Reported Decision : (1999) 103 LGERA 205 Land and Environment Court of New South Wales CITATION: Fairfield City Council v Holroyd City Council & Anor [1999] NSWLEC 122 PARTIES APPLICANT Fairfield City Council FIRST RESPONDENT Holroyd City Council SECOND RESPONDENT Nasser Pty Limited NUMBER: 40240 of 1998 CORAM: Cowdroy AJ KEY ISSUES: Development :- approval of doctor's surgery and methadone clinic in industrial zone - council imposing specific conditions and delegating final conditions to General Manager - final conditions not reflecting intention of council - final conditions uncertain and unreasonable within the Wednesbury doctrine - conditions not severable - consent invalid LEGISLATION CITED: Local Government Act 1993, s377 Environmental Planning & Assessment Act 1979, s92 DATES OF HEARING: 05/17/1999; 05/18/1999; 05/19/1999 DATE OF JUDGMENT DELIVERY: 06/11/1999 APPLICANT Mr P J McEwen SOLICITORS Kencalo & Ritchie FIRST RESPONDENT Mr J A Ayling LEGAL REPRESENTATIVES: SECOND RESPONDENT Ms S Blackah SOLICITORS (First Respondent) Pike Pike & Fenwick SOLICITORS (Second Respondent) Morgan Lewis Alter JUDGMENT: Facts 1. Fairfield Council ("the applicant") seeks a declaration that a development consent granted by the first respondent, Holroyd Council ("the council") to the second respondent ("Nasser") in respect of the use of a building at Lot 43, DP 15348 known as 24 Norrie St, Yennora ("the site") for the purpose of a doctor's surgery including a methadone clinic, be declared invalid and null and void. Consequential restraining orders are also sought. 2. Dr Desmond Isaac Nasser is the director and shareholder of Nasser. He is a qualified medical practitioner and has specialist qualifications as a psychiatrist. For approximately six years Dr Nasser has conducted a medical practice specialising in psychiatry at the Cedar Clinic ("the clinic") at 246-250 Pitt Street Marylands which also provided a methadone treatment program. Such program can only be conducted pursuant to a licence issued by the Department of Health. The clinic was obliged to cease operation on the 8 April 1999 due to the impending termination of the lease. Dr Nasser accordingly purchased the site and by development application no. 98/102 applied to Holroyd Council to use the site for the purpose of a doctor's surgery. On 21 July 1998 the council resolved to approve the development subject to certain specific conditions and delegated the formulation of the final consent to its general manager. By notice dated 10 August 1998, the general manager of the council issued a notice of determination pursuant to s 92 of the Environmental Planning and Assessment Act 1979 ("the Act") incorporating numerous conditions. Relevant Planning Legislation 3. The Holroyd Local Environmental Plan 1991 was gazetted on 15 November 1991. It was amended by Amendment 20, which was gazetted on 19 December 1997 and comprises the relevant planning instrument. The amended plan hereafter is referred to as the "LEP". 4. Under the provisions of the LEP, the site is located in Zone No. 4(a) described as the General Industrial Zone. The objectives of the zone are:- (a) to encourage the development and expansion of a wide range of industrial activities which will contribute to the economic growth of, and create employment opportunities within, the City of Holroyd; (b) to ensure that industrial development creates areas which are pleasant to work in, and safe and efficient in terms of transportation, land utilisation and services distribution; and (c) to allow commercial or retail uses only where they are associated with, ancillary to or supportive of, industrial development. 6. Within zone 4(a) numerous purposes are prohibited in such zone including commercial premises. No development can be carried out without consent. Clause 9(3) of the LEP provides:- 9 (3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development proposed is to be carried out. 6. As a consequence of the amendments introduced pursuant to Amendment No. 20, a definition of doctor's surgery was introduced as follows:- "doctors surgery" means a room or a number of rooms forming either the whole or part of a building and used by not more than three legally qualified medical practitioners who practise therein the profession of medicine, and who employ not more than three employees in connection with that practice; Such purpose is not prohibited in zone 4(a) and the parties agree that the activities conducted by Nasser satisfy the definition of a "doctor's surgery" as formulated in the LEP. The Proposed Use 7. The applicant alleges that the proposed use is inconsistent with the objectives of the 4(a) zone. All of the permissible uses in such zone are industrial in nature, or ancillary to or supportive of industrial development. 8. By virtue of cl 9(3) of the LEP the council is not to grant consent to the carrying out of development unless the development is "consistent with the objectives of the zone ". The critical issue is whether a doctor's surgery is consistent with the industrial objectives or with a commercial or retail use associated with, ancillary to or supportive to such purpose. 9. To determine whether a use is inconsistent with the objects of the zone, a positive finding of compatibility is not required. Rather, the test is whether the purpose would be incompatible or inconsistent with such object: see Bodyline Spa & Sauna (Sydney) Pty Limited v South Sydney Council (1992) 77 LGRA 432 per Stein J at 439; see also Golden v Coffs Harbour City Council (1991) 72 LGRA 104 per Stein J at 106-107. Authorities have decided that "consistent" does not mean "conform to" (Hospital Action Group Association Inc. v Hastings Municipal Council (1993) 80 LGERA 190 at 204); Russo v Kogarah Municipal Council (LEC unreported no. 10774 of 1997); Coffs Harbour Environment Centre Inc v Minister for Planning & Coff Harbour City Council (1994) 84 LGERA 324 at 331, Kirby P.) 10. In Coffs Harbour Environment Centre Inc v Coffs Harbour City Council & Anor (1991) 74 LGERA 185, Clarke JA had regard to the nature of the use to determine whether it was antipathetic development. In Schaffer Corporation Limited v Hawkesbury City Council (1992) 77 LGRA 21 Pearlman J, adopted the same approach and decided that a development would be consistent with an objective if it was not antipathetic to them. Her Honour observed at p27:- It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible. 11. Other authorities acknowledge that questions of fact and degree may be involved in the characterisation of a proposed use (see Lizzio v Ryde Municipal Council (1983) 155 CLR 211 at 217; 51 LGRA 114 at 117; Russo v Kogarah Council (1995) 86 LGERA 300 at 308; Londish v Knox Grammar School & Ors (1997-1998) 97 LGERA 1. In the latter decision Stein JA at p 8, observed that the evidence " may have reasonably admitted to more than one conclusion ." His Honour in Bentham & Anor v Kiama Municipal Council & Ors (1986) 59 LGRA 94 adopted the test of Lord Diplock in Bromley London Borough v Greater London Council [1983] 1 AC 768 at 821 :- ...the fact that minds might differ and conclude otherwise than did the council is no reason to vitiate its decision. It was a decision which, in my opinion, was reasonably open to council to make. It sought and acted on advice from the department. To put the question a different way, is the decision "looked at objectively,... so devoid of any plausible justification that no reasonable body of persons could have reach [it]"? 12. The evidence discloses that the Nasser surgery would be available for referral of any medical emergency that might arise in the industrial zone. It could also provide for psychiatric services and treatment for persons undergoing a methadone program. Against this factual background, the court is required to consider whether in the circumstances the decision of the council to grant consent was so unreasonable that it could not be supported on any rational basis ( Associated Prudential Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 224; Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 at 40-42). 13. It could not be said that the decision of the council to grant consent to such application was unreasonable in the sense of Wednesbury "unreasonableness", namely that no reasonable person would come to such decision. An expert town planner who provided a statement of environmental effects in support of the development application observed that a doctor's surgery could be of distinct advantage in an industrial area and was not incompatible with the industrial zoning. Applying the established principles the council could have reached the same conclusion. In these circumstances, the court rejects the first grounds of attack upon the consent. Simultaneous rejection of doctor's surgery in the same zone 14. As a separate ground of unreasonableness the applicant relies upon the refusal of the council to approve a development application made by Polite Pty Limited on behalf of Dr Cooke for use of nearby premises for the purpose of a methadone clinic. Such premises are located in the same zone as the Nasser site. The refusal was on grounds inter alia, that the proposed development was inconsistent with the 4(a) Industrial General Zone and that pursuant to cl 9(3) of the LEP council could not grant consent. 15. The grant of consent to the Nasser application and simultaneous rejection of the application of Dr Cooke does not necessarily lead to a conclusion of unreasonableness. It is essential to have regard to the matters put to council before any conclusion could be drawn that the applications were identical in all respects. Upon the evidence a distinction exists. The only stated purpose of Dr Cooke's development application was that of a methadone clinic. There is no reference in his application for the provision of emergency medical treatment nor the provision of psychiatric services. The council determined that a methadone clinic per se was antipathetic to the industrial objectives. 16. This application does not require the court to consider the validity or otherwise of Dr Cooke's application and the court cannot infer that an inconsistency has arisen which suggests unreasonable conduct by council. Delegation of conditions of consent 17. Council's resolution of 21 July 1998 approving the development application ("the resolution") stated as follows:- That Development Application 98/102 for the use of an existing building for the primary purpose of methadone treatment at 24 Norrie Street, Yennora be approved subject to conditions to be determined under delegated authority and including the following specific conditions:- i) Strict compliance with the definition of "Doctors Surgery" found in Amendment 20 to Holroyd LEP 1991. ii) The Pharmacy use is ancillary to the proposed Doctor's Surgery at all times. iii) Improved street lighting and "LUX" in Norrie Street and Yennora Avenue. iv) Council's Consent be subject to provision by the NSW State Government of:- a) Improved Railway Station lighting at Yennora b) Ticket vending machines being provided on both up and down platforms. c) Yennora Railway Station being fully staffed at all times. v) Construction of footpaving on both sides of Norrie Street and Yennora Avenue. vi) The applicant D.I. Nasser Pty Ltd be required to surrender the Development Approval for premises at 250 Pitt Street, Merrylands. 18. The applicant submits that once the council resolved to grant approval on 27 July 1998 it had exercised its power pursuant to s 91(1) of the Act and was functus officio. It says that its delegation to a general manager, Mr Dennis Tresize to formulate the conditions was therefore invalid. 19. On 20 July 1993 the council, pursuant to the provisions of s 377 of Local Government Act 1993 delegated specific power to Mr Tresize to undertake a variety of duties including power:- To consider, raise no objections to, approve or refuse (either without conditions or subject to conditions) all Development Applications or Interim Development Applications. Mr Trezise on 21 July 1998 was invested power by the delegation to formulate the relevant conditions, but on council's behalf. The council's decision to delegate this responsibility was an exercise of its statutory power. Accordingly there is no basis for the assertion that the council was functus once it had made its resolution. 20. The applicant further submits that because the council did not itself consider the conditions its delegation thereof to the general manager was ultra vires. The applicant relies upon authorities such as Yeomans v Woollahra Municipal Council (1977) 36 LGRA 81 at 86,87; Lend Lease Management Pty Limited & Burns Philp Trustee Co Limited v Sydney City Council, Heritage Council of New South Wales & New World Properties (NSW) Pty Limited (1986) 68 LGRA 61; Leichhardt Municipal Council v Minister Administering Environmental Planning and Assessment Act 1979 & Ors (1992) 77 LGERA 64 at 76; Fuller v Bellingen Shire Council (unreported NSWLEC No. 40171 of 1985); Proprietors of Strata Plan SP13188 and SP13555 v Lavender View Regency Pty Limited (1997-98) 97 LGERA 337 at 345 ; Malcolm on behalf of Maryland Residents Group v Newcastle City Council (1991) 73 LGRA 356. These judgments reveal the application of the principle that a council is not empowered delegate matters of crucial significance to its officers nor matters outside the scope of the delegated power. 21. Such considerations do not apply in the present application since council considered the application and specifically addressed six significant matters before delegating the final formulation of such conditions to the general manager. Validity of conditions 22. The development application generated one hundred and forty-six residents objections, nine community groups and school objections, twelve business objections and two petitions. On 9 June 1998 a public meeting was held and was attended by approximately three hundred people. Concern was expressed of the likely adverse impacts of the proposal on the local residential amenity and upon the welfare of children attending Yennora Public School. 23. Against this background it can be assumed that council was concerned to address such objections by the six specific conditions it imposed as stated above. Condition (iii) required improved street lighting in Norrie Street and Yennora Avenue; condition (iv) specified that the consent was subject to improved railway station facilities; and condition (v) specified the construction of foot paving on both sides of the above. 24. Such requirements were incorporated into the notice as follows:- 22. FOOTPATHS: Paving works are to be provided from the subject premises to Yennora Station to the satisfaction of the Council. 26. STREET LIGHTING - Internal Energy is to be requested to consider improved street lighting and "Lux" in Norrie Street and Yennora Avenue. Details of the applicants efforts in this regard are to be submitted with the Building Application. 30. The applicant is to request the NSW State Government to consider: (a) improved Railway Station lighting at Yennora; (b) Ticket vending machines being provided on both up and down platforms; (c) Yennora Railway Station being fully staffed at all times. These conditions are hereafter referred to as the "three conditions". It was the intention of council that the subject matter of these conditions would be included in the notice, and that its consent would become operative when the general manager issued it to Dr Nasser. 25. A development consent must be final (see Lend Lease Management Pty Limited & Burns Philp Trustee Co Limited v Sydney City Council, Heritage Council of New South Wales & New World Properties (NSW) Pty Limited (1986) 68 LGRA 61; Randwick Municipal Council v Pacific-Seven Pty Limited (1989) 69 LGRA 13; Mison & Ors v Randwick Municipal Council (1991) 23 NSWLR 734 (CA); (1991) 73 LGRA 349). It has also been held that conditions which postpone determination of an essential matter for the assessment of impact is ultra vires ( Jungar Holdings Pty Limited v Eurobodalla Shire Council & Anor (1990) 70 LGRA 79 at 89). 27. Condition 22 of the consent states, " paving works are to be provided " from the site to Yennora Station but does not indicate by whom this condition must be provided. Condition 26 related to street lighting states that, " Integral Energy is to be requested to consider improved street lighting ...". Condition 30 requires the applicant to request the NSW State government to consider effecting the relevant improvements at the station. The conditions proposed in council's resolution have been expressed in the broadest terms and are dependant upon the co-operation of third parties. Treating them literally, the Condition 22 and Condition 30 would be satisfied once the requests were made even though they may be refused or never fulfilled. Such conditions are uncertain and incapable of enforcement as currently framed. 28. The consent was intended to operate forthwith and with finality and was not expressed to be a deferred development consent pursuant to s 80(3) of the Act. In the above circumstances the three conditions are " so clearly unreasonable that no reasonable planning authority properly could have imposed it " ( Associated Picture Houses v Wednesbury Corporation (supra) at 229. They are fundamental to the consent and as such are not severable (cf. Samuels AP in Scott v Wollongong City Council (1992) 75 LGRA 112; Talbot J in Proprietors of Strata Plan SP 13188 and SP13555 (supra) at 353). Discretion 29. It follows that by virtue of council's consent being subject to invalid conditions, the consent is invalid. An injunction restraining the use of the site as a doctor's surgery would result in considerable inconvenience to Dr Nasser which will not be of his own making. Accordingly, to enable the council to reconsider its position the court, in its discretion will suspend the order restraining the use of the premises for a period of six months. Orders 30. The court makes the following declaration and orders:- 1. A declaration that the development consent granted for Lot 43, DP 15348 known as 24 Norrie St, Yennora for use as a doctor's surgery including a methadone treatment centre the subject of a notice of determination dated 10 August 1998 be declared invalid. 2. An order that the second respondent, its servants, agents and assignees be restrained from using the premises at Lot 43, DP 15348 known as 24 Norrie St, Yennora as a doctors' surgery in reliance upon the purported development consent the subject of the notice of determination dated 10 August 1998. 3. The operation of order 2 hereof be suspended for a period of six months from the date of this judgment. 4. The first respondent pay the costs of the applicant and the second respondent unless an application is made by any party within 14 days from the date hereof for a different order as to costs. 5. The exhibits be returned. 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.