherdale); ∙ the Australian animal exhibit would include an aquarium, reptile house, insectarium and nocturnal house upon opening (so that Sydney Zoo's native animal exhibits include species that are not included at Featherdale); ∙ for a period of three years after opening, there would be no aviaries that house birds that can fly (so that Sydney Zoo does not include most birds that are at Featherdale); and ∙ for a period of three years, visitors would not be able to touch a koala, except as part of an educational program or for school children as part of a school group (so that Sydney Zoo does not include a particular, and widely known, visitor experience that is offered at Featherdale). Second, if the social benefits currently provided by Featherdale were to be lost due to its closure, or for any other reason, Sydney Zoo's social impact assessment highlighted a range of mitigation measures. Sydney Zoo said these measures correspond to the requirements of the Department's recommended condition C8, and include that Sydney Zoo would cooperate with the Australasian Zoo and Aquarium Association to ensure the orderly relocation of Featherdale's animal collection; as well as identify opportunities to participate in the continuation of its breeding programs; work placements for students; employment for Aboriginal people; community engagement and outreach programs; and educational programs for school students. 1. The PAC's "findings on potential social impacts and mitigation measures" were in these terms: While recognising the concerns Featherdale's owners have about the potential impact of the proposed zoo, the Commission is not persuaded by the suggestion that it requires exclusive access to the drive-time visitor catchment to provide the social, educational and community programs that it currently offers. Featherdale's assertion that this market would become inaccessible to it is challenged by the weight of the evidence before the Commission, including Featherdale's historical success in remaining in operation despite the presence of other large-scale competitors, albeit located further away. The Commission finds that some of the arguments advanced by Featherdale are based on incomplete information. The intercept survey, for example, only captured Featherdale's customers, which may indicate that it understates supply-induced demand. On the other hand, Sydney Zoo's estimation of its economic benefits, and the outcomes considered likely by the social impact assessment are also based on information with limitations. Featherdale's response to the social impact assessment highlighted concerns with several methodological and evidence issues underpinning the research by University of Technology, including that its survey questions were not neutral, and that there was no compelling evidence to suggest the visitation market was big enough for both Sydney Zoo and Featherdale. While views vary as to the likelihood and severity of potential impacts from Sydney Zoo's increased competition on Featherdale's visitors, and therefore its programs, the collection of information available to the Commission represents a wide range of data; includes a range of possible outcomes; and describes a suite of contingency measures should the worst-case outcome eventuate. If Sydney Zoo were to be built, Featherdale would be challenged, again, to compete for market share. Featherdale currently enjoys healthy annual visitation, it has long established programs, which are embedded in and enjoy support from various communities, and a widely-recognised reputation for its offering. While some aspects of Featherdale, such as its local community affiliations, are irreplaceable, the Commission also recognises Sydney Zoo's particular efforts to provide a range of social goods of its own, and to differentiate its native animal offering from that of Featherdale. These factors support a conclusion that both facilities would be attractive to visitors. If the risks of a significant contraction or loss of social benefits associated with Featherdale's current operations do materialise, the commission recognises that the social benefits that would be offered by Sydney Zoo, together with its proposed mitigation strategies, will generate other positive social outcomes for the localities in which Sydney Zoo would be present. The Commission does acknowledge that if this were to occur, the impacts would take time to develop, and any adjustments at Sydney Zoo, or Featherdale, would also take time to implement fully and successfully, particularly given the depth of expertise and range of programs at Featherdale. Therefore, the Commission acknowledges that the most recent proposal from Sydney Zoo (described above and in Appendix 6) to differentiate its native animal offering from that of Featherdale, particularly over the first three years of Sydney Zoo's operation would go a long way toward mitigating impacts arising from the establishment of a new zoo. … As Sydney Zoo's differentiation proposal was submitted after the Department referred the development application to the Commission for a decision, the details are absent from the recommended conditions of consent. Consequently, the Commission has imposed additional conditions, which itemise the details of Sydney Zoo's strategy. These conditions require: ∙ at least two-thirds of Sydney Zoo's exotic species collection are to be present upon opening; ∙ the Australian animal exhibit must include an aquarium, reptile house, insectarium and nocturnal house upon opening; ∙ for a period of three years after opening, Sydney Zoo would not include aviaries that house flying birds; and ∙ for a period of three years after opening, visitors to Sydney Zoo would not be able to touch a koala, except as part of an educational program for school children as part of a school group. 1. Finally, the PAC found that the risk and severity of the potential impacts to Featherdale did not warrant the refusal of the Sydney Zoo proposal. This was because: The Commission is satisfied that if impacts arise, they are likely to be balanced by social benefits offered by Sydney Zoo and its mitigation strategies. These include that Sydney Zoo would cooperate with the Australasian Zoo and Aquarium Association to ensure the orderly relocation of Featherdale's animal collection; as well as identify opportunities to participate in the continuation of its breeding programs; work placements for students; employment for Aboriginal people; community engagement and outreach programs; and educational programs for school students. Conditions of Consent 1. As at the date of the grant of the development consent, conditions B2 to B10 of the consent provided that: B2. The Applicant shall carry out the Development in accordance with the: (a) EIS, ETS and Supplementary Information and Additional Information; (b) development layout plans and drawings in the EIS, RTS and Supplementary Information; and (c) the Management and Mitigation Measures (see Appendix B). B3. If there is any inconsistency between the above documents, the most recent document shall prevail to the extent of the inconsistency. However, the conditions of this consent shall prevail to the extent of any inconsistency. B4. The Applicant shall comply with any reasonable requirement(s) of the Secretary arising from the Department's assessment of: (a) any reports, plans or correspondence that are submitted in accordance with this consent; and (b) the implementation of any actions or measures contained within these reports, plans or correspondence. LIMITS OF CONSENT B5. This consent lapses five years after the date from which it operates, unless the Department has physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under section 95 of the EP&A Act. B6. The display of Australian native animals shall comprise less than 1.6 hectares of the overall exhibited animal collection and shall be displayed as part of an Aboriginal Cultural Experience (See Condition C21). This area is to be in accordance with the area designated for Australian animals presented within the Site Plan (see APPENDIX A) and must include from the commencement of opening to the public an Aquarium, Reptile House and Insectarium and Nocturnal House. Any additional Australian native animals can be displayed as part of educational sessions or 'micro-displays' within the commercial facilities across the site (i.e. restaurants, cafes and shops). B7. For the commencement of opening to the public the Development must have for display to the public at least two-thirds of the exotic species nominated in the Additional Information. B8. For the first three years after opening to the public, the Applicant is prohibited from having Interactive Programs that involve touching a koala except as part of demonstrations in the educational amphitheatre or provided in the context of education of school groups. B9. The exhibition of birds at the Development is limited to ratites (flightless birds) and penguins only. B10. The hours of operation for the Development are restricted, on any day, to: Month Hours of Operation December and January 9am – 10pm February to November 9am – 6pm 1. The socio-economic conditions in C7 to C9 were identical to those proposed earlier by the Department and mandated that: C7. Prior to the commencement of construction, the Applicant shall provide a dedicated Community Hotline phone number and email address for the provision of information relating to the Development and to make any complaints. This Community Hotline is to be monitored during construction and operation of the Development. The details of these services are to be provided to the residents of Bungarribee, made available on the main website of the Development and placed on any public communications commissioned by the Applicant in relation to the Development. C8. Prior to the commencement of construction the Applicant shall prepare, in consultation with the Secretary, a Community Engagement Plan for the construction and operation of the Development to the satisfaction of the Secretary. The plan shall: (a) include a profile of the surrounding community and identify key stakeholders and community members and groups; (b) include detail of procedures and mechanisms used to consult the community and stakeholders on the Development's progress and other issues; (c) include detail of the opportunities for the community of Bungarribee to be involved with the Development during construction and operation (i.e. as part of decision-making, employment or as visitors through an alternate pricing structure); (d) include detail of how the Community Hotline and email address (as required by Condition C7) will be managed and monitored; (e) detail the methods for ongoing engagement with identified key stakeholders and community members and groups (including a commitment to face-to-face meetings at least four times per year); and (f) include adaptive management strategies that may be implemented to address any anticipated or unanticipated social issues that may arise. Development of Regional Tourism C9. Prior to the commencement of operations, the Applicant shall submit a report to the satisfaction of the Secretary demonstrating it has made genuine and reasonable attempts to consult with local recreational facilities and businesses (including Featherdale Wildlife Park) to enhance regional tourism in conjunction with the Development. The report shall include: (a) details of how the operation of the Development will differ from the existing recreational facilities and businesses; (b) detail consultation undertaken with local recreational facilities and businesses; (c) outline initiatives implemented to encourage and enhance continued operation in conjunction with local recreational facilities and businesses; (d) detail the success or otherwise of these initiatives using recognised social indicators; and (e) include detail of the additional activities that will be undertaken for the duration of the Development. The Secretary may request updates on these initiatives at any time. 1. Finally, condition C21 dealing with the "Aboriginal Cultural Experience" provided that: C21. The Applicant is to collaborate with Muru Mittigar and Registered Aboriginal Parties consulted within the EIS to the satisfaction of the Secretary to establish a detailed Aboriginal Heritage Experience Strategy in conjunction with the display of Australian native animals, to the satisfaction of the Secretary. This strategy will form part of the OEMP in Condition D4 and shall: (a) be prepared by a suitably qualified and experienced heritage consultant; (b) include detail of infrastructure, signage and various other materials to ensure the Australian native animal exhibits of the Development are fully integrated with the presentation of Aboriginal heritage; (c) outline how the experience will increase awareness and education in relation to Aboriginal heritage; (d) demonstrate how direct contact with Australian native animals will enhance the education of Aboriginal culture; and (e) demonstrate how Aboriginal people will have an ongoing participatory role in the experience. 1. The terms "EIS", "RTS", "Supplementary Information" and "Additional Information" were defined in the consent: 1. "EIS" means: Environmental Impact Statement titled Sydney Zoo SSD 7228 – Environmental Impact Statement, prepared by JBA, dated December 2015. 1. "RTS" means: Response to Submissions titled Sydney Zoo SSD 7228 – Response to Submissions, prepared by JBA, dated May 2016. 1. "Supplementary Information" means: Supplementary Information submitted by JBA, dated 22 August, 2016 1. and "Additional Information" means: Additional information comprising documents titled "Response to the Planning Assessment Commission's request for further information" prepared by Sydney Zoo and dated April 2017; "Social Impact Assessment" prepared by the University of Technology Sydney and undated; and letter titled "The Sydney Zoo – D440/16 – amendment of proposal" signed by Jake Burgess and dated 10 August 2017. 1. The Department's Director of Industry Assessments, as delegate for the Minister ("Director"), approved Sydney Zoo's modification application SSD 7228 MOD 1 ("MOD 1") on 8 May 2018, to authorise a reduction in the size of the administration/curatorial building, to relocate and/or amend the floor space and/or orientation of certain animal enclosures, back of house buildings, amenity blocks and service buildings, and to amend the stormwater management system. 2. On 20 September 2018 the Director approved Sydney Zoo's modification application SSD 7228 MOD 2 ("MOD 2") authorising further modifications, namely, to realign the boardwalk access path to the aquatic habitat, to reconfigure the aquarium building including revisions to the built form and internal layout, and administrative changes to the approved landscape plan. 3. The Independent Planning Commission (formerly the PAC) ("IPC"), as the declared consent authority, approved Sydney Zoo's modification application SSD 7228 MOD 3 ("MOD 3") on 25 November 2019, allowing modifications to clarify public opening hours, to extend hours of operation for the zoo for maintenance and emergency activities, temporary and community events, the delivery of goods, waste collection, specimen related services, and private zoo experiences, and to rectify an administrative error in referencing. 4. And on 4 July 2019, the Director approved Sydney Zoo's modification application SSD 7228 MOD 4 ("MOD 4") to construct two additional sheds at the rear of the nocturnal and reptile building and primary back of house spaces, including holding spaces, landscaping and access pathways. 5. Sydney Zoo lodged modification application SSD 7228 MOD5 ("MOD 5") on 5 November 2019, seeking amendments to condition B7 in respect of exotic animals. MOD 5 was withdrawn by Sydney Zoo on 4 December 2019. 6. There were several further modification applications lodged by Sydney Zoo since consent was granted. 7. Neither MOD 1 to MOD 4 nor the subsequent modifications made any reference to or had the effect of making express any of the differentiation conditions purportedly forming part of the consent. 8. Accordingly, as modified, condition B2 of the consent (by MOD 1, MOD 2, MOD 3 and MOD 4) stated that: The Applicant shall carry out the Development in accordance with the: (a) EIS, RTS and Supplementary Information and Additional Information; (b) development layout plans and drawings in the EIS, RTS and Supplementary Information; (c) the Management and Mitigation Measures (see Appendix B); (d) the modification application SSD 7228 MOD 1 and supporting documentation; (e) the modification application SSD 7228 MOD 2 and supporting documentation; (f) the modification application SSD 7228 MOD 3 and supporting documentation; and (g) the modification application SSD 7228 MOD 4 and supporting documentation. Featherdale's International Visitor Market 1. Given that the asserted breaches of the alleged conditions of the consent concern the distribution of marketing material by Sydney Zoo, it is necessary to examine the marketing practices of the two competitors. 2. The majority of visitors to Featherdale are international visitors comprising three key sources: 1. international day tour operators; 2. international inbound tour operators; and 3. independent travellers. 1. International day tour operators deliver visitors to Featherdale on their own private buses. These operators typically target independent international tourists who want to do a combined day trip package during their visit to Sydney. 2. International inbound tour operators consist of both travel agents and international tour groups. Australian based travel agents are Australian businesses that arrange packages for international tourists to travel to Featherdale on private bus services. International tour groups are private tours to Australia, organised by overseas businesses, which deliver members of that tour group to Featherdale by bus. 3. Independent travellers are international tourists who visit Featherdale by themselves (commonly referred to as "walk-ups"). 4. In the financial year ("FY") 2017/18 approximately 65% (385,000) of total visitors to Featherdale were international tourists and 35% (207,000) were tourists from the Australian domestic market. 5. In FY 2018/19 approximately 66% of total visitors to Featherdale were international tourists, and 34% were tourists from the Australian domestic market. Marketing Strategy of Sydney Zoo 1. Sometime prior to 29 January 2018, Sydney Zoo engaged Australian Attractions Pty Ltd ("AA"), a specialist international tourism consultant, to advise it in relation to a sales and marketing strategy for the international tourist market. AA has offices in China and Korea and has contacts with international tour operators. AA was engaged to assist Sydney Zoo to, among other things, attract and secure the business of international tour operators, including AAT Kings and Gray Line. 2. Since January 2018 the marketing carried out by AA on behalf of Sydney Zoo has included the following: 1. the preparation and distribution of marketing material to international tour operators, including rate cards for 2018, 2019 and 2020; 2. attending at least 33 key industry events on Sydney Zoo's behalf focusing on the international tourist market, including the following: 1. the 2018 Australian Tourism Exchange ("ATE") in Adelaide in April 2018 ("the 2018 ATE"). The ATE is Australia's largest annual travel and tourism event, the aim of which is to bring together Australian tourism businesses, wholesalers and retailers from around the globe; 2. the Hana Tour International Travel Show held in Korea in June 2018; and 3. the 2019 ATE in Perth in April 2019 ("2019 ATE"). The Difference Between Nett and Retail Rates 1. It is not in dispute that pricing is a key strategy for both facilities in targeting the international tourist market. Both Featherdale and Sydney Zoo offer "nett rates" (also known as "wholesale rates" or "trade rates") to international tour operators. The nett rate is the price that Featherdale or Sydney Zoo charges the operator for every customer that the operator brings to their facility. 2. Both Featherdale and Sydney Zoo typically advertise their nett rates to these operators by preparing "rate sheets" or "rate cards" (also known as "marketing brochures") which identify the nett rate offered and are distributed to targeted international tour operators. 3. The nett rates are generally offered to these operators for a 12 month period from 1 April to 31 March. This enables the operators to offer standard pricing to their customers during that period. 4. Featherdale and Sydney Zoo also offer "retail rates" (or "rack rates") to members of the general public for entry into their facilities. The retail rates are usually advertised on the Featherdale and Sydney Zoo websites. Retail rates may also be included in rate cards distributed to international tour operators. 2018 Rate Card (Version 1) 1. The 2018 Rate Card (Version 1) was prepared for the purpose of the 2018 ATE, and was valid until 31 March 2020. The 2018 Rate Card (Version 1) depicted photographic images of koalas and kangaroos and referred to the "Bungarribee Wildlife Park at Sydney Zoo". It stated that "all displays will allow visitors to get up close to koalas" and a variety of other Australian animals. The adult retail rate was $34.00 and the adult nett rate $12.00. The targeted markets were "Daytours and Western markets", "Asian markets", and the "China market". 2019 Rate Card (Version 1) 1. A copy of Sydney Zoo's finalised 2019 rate sheet was attached to the further amended summons and marked A1 ("2019 Rate Card (Version 1)"). The 2019 Rate Card (Version 1) was prepared by AA on behalf of Sydney Zoo for the purpose of the 2018 ATE and for distribution by AA to other international tour operators, to encourage those operators to incorporate Sydney Zoo into their tours commencing on 1 April 2019. 2. The 2019 Rate Card (Version 1) advertised a nett rate of $12.00 per adult. At that time, the cheapest adult nett rate offered by Featherdale was $16.50, and that offer was limited to Featherdale's two most commercially important day tour operators, namely, AAT Kings and Gray Line. 3. On 29 March 2018 Mr Kenneth Corbett emailed Ms Lisa Christie at Sydney Zoo requesting that another rate sheet be prepared which comprised the 2019 Rate Card (Version 1) with retail rates only (and nett rates deleted). AA wanted to distribute the retail only version to travel companies who purchased tickets through international tour operators, as well as to day tour operators that on-sold tickets to individuals on their tours at the retail price. 4. On 4 April 2018 Mr Nathan Hou, AA's Director, China Market, emailed Ms Christie with a retail only version of the 2019 Rate Card (Version 1). This was approved by Ms Christie ("2019 Retail Rate Card (Version 1)"). The 2019 Retail Rate Card (Version 1) advertised retail rates of $34.00 per adult, $19.00 per child, and $29.00 per student. At that time, Featherdale advertised retail rates of $34.00 per adult, $19.00 per child, and $29.00 per student. 5. The 2019 Retail Rate Card (Version 1) was distributed by AA on behalf of Sydney Zoo to the international tour operators on AA's database. 6. On 13 June 2018 Mr Chiefari, Ms Ang, Mr Rivett and Mr Burgess met to discuss Sydney Zoo's proposal to facilitate regional tourism in Western Sydney. During the meeting, the attendees discussed why the words "Bungarribee Wildlife Park" had been used in the 2019 Rate Card (Version 1). Mr Burgess advised Mr Chiefari and Ms Ang that the words were chosen based on advice from AA that the international market did not like visiting a "zoo". 7. Also in 2018 AA, on behalf of Sydney Zoo, established a marketing stall at the Hana Tour International Travel Show. The marketing stall images were approved by Mr Burgess on 29 May 2018. A copy of a photograph taken of the marketing stall images was attached to the further amended summons and marked A2. 8. In addition, during that year a Hong Kong Marketing Brochure was produced advertising Sydney Zoo. A copy of the marketing brochure was attached to the further amended summons and marked A3 ("Hong Kong marketing brochure"). It was, however, Mr Burgess's evidence that this was not produced by or on behalf of Sydney Zoo. The Hong Kong marketing brochure was written in Chinese and stated that: At the end of 2018, you can enjoy a close-up "live-fed" wildlife experience in Sydney West. The Sydney Zoo, built at $36 million, raises 30 species of animals, and visitors can see Australian and other special animals on the boardwalk. The zoo also features a well-known Australian non-cage safari area that allows visitors to get close to nature in the wild. 2019 Rate Card (Version 2) and the 2019 Marketing Letter 1. In April 2019 AA established a marketing stall at the 2019 ATE. AA attended the event on behalf of Sydney Zoo. A copy of two photographs taken of the 2019 ATE stall were attached to the further amended summons and marked B1. 2. AA also created a new rate card for Sydney Zoo ("2019 Rate Card (Version 2)"), and a pro-forma covering email newsletter enclosing that rate card ("2019 Marketing Letter"). A copy of the 2019 Marketing Letter and the associated 2019 Rate Card (Version 2) were attached to the further amended summons and marked B2 and B3, respectively. 3. The 2019 Marketing Letter and the 2019 Rate Card (Version 2) was emailed to Mr Rivett on 4 April 2019 by Ms Louize Godlonton, who approved it that same day. 4. The 2019 Marketing Letter was in the following terms: Dear We are very excited to introduce the new Sydney Zoo featuring the Bungarribee Wildlife Experience. Opening in the second half of 2019! Embracing technology and innovation, Sydney Zoo will be exhibiting a wide range of animals in a safari-like experience. With clever designs hiding barriers combined with the latest technology it will provide an experience that is more immersive and engaging than traditional zoos. One of the key features of Sydney Zoo will be the Bungarribee Wildlife Experience. . [sic] Bungarribee (pronounced 'Bun-Garri-bee') is the Aboriginal name for the Sydney Zoo area. Bung meaning 'creek' and Garribee meaning 'cockatoo'. Ideally located on the Great Western Highway/M7 junction, Sydney Zoo is the perfect midway stop on a trip to the Blue Mountains and will offer options for a short visit to the Bungarribee Wildlife Experience which will highlight Australia's unique species including Koalas, Echidnas, Wombats, Tasmanian Devils, Dingos to name a few. Handfeeding friendly kangaroos, wallabies and emus is a must do experience for visitors who will take away that all important 'selfie'. Bungarribee Wildlife Experience will include an underground nocturnal and reptile house with a large variety of Lizards, Snakes, Bilbies, Quolls and Gliders. The Parramatta River themed Bull Shark aquarium will delight guests with its underwater shark viewing, Platypus habitat, cute Little Penguins and an enormous Saltwater Crocodile… 1. The 2019 Rate Card (Version 2) and the 2019 Marketing Letter were distributed by AA on behalf of Sydney Zoo to international tour operators attending the 2019 ATE and the operators on AA's database. It advertised a nett rate of $15.00 per adult, which was less than Featherdale's cheapest adult nett rate of $16.50 offered to AAT Kings and Gray Line. 2. AA then prepared another version of the 2019 Rate Card (Version 2) limited to Sydney Zoo's retail rates ("2019 Retail Rate Card (Version 2)"). The 2019 Retail Rate Card (Version 2) advertised retail rates of $39.99 per adult, $19.99 per child, and $29.99 per student. At that time, Featherdale advertised retail rates of $34.00 per adult, $19.00 per child, and $29.00 per student. 3. A further version of the 2019 Rate Card was prepared by AA and distributed to the international tour operators on AA's database at the same time that the operators were notified of the proposed opening date of Sydney Zoo ("2019 Rate Card (Version 3)"). The 2019 Rate Card (Version 3) offered the original nett and retail rates as advertised in the 2019 Rate Card (Version 1) and 2019 Retail Rate Card (Version 1). 4. Sydney Zoo's 2019 Rate Card (Version 2) was similar to the 2018 Rate Card. It depicted a koala and a kangaroo and referred to the "Bungarribee Wildlife Experience" that allowed visitors to get "up close" to Australian animals. It marketed the experience as "one of Australia's best displays of native Australian Flora and Fauna". The retail rate was stated to be $39.99 and the nett rate was $15.00 for adults. The target markets were the same as those for the 2018 Rate Card. 2020 Rate Card 1. Since opening on 6 December 2019, Sydney Zoo has continued marketing and a 2020 rate card has been prepared, which is Sydney Zoo's current rate card ("2020 Rate Card"). Sydney Zoo's 2020 Rate Card was relevantly identical to the 2019 Rate Card. The retail rate is $46.00 for adults and the nett rate is $15.00. The 2020 Rate Card has been distributed by AA on behalf of Sydney Zoo to the international tour operators on AA's database. Attempts by Sydney Zoo to Secure Agreements with International Tour Operators 1. In addition to the examples of marketing activity conducted by AA on behalf of Sydney Zoo, Elanor contended that Sydney Zoo had also sought to secure agreements with international tour operators, in particular, that there had been approaches to Gray Line and AAT Kings. In FY 2017/18 Gray Line and AAT Kings provided approximately 55,000 visitors to Featherdale. These approaches occurred between 7 June 2018 to 18 July 2019. 2. In the result, AAT Kings decided to move its afternoon tour to Sydney Zoo effective 1 April 2020. Featherdale estimates this will result in it losing about 75% of AAT Kings' business which currently services Featherdale. This will equate to a loss of about $300,000 per annum in gate fees. 3. AA also sought to secure an agreement with DOA to move its business from Featherdale to Sydney Zoo, including making DOA a written offer of $15.00 nett rates per adult on 16 August 2018. DOA is the major Japanese day tour operator and is a key international tour operator providing visitors to Featherdale. 4. It was further alleged that Sydney Zoo has made other offers of nett rates to various international tour operators at rates lower than those offered by Featherdale. Issues for Determination 1. The following issues for determination in the proceedings were identified by the parties: 1. on the proper construction of the consent, does condition B2 impose the following obligations or further conditions on Sydney Zoo, namely, to: 1. offer a different type of facility to that offered by Featherdale; 2. price its offering at rates that are more expensive than Featherdale and comparative with Taronga Zoo; and 3. adopt a market position that would allow Featherdale to continue to occupy the marketing niche of getting close to the animals; 1. is the distribution of marketing material "carry[ing] out development on the land" for the purposes of s 4.2(1)(b) of the EPAA, noting the definition of "development" in s 1.5 of that Act; 2. if the answer to both 1 and 2 is "yes", has Sydney Zoo's conduct, in causing or permitting the distribution of the advertising and marketing material, given rise to a breach, or threatened breach, of the conditions in paragraphs [104(a)] above; and 3. if so, should the Court exercise its discretion to grant the relief sought in the further amended summons? The Distribution of Marketing Material is Not "Development" under the EPAA 1. A threshold issue is whether the distribution by Sydney Zoo of the impugned marketing material referred to above is "development" under the EPAA. If not, s 4.2(1)(b) of the EPAA is not engaged. 2. In my opinion, the distribution of marketing material by Sydney Zoo is not an activity that can reasonably be described as a "use of the land", "the erection of a building", or "the carrying out of a work", however broadly those terms are construed. Unsurprisingly, Elanor cannot identify any environmental planning instrument that controls the distribution of marketing material (s 1.5(1)(f) of the EPAA). This conclusion is consistent with the evidence demonstrating that some of the marketing activity relied upon by Elanor to ground relief was undertaken overseas. 3. If the construction contented for by Elanor was accepted – that is, because the material distributed was marketing a use of the land upon which Sydney Zoo operated, it therefore constituted "development" for the purposes of the EPAA – it would permit almost any activity to fall within the scope of the EPAA because most activity is in some way connected to the use of land. To expand the scope of the EPAA in the manner contended by Elanor, and with it the jurisdiction of this Court, is not consistent with the objective intention of Parliament in enacting the statute. 4. Because the activity complained of by Elanor does not constitute "development" under the EPAA, s 4.2(1)(b) of the Act is not engaged. As a consequence, by reason of the manner in which the claim was pleaded by Elanor, and by reason of an absence of the jurisdiction of this Court to grant relief in the absence of the EPAA (or any other applicable enactment) having any application to the claim (see generally s 16 of the Land and Environment Court Act 1979), there is no basis to grant the declaratory or other consequential relief sought by Elanor and the further amended summons must be dismissed. 5. In light of this finding, I decline to deal with the alternative submission of Sydney Zoo that the alleged conditions would fail the test in Newbury District Council v Secretary of State for the Environment [1981] AC 578 and their operation is invalid. The argument did not find expression in Sydney Zoo's amended points of defence and was all but resiled from by Sydney Zoo in oral argument. The Proper Construction of the Consent 1. At the heart of this dispute is the proper construction of the consent. 2. The legal principles applicable to the construction of planning instruments are well known. They have been summarised in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 at [92]-[94], Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 at [357]-[358], Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263; (2017) 96 NSWLR 434 at [63]-[72], and most recently in Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No 5) [2020] NSWLEC 9 (at [29]-[33]). They are as follows: 1. the ordinary rules of statutory construction and principles of interpretation apply to a development consent (Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [97]-[99]; 2. development consents should be framed in clear terms and any conditions specified with certainty (The Owners – Strata Plan No 4983 v Canny [2018] NSWCA 275; (2018) 233 LGERA 432 at [71]); 3. a consent is to be construed according to its terms having regard to its enduring nature. A consent has an enduring nature because it is not personal to the proponent but is a public document operating in rem for the benefit of third parties, such as subsequent owners, occupiers and security holders. In many respects it is equivalent to an instrument of title (Ryde Municipal Council v The Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 at 324, House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [4] and Bunderra at [65]). The enduring nature of a consent therefore encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money relying upon it and who may want to sell the land at some point in time (House of Peace at [41]); 4. a consent is to be construed in accordance with its objective terms rather than the subjective intentions of the consent authority (Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434); 5. a consent must be read as a whole. The effect of doing so may be to depart from the ordinary meaning of the words of a provision where it is necessary to do so to avoid absurdity or inconsistency with the rest of the instrument (Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437; (2014) 88 NSWLR 449 at [53]–[54]); 6. a consent is to be construed not as a document drafted with legal expertise, but to achieve practical results (Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [36] and Ko-veda Holiday Park Estate at [96]–[99] and [105]). Having said this, there is nothing in the authorities that creates an independent rule of construction for "practical results". It is not a "separate and independent requirement to be applied outside the context of the interwoven and complex considerations that apply to the task of construction" (Bunderra at [72] and Omaya at [31]-[32]); 7. as a general rule a consent should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not referred to in order to vary the consent but is admissible for the purpose of establishing the nature or physical features of the land (that is, those features observable by a third party at the time of the consent) (Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [44] and Shell Co of Australia Ltd v Parramatta City Council (No 2) [1972] 2 NSWLR 632 at 637); 8. documents accompanying a development application are not to be taken as incorporated into the consent unless the incorporation is express or by necessary implication (Allandale at [24], [43]-[48] and [154]-[163] and Bunderra at [65]). It is fundamental that people are able to determine with precision what is permitted by a development consent (Bunderra at [65]). As Sackville AJA said in Bardsley-Smith v Penrith City Council [2013] NSWCA 200; (2013) 195 LGERA 34, "it would create obvious difficulties if subsequent owners or occupiers had to search a series of documents to ascertain the terms or proper construction of a development consent" (at [66]). Accordingly, given the nature of a consent as a so-called right in rem with enduring characteristics, "a narrower approach to extrinsic material is required than the case, say, of a commercial contract" (per Leeming JA in Bunderra at [72]); 9. a document attached or referred to in a consent for the purpose of identifying or describing something dealt with in the consent will usually be expressly incorporated in the consent (Allandale at [45]); 10. communications between the parties do not generally form part of the matrix relevant to the construction of a consent (Westfield Management at [41]); 11. the mere approval of an application does not necessarily have the effect of incorporating all of the matters stated in the application (Royal Ryde Homes at 323 per Else-Mitchell J). As was stated in Royal Ryde Homes, "serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention…were to be regarded as terms or conditions of a development consent, and problems would inevitably arise as to the real scope and tenor of any such consent" (at 324); 12. there is nothing in Allandale that derogates from the observation in Royal Ryde Homes. Nor has there been any erosion of the principle that general matters of fact or assertions of intention furnished or made for the purposes of informing the consent authority of the nature of the development are not likely to be incorporated as part of the consent (Allandale at [46], Cheetham v Goulburn Motorcycle Club Inc [2017] NSWCA 83; (2017) 223 LGERA 43 at [21]-[26] and Hunter Industrial Rental Equipment Pty Ltd v Shire Council [2019] NSWCA 147 at [70]); 13. a consent that requires development to proceed "generally in accordance with" approved plans allows for some latitude and deviation from the approved plans of a relatively minor nature (Oshlack v Irongates Pty Ltd (1997) 130 LGERA 189 at 196-197; Wingecarribee Council v CSR Limited (unreported, Land and Environment Court of NSW, Stein J, 11 November 1993) at 7; and Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 at 406). However, the question of whether a development is "generally in accordance" with approved plans is one of fact and degree in the context of the overall development (Oshlack at 196-197 and Wingecarribee at [7]); and 14. to be valid, a condition of consent must have a proper planning purpose, must relate to the permitted development to which it is attached, and must not be "so clearly unreasonable that no reasonable planning authority could have imposed it" (Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; (2008) 158 LGERA 429 at [37]-[41] per Biscoe J referring to Newbury). 1. A variation of the latter principle is the proposition that planning law is not concerned with the regulation of competition. Put another way, the economic competition arising out of a proposed use of land is not a permissible planning consideration which would inform the proper construction of a development consent (Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 at 681). 2. While this may be a correct statement of principle at a very high level of generality, care must nevertheless be taken not to oversimplify the nuanced approach to this issue articulated in Kentucky Fried Chicken (Dungog at [87] per Basten JA). 3. In Dungog Basten JA relevantly observed that (at [85]-[86], emphasis added and footnotes omitted): 85 It may be accepted that a consent should be construed having regard to the permissible purposes of a planning instrument: Kentucky Fried Chicken provides an example. Although primarily concerned with an alleged failure to take a mandatory consideration into account, there were observations as to what might constitute a dividing line between permissible and impermissible considerations. Thus, Barwick CJ stated: "… economic competition feared or expected from a proposed use is not a planning consideration within the terms of the planning ordinance governing this matter. … Restraint or prevention of economic competition is not, in my opinion, part of the orderly and proper planning of the zone …. The expression in ground 5(c) of the order nisi, 'the economic viability of the adjoining area', is at best ambiguous. If it means simply the effect of competition by the proposed use with existing uses of property in the area, it does not express a relevant ground. If it means that the proposed use will be destructive of the amenity of the neighbourhood, giving amenity a wide connotation, it may afford particulars of a general ground relating to the maintenance of the amenity of the neighbourhood." 86 Stephen J in Kentucky Fried Chicken (with whom Gibbs, Mason and Aickin JJ agreed), put the point 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. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. 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." 1. In the present case it was not a matter of controversy that when construing the consent regard could be had to documents that were expressly referred to in condition B2. The Asserted Breaches of the Alleged Conditions of Consent 1. Elanor submits that Sydney Zoo has breached condition B2 of the consent three ways: 1. first, Sydney Zoo was and is marketing itself as both a zoo and a wildlife park (as the "Bungarribee Wildlife Park at Sydney Zoo") and wildlife experience (as the "Bungarribee Wildlife Experience"). Elanor submitted that Sydney Zoo was required to offer a different type of facility than that of Featherdale, which offers itself as a wildlife park, namely, it was obliged to offer a zoological facility ("type of facility condition"); 2. second, Sydney Zoo was obliged to price its offering at rates (both retail and nett) that were more expensive than Featherdale and comparative to Taronga Zoo ("pricing condition"). Elanor argued that Sydney Zoo had breached the pricing condition by distributing marketing material in which it offered rates that were lower than Featherdale's rates; and 3. third, Sydney Zoo was required to adopt a market position that would allow Featherdale to continue to occupy the niche of getting close to native animals ("animal encounter condition"). The animal encounter condition has been breached by Sydney Zoo providing marketing material that refers to visitors having the opportunity to "get up close to" native animals. 1. Express reference to the three obligations or conditions said to form part of the consent is not found in the text of the approval. Rather, condition B2(a) merely provides that Sydney Zoo "shall carry out the Development in accordance with the…EIS, RTS and Supplementary and Additional Information" ("the application documents"). 2. There is no doubt that the application documents contain statements concerning pricing to the effect that Featherdale would be priced more cheaply than Sydney Zoo. Similarly, there were statements in the application documents put before the consent authority that Sydney Zoo would be offering a zoological facility which would include Australian animals as part of an Aboriginal cultural experience. 3. Elanor contended that these differentiation statements by Sydney Zoo were central to its description as a new zoo and were made to address matters of significant concern to the PAC. They were expressly referred to in Attachment F and G of the Supplementary Information and the 10 August 2017 letter in the Additional Information. The proposal itself described them as "key characteristics of the Sydney Zoo proposal". 4. Elanor therefore argued that by its clear terms condition B2 intended to pick up and apply these statements as ongoing obligations on Sydney Zoo in carrying out the approved development. The statements were not merely descriptive or discursive. To submit otherwise, would be contrary to the terms of the application documents and would ignore the context in which the proposal for the new zoo was put to the consent authority, namely, to address Elanor's and ultimately the PAC's concerns about the competitive effect of the proposed new zoo. Thus the differentiation obligations in the application documents were picked up as binding conditions in condition B2 of the consent. Condition B2 was unambiguous in its terms and therefore must be given effect to. 5. Applying the legal principles of construction and the authorities set out above, Elanor further submitted that: 1. first, the PAC was concerned about the differentiation of the offering to mitigate the risk of adverse social and economic impacts in the locality. B2 expressly required development in accordance with the application documents. Accordingly, construing the consent in a practical way, it made binding the differentiation conditions; 2. second, the fact that the Determination Report did not expressly refer to the differentiation conditions did not matter because that report was not incorporated into the consent expressly or by necessary implication. It was merely the last formal step before approval was granted; 3. third, documents concerning Elanor's pricing and capital raising relied upon by Sydney Zoo (see the discussion below at [212]-[220]) were not relevant to the interpretative task. The understanding of any executive from Elanor or Sydney Zoo was similarly irrelevant to the legal issue of the proper construction of the consent; 4. fourth, the carrying out of the development in accordance with the documents specified in condition B2 required those documents to be read and considered and their content to be complied with; 5. fifth, the terms of the 10 August 2017 letter did not state that they superseded or replaced any differentiation obligations in the application documents. Rather, the obligations contained in that letter were additional to those referred to in the application documents; 6. sixth, there was nothing illegitimate or beyond power about a condition regulating a matter such as pricing. That is, a condition addressing the social and economic impacts of a development was not necessarily outside the boundaries of a proper planning purpose or consideration. On the contrary, s 4.15(1)(b) (formerly s 79C) of the EPAA stipulated that economic impacts were a relevant matter, and therefore, conditions responding to the assessment of social and economic impacts on the locality may be validly imposed (citing Randall Pty Ltd v Willoughby City Council [2005] NSWCA 205; (2005) 144 LGERA 119 at [21]-[23] and [32]-[35] and Kentucky Fried Chicken at 687); and 7. seventh, the purpose of condition B2 was to bind Sydney Zoo to its own description of the characteristics of the proposal in the application documents. It would be inconsistent with the express terms and manifest purpose of condition B2 to read it as permitting Sydney Zoo to make "clear" statements about the proposal to secure consent, but subsequently allowing departure from those claims in the carrying out of the development. The Differentiation Conditions Were Not Incorporated into the Consent 1. Both at a general and specific level, I cannot accept Elanor's submissions. Turning to Elanor's arguments at a general level, first, as is self-evident from the text of the consent, there is nothing in the text of that approval, or the language of condition B2, that imposes the differentiation obligations relied upon by Elanor. On the contrary, a detailed regime for differentiation is made explicit by the inclusion of conditions B6 to B9 and C21 to the consent. Although not strictly relevant, so much so was recognised by Mr Willis (T142:25). Given the centrality assumed by the alleged pricing condition, for example, it may be presumed that such an obligation would have been expressly stated if it was intended to form part of the consent. It was not. 2. Furthermore, as Sydney Zoo observed, Elanor's submissions ignore the terms of condition B3, which provide that if there is an inconsistency between the EIS, RTS and Supplementary Information and Additional Information and the consent, then "the conditions of this consent shall prevail to the extent of any inconsistency". Condition B3 also provides that if there is inconsistency between the application documents, then the most recent shall prevail. 3. Second, no comfort is provided to Elanor from any construction of condition B2 within its wider context. The application documents were, as Sydney Zoo observed, documents submitted to enable the PAC to be satisfied that the socio-economic impacts of the proposed zoo on Featherdale, and therefore, on the employment and amenity within the local area, would be acceptable. They did not, however, provide binding undertakings to modify the proposal to impose additional restrictions on Sydney Zoo's operation. The only undertaking of this nature was that found in the 10 August 2017 letter, which, as is further explained below, resulted in the imposition of conditions B6 to B9 to the consent. 4. Attachments F and G of the Supplementary Information relied upon by Elanor in support of its arguments must be read within their proper context. Attachment F was a response to the submission made by Featherdale that there was "no evidence" to support Sydney Zoo's assertion that it would present a "relatively low" competitive threat to Featherdale. That document emphasised that it would offer a full-service facility and that it would be priced comparatively with Taronga Zoo, and therefore, Featherdale would enjoy the key competitive advantage of being lower in price. These features were again reflected in Attachment G. 5. The SIA examined this point of differentiation and, after examining consumer surveys and other empirical data, concluded that Sydney Zoo was unlikely to cause Featherdale to cease operating due to competitive pressure. 6. The 10 August 2017 letter stated that Sydney Zoo would "ensure" that the product offered by it was "materially differentiated" from that provided by Featherdale across a number of key areas which included the animals on display and the size of the Australian exhibit area. The letter proposed to "modify its proposal" and to "undertake" certain matters that Sydney Zoo was prepared to accept as restrictions on its operations. Critically, this involved the prohibition for three years against Sydney Zoo permitting the touching of koalas, subject to two exceptions: interactions in the educational amphitheatre; and interactions provided in the context of education of school groups. 7. These undertakings were accepted by the PAC and became conditions B6 to B9 to the consent. 8. Elanor submitted that if the effect of the 10 August 2017 letter was to fundamentally alter the DA by confining the differentiation obligations only to those discussed in the letter, its contents would have been publicly displayed to allow for comment. That this did not occur suggested that the PAC understood the letter as offering no more than additional specific suggestions for differentiation which were not intended to replace those that had been offered to date. 9. But were this logic correct, there would have been no necessity to translate the differentiation obligations offered in the 10 August 2017 letter into the specific conditions in B6 to B9 of the consent because they would have been no less binding than the other obligations submitted by Elanor to be incorporated into the consent by reason of condition B2. That the undertakings were given express recognition by the PAC through their promulgation as conditions B6 to B9 strongly suggests that the multitude of other inchoate differentiation characteristics referred to in the application documents were neither intended to be, nor were capable of being, the subject of enforcement. In other words, the logical corollary of the imposition of conditions B6 to B9 is that the PAC did not consider the remaining descriptive or predictive statements of the offering by Sydney Zoo in the application documents as necessary conditions of consent. This included the nature of the proposed facility, its pricing, and the types of animal encounters offered. 10. That this interpretative approach is correct is reinforced by the imposition of condition B7 which requires Sydney Zoo to have on display as at the time of its opening at least two thirds of the exotic species nominated in the Additional Information. If the PAC had determined that a statement to this effect contained in the application documents was binding, then the imposition of condition B7 would be entirely otiose and the condition would have no work to do. Condition C21 is not dissimilar. 11. The conclusions reached above are further reinforced by the explicit terms of the Determination Report which acknowledged as a real concern the social and economic impacts on existing businesses. The Determination Report made it tolerably clear that in order to mitigate against these impacts, it had "imposed additional conditions" in order to "itemise the details of Sydney Zoo's strategy" and then referred to conditions B6 to B9. The express inclusion of these conditions in the consent accordingly leaves little room for additional non-defined conditions arising from the general content of the application documents to be imposed. Rather, when the evolution of the Sydney Zoo proposal is traced through the documentation referred to in detail above, it becomes apparent that much of the discursive and aspirational material is not picked up and incorporated into the consent by condition B2. 12. There is no doubt that the Department and the PAC were concerned about the potential economic impact on the western Sydney locality. However, as the HillPDA review concluded and as the Department noted in the EAR in November 2016, both facilities could be sustained, and moreover, that if Featherdale was unable to remain viable this would likely be a result of competition rather than economic impacts on the locality. 13. In order for the facilities to capitalise on each other by way of differentiation, the Department recommended in its EAR that conditions be imposed that required Sydney Zoo to detail how it would be different, to undertake ongoing engagement with identified stakeholders and community members, and to provide initiatives to be implemented to encourage the continued operation of the proposed development in conjunction with existing local recreational facilities and businesses. As earlier stated, it is these considerations that informed the conditions attached to the EAR in Schedule B at B2 to B7, C7 to C9, and C21, all of which were ultimately attached to the consent. 14. These proposed conditions were reiterated by the Department in its reply to the PAC letter dated 1 February 2017 and its enclosed Part A Response. In that reply, explicit reference was made to the independently reviewed potential economic and social impacts on the locality. The reply again recommended the imposition of the conditions referred to above. But, in doing so, the Department plainly noted that impacts in terms of potential reduced visitor revenue or operations of Featherdale were not a relevant planning consideration. 15. In relation to the social impacts, to best ensure the co-existence of the two facilities, the Part A Response noted that the SIA supported the conditions recommended by the Department, "particularly the differentiation (recommended condition B6) and the adaptive management strategies (recommended conditions C8 and C9)." These were the only recommended conditions referred to and the Department was specific in its terms. 16. The 10 August 2017 letter proposed four binding commitments, namely, that at least two thirds of the exotic species nominated in the Additional Information would be displayed; that the Australian exhibits would include the aquarium, reptile house and insectarium and nocturnal house; that for a period of three years after the commencement of operations the facility would not include aviaries housing flighted species; and that in order to differentiate between the koala exhibits at the two facilities, for three years Sydney Zoo would limit its koala interactions to that offered by Taronga Zoo and WILDLIFE Sydney Zoo "(i.e. no touching)", with exceptions for educational purposes. No commitment was made with respect to pricing, not to use the words "wildlife park" in its marketing material (or indeed anything to do with marketing), or not to permit visitors to get "close" to koalas and other Australian animals. 17. The Determination Report, issued on the same day as the consent (and therefore, it may be inferred, contemporaneously with the execution of the approval), referred expressly to the four differentiation commitments made by Sydney Zoo in the 10 August 2017 letter and, as observed above, noted that "the Commission has imposed additional conditions, which itemise the details of Sydney Zoo's strategy" – that is, the differentiation strategy referred to in that letter. 18. The context, therefore, of the imposition of the conditions in the consent, including condition B2, is manifestly clear. Notwithstanding that the Determination Report was not referred to in the consent, construed properly and in context (which must of necessity include the Determination Report), condition B2 does not operate to pick up every statement made by Sydney Zoo in the application documents and transmogrify them into binding conditions of consent. To find otherwise would have the effect of incorporating the most inchoate descriptions of intention expressed in the application documents into the consent in a manner that would offend almost all of the principles of construction discussed above. 19. There is nothing inherent in the words "in accordance with" in condition B2 that transforms each and every aspirational statement made by Sydney Zoo in the application documents concerning the proposed development into binding obligations. None of the authorities the Court was referred to by Elanor support this broad proposition. 20. In this regard, condition B3 is, as Sydney Zoo submitted, significant. It states that where there is inconsistency between the documents referred to in condition B2 "the most recent document shall prevail to the extent of the inconsistency", and moreover, that the conditions of the consent trump any and all inconsistency. 21. An examination of the conditions of consent relevantly reveals that: 1. Australian native animals are permitted at Sydney Zoo but that the display shall comprise less than 1.6 ha of the overall exhibited animal collection and shall be displayed as part of the Aboriginal Cultural Experience (condition B6 and see also condition C21); and 2. in the first three years after opening there can be no interactive programs that involve touching a koala except for educational purposes as specified (condition B8). 1. By operation of condition B3, these express conditions prevail over any purported obligations regarding, for example, the type of animal encounter or type of facility arising from the additional documents. 2. Furthermore, the operation of condition B3 means that to the extent of any inconsistency between the application documents referred to in condition B2, the terms of the 10 August 2017 letter prevail (it being the most recent document). No commitment was made in that document with respect to marketing or pricing. 3. Not dissimilarly, condition B3 operates to elevate condition B8 above whatever may have been stated by Sydney Zoo in the application documents. Condition B8 permits interaction with koalas provided that there is no touching other than as prescribed and provided that the interaction falls within the scope of condition B6. Apart from these limitations, there is nothing that prevents visitors to Sydney Zoo from getting close to any of the Australian animals at Sydney Zoo. 4. At a more specific level, the submission that the three individual obligations were incorporated into the consent may be rejected for the reasons set out below. There Was No Type of Facility Condition 1. As to whether there was a condition regarding the type of facility that Sydney Zoo was permitted to offer, Elanor placed significant reliance on Table 1B in Attachment F to the Supplementary Information, which describes Sydney Zoo as a "zoological facility" and Featherdale as a "wildlife park". 2. The consent cannot be construed as imposing by that table a condition that Sydney Zoo market itself as a "zoological facility" rather than a "wildlife park" because, first, as stated earlier in this judgment, the table was in response to a submission made on behalf of Featherdale that there was no "evidence" in support of the assertions of differentiation. The table was preceded by the words "the Applicant does not agree with this opinion" and "the Applicant submits that the differences between the two facilities and consequently, their differing appeal, are clear from a summary comparison". This was reinforced by the heading to the table which is "Comparison of assessment of Sydney Zoo and Featherdale". Properly characterised, the table is a "submission" or an "assessment" and not an undertaking or modification of the development proposal. 3. Second, it is clear from the references in Table 1B to area, visitation time, and parking spaces, for example, that it is making factual assertions about the expected differences between the facilities, and is not giving an undertaking that they will have those particular characteristics at all times. Many of the assertions are matters beyond the control of Sydney Zoo. They are more in the nature of predictions. A single illustration suffices, namely, that "visitation time" would be "3-4 hours" for Sydney Zoo and only "1+ hours" for Featherdale. If Elanor's contentions are correct, Sydney Zoo would be in breach of the consent if its customers failed to visit the zoo for any greater or shorter period, a matter over which it has no control. 4. Third, after the Supplementary Information was submitted, in the 10 August 2017 letter Sydney Zoo proposed additional conditions directed to not intruding on Featherdale's positioning as a "wildlife park" (in clear terms, using the language of "undertake"). These were picked up by the consent in conditions B6 to B9. It would be illogical to construe the consent as imposing, in addition to the objectively clear criteria contained in conditions B6 to B9, an imprecise requirement to be a "zoological facility" rather than a "wildlife park" which was directed to the same subject-matter. It would also, as observed above, be inconsistent with condition B3, which mandates that the "conditions" of the consent prevail over the application documents in the event of any inconsistency. 5. Fourth, as the legal principles above indicate, conditions of consent should be clear in their terms so that the owner of the land knows whether or not they are in breach. The type of facility condition as alleged by Elanor fails this test. This is because while the expressions "zoological facility" and "wildlife park" purport to represent different concepts, they are not necessarily mutually exclusive. To impose a condition that requires a facility to be a "zoological facility" rather than a "wildlife park" in the absence of defining either term in the instrument of approval gives rise to ambiguity and is problematic. Further, although not strictly relevant to the proper construction of the consent, the evidence of Mr Rivett and Mr Burgess was that the words "zoo" and "wildlife park" are used interchangeably to describe the same facilities throughout Australia and many facilities are both a zoo and a wildlife park that provide a "wildlife experience". 6. Elanor's submissions on this issue were factually undermined by the fact that, despite putting itself forward as a "wildlife park", its own marketing referred to "Zookeeper Chad" (Mr Staples). And when the Elanor Wildlife Park Fund recently purchased Mogo Zoo, it renamed it "Mogo Wildlife Park" (however, it did not substantially change the mix of species, which remain predominantly exotic). 7. Finally, Elanor relied on Attachment G to the Supplementary Information and the 10 August 2017 letter. But as discussed above those documents do not assist it. On the contrary, that material identifies characteristics which make Sydney Zoo a "zoological facility" insofar as it has both exotic and Australian animals, the exotic animals are prominent, and there is an educational amphitheatre. There is no undertaking in that material that Sydney Zoo committed to being a "zoological facility" rather than a "wildlife park", whatever the latter term means given that it is axiomatic that zoos contain wildlife. 8. In short, there was never a promise made by Sydney Zoo to market itself only as a zoo or to ensure that all of its animals were given equal prominence in its marketing. Rather, Sydney Zoo proposed to market what it was offering, namely, a full service zoological facility which included, as would be expected in any Australian zoo, native animals. This was amply and accurately reflected in Sydney Zoo's marketing material. There was never a proscription against promoting, even heavily, the Australian animals, especially when marketing to international visitors. This was no doubt because any inbound tourist would expect to see native animals at an Australian zoo. There Was No Pricing Condition 1. Elanor likewise relied heavily on Attachment F to the Supplementary Information in support of its contention that there was an obligation on Sydney Zoo to maintain lower prices than Featherdale and be comparable to Taronga Zoo. But the passages in Attachment F referring to pricing cannot be reasonably interpreted as an undertaking by Sydney Zoo to always have prices comparative with Taronga Zoo and higher than Featherdale. The statements contained therein are no more than general submissions about what Sydney Zoo's prices were expected to be based on the nature of the facility and its operating strategy when compared to the facilities and operating strategies of Featherdale and Taronga at that time. This is apparent from the language used in the document. That is, Sydney Zoo will be priced "more expensively" than Featherdale because of the "longer visitation time, larger facility size/amenity and broader animal collection" and because it is a "full service offering" with a commensurate "pricing strategy". 2. Attachment F describes Featherdale's pricing as a "key competitive advantage". In other words, Featherdale was expected to be able to offer a lower price than Sydney Zoo because it had lower overhead and capital costs given the size of the facility. If Sydney Zoo was undertaking to always be more expensive than Featherdale then there would be no "competitive" advantage enjoyed by it whatsoever. Rather, it would be an advantage that Featherdale enjoyed by government fiat by virtue of an anti-competitive condition contained in a development consent. This speaks powerfully against the construction proffered by Elanor. 3. Furthermore, the alleged pricing condition is uncertain as to its scope and its operation. As Sydney Zoo remarked, the problematic application of the condition can be tested by considering the following questions: 1. how close to Taronga Zoo must the Sydney Zoo price be to be comparable; 2. what does "price its offering" mean for the purposes of a binding condition of consent given that facilities – including Featherdale and Taronga – have different prices for retail customers and tour operators, and even within these categories a range of different prices may be offered. For example, retail customer prices differ for family groups and there are differing types of day passes, annual passes, and memberships; 3. are temporary discounts or sales permitted under the condition? It was uncontroversial that sales and discounts regularly occur. For example, Featherdale was charging $5.00 for child tickets in February 2020. Would Sydney Zoo have to monitor all sales and reduce its prices whenever either Featherdale or Taronga offered a discount rate; and 4. does the condition apply to both the nett and retail rates? If it applies to the former, the alleged condition is all but impossible to comply with because, as the evidence established, these rates are not disclosed to competitors and were not always known by Sydney Zoo. 1. Elanor's answer to the latter question was to simply state that in circumstances where Sydney Zoo did not know the nett rate charged, it could either charge a nett rate that was higher than Featherdale's retail rate on the basis that the retail rates would never be lower than the nett rates, or it could simply not enter into an agreement with a particular tour operator. 2. Leaving aside the fact that if the condition was in fact so "clear" (as Elanor submitted) in its operation, it could have readily been incorporated into the consent as an express obligation, the construction contended for by Elanor would have the very real consequence that Featherdale could raise its prices to the highest level it thought the public could withstand in order to "price out" Sydney Zoo. Alternatively, Taronga or Featherdale could upgrade their facilities justifying raising its prices and Sydney Zoo would be compelled to do the same. These results are wholly inconsistent with the status of the consent as an enduring instrument. 3. Even if the alleged pricing condition did exist, given the impracticality of compliance with it in circumstances where the prices offered by Featherdale are not always publicly available, in conformity with the principles of construction set out above, an equally plausible interpretation to be afforded to any such condition is that the prices offered by Sydney Zoo must be more expensive than Featherdale's prices (and comparable to Taronga Zoo) where those prices are known to Sydney Zoo. Such a construction would be harmonious with the consent and the application documents. There Was No Animal Encounter Condition 1. As a primary observation, a condition of consent expressed in terms of allowing another facility to occupy a "niche" market is so ambiguous as to be meaningless. Having said this, Elanor derived the animal encounter condition principally from the EIS, the Supplementary Information and the 10 August 2017 letter. 2. The 10 August 2017 letter said that "Sydney Zoo has not yet developed our market positioning. However, as a full service, broad appeal facility our positioning will…focus more broadly, thereby allowing Featherdale to continue to occupy the niche of "getting close to the animals"." 3. Given the remark that Sydney Zoo's market positioning is not yet "developed" the statement cannot reasonably be read as an undertaking. The letter states that Sydney Zoo's positioning is expected to "focus more broadly" than on just Australian animal encounters and that therefore this will permit ("thereby allowing") Featherdale to continue to occupy its specialist "niche". What it unequivocally does not say is that Sydney Zoo will ensure that Featherdale continues to occupy this niche forevermore. 4. The general statement in the 10 August 2017 letter is followed immediately by a specific undertaking, restricted to a three year period and subject to two exceptions, not to have encounters that involve touching koalas. As is now understood that undertaking became condition B8. 5. The purported animal encounter condition is therefore inconsistent with condition B8, the latter of which prevails pursuant to condition B3. 6. Regard must also be had to condition C21 of the consent that makes it clear that under the consent Sydney Zoo may offer customers interactions with Australian animals that involve "direct contact" (provided, of course, that condition B8 relating to koalas is complied with). A vaguely expressed condition that limited interactions so as not to disturb Featherdale's "niche" would also be inconsistent with condition C21 in a manner not permitted by condition B3. 7. For all these reasons, I do not accept that the differentiation conditions the subject of the further amended summons formed any part of the consent in the manner described by Elanor. 8. This is another basis for dismissing Elanor's application in its entirety. The Differentiation Conditions Were Not Breached by Sydney Zoo 1. Although not strictly necessary to determine in light of the findings made above, given the volume of evidence relied upon by the parties with respect to the issue of breach, I have considered the allegations of breach of the differentiation conditions purportedly imposed on Sydney Zoo by the consent. 2. Elanor relied on the following matters to demonstrate threatened or actual breach of the alleged differentiation conditions contained in the consent by reason of condition B2: 1. attachment A1 to the further amended summons which was said to establish a breach of the: 1. type of facility condition by its description of "Bungarribee Wildlife Park"; 2. animal encounter condition by stating that Sydney Zoo would allow visitors "to get up close" to koalas, echidnas and other Australian fauna; and 3. pricing condition by offering a trade rate of $12.00 in circumstances where the lowest trade rate being offered by Featherdale at that time was $16.50; 1. attachment A2 to the further amended summons which was said to establish a breach of the animal encounter condition by depicting a koala as the principal animal that a visitor might "get up close to"; 2. attachment A3 to the further amended summons which was said to demonstrate a breach of the same condition by referring to "a close up 'live feed' wildlife experience"; 3. attachment B1 to the further amended summons which was said to demonstrate a breach of the same condition by depicting a koala as the principal animal that a visitor might "get up close to"; 4. attachment B2 to the further amended summons which was said to show a breach of the: 1. type of facility condition by its reference to the "Bungarribee Wildlife Experience"; and 2. animal encounter condition by offering handfeeding of Australian animals; and 1. attachment B3 to the further amended summons which was said to demonstrate a breach of the: 1. type of facility condition by referring to the "Bungarribee Wildlife Experience"; 2. animal encounter condition by allowing visitors "to get up close" to koalas, echidnas, and other Australian native animals; and 3. the pricing condition by offering a trade rate of $15.00 in circumstances where the lowest trade rate being offered by Featherdale at that time was $16.50. 1. Elanor also relied on the factual matters set out earlier in the judgment describing the operations and marketing strategy of Sydney Zoo, especially in relation to international tour operators (see above at [76]-[103]). There Was No Breach of the Purported Type of Facility Condition 1. As the evidence discloses, after a complaint from Featherdale, several months before Sydney Zoo opened it ceased using the expression "Bungarribee Wildlife Park" in its marketing material and instead referred to the native animals precinct at the Zoo as the "Bungarribee Wildlife Experience" (T130:26-29). 2. In relation to the asserted breach of the consent insofar as "Bungarribee Wildlife Experience" was referred to in brochures distributed by AA to international tourists where the focus of the marketing was on that part of Sydney Zoo that exhibits Australian native animals, as observed by Sydney Zoo, there is nothing objectionable about the use of the word "Bungarribee", which is an Aboriginal word. Furthermore, it was a condition of the consent that its Australian wildlife exhibit have an Aboriginal theme. The word "experience" is neutral. In relation to the use of the word "wildlife", the notion that the conditions of consent for a zoo might be construed to prohibit it from using the word "wildlife" in its marketing material cannot be seriously maintained. To reiterate, zoos, by their very nature, have a real tendency to contain wildlife. 3. Equally, the suggestion that a zoo must produce marketing material referring only to the fact that it is a "full-service" zoo is not tenable. There is nothing impermissible about the fact that some of Sydney Zoo's marketing "highlights" a "specific element of the zoo", as Mr Burgess remarked in cross-examination (T172:49). 4. None of the marketing documentation relied on by Elanor to demonstrate breach of this purported condition focused solely on encounters with Australian native animals. In each case the document used the word "zoo" and depicted exotic animals. For example: 1. attachments A1 and B3 to the further amended summons clearly and prominently contain the word "zoo" and silhouettes of exotic animals. Attachment B3 refers to "5 major precincts featuring charismatic animals from around the world". Attachment A1 refers to "Bungarribee Wildlife Park at Sydney Zoo"; and 2. the version of the document in attachment B2 that Elanor relied upon is a forwarded email with the images removed (see the evidence of Mr Rivett: T196:28-197:24). The correct version of attachment B2 that Sydney Zoo authorised to be distributed, and that was in fact sent out, contained the words "Sydney Zoo" and had Sydney Zoo's logo displayed, which depicts silhouettes of exotic animals (for example, a giraffe, elephant and lion) and with Australian animals. If nothing else, the logo itself conveys that this is a full-service zoo with a focus on exotic animals. 1. As the evidence established, it is not uncommon for other zoological facilities, such as Taronga Zoo, to market themselves in a manner that emphasises close encounters with Australian native animals using the words "wild" or "wildlife" and using images of Australian native animals. As the evidence contained within and exhibited to Mr Rivett's first affidavit established, the marketing material used by other zoos also uses the word "wildlife" or "wild" (Taronga's byline is "for the wild"). This does not result in them being "wildlife parks" instead of "zoological facilities". 2. Elanor additionally argued that the consent was breached because the marketing material unduly emphasised the Australian animals precinct of Sydney Zoo. It took the Court to numerous instances of Sydney Zoo's marketing documentation that depicted images of kangaroos and koalas. 3. But the evidence also disclosed that: 1. it is not uncommon for zoos to focus on particular elements of the zoo in their marketing material, including by highlighting close encounters with iconic Australian animals (T54:16-55:01); 2. Sydney Zoo did not, contrary to the suggestion by Elanor, present itself as a full-service zoo prior to obtaining approval and change to a wildlife park afterwards. The Australian animals exhibit, with Aboriginal theming and interaction with animals (as provided for by conditions B8 and C21) was consistently displayed. See, for example, the presentation that Mr Burgess gave at a local RSL to members of the public before the consent was granted, which included images of Australian animals and a page specifically referring to the "Australian Walkabout Precinct" (T172); and 3. Sydney Zoo did not "target" the international market because, as Mr Rivett and Mr Burgess explained, it was a "small segment of our market" which Sydney Zoo's strategy was directed to (T168:15-22). Only a small percentage of Sydney Zoo's revenue and visitor numbers were derived from the international market (T203:04-08). This was consistent with the first KPMG report (included in the EIS) which estimated that there would be 888,000 visitors to Sydney Zoo per annum, of which only 67,000 would be international tourists. The remaining 821,000 visitors were expected be local residents and interstate (domestic) visitors. The report confirmed that Sydney Zoo was mainly focussed on local Western Sydney visitors. I accept Mr Burgess's evidence (T181-182) that the international market was not a "core" part of Sydney Zoo's business. 1. In light of the evidence referred to above and the material before the Court which is replete with references to "Sydney Zoo", to "charismatic animals from around the world", and given the plethora of images of exotic animals such as lions, giraffes and elephants in the marketing material, I do not find that Sydney Zoo breached the alleged type of facility condition. True it is that the material also contained images of koalas and kangaroos and references to the "Bungarribee wildlife experience", but this was in the context of an "experience" featuring native animals that exists within a larger zoological facility. There Was No Breach of the Purported Pricing Condition 1. To comply with the alleged pricing condition, Elanor submitted that in relation to retail rates, Sydney Zoo was required to be more expensive than Featherdale's advertised gate or retail fee and comparable to Taronga; and in relation to nett rates, Sydney Zoo was obliged to ensure that its trade rate offer was higher than Featherdale's and comparable to Taronga, either in respect of its standard nett rate or the nett rate offered to each tour operator. 2. To comply with the pricing condition in respect of retail rates, Elanor submitted that Sydney Zoo could readily identify Featherdale's retail rates from the internet, and therefore, it could easily price its entry more expensively and comparatively with Taronga (whose retail rates could also be found online). To comply with the price obligation in respect of nett rates, it argued that Sydney Zoo (including AA on behalf of Sydney Zoo) could identify the Featherdale nett rates and accordingly price its own entry rates more expensively. In making the latter submission Elanor relied on the following concession by Mr Burgess (T185:19-41): Q. The statements about Sydney Zoo being priced more expensively than Featherdale and generally like Taronga Zoo, weren't qualified or limited in any way, namely, to retail rates, were they? A. No. Q. Your intention wasn't that those statements be limited in any way, was it? A. I'm not sure I had any intention around those particular statements, so I think the answer would have to be no. Q. When those statements were made in the application documents, do you accept that obviously Sydney Zoo then knew what rates were being rates both by Featherdale and by Taronga Zoo? A. No. Q. How could you rationally make a statement that your Sydney Zoo operation will be priced more expensively if you didn't know that? A. Because we had the published rates on the Featherdale, Featherdale Wildlife Park website and we were referencing off those. Q. You also had an understanding of what the standard net rates were that Featherdale was offering to tour operators, didn't you? A. Australian Attractions informed me of where they thought the pricing was, yes. 1. This evidence was consistent with that given by Mr Rivett in cross-examination (T213:40-214:22): Q. If you go to the page immediately before that in the bundle, it's an email from Ken Corbett to you of 2 December 2019? A. I can see that. Q. It's subject is "Special rate companies to March 31, 2020"? A. Correct. Q. Then the PDF referred to in the attachment is the document in landscape called "Sydney Zoo rates to 31 March 2020"? A. Yes. Q. Is it right that this sets out identified by various markets, that is Korea, Thailand, Vietnam and Japan, a number of identified tour operators and the net adult rate that is charged to them in 2019 and up until 31 March 2020? A. Yes. Q. And almost entirely at the, I think they are, unanimously at the rate of $12? A. Yes. Q. You agree that when Sydney Zoo entered into these arrangements for these operators to bring customers at that net rate, you know don't you that in many instances that rate undercut Featherdale's net rate that it was offering to operators? A. No. Q. You understand that it must've been the case that at 11 or $12 net rate in many instances was undercutting Featherdale's net rate prices? A. Sorry, can you repeat that? Q. You must've understood that in many instances, an 11 or $12 net rate offered by Sydney Zoo was undercutting Featherdale's net rate to operators? A. I would speculate that if they are in the vicinity of eight to 18, that this in some instances would undercut that rate. 1. Elanor refuted the suggestion that Sydney Zoo could not ascertain Featherdale's standard nett rates, or even its individual nett rates for particular tour operators, because, it submitted, these figures were commonly known by sales and marketing participants in the tour operator business market and could be obtained by asking for them. 2. However, as Mr Burgess stated, he was no longer informed by AA of the nett prices that it "thought" that Featherdale was offering and that it was not simply a matter of Mr Rivett asking AA to obtain this information (T186:04-20 and 190:20-191:16): Q. You know that Mr Rivett can just ask Australian Attractions to get in touch with any particular tour operator and find out what the net price their charging is? A. We haven't found it that simple. Q. It's often that simple, isn't it? A. Apparently it can be, because Featherdale appears to get our rates pretty easily, but it doesn't seem to come the other way, so-- Q. Well, you know that Mr Rivett has found that out, don't you? A. No, I don't, but I imagine he probably has at some point. Q. Yes and you yourself have found out net rates charged by Featherdale, at least for the purpose of when you were considering the application documents that I've referred to? A. I was provided an indication that Featherdale, I think, was around 12 or 14 dollars or something like that. … Q. It's your understanding, isn't it, that if Sydney Zoo wishes to find out the net rate that Featherdale charges tour operators, it can readily find out that information by asking Australian Attractions to get that market information? A. We can - we have asked Australian Attractions to try and hunt down rate cuts and they found it difficult. Q. Could you address my question directly, if you wouldn't mind? A. Sorry. Can you repeat the question, sorry? Q. Yes. You know, don't you, that if you ask Australian Attractions to find out Featherdale's net rate to tour operators, that they can do so? A. I believe they could, yes. Q. You understand that they have done that from time to time? A. It's not clear to me that they have. Q. Well, you said-- A. I'm not trying to be evasive but - because we've asked the question directly and they have not been able to come back to us and say, "This is the rate." Q. You said hunting down rate cards has been difficult. A. Mm. Q. That suggests that you eventually got it. Is that a correct understanding of your evidence? A. I don't believe I've seen a rate card for Featherdale until this case was brought on and it was put on in evidence. Q. But you do believe that you've become aware of Featherdale's net pricing to particular tour operators because Australian Attractions has told you? A. Well I-- Q. Or Mr Rivett? A. I haven't been told any specifics around any charges to any tour operators with Featherdale. Q. You understand Mr Rivett has that information? A. I don't know. Q. Do you believe he does? A. I don't know. I genuinely do not know. Q. Is it your understanding that tour operators are willing to tell Australian Attractions what Featherdale charges in its net price to operators because it is in the interests of the tour operators to do so? A. I don't know. I've got one data point which is AAT Kings and they wouldn't tell us. 1. Elanor contended that even if Sydney Zoo was confronted with the situation where it could not ascertain or estimate the nett rates for a particular tour operator, it could nevertheless comply with the purported pricing condition by charging a rate equivalent to a retail rate, or by charging a rate that it knew to be above the range of nett rates that Featherdale charges, or alternatively, by not contracting with that particular tour operator. 2. According to Elanor, as set out in Mr Chiefari's first affidavit, since at least 21 December 2018 Sydney Zoo had known that the lowest nett rate that Feathedale offered was $16.50 (which was limited to Featherdale's two principal day tour operators, namely, AAT Kings and Gray Line) and that Featherdale offered a sliding scale nett rate to international tour operators up to a maximum trade rate of approximately $20.00. Despite this knowledge, Sydney Zoo had offered nett rates to international tour operators of between $11.00 to $15.00 in breach of the pricing condition. 3. Elanor's submission must be rejected. First, the evidence establishes that from the time of its commencement Sydney Zoo has charged higher retail prices than Featherdale and that its prices were comparable to those charged by Taronga. The initial expectation that Sydney Zoo, a larger facility with higher overheads, would charge more has proven to be correct (see the evidence of Mr Chiefari: T115:30-34). Second, as the evidence below demonstrates, the alleged pricing condition would require Sydney Zoo to offer trade rates higher than the negotiated trade rates of Featherdale and Taronga which were confidential and not disclosed. 4. On behalf of Elanor, the evidence of Ms Ang and Mr Chiefari in cross-examination revealed that: 1. Featherdale issues rate cards annually for a 12 month period running from 1 April (T109:18-21 and see also T105:50-106:02). Each year Featherdale issues five rate cards that are liable to change from year to year (T109:18-25). They are identical in appearance but a different rate is offered to particular tour operators depending on the "level" assigned to that operator. Featherdale's rate cards are not publicly available and are distributed only to tour operators, with each tour operator only getting the rate card applicable to its level (T108:48-109:12). Ms Ang stated that the rates being offered by Featherdale through its rate cards are commercially sensitive and confidential information that she would not disclose to a member of the public or to any zoo in "direct competition" with Featherdale (T76:09-27); 2. Featherdale has five "levels" of customers. "Level 0" is the most favourable and "Level 1" is the least favourable. Customers are assigned a level depending on the volume of business that they direct to Featherdale (T104:43-105:02). Featherdale records what level each of its approximately 350 tour operator customers is assigned in an internal document known as a "Partner Levels Report". The level assigned to a particular customer may change from year to year (T109:27-29). The Partner Levels Report is a "highly confidential document" that, outside the context of litigation, Featherdale would "absolutely" not want to provide to a competitor, or even to a customer (T105:14-33); 3. Mr Chiefari agreed that if someone outside the business wanted to understand what prices Featherdale was offering across all 350 tour operator customers in any given year, that person would need all five rate cards for that year (which it would have to source from at least five different customers because no single customer is given more than one rate card) and the Partner Levels Report that assigned a particular level to each customer (T109:50-110:10). Mr Chiefari accepted that for a competitor to be confident what rate was being offered to a particular customer, the competitor would need to know that they had all current rate cards and the current Partner Levels Report (T110:12-17); and 4. in addition to Featherdale offering a different price to each customer depending upon its privately assigned level (which was only valid for a 12 month period and could vary from year to year), it also offered and negotiated individual prices with some customers that were lower than the prices offered on the rate sheets and based on the Partner Levels Report. In particular: 1. it offered "bulk discounts" if customers "pre-ordered" by paying $5,000 or $10,000 in advance. Ms Ang stated that this had been the practice since at least 31 May 2019, that is, six months prior to Sydney Zoo commencing operations (T79:38-80:32). When asked if Featherdale had informed Sydney Zoo of these lower offers, Ms Ang understandably and emphatically replied, "I most certainly didn't" (T80:30-32); and 2. Mr Chiefari explained that Featherdale also has "one off" pricings that apply to special events. For example, there was an event in 2020 which resulted in 2,000 Chinese tourists visiting it at a rate of $10.00 per person (T120-121). When asked how the purported pricing condition applied to this type of event he replied that he had "no idea" (T121:16-17). 1. Featherdale's evidence was that tour operators openly disclosed the rate being offered by Sydney Zoo to Featherdale and that therefore it expected that the operators would likewise disclose the rates being offered by it to Sydney Zoo. However, this evidence cannot be accepted in light of Mr Rivett's testimony that AA had not been able to obtain trade rates for Featherdale's customers, and that AA could only "speculate" on Featherdale's pricing. Based on that speculation, Mr Rivett understood that Featherdale offered a range of nett rates between $8.00 and $18.00, but otherwise did not know the rates offered to individual tour operators or anything further about its pricing scheme (T205-209). Although Mr Rivett did not deal directly with tour operators (unlike Ms Ang and Ms Zhai), I nevertheless accept his evidence. 2. In any event, only approximately 44 of the 350 tour operators engaged by Featherdale had separately negotiated lower rates with Featherdale, during which they had revealed the rates offered to them by Sydney Zoo in order to improve their bargaining position (T76:45-48 and 99:13-20). Assuming that all of these operators had disclosed the rates offered to them by Featherdale to Sydney Zoo, just over 12% of the tour operators engaged by Featherdale does not equate to a sufficiently comprehensive knowledge of Featherdale's price offering by Sydney Zoo that would enable it to comply with any condition mandating the offering at all times of lower prices than Featherdale. 3. The proposition that tour operators would be prepared to inform Sydney Zoo of Featherdale's confidential rate offers because some operators (12.6%) were willing to disclose Sydney Zoo's rate offers to Featherdale in confidential negotiations, is not, in any event, easily accepted. As Ms Ang agreed in cross-examination, while a tour operator might have an interest in revealing that a rival facility was offering a lower rate, it would not have the same interest in revealing that a rival facility had offered a higher rate (T76:50-77:15). 4. The difficulty with establishing any asserted breach by Sydney Zoo of the purported pricing condition was further highlighted by Mr Chiefari in cross-examination when he incorrectly stated that such a condition was an express term of the consent: "that's what the clause says, they've got to be dearer than Featherdale" (T111:26-38). Thus even if such a condition had been imposed by the consent, Mr Chiefari had misconceived its possible practical operation. For example, Mr Chiefari gave the following evidence about his understanding of the application of the condition to the nett rates being offered by Sydney Zoo: 1. initially his evidence was that the rate that Sydney Zoo was offering had to be higher than that offered by Featherdale, that is, higher than $16.50, which was the lowest trade rate usually offered by Featherdale (T98:49-99:6). This was so even if a particular customer and Featherdale had negotiated a lower rate. Hence, Sydney Zoo would have to price higher than $16.50 even though a rate of $12.00 had been agreed between Anderson's Tours and Featherdale (T99:46-100:06); 2. Mr Chiefari later changed this evidence when he was unable to explain why $16.50 was the relevant rate. On the basis of the Partner Levels Report and the five rate sheets, he then said that the rate that Sydney Zoo would have to exceed was the rate that Featherdale had initially offered a customer having regard to the rate sheet applicable to the level categorisation of the particular customer. Thus in the case of Anderson's Tours, the rate would be $16.80, which was the rate that Featherdale offered to Level 4 customers, and not $16.50 (T110:35-111:50 and 114:41-45). And with respect to Zhong Tong Bus Tours, the rate that Sydney Zoo would have to exceed was $19.50, which was the rate Featherdale offered to Level 4 customers, notwithstanding that a lower rate of $17.50 had been negotiated (T112:20-33); and 3. that this was the result of the application of the alleged pricing condition notwithstanding that, as Mr Chiefari accepted, Sydney Zoo did not have the Partner Levels Report and therefore could not know, even if it obtained all five rate cards, what particular price it had to exceed unless it spoke individually to each operator and each operator disclosed the rate that Featherdale was offering to it (T112:35-50). In other words, Sydney Zoo could not be certain of complying with the condition prior to making an offer in dollar terms to any trade operator unless it first spoke with the operator and the operator divulged the confidential rate offered to it by Featherdale (T113:6-16). 1. In relation to the application of the alleged price condition to retail rates (T115:22-118:50), Mr Chiefari stated that different facilities had different types of group tickets (for example, groupings of families, multiple adults, and children). Usually it was up to each facility as to how it bundled its tickets. Because the purported pricing condition applied to all groupings, Sydney Zoo would have to offer the same groupings as Featherdale and Taronga, and all of those groupings would have to be lower or 'comparative' (T116:1-24). The difficulty with this understanding is that different facilities excluded and included different services and experiences in their ticket prices. By way of illustration, if Taronga included a bird show or giraffe feeding in its standard ticket, but Sydney Zoo did not, it would not be open to Sydney Zoo to offer a price that was cheaper than Taronga but nonetheless comparative if a separate bird show or giraffe feeding ticket was also sold (T116:33-117:25). This would mean that Sydney Zoo would have to offer the same inclusions and exclusions as Taronga and Featherdale in order to comply with the condition. 2. In addition, facilities often offer short term promotions or sales. According to Mr Chiefari, short term promotions or sales were included within the ambit of the pricing condition. Therefore, Sydney Zoo could follow temporary sales or promotions offered by either Featherdale or Taronga, although presumably only if both lowered their rates at the same time. Mr Chiefari accepted that if Taronga dropped its rates by 50% (as it had done in January) on a temporary basis then "for that period time" Sydney Zoo could also discount its prices, but as soon as Taronga increased its prices Sydney Zoo would be compelled to do likewise (T117:35-118:02). Hence discounting, sales and promotions could only occur when both Taronga and Featherdale acted in concert. 3. The absurdity of the purported pricing condition was laid bare by Mr Chiefari's evidence. At any point in time it would be almost impossible for Sydney Zoo to comply with it. The evidence before the Court does not disclose a breach, or at the very least a material breach warranting relief (see further the discussion concerning discretion below at [199]-[223]), of the condition. There Was No Breach of the Purported Animal Encounter Condition 1. There is insufficient evidence to demonstrate that Featherdale does not continue to occupy its niche of "getting close to native animals" or that there is any aspect of Sydney Zoo's marketing that will cause this position to change. The attachments to the further amended summons include marketing material in which Sydney Zoo refers to visitors being able to get "close" to animals, but as the evidence discloses, Sydney Zoo does not permit encounters with native animals of the type that Elanor contends will remove Featherdale from its niche. 2. There was no document put before the Court that establishes that Sydney Zoo conveys the impression that koalas can be touched. And, to reiterate, there is nothing impermissible in Sydney Zoo's marketing material that refers to getting "close" to native animals. On the contrary, condition C21 assumes that, with the exception of koalas for a period of three years, visitors will be able to touch native animals. The fact that express exclusion exists with respect to any hands-on encounters with koalas is a powerful indicator that the touching of other Australian animals is permitted under the consent. 3. Elanor has not established that this alleged condition has been breached by Sydney Zoo. Even Assuming Breach of the Consent, the Court Declines to Grant the Relief Sought 1. Although, again, it is strictly not necessary to decide the issue of relief given that the Court has determined that there has been no breach of the alleged conditions of consent, as a matter of prudence the Court has considered whether or not, in the exercise of its discretion, it ought to grant the relief sought by Elanor in the further amended summons. In doing so, in addition to the evidence discussed below, the Court relies on the evidence above regarding breach. 2. The principles relating to the exercise of the Court's discretion under s 9.46 of the EPAA are well known, but are worth repeating here. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Kirby P set out a number of principles applicable to the circumstances of this case (at 339C-441B): 1. The discretionary power conferred on the Court by s 124 of the Act is wide. Relevantly to the present case, it is as wide as the discretion enjoyed by the Supreme Court in its equitable jurisdiction: Attorney-General and Down County Council v Newry No 1 Rural District Council [1933] NI 50 and Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 at 692. 2. It is undesirable to endeavour, by drawing upon decisions in differing fact situations which have presented in earlier cases, to attempt to catalogue or classify all of the circumstances which will enliven the exercise of the discretion in cases yet to come. By the statute, the discretion is not fettered. It is not limited either to particular classes of case or to limited or special cases: Blacktown Municipal Council v Friend (1974) 29 LGRA 192 at 197. Nonetheless, keeping that salutory warning in mind, it can be instructive, and helpful in the achievement of the generally consistent application of the law (which the creation of a specialist Land and Environment Court facilitates) to consider the variety of circumstances in which the discretion conferred by the section has been exercised. The Council itself conceded that relevant factors would include the fact that the breach complained of was a purely technical breach which was unnoticeable other than to a person well versed in the relevant law (cf Parramatta City Council v R A Motors Pty Ltd (1986) 59 F LGRA 121 at 125f) or the fact that the local authority had delayed the bringing of its action (ibid at 125), or the fact that, far from having an adverse effect on the environment or the amenity of the locality, the breach, in reality, had been shown to have a beneficial effect: cf, eg Woollahra Municipal Council v Carr (1982) 47 LGRA 105 and cf North Sydney Municipal Council v Ekstein (1985) 54 LGRA 440. 4. In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Attorney-General v BP (Australia) Ltd (1964) 83 WN (Pt 1) (NSW) 80 at 87; 12 LGRA 209 at 218. Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid: cf Attorney-General v Harris [1961] 1 QB 74 at 94; Trimboli v Penrith City Council (1981) 48 LGRA 323 and Deane J (dissenting) in Lizzio v Ryde Municipal Council (1983) 155 CLR 211. 5. It is only in this sense that "special" circumstances need to be established to secure a favourable exercise of the discretion provided by s 124. There is nothing in the Act by which the discretion is fettered or limited to "special cases", as Mahoney J, as he then was, pointed out in analogous circumstances in Blacktown Municipal Council v Friend (at 197). But the obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under s 124. 6. Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council (at 692). This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary: cf Rowley v New South Wales Leather Trading Co Pty Ltd v Woollahra Municipal Council (1980) 46 LGRA 250. Of course, as the development or administrative law demonstrates, administrators who advise the Attorney-General or councils can sometimes act from motives which are less disinterested. Courts will be alert to insensitive, unthinking administration in this as in other fields of law. 7. Where the relief is sought against a "static" development (ie the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law: see Blacktown Municipal Council v Friend (at 197). But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other, the degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement: cf Associated Minerals case (at 692). It does not amount to a hard and fast exception to the discretion. That discretion must be exercised in every case in which it is invoked. Nor is it a reason to refuse relief where no "static" development can be proved. 8. The wide discretion has been described as "an adequate safeguard against abuse of a salutary procedure": see Menzies J in Cooney v Ku-ring-gai Municipal Council (1964) 114 CLR 582 at 605; (1963) 9 LGRA 290 at 306. It permits the court to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case. Sometimes this "softening" can be achieved by postponing the effect of injunctive relief: see, eg, Woollahra Municipal Council v Carr. Sometimes that evidence will not achieve a just result. The remedy of injunction, with its powerful sanctions, is not, after all, the only remedy available to a local government authority for breaches of the Act. Criminal prosecution, with its heavier onus of proof and rigorous procedures may offer an inadequate means, in the typical case, for the enforcement of environmental law in the public interest. Furthermore the provisions of s 123 of the Act indicate an enlargement of the availability of injunction for breach of that law. However the refusal of a court to grant an injunction, in the exercise of its discretion, does not necessarily conclude the authority's remedies. 1. More recently, in Georges River Council v Stojanovski [2018] NSWLEC 125 the Court summarised the principles as follows (at [11]-[13]): 11 Any person may bring an action to remedy or restrain a breach of the EPAA (ss 9.45 and 9.46). The breadth of discretion available to the Court to grant relief under the former s 124 of the EPAA (now s 9.46) has been the subject of judicial consideration in many decisions of this Court and the Court of Appeal. In F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 311, Street CJ said that the power given by s 9.46 (then s 124(1)) to make "such order as it thinks fit" enables the Court "to mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it". The Chief Justice also said (at 313): It is the duty of that Court, in formulating "such order as it thinks fit", to have regard at all times to the pursuit of the objects of the Environmental Planning and Assessment Act as set out in s 5. This involves, in appropriate cases, the evaluation of matters extending beyond the mere determination of the rights and matters in dispute between the immediate parties. It involves due weight being given to the public interest and the interests of other affected persons in the overall context of the pursuit of the objects broadly set out in s 5. 12 Observations to similar effect have been found in the judgments of Kirby P in both Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-340 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82 (endorsed by the Court of Appeal in Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; 183 LGERA 228; [2011] NSWCA 308 at [149]). 13 In Sedevcic, Kirby P said (at 339–340): In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment [case citation omitted]. Because s 123 of the Act permits any person ... to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid [case citation omitted]. 1. The assessment of discretionary factors is a balancing exercise. The Court must weigh up all of the relevant factors including the injury to the public interest by the denial of relief; the likely hardship to the consent holder by the granting of relief; the conduct of the parties; whether the breach is merely technical; and the impact of the breach on the environment. 2. The discretion is concerned with the enforcement of a public duty imposed pursuant to an enactment of Parliament, in this case, the EPAA. If conduct in contravention of the EPAA is sanctioned then its orderly enforcement will be undermined (Glaser v Poole [2010] NSWLEC 143 at [60]). 3. Elanor submitted that the Court ought to grant the relief it seeks because of the detrimental financial impact on Featherdale occasioned by the breaches of the consent. Its arguments were four-fold: 1. first, its concern was the same as expressed by the PAC, namely, to ensure a continued variety of facilities in Western Sydney. It relied on the written evidence of Mr Staples who identified a number of socially useful and valuable programs and functions performed by Featherdale which he claimed may be at risk due to the non-compliant behaviour by Sydney Zoo; 2. second, the oral evidence of both Elanor and Featherdale executives about the actual or forecast financial harm likely as a result of consent being granted to Sydney Zoo was modelled on assumed compliance by Sydney Zoo with, among other things, the alleged pricing condition (T123:01-09). Featherdale considered all of the alleged conditions to be key obligations, non-compliance with which presented potential harm to the business; 3. third, specific harm did not need to be proved. In any event, the public importance of complying with development consents should retain primacy (citing Sedevcic); and 4. fourth, any actual harm is likely to occur in the future given that Sydney Zoo only opened in December 2019. 1. The evidence relied upon by Elanor included the fact that the majority of visitors to Featherdale are international visitors – the key commercial market of Featherdale's business (see the description of the marketing strategy and operation of Featherdale and Sydney Zoo above, especially at [69]-[77]). According to Elanor, Sydney Zoo intended to target significant numbers of international tourists as evidenced by: 1. a June 2019 Board Report that identified an objective of 400,000 international visitors by operational year 3. Mr Burgess conceded in cross-examination that there was no dissent from the board to Mr Rivett pursuing that opportunity. Mr Burgess stated in cross-examination that he understood after the board meeting that Mr Rivett was going to pursue this market (T179:29-181:35); 2. Mr Rivett's email to Mr Corbett on 13 July 2019, stating that Sydney Zoo had set a conservative target of 150,000 international tourists in operational year 1, and would shift focus to groups and internationals once it was up and running and the target would likely be 400,000 in operational year 2; 3. Mr Burgess's concession in cross-examination that Sydney Zoo's plan last year and this year was to pursue significant growth in visitor numbers and revenue from international visitors, and moreover, that the international visitor market was a substantial part of Sydney Zoo's business which Sydney Zoo modelled at about 15% to 20% of its business (T181:28-42); 4. Sydney Zoo's active targeting of Featherdale's business, including its key international tour operators, namely, AAT Kings, Gray Line and DOA; and 5. Mr Burgess's concession in cross-examination that the rate cards which use the expressions "Bungarribee Wildlife Park" and "Bungarribee Wildlife Experience" were an important part of the marketing strategy to the international tour operator segment (T169:04-170:07). 1. Mr Chiefari stated in cross-examination that as a consequence, Featherdale had already been required to reduce nett trade rates to 44 international tour operators because otherwise Featherdale risked losing business as a result of Sydney Zoo's lower trade rates (T96:07-27 and 99:13-20). 2. This evidence was consistent with a report by Deloitte dated 9 June 2016 entitled Featherdale Wildlife Park Financial impact analysis ("Deloitte report"), which concluded that even with a reduction in admissions of only 25% (approximately 148,000 international tourists), management at Featherdale would be highly likely to restructure the business to attempt to mitigate the impact of the reduction in revenue and to restore profitability. 3. Therefore, Elanor submitted, the breaches of the consent caused harm to Featherdale's operations and would continue to do so if Sydney Zoo was not restrained from distributing the marketing material in the manner described in the further amended summons. 4. Elanor's contentions may be swiftly rejected. The proposition that increased competition caused by the opening of Sydney Zoo would cause a diminution in the revenue otherwise generated by Featherdale is hardly novel. It may also be accepted that environmental harm relevantly includes the potential loss of local amenity or detriment to the local community as a result of increased competition causing services or facilities to be withdrawn. 5. However, the evidence of the potential loss of local amenity or detriment to the local community relied upon by Elanor ought more correctly to be characterised as a loss or detriment to Featherdale. What the evidence overwhelmingly demonstrates is a threat of competition to its existing business, which is not, as the authorities referred to above make plain (see the reference above at [112] to Kentucky Fried Chicken) a relevant town planning consideration. Conduct that does not engage a proper planning purpose and only results in increased competition tells against curial restraint under ss 9.45 or 9.46 of the EPAA or the granting of declaratory relief. 6. In addition, the evidence does not demonstrate in any convincing manner that Featherdale's socially and environmentally beneficial programs have been or will be harmed if the alleged conditions are not complied with. On the contrary, the evidence establishes that even if the purported conditions are or have been breached, Featherdale is likely to continue to be profitable and continue to conduct its conservation, educational and other programs. 7. The reasons for these conclusions are as follows. First, there are the profit and loss forecasts that were prepared by Featherdale's senior management and Elanor's "funds team" for the purpose of its $25 million note issue to private equity wholesale investors in 2019. Those forecasts, and the assumptions upon which they are based, are set out in the FIIG transaction summary dated 28 October 2019 ("FIIG transaction summary") and a management report dated August 2019 ("August 2019 Management Report"). As a director of Elanor and the Chief Executive Officer of Elanor Investors Group, Mr Willis has considerable experience in funds management and investment banking. He was a former Vice President at the investment bank Lehman Brothers (T133:19-26). He has participated in a large number of capital raisings over his career (T135:41-43). Mr Willis was asked about the two documents and his evidence was as follows: 1. the FIIG transaction summary was one of the primary documents informing investors of the notes that they were being invited to purchase (T135:45-48). The document "would have gone through [Elanor's] review process of senior people", which was overseen by the Chief Operating Officer and Chief Financial Officer, and he expected them to ensure that it fully described all relevant matters relating to the impact that Sydney Zoo might have on Featherdale's business, including "the planning conditions that…seek to differentiate Sydney Zoo from Featherdale" (T136:12-47). The FIIG transaction summary recorded that "reduced earnings due to the new zoo have been incorporated into management forecasts" and that assumptions used in the forecasting had been "stressed [sic] tested with both Featherdale management and Elanor Senior Executives"; 2. the August 2019 Management Report was "most likely" either created by Elanor's "funds management team" or by Featherdale's operational management (T141:35-50), although Mr Willis later said that it was "the responsibility" of the funds management team (T143:49-144:05). The August 2019 Management Report contained forecasts based on assumptions that Mr Willis said would normally have been prepared collaboratively by Elanor's funds management team and Featherdale's operational management which were passed on to FIIG for use in the transaction summary (T141:46-142:04); and 3. the profit and lost forecast in the FIIG transaction summary contained the same figures as those in the August 2019 Management Report. It could therefore be inferred that the August 2019 Management Report informed the FIIG transaction summary. Given the "careful process of preparation" involved in preparing both documents, the financial forecasts in them "reflect the best view available as to the likely impact of the zoo on Featherdale" (T144:12-16). 1. The forecasts in the August 2019 Management Report and FIIG transaction summary, which I accept, are compelling evidence of the likely impact of Sydney Zoo on Featherdale's business. This is important because the financial forecasts in those documents anticipate that Featherdale will make a profit of $4.69 million in FY 2020, $4.61 million in FY 2021, $5.85 million in FY 2022 and $6.42 million in FY 2023. This is against an actual profit figure for FY 2019 (the last full financial year prior to Sydney Zoo opening) of $5.51 million. The FIIG transaction summary stated the position as follows: The imminent opening of the nearby (Western) Sydney Zoo is expected to lead to a decline in admissions over the short/medium term with EBITDA forecast to reduce to $4.7m in FY20/21, however, further growth is forecast from FY22 onwards. 1. The same profit and loss actual and forecast figures were contained in the August 2019 Management Report. That report indicated that the reduction in visitor numbers associated with the above profit forecasts was from 593,597 in FY 2019 to 522,307 in FY 2021, but increasing to 627,271 total visitors in FY 2023. This is a short term reduction of approximately 12% in visitor numbers. 2. Tellingly, both the FIIG transaction summary and the August 2019 Management Report contain detailed accounts of the "differentiation conditions" imposed by the PAC on Sydney Zoo. Mr Willis accepted that he would expect those accounts to have been put together carefully after discussion between Featherdale operational management and Elanor's funds management team (T143:41-144:05) and would have expected all "key conditions" to be tabled (T143:32-39). 3. In this context, Sydney Zoo relied upon a document prepared by Elanor Investors Group, namely, Featherdale Wildlife Park Fund Summary of Key Assets, Fund Strategy and Fund Forecasts, dated August 2019 ("Fund Summary"). That document stated that: The proposed zoo has had significant conditions imposed on their development approval by the NSW State Government independent Planning Assessment Commission…More importantly, the new zoo is required to collaborate with other attractions located nearby, including Featherdale, and is required to prepare a plan detailing how it would be different from existing recreational facilities and businesses, particularly Featherdale…Elanor…is pleased with the outcome of the conditions and arrangements with which the new zoo must abide. 1. Significantly, while there was reference to conditions B6 to B9, there was no reference whatsoever to any of the purported conditions in the August 2019 Management Report, the FIIG transaction summary or the Fund Summary. Nor was there any reference to the present proceedings or to the fact that Sydney Zoo contested the existence of the alleged conditions. Contrary to the submission of Elanor (see further below), the forecasts contained in these documents did not assume the existence of the alleged conditions or Sydney Zoo's compliance with them (this is hardly surprising given the confusion expressed by Mr Chiefari concerning their scope and operation). Rather, they assumed compliance with the "differentiation conditions" as set out in those reports, namely, conditions B6 to B9 and C9. 2. I agree with Sydney Zoo that the forecasts in those documents provide reliable evidence to the Court of what impact Sydney Zoo will have on Featherdale's business (assuming that Sydney Zoo complies with conditions B6 to B9 and C9, in respect of which there is no alleged breach). They reveal that Featherdale's existence and the programs and services that it provides will continue. Although its profitability will be affected in the short term, there will be no actual, or even potential, overall adverse effect upon the extent and adequacy of facilities available to the local community. 3. Second, to the extent that Mr Willis and Mr Chiefari stated in their affidavits that they believe that if Sydney Zoo did not comply with the purported conditions, especially the alleged pricing condition, Featherdale's profitability would prevent it from being able to maintain the socially and environmentally beneficial programs that it conducts, their evidence cannot be accepted because: 1. it is contradicted by the forecasts in the FIIG transaction summary and the August 2019 Management Report; 2. it is only evidence of a belief or concern on the part of Mr Willis and Mr Chiefari. Critically, Elanor has not put forward any reasoning or financial analysis showing that Featherdale will no longer be profitable, or at the very least will no longer be sufficiently profitable to maintain its programs, absent Sydney Zoo's compliance with the purported conditions. There is neither evidence of what Featherdale's programs cost nor any comparative forecasts of Featherdale's profitability with and without adherence to the alleged conditions; 3. Mr Willis's evidence was that "if the New Zoo does not comply with the differentiation obligations required by the Development Consent…it is likely that this will have a material impact on visitor numbers to Featherdale and on the ability of Featherdale to maintain programs". However, he accepted that in stating this he did not have a "detailed appreciation" of what "differentiation obligations" had been imposed on Sydney Zoo and that the opinion that he had expressed was put on the basis of the differentiation obligations "whatever they might be" (T145:42-146:02). In these circumstances only very limited weight can be placed on this evidence; 4. Mr Willis's opinions were based on the Deloitte report which was submitted when Elanor was objecting to the DA (T134:31-34). The Deloitte report stated that in the most "robust" scenario, that is, if Sydney Zoo was granted development consent, Featherdale would suffer an 84% reduction in patronage and a loss of $3.4 million. However, these figures are inconsistent with an estimated reduction in visitation numbers of only 12% and the continued healthy profits shown in the August 2019 Management Report and FIIG transaction summary. On any view, the Deloitte report hugely overstated the likely impact and only limited weight is afforded to it; 5. Ms Ang stated that tour operators had chosen to stay with Featherdale despite Sydney Zoo offering comparable or cheaper prices because Featherdale has features that are attractive to international tourists and tour operators that Sydney Zoo does not have, for example, koala interaction involving touching (T77:16-79:07). This evidence supports a finding that Featherdale will be able to continue to attract business despite any supposed non-compliance with the consent by Sydney Zoo; and 6. Mr Chiefari gave evidence that the forecast profit in the August 2019 Management Report and the FIIG transaction summary "factored in" compliance with the purported conditions as well as conditions B6 to B9 and C9 (T121:42-46). But that evidence cannot be accepted because: 1. as stated above, there was no reference in either the August 2019 Management Report or the FIIG transaction summary to the alleged conditions notwithstanding that both documents described the key "differentiation conditions" that were taken into account; and 2. if Mr Chiefari's evidence in this respect were to be accepted then a material matter was omitted from the assumptions disclosed to investors, that is, Elanor told investors that the opening of Sydney Zoo would have a relatively minor impact of Featherdale's existence because of the differentiation conditions. The differentiation conditions it identified to investors were the uncontentious and express conditions identified in the FIIG transaction summary, namely, conditions B6 to B9 and C9. There was no disclosure that the positive forecasts were dependent on Sydney Zoo complying with any further conditions, especially the alleged price condition, which it knew were disputed by Sydney Zoo and were the subject of ongoing proceedings in the Land and Environment Court. Given the careful manner in which the August 2019 Management Report and FIIG transaction summary were prepared (as stated by Mr Willis), it is highly unlikely that such an important assumption was made but not disclosed to investors. 1. In circumstances where the weight of the evidence establishes that Featherdale's existence and the programs and services that it provides will not be put in jeopardy, that its profitability will not be meaningfully impacted other than in the short term, and that there will be no actual or potential overall adverse effect upon the extent and adequacy of the facilities afforded to the local community, the Court would, even if breach of the conditions could be demonstrated, decline to grant the relief sought in the further amended summons in the exercise of its discretion. 2. Sydney Zoo made two further submissions as to why the Court ought not make the orders sought by Elanor. The first was because the representations from which the purported conditions were derived were made as a response to Elanor's complaints about the impact that Sydney Zoo would have on its business. Those representations were underpinned by the Deloitte report, which endorsed an estimated 84% reduction in patronage and a $3.5 million loss, which would mean that Featherdale would have to halt or curtail its programs. But as the evidence discloses, the reduction in visitation numbers will be only approximately 12% and Featherdale will continue to make profits going forward. It would therefore be unfair to restrain Sydney Zoo from distributing marketing material to prevent breach of conditions derived from representations made by Sydney Zoo responding to a misapprehension resulting from representations made by Elanor, and that has been overtaken by the express differentiation conditions that Sydney Zoo has complied with, namely, B6 to B9 and C9. 3. The second was that equitable remedies such as declarations and injunctions will generally be withheld as a matter of discretion where they will require the continuing supervision of a court (citing Crouch Developments Pty Ltd v D & M (Australia) Pty Ltd [2008] WASC 151 at [21]-[23]). This is what would be required in the present case if restraining orders in the form sought by Elanor were granted because the alleged conditions are ambiguous and it is not possible for Sydney Zoo to know whether or not it is complying with them at any point in time (especially the purported pricing condition). 4. Because of the myriad of ways in which Elanor's case has failed, it is not necessary for the Court to decide these further matters. Conclusions, Costs and Orders 1. The Court has determined that there was no breach of condition B2 insofar as the alleged further conditions said to form part of the consent arising from the application documents expressly referred to in that condition do not exist. Furthermore, even if they did, they have not in any event been breached by Sydney Zoo. Additionally, the Court has held that even if condition B2 had been breached, in the exercise of its discretion it would not be inclined to grant the relief sought by Elanor. 2. As a consequence, the further amended summons must be dismissed, with costs following the event. 3. Sydney Zoo has foreshadowed a possible application for indemnity costs. The costs order crafted by the Court therefore allows for such an application to be made within the time period specified. 4. The orders of the Court are therefore that: 1. the further amended summons is dismissed; 2. the applicant is to pay the respondent's costs of the proceedings, unless within 14 days from the making of these orders any party seeks, by notice of motion together with supporting evidence, a different costs order; and 3. the exhibits are to be returned. ********** Annexure A (1250019, pdf) 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. Decision last updated: 17 July 2020