SCOTT v WOLLONGONG CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS AP, MEAGHER and HANDLEY JJA 16 and 18 October 1991, 12 March 1992 [1992] NSWCA 227 LAND AND ENVIRONMENT — CONSENT SUBJECT TO CONDITIONS — DEVELOPMENT CONSENT LAND AND ENVIRONMENT — appeal from decision of Land and Environment Court dismissing Class 4 application for declaration that development consent granted by responsible authority was void on the ground (the only issue calling for report) that the consent subject to conditions lacked finality. Held that since the consent did not leave for later decision an important aspect of the development the decision upon which could alter the proposed development in a fundamental respect it did not want for finality: Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734 at 737 and 740 applied. Samuels JA This is an appeal from a decision of Cripps CJ of the Land and Environment Court sitting in its Class 4 Jurisdiction. The appellants represent a group known as "Residents of Belmore Basin" and unsuccessfully sought a declaration that a development consent granted by the Wollongong City Council ("the first respondent") to Job Creators Pty Ltd ("the second respondent') for the erection of a five level 80 unit motel in Wollongong was void upon a very large number of grounds. These included, for example, the allegation that the first respondent failed to give proper weight to the vast majority of matters specified in s90 of the Environmental Planning and Assessment Act 1979, considering, in effect, only the social and economic effect of the development in the locality as prescribed by s90(1)(d). These objections allied to other copious complaints (many of which are no longer pressed) about the way in which the development application had been dealt with, and the consent ultimately granted, led the learned judge to speak of the "scatter gun approach adopted by the applicants in the formulation and presentation of their case" which, he thought, had "given the litigation an appearance of complexity beyond that which a proper consideration of the issues requires." If I may say so, my own response to the proceedings below and to this appeal tends to accord with his Honour's reaction. Further, with all respect, I have not found it easy to identify the precise nature of the arguments tenaciously put to us on behalf of the appellants and to disentangle overlapping submissions. This has required a more than ordinarily careful examination of the material lest some contention of substance or merit, which had a footing somewhere in the arguments, was overlooked. The site chosen for the development consists of five separate allotments at the corner of Cliff Road and Harbour Street, Wollongong. Cliff Road, at least in the area of the site, runs parallel to the foreshore above a beach, and passes a park or open space called Brighton Park or Brighton Lawn, and adjoins another park called Osborne Park which lies to the west. Belmore Basin is what might be described as an indentation on the eastern side of Wollongong Harbour which the proposed development will overlook; assuming that the north point is as shown 2 UNREPORTED JUDGMENTS on the plan of the Flagstaff Hill precinct dated 7 December 1988, the motel would have views substantially to the north over Wollongong Harbour and to the north east over Belmore Basin. The whole of the area, involving various precincts, is the subject of what is known as the Wollongong Foreshore Development Plan which involves, no doubt amongst other desiderata, reasonably extensive work to be carried out in the area of Belmore Basin and Osborne Park. There was tendered and admitted below a detailed document entitled "Wollongong Harbour Foreshore Study" prepared for the first respondent by consultants. The summary and conclusions at the commencement of the document include this statement: "The proposals that have been formulated by the City Planner to increase the tourism potential of the area will directly affect... The suggested improvements to the area are likely to encourage more tourists to the area, thus increasing the traffic and parking demands." The study has an introduction para 1.1 of which, entitled "Background", starts by saying:- "Wollongong City Council proposes to improve the Wollongong Harbour Foreshore area in order to increase its tourism potential." Accordingly, it is plain enough, in my view, that the first respondent, at the material times, had in mind to develop the general Wollongong Harbour area as an attraction to tourists. I make this point at the outset because, as will appear, a large part of the appellants' attack upon the learned judge's conclusions, and of course upon the consent granted by the first respondent, was provoked by what was suggested to be an inadmissible preoccupation with the benefits of the tourist trade which had induced the first respondent to grant a consent which was invalid. The second respondent made its development application on 21 October, 1988. Under the Wollongong Local Environment Development Plan No 38 (the "LEP'') the site was within Zone No 2(c) (Residential "C" (High Density) Zone) where, with the consent of the Council, the land could be used for "any purpose other than a purpose for which development is prohibited." The relevant prohibited purposes were "refreshment rooms", "taverns" and "tourist facilities (other than motels)". I might interpolate that the design of the proposed motel included a coffee shop and it was originally contended, though this complaint was not pursued below, that what Council had consented to was a "tavern" or, in the alternative, that the development constituted a "tourist facility". It was, however, argued that the presence of the coffee shop which might be used by members of the general public not resident in the motel, converted the whole development into use for the prohibited purpose of a "restaurant" and therefore a "refreshment room". This argument the learned judge rejected, either because it was completely defeated by the exclusion of "motel" from the relevant list of prohibited purposes, or because, whether the coffee shop was a restaurant or a refreshment room, it was clearly ancillary to the dominant purpose of the motel. This conclusion was not challenged on the appeal. Returning to the history of the matter, the application was assessed by the first respondent's planning department which provided various reports in which reference was made to the material aspects of the proposal including floor space ratio, setback, height and so forth. The floor space ratio of the proposed design was estimated to be 1.91:1 which exceeded the permissible ratio of 1.45:1. A number of objections was received, particularly from a Mr E S Turnbull, a town planner who had aligned himself in support of the appellants. It was early evident that a principal difference of view between the appellants on the one hand, and the Council and those citizens who supported the development on the URJ SCOTT v WOLLONGONG CITY COUNCIL (Samuels JA) 3 other, was that the former regarded the site or the general area of the site as one of significance in the history of Wollongong and the region, which might receive fatal damage from the type of development proposed, and in particular from what was perceived to be the first respondent's planner's over-emphasis of the value of tourism; whereas the latter were of a less apocalyptic opinion. Mr Turnbull addressed the first respondent at a Council meeting on 12 December 1988, and the judge was satisfied that the first respondent's file showed that each head of consideration referred to in s90 of relevance to the development was the subject of comment and assessment. The City Planner, Mr David Winterbottom, favoured the development and expressed his support in a television interview. Matters of environmental heritage were identified and the planner's view was that none of these items, which included the nearby local drill hall, the harbour itself and the tramway bridge, was likely to be adversely affected. On 12 December 1988 the first respondent's Finance and Resources Committee considered the City Planner's report, "Wollongong Foreshore Plan", which contained a series of proposals for the redevelopment of the foreshore area. The committee recommended that the first respondent should adopt the plan for the purpose, amongst others, of public discussions with community and interested groups. The Development and Planning Committee also met on the same day and considered the subject development application and recommended that Council should approve it "subject to appropriate conditions to be determined by the City Planner". At its meeting on 19 December 1988 the first respondent adopted the Wollongong Foreshore Plan for the purposes of public discussion, and, having considered the development application, resolved to approve it subject first, to the concurrence of the Director of the Department of Planning pursuant to the provisions of CL139 of the Illawarra Region Environmental Plan No | (the "REP'") in permitting the erection of a building in excess of eleven metres in height and, secondly, to "appropriate conditions to be determined by the City Planner". On 4 January 1989 Mr Winterbottom, exercising the power delegated to him by the Director of Planning, gave consent under CL139. Some time in January 1989 lawyers for the appellants advised Mr Winterbottom that they believed that the Council's resolution of 19 December approving the application for development was a nullity. The point taken was that it was not open to the first respondent to grant consent and to leave the determination of significant conditions to its planner: see Lend Lease Management Pty Ltd and Anor v Sydney City Council and Ors (1988) 68 LGRA 61 at 84-5. The City Planner's response was to advise that the Council itself should approve the detailed conditions contained in an attachment to his report of 19 January 1989, and this advice was accepted by the Development and Planning Committee which made a recommendation to the first respondent in those terms. At its meeting on 6 February 1989 the first respondent adopted those conditions and resolved also that they should be tabled at a meeting with objectors before being referred for final determination to a further meeting of the Council. Following letters sent to those who had made submissions to the first respondent concerning the development, a public meeting took place on 15 February 1989 and discussed three specific conditions, namely 4, 23 and 27. Following this, the Acting City Planner made a report on 17 February 4 UNREPORTED JUDGMENTS recommending an amendment to condition 27 and to the schedule of work to which condition 27 refers. The fifth respondent met again on 20 February 1989 and approved these amendments. On 24 February 1989 the first respondent sent a notice of determination to the second respondent, advising that it had granted consent to the application for development subject to the conditions set out in the notice. Those conditions included condition 27 which was in these terms: "The applicant shall, at its cost, carry out the work in Belmore Basin and Osborne Park specified in the attached document entitled "Wollongong Foreshore Development" and in the attached plan entitled 'Wollongong Harbour Precinct', subject to final determination by Council of that document and plan or the relevant sections thereof." Meanwhile, the Water Board had written to the first respondent on 15 December 1988 advising it that the Board had no objection to the proposed development in its capacity as the owner of adjoining land. However, it also noted that the consultation required by CL29 of the LEP had not yet occurred and that it appeared that the proposal development might not be able to be serviced with water from the Board's existing system. Therefore, it was suggested that the Council and the proponent should arrange to have discussions with the Board to resolve the matter as soon as possible. The Board wrote again on 15 February 1989 and said: - "It appears that the proposed development may not be able to be serviced with water from the Board's existing system and that it may therefore be necessary to amplify the system. This would require the applicant to pay a major works charge. As the Board is not currently in a position to determine the exact amount of the application I would request that the Council require as a condition of development consent that the applicant consult with the Board for arrangements to be made for the provision of water and sewerage facilities." No such condition was added to the development consent. On 7 April 1989 the appellants applied to the Land and Environment Court seeking the declaration which I have earlier mentioned. The proceedings were heard by Cripps CJ over six days in August 1989 and in his judgment delivered on 21 September 1989 the application was dismissed. There were later, on 3 October 1989, submissions about costs, which were determined on 25 October 1989 when the learned judge ordered that the applicant should pay the first respondent's costs and half of the second respondent's costs. The notice of appeal takes thirteen grounds, some of which are subdivided. Upon opening the appeal Mr RWR Parker QC for the appellants announced that his primary challenge was to "the validity of condition 27 of the grant"; this invalidity being such as to render the consent to the development void and of no effect. However, it was not entirely obvious to me whether the appellants were complaining of the linguistic uncertainty of the terms of condition 27, in particular what might be termed the proviso to the condition introduced by the words "Subject to", or that the proviso rendered the operation of the condition uncertain, in the sense that it lacked 'finality'. It turned out that it was the second of these two arguments that Mr Parker desired to advance; and in doing so he contended that the learned judge had failed to understand what was being put and, in consequence, had not dealt properly with the submission. I think in this Mr Parker was a little hard on the Chief Judge who was responding, I would think, to the arguments that were addressed to him. At all events, Mr WR Davison, who appeared below and before us for the second respondent, laboured under the disability which Mr Parker attributed to Cripps CJ and told us that "The URJ SCOTT v WOLLONGONG CITY COUNCIL (Samuels JA) 5 aspect of finality as it is now put was not put in that way to the learned trial judge, nor was it put in the way it is now put in the written submissions." That is to say, that the argument put below was one concerning linguistic uncertainty only. Be that as it may, Mr Parker submitted before us that the proviso to condition 27 rendered the whole condition void for want of finality and relied upon what was said by Kitto J in Television Corporation Ltd v The Commonwealth of Australia and Anor (1963) 109 CLR 59 at 70. There, his Honour said that the "condition" there in question constituted a specification of acts to be done or abstained from by the holder of a commercial television licence and went on to observe: "A specification cannot, I think, fulfil this dual function [of telling a licensee how to regulate its conduct and on the other hand making clear to the Minister whether the licensee's conduct is or is not compliant] if it is so vaguely expressed that either its meaning or its application is a matter of real uncertainty". Thave not quoted the whole of what Kitto J said, but the case much more readily supports an argument aimed at linguistic uncertainty than want of finality: see for example at 75 per Taylor, Windeyer and Owen JJ. However, the contention that Mr Parker was seeking to raise is perhaps more plausibly found in what was said by the Court of Appeal in Mison and Ors v Randwick Municipal Council and Ors, (1991) 23 NSWLR 734, by Wells J in City of Unley v Claude Neon Ltd and Anor (1983) 49 LGRA 65 at 68 and by Stein J in Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 at 15-16. However, questions of this kind must be considered, obviously enough, in the context of the language of the provision under scrutiny. In Claude Neon the condition was that no signs be erected or displayed without prior consent of the council. The judgment, it seems to me, first addresses the submission that a condition "will be too wide if the result of its enforcement cannot fairly and reasonably relate to the permitted development or to some policy of the planning expressly or impliedly established by or pursuant to the Act": at 67. This is, of course, a proposition of quite a different kind from that in debate in the appeal before us. But then, Wells J turned towards the question of finality and said at 68: "A condition which imparts to a consent a quality in virtue of which it ceases to be final is not one, in my judgment, that falls within the structure of the Act. A condition so annexed ought to be directed, and directed only, to circumscribing, with reasonable particularity, the acts of land use to which the authority or tribunal has given its consent, which would otherwise be unlimited in its generality and effect." With all respect, I am not wholly convinced that the condition in that case was not of that description; I certainly consider that condition 27 is. In Pacific-Seven the condition was" Council reserves the right to restrict the hours of operation should any nuisance occur"; and the developer's argument was that the granting of a development consent was intended to have an element of finality (subject to rights of appeal and modification under s97 and s102 of the Environmental Planning and Assessment Act) which prevented a consent authority from reserving to itself the right to impose further conditions at some later time. Stein J quoted Claude-Neon with approval, and appears to have concluded that the condition before him lacked finality. In my respectful opinion the principle is correctly stated in Mison by Priestley JA (with whom Clarke and Meagher JJA agreed) at 737, and by Clarke JA (with whom Meagher JA agreed) at 740. Priestley JA said: "... if the effect of an imposed condition is to leave open the possibility [the emphasis is original] that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, 6 UNREPORTED JUDGMENTS then again, it seems to me that the Council has not granted consent to the application made." Clarke JA expressed himself in these terms: "Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final. " His Honour exemplified the decision of Cripps J in Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 at 85 that the grant of development consent subject to a condition leaving it to a planner (but without formal delegation) to determine the floor space ratio did not constitute a valid exercise of the consent authority's power to impose conditions. These statements convey much the same conclusion; perhaps that of Priestley JA submits a conditional consent to more rigorous scrutiny. The principle of 'finality' is intended to protect both the developer and those in the neighbourhood who may be affected by the proposal, against the consent authority's reservation of power to alter the character of the development in some significant respect, thereby changing the expectations settled by the consent already granted. That consent may, of course, be subject to conditions; and those conditions are subject to the principle. However, it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision. The present is just such a case. I agree with Mr Davison that the application and consent have finally resolved the particular use of the land and the specific character of the building; and the circumstances of that use have been substantially prescribed. But a number of matters ancillary to that use have been generally (although in some cases with a degree of precision) stipulated, with details left for later determination. Conditions 1, 4, 14, 16, 18, 19, 20, 21, 25 and 26, in addition to 27, fall within this category. These conditions differ as to the extent of the detail left to be settled, but arguably none of them is final. However, what distinguishes them is that the exercise of the decision making power they each contemplate will certainly not alter the development "in a fundamental respect", nor will the development be "significantly different" from that which the application for consent contemplated. They are all conditions which may be described as ancillary to the core purpose of the application. Moreover, in my view the attachment of conditions of this kind, which leave final details to be settled, should be approached with the degree of flexibility indicated, for example, by Pape J in Weigall Constructions Pty Ltd v Melbourne and Metropolitan Board of Works (1972) 30 LGRA 333. If I may quote the words of Barwick CJ in a somewhat different context in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437: - "No narrow or pedantic approach is warranted." Although no question arises about the standing of the appellants which is secured by s123 of the Environmental Planning and Assessment Act, or their right to challenge this development, it is not beyond comment that it is the objectors who seek to assert the lack of finality in condition 27 and not the developer, the second respondent, whose task it is to carry it out. URJ SCOTT v WOLLONGONG CITY COUNCIL (Samuels JA) 7 Iam therefore of the opinion that condition 27 is not void for want of finality and the suggestion that it was void for uncertainty or linguistic ambiguity was not pursued. I need not consider the question of severability. Similarly, Mr Parker adumbrated, but withdrew, an argument that condition 27 was beyond the first respondent's power to impose because it was not fairly or reasonably related to the development consent. As I have already indicated, the floor space ratio of the proposed building exceeded what was permitted by CL16 of the LEP. CL6 of State Environmental Planning Policy No I - Development Standards ("SEPP") provides for a developer to make a written objection that compliance with a development standard (for example, the floor space ratio determined by the LEP) "is unreasonable or unnecessary in the circumstances of the case", and requires the grounds of the objection to be specified. CL7 of SEPP enables a consent authority, with the concurrence of the Director, to grant consent to the development application notwithstanding inability to comply with the development standard in respect to which objection is taken. On | November 1988 a letter was written on behalf of the second respondent to the first respondent in these terms: "As part of this application we would like to lodge an objection to SEP 1 (sic) in regards to the plot ratio. We are exceeding the allowable plot ratio of the site but feel that this is warranted due to the importance of the site as a tourist site and the integrity of the proposed building. We feel that the proposal is not an over development of the site and would ask Council to look favourably on granting of the extension of the plot ratio." The second respondent granted consent on 4 January 1989 acting under SEPP and noting that although the maximum permissible floor space ratio in this zone was 1.45:1, the proposed development had a floor space ratio of 1.89:1 and thus a variation of thirty per cent. On the appeal Mr Parker sought to attack this decision on three grounds. First, the second respondent's objection was invalid in form; secondly, the dispensing power was not validly exercised because the first respondent had regard to irrelevant matters, and, thirdly, the first respondent's discretion was flawed because it was tainted by a material error of fact in the actual dimensions of the floor space ratio. Cripps CJ expressed the view that the appellants before him had not challenged the actual exercise of discretion under SEPP, a conclusion which Mr Parker disputes and I think, with all respect to the learned judge, correctly. Having read the transcript of argument below, it seems to me that the emphasis was placed upon an alleged formal defect in the second respondent's objection, to which I will come in a moment. But certainly the suggested error in the calculation of the actual floor space ratio was referred to, and I think that there was a general submission that the first respondent's exercise of discretion had miscarried in the particular to which I have referred. The defect in the objection, the terms of which I have set out, is said to be that it did not comply with the formal requirements of the instrument and that, in consequence, the dispensation was invalid because it was not directed (because of the informality of the objection) to the considerations which SEPP contemplates. Put into their actual context, these submissions assert that the objection ought to have followed the language of CL6 of SEPP to the extent that it should have contended explicitly that "compliance with [this] development standard is unreasonable or unnecessary in the circumstances of the case" and 8 UNREPORTED JUDGMENTS should have specified the grounds of that objection, that is to say the grounds upon which it was said that compliance could not be attained. I would have thought myself that the grounds of the objection plainly were that the design of a motel building which would take proper advantage of the site while avoiding over-development, would entail excess over the allowable plot ratio. I do not consider that the language of CL6 demands adherence to the particular terms which the provision itself employs. Equally, in my view, the first respondent's decision addresses both the terms of CL6 and those of CL7 and satisfactorily picks up the objects set out in s5(a)(i) and s5(a)(ii) of the Environmental Planning and Assessment Act, which are incorporated by reference in CL3 of SEPP. These include the promotion of the social and economic welfare of the community and the promotion of the orderly and economic use and development of land. Despite the hostility which the appellants have demonstrated in these proceedings to the encouragement of tourism in the area in question, it is my opinion that the orderly and controlled exploitation of the tourist industry is entirely conducive to the social and economic welfare of the community. Surely a judge these days is permitted to appreciate that the benefits of tourism - in plain terms, the money to be earned from visitors to this country and, indeed, the money to be earned by particular communities from visitors from other parts of the country - constitute an important element in the nation's earning capacity. Of course, and it seems to me that the first respondent had this well in mind, there must be a balance between the benefits to be got from tourism and the possible detriments which may be suffered from over-exposure, and from the creation of meretricious and unaesthetic attractions which are sometimes thought to stimulate the flow of visitors. If, however, the balance is achieved, tourism represents a contribution to economic welfare which cannot and should not be overlooked or rejected. In my opinion, the response to the objection under SEPP sensibly took account of the circumstances of the case, including those matters to which I have just referred, the objects of the planning restraints which the first respondent was bound to apply and the dispensation which SEPP was intended to allow. I can therefore see no ground for the suggestion that the objection was formally defective or that the response failed to address the matters to which it should have had regard. The calculation of the plot ratio was said to be incorrect for these reasons CL7(1) of the LEP defines "floor space ratio" in relation to a building to mean "the ratio of the gross floor area of the building to the site area of the allotment on which the building is or is proposed to be erected." As the learned judge pointed out, the definition of "gross floor area" is to be found in the Model Provisions and means: "... the sum of the areas of each floor of the building where the area of each floor is taken to be the area within the outer face of the external enclosing walls as measured at a height of 1400 millimetres above each floor level..." "Floor" in the Model Provisions is defined to mean "the space within a building which is situated between one floor level and the floor level next above or if there is no floor level above, the ceiling or roof above." The proposed motel has an internal space which is, it seems, an architectural reversion to the Roman atrium now well established in the design of hotels. There is thus a vertical space which contains no floors in fact. However, it is contended by the appellants that in order to calculate the floor space ratio notional floors should be inserted in this void and taken into the calculation. URJ SCOTT v WOLLONGONG CITY COUNCIL (Samuels JA) 9 The learned judge assumed that the appellants were right in this and the first respondent was wrong, although he added that he was by no means satisfied that that was so. He made the assumption because, first, he was of the view that the exercise of discretion had not been challenged, and secondly because the fact that the first respondent might have miscalculated the actual plot ratio would not mean that its planning discretion had miscarried. In my view, looking at the definitions to which I have just referred, the first respondent was correct in the calculation that it made. It may be that to calculate plot ratio in this way might produce a result which could be misleading in certain circumstances but that, it seems to me, is the consequence of the way in which the various elements are defined. However, let it be assumed that the appellants' method of calculation is correct. There is nothing to indicate in the first respondent's decision that it was influenced to grant dispensation by the extent to which it took the actual plot ratio to exceed the permitted one. It is apparent that the first respondent has established criteria which, to my mind, accord with the provisions in CL3, CL6 and CL7 of SEPP, and its response to the objection covered each of them. I do not think that in the third of these reasons, as they might be called, the reference to "this variation" is to be regarded as picking up the actual discrepancy between what was permitted and the calculation of what was in fact contemplated so as to base the decision in any way upon the precise extent of the excess. The comment is rather intended to mean that this "dispensation" was justified for the reasons stated. Accordingly, I do not think that the argument based upon the first respondent's failure properly to exercise its power under SEPP can succeed. The appellants then raise what are contended to be breaches of provisions of the LEP and the REP. The first of these concerns the Water Board. On 23 November 1988 the first respondent advised the Water Board of the proposed development because the Board was the owner of adjoining land. I have already referred to what followed, but for the sake of clarity will extract the letters again. On 15 December 1988 the Board wrote to the first respondent indicating that, as an adjoining owner, it had no objection to the proposal. The letter went on to say: "As you would be aware however, CL29 of Local Environment Plan No 38 requires that arrangements be made with the Board for the provision of water, sewerage and drainage facilities. A Consultation has not yet occurred, yet it appears that the proposed development may not be able to be serviced with water from the Board's existing system. Therefore, it is suggested that the Council and the proponent arrange to have discussions with the Board to resolve the matter as soon as possible." The Board wrote a further letter on 15 February in which it said: "Tt appears that the proposed development may not be able to be serviced with water from the Board's existing system and it may therefore be necessary to amplify the system. This would require the applicant to pay a major works charge. As the Board is not currently in a position to determine the exact amount of the amplification I would request that the Council require as a condition of the development consent that the applicant consult with the Board for arrangements to be made for the provision of water and sewerage facilities." CL29 of the LEP provides as follows: "The Council shall not consent to the carrying out of development on any land to which this plan applies unless - (a) a water supply, and facilities for the removal or disposal of sewerage and facilities for drainage are available for that land; or 10 UNREPORTED JUDGMENTS (b) arrangements satisfactory to the Metropolitan Water Sewerage and Drainage Board have been made for the provision of that supply and those facilities." No condition such as that suggested by the Board was included in the conditions to which the development consent was made subject. There is no material evidence beyond the letter of 15 February 1989. The learned judge concluded that, despite the absence of the condition, he was not satisfied that the Board was dissatisfied by the course the first respondent took. Hence, it had not been established that there was relevantly a breach of CL29. The appellants argue that this was to reverse the onus of proof. From this I infer that the appellants' contention is that it was for the first respondent to establish that arrangements satisfactory to the Board within the terms of CL29(b) had been made. But since the appellants were seeking to attack a consent which had been given and to invalidate it on the basis that it was defective because of a suggested breach of CL29, it was to my mind for the appellants to establish the breach upon which they relied and not for the first respondent to prove its absence. No proof of any breach was offered and, in my opinion, the point fails. There is a further ground which is also fatal to the submission. The learned judge noted that alleged non-compliance with CL29 of the LEP was not raised in the amended points of claim in support of any of the grounds upon which the appellants sought to invalidate the consent. His Honour went on: - "A question arises, therefore, whether it should be permitted to be raised at all. But in my view of my later findings with respect to the claim, the matter is academic." This may be so, but if contrary to the learned judge's view and to my own, the appellants were right in their contention that the first respondent and not they bore the onus of proof, they would in the circumstances be met by the objection that their failure to raise the issue before addresses had deprived their opponents of the opportunity to lead evidence which might well have discharged the onus which, according to the appellants, the respondents, or one or other of them, bore. The first respondent took the point in its written submissions that since the issue had not been pleaded, it should not be raised as a ground of appeal. Bearing in mind the way in which the learned judge dealt with it, I am inclined to think that that objection is good, and had my view of where the onus lies been different I would still not have acceded to the appellants' submission. As I have already indicated, the proposed development exceeded the height limitation imposed by CL139 of the REP and Mr Winterbottom, exercising, or perhaps I should say in deference to the appellants' argument, purporting to exercise, the power delegated to him by the Director of Planning, gave consent under the terms of that clause. I must set out the relevant provisions of CL139 in full. CL139(2)(b) forbids a consent authority without the concurrence of the Director to consent to a development application to erect a building where the building after erection will have a height of more than eleven metres; and subs(3) prescribes various considerations which the Director shall take into account in deciding whether or not to grant concurrence. The document in which Mr Winterbottom purported to grant consent to the application notwithstanding its excess of height, was, so far as material, in these terms. It commenced with a description of the development and then continued: "In accordance with the delegation of the Director of the Department of Planning given under CL139 of the Illawarra Regional Environmental Plan No 1 on 14 May 1986, I hereby resolve to exercise the delegation thus given and grant URJ SCOTT v WOLLONGONG CITY COUNCIL (Samuels JA) 11 consent to the abovementioned Development Application which proposes to erect an 80 unit motel having a height in excess of 11 metres. In deciding to exercise this delegation the following matters were taken into consideration in accordance with CL139..." and there follows a recital of the matters for which CL139(3) provides. The argument upon which the appellants rely is that the instrument of delegation was not tendered by the first respondent with the consequence that the delegation to the City Planner had not been proved, and, accordingly, that his consent was void. I acknowledge that necessity begets invention, but it is difficult to imagine a necessity so dire and pressing as to conceive an argument of this kind. First of all, it appears that counsel for the appellants at the trial called for the instrument of delegation referred to in the document which I have summarised above, and the instrument was produced. As a consequence, counsel for the appellants could have been compelled by his opponents, or by whichever of them had produced the document, to tender it: Walker v Walker (1937) 57 CLR 630. Had this consequence been insisted on, the instrument would undoubtedly have gone in and the argument which was put to us would have dissolved. However, counsel for the appellants was not required to tender the document because, I imagine, the respondents relied upon s23(6) of the Environmental Planning and Assessment Act which is in these terms: "An instrument purporting to be signed by a delegate of the Minister, corporation or Director, in his capacity as such a delegate, shall in all courts and before all persons acting judicially be received in evidence as if it were an instrument executed by the Minister, corporation or Director, as the case may be, under seal (in the case of the corporation), and, until the contrary is proved, shall be deemed to be an instrument signed by a delegate of the Minister, corporation or Director, as the case may be, under this section." In my opinion this provision is entirely conclusive in the first respondent's favour and I really fail to understand what argument can be mustered against it. Furthermore, the appellants' submission essentially depends upon the assumption that the first respondent bore the onus of making good Mr Winterbottom's concurrence under CL139(3), whereas it was for the appellants to establish that it was invalid or in some way defective and inoperative. This they failed to do. Indeed, for reasons which I have briefly mentioned, they placed themselves in the position of being compelled to establish their adversary's case. It was next suggested that there had been no proper assessment of the extent to which the development might affect items of environmental heritage contrary to the provisions of CL2 of the LEP and CL128 of the REP. These items, it seems, consisted of the drill hall, which was across the way from the development site, the harbour itself and the old tramway bridge. As his Honour observed, there is a note on the file made by Mr Winterbottom who expressed the view that any impact on the items of environmental heritage would be minimal. We asked Mr Parker to tell us what sort of adverse impact he submitted might be imposed upon them and his answer was that the drill hall was just across the road from the site "and tourists could quite easily mark it with graffiti or take stones from the old building or use the drill hall garden as a place to sit down." I myself would very much regret a view of our heritage so tender and brittle as to preclude tourists from refreshing their spirits by enjoying a garden. I believe that there are proper precautions which any civic minded community can adopt compatible with reasonable indulgence by visitors in the beauties of our cultural heritage. After 12 UNREPORTED JUDGMENTS all, it is hardly to be expected that the hordes of tourists, avid for scenic and cultural experience, likely to descend upon Wollongong, will match the destructive power once deployed by Attila. It is worth noting that he, although passing only eighteen kilometres from it, spared the settlement that begat Venice, that other sea-girt jewel. I see no substance in this point. The penultimate submission is that the first respondent's resolution on 20 February 1989 consenting to the proposed development was invalid and of no force and effect. This is how the argument in support of ground of appeal thirteen is formulated. But, put in those terms, it, of course, concedes the event which it is intended to attack. The argument really appears to be that the resolution passed on 20 February 1989 was simply the approval of the conditions to be attached to the consent, that approval being the consequence of the contention by the appellants' solicitors that the purported consent granted on 19 December was void because it left determination of the conditions to the City Planner. The motion that was carried on 20 February was that Council "approved the conditions to be attached to D88/983 in accordance with the Acting City Planner's report of 17 February 1989." D88/983 is the file number of this application. I would have thought it plain that in carrying a motion in these terms, Council intended to affirm the approval given on 19 December, which was allegedly defective for the reasons I have given, and in the light of the various events relevant to the development which had occurred since 19 December and had been dealt with by Council or by its officers. It is inconceivable to me that Council, in voting for such a motion, could have intended to approve conditions in a vacuum or void, as it were. I would reject this submission. Finally, the appellants contend that the first respondent's determination to grant this development consent was manifestly unreasonable because it was vitiated by an extraneous consideration, that is to say an undue emphasis on tourism. I feel it impossible to say more than that nothing in cases such as Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 or ULV Ltd v Scott (1990) 19 NSWLR 190 is capable of supporting the point upon which Mr Parker seeks to rely. Finally, the appellants contend that the first respondent's determination to grant this development consent was manifestly unreasonable because it was vitiated by an extraneous consideration, that is to say an undue emphasis on tourism. I feel it impossible to say more than that nothing in cases such as Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 or ULV Ltd v Scott (1990) 19 NSWLR 190 is capable of supporting the point upon which Mr Parker seeks to rely. There is no doubt but that the first respondent was influenced in its determination to consent to this application by the consideration that the erection of the motel and the work that was contemplated by condition 27 would improve the attractions that the area already had for tourists. I am quite unable to see that this in itself was an unreasonable attitude for a council to take and there is nothing in the material that leads me to the view that the first respondent was so besotted by some overwhelming and irresistible desire to convert the area into the ultimate tourist lure that it cast away all the dictates of orderly and responsible developmental planning. I can well understand that there were, and still are, no doubt, strongly differing views about the desirability of this development and about the advantages to be gained or the detriments to be suffered from development which is in part undertaken with the view of making the area attractive to visitors. I am certainly of the opinion that the different views must URJ SCOTT v WOLLONGONG CITY COUNCIL (Handley JA) 13 be respected. A proper opportunity must also be given for those views to be ventilated in appropriate debate. That opportunity was most certainly afforded in the present case. It is in civic discussion of this kind that the views are to be resolved; and, no doubt, decisions made by a council which a majority of its constituents reprobate may draw the ultimate sanction of disapproval and rejection at the poll. For these reasons, I would dismiss the appeal with costs; and by that I mean that the appellants should pay the first and second respondents' costs of the appeal. The learned Chief Judge ordered the appellants to pay the first respondent's costs of the proceedings before him and to pay half the second respondent's costs on the basis that the two respondents "conducted the litigation in tandem, as it were, for the most part"; although he had no doubt but that it was reasonable for the second respondent to be separately represented for at least a part of the proceedings. It is, of course, trite to observe that an order for costs is discretionary and will rarely be varied or set aside by an appellate court. Mr Parker urged that proposition upon us, and the argument, of course, has substance. However, the fact that the two respondents before the learned judge conducted their argument "in tandem as it were", that is to say, that they shared the burden of answering the appellants without each putting argument upon each point and thus exposing the litigation to the expense of quite unnecessary duplication and repetition is, I would have thought, to be weighed in their favour and not against them. The same policy was adopted on the appeal and in my opinion effectively saved time that might otherwise have been unnecessarily spent. In addition to that, his Honour seems to have contemplated that it was perhaps unnecessary for both of the respondents to be present in court for the whole of the time. But once he had concluded, as he did, that it was reasonable for the second respondent to be separately represented, and that there was the possibility of conflict of interest between the two respondents, it seems to me difficult to regard his Honour's exercise of discretion as well founded. In my opinion, with all respect, I think that his Honour was wrong to take the view that what was after all a cooperative exercise between the two respondents was calculated to reduce the costs to which the second respondent was entitled. The quantum of the respondents' costs and the extent to which the continuous attendance of each of them at the trial was justified, are matters which can be left to the consideration of the taxing officer. I would therefore allow the cross-appeal with costs, set aside the order for costs made below and substitute an order that the appellants (as applicants before Cripps CJ) pay the respondents' costs. Meagher JA I agree with Samuels JA. Handley JA I agree generally with the reasons for judgment of Samuels JA, and with the orders he has proposed. 1. Appeal dismissed with costs. 2. Cross-appeal allowed with costs. 3. Order for costs below set aside; in lieu thereof substitute order that applicants below (the appellants in the appeal) pay the respondents' costs. Counsel: Appellants RWR PARKER QC/P TOMASETTI 14 UNREPORTED JUDGMENTS Ist Respondent RN TALBOT 2nd Respondent W DAVISON Solicitors: Appellants WT EVANS, McGREGOR and CO 1st Respondent PEEDOM BRODIE and WARD 10 2nd Respondent ABBOTT TOUT RUSSELL KENNEDY