Land and Environment Court of New South Wales CITATION : Fast Buck$ & Anor v Dudley Pastoral Co Pty Limited & Anor [2001] NSWLEC 183 revised - 6/09/2001 APPLICANT Fast Buck$ & Anor PARTIES : RESPONDENT Dudley Pastoral Co Pty Limited & Anor FILE NUMBER(S) : 40064 of 2000 CORAM: Cowdroy J KEY ISSUES: Development Consent - Judicial Review :- Whether council decision unreasonable LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 80A(4) Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; CASES CITED: Hale v Parramatta City Council (1981-1982) 47 LGRA 269; Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986-1987) 162 CLR 24 DATES OF HEARING: 27/4/01, 30/4/01, 1/5/01, 17/5/01, 18/5/01, 14/8/01, 15/8/01 DATE OF JUDGMENT: 08/24/2001 APPLICANT Mr Fast Buck$ (In person) SOLICITORS n/a FIRST RESPONDENT Mr J Maston (Barrister) LEGAL REPRESENTATIVES: SOLICITORS Wrothwell Garth Wall SECOND RESPONDENT Mr K Webber (Solicitor) SOLICITORS Wilshire Webb JUDGMENT: IN THE LAND AND MATTER No. 40064/00 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 24/8/01 Fast Buck$ & Terence Hamill Applicants v Dudley Pastoral Co Pty Limited First Respondent & Byron Shire Council Second Respondent JUDGMENT 1. In these proceedings the applicants claim that a condition attached to a development consent has not been satisfied. The applicants seek declarations and consequential orders which were set out in their second amended statement of claim as follows:- A declaration that: i. Consent Condition C6 has not been satisfied. ii. Building Permit issued against D/A No 95/0428 is null and void. 2. During the course of final submissions the applicants amended the relief sought to delete the declaration relating to the building permit (par 1(ii) above) and instead sought orders requiring further soil samples and a restraint upon the occupation of the land the subject of the claim. 3. The subject development consent ("the consent") related to land near Byron Bay being Lot 3 DP 625 224 Newes Road Coorabell and was granted for a Rural Tourist Facility ("the site"). The consent was granted on 2 July 1997 by the second respondent ("the council") subject to numerous conditions. Condition C 6 of the consent ("condition C6") provided:- A report is to be submitted from a suitably qualified person addressing the risk of land contamination due to past use of chemicals. The report is to be prepared in accordance with ANZECC and EPA guidelines and submitted for the approval of Council's Environmental Health Officer prior to release of the Building Application. 4. On 14 March 2000 the council resolved that condition C6 was satisfied following the consideration of several reports prepared by Tricend Design & Engineering ("the Tricend reports") submitted to council. The applicants commenced these proceedings on 30 August 2000. No injunctive relief was sought and the development comprising tourist cabins and facilities has now been completed subject to road construction. The challenge 5. The applicants challenge the adequacy of the Tricend reports. The applicants claim alleges, in summary the following:- The acceptance by council of the Tricend reports was unreasonable: a) in the Wednesbury sense; b) pursuant to s 80A(4) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") which requires an objective standard to be applied; c) because a conflict of interest existed by the author of the Tricend reports (Mr Allan Kennedy) since he was associated with the developer, namely the first respondent; d) because of bad faith on the part of the council. The specific claims 6. The applicants submit that the Tricend reports are inadequate and that the decision of council to accept such reports in satisfaction of condition C6 was so unreasonable that a reasonable council, properly advised, could not have reached such decision. That is, that the council acted unreasonably in accordance with the principles considered in Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 7. In respect of the applicants claim that an objective test must be applied pursuant to s 80A(4) of the EP&A Act (previously s 91(3B)), such claim can be dismissed. There is no evidence that condition C6 had been imposed pursuant to s 91(3B) of the EP&A Act which then prevailed, and it was not expressed in the manner required by s 91(3B) of the EP&A Act. Section 91(3B) which was replaced by an almost identical provision on 1 July 1998 by s 80A(4) of the EP&A Act provides:- A consent may be granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which the achievement of the outcome or objective must be assessed. 8. Rather, condition C6 was made pursuant to s 91(3A) of the EP&A Act (now s 80A(2)). Section 91(3A) of the EP&A Act which prevailed at the date of the grant of the consent, provides:- A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction of the consent authority or a person specified by the consent authority. 9. Council's requirement that a report be provided is capable of being fairly characterised as a condition imposed pursuant to s 91(3A) as an ancillary matter. Condition C6 is not expressed as one directed to outcomes or objectives, which is the distinguishing feature required by s 80A(4) of the EP&A Act. 10. Additionally there is no basis in principle to support the submission that a less stringent test to that of Wednesbury would apply even if the condition C6 had been a condition imposed pursuant to s 91(3B) of the EP&A Act. The claims of the applicants must be considered in the context of the accepted legal principles of judicial review. It is a fundamental principle that the Court is excluded from considering the merits of the impugned decision unless unreasonableness on the Wednesbury test is satisfied (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 at 40-41 per Mason J ("Peko Wallsend")). The challenges to the Tricend reports Was Mr Kennedy a 'suitably qualified person'? 11. The applicants claim that Mr Alan Kennedy, the author of the Tricend reports, was not a 'suitably qualified person' pursuant to condition C6 to provide the report to council. Mr Kennedy had selected soil samples from the site which were then forwarded to a certified laboratory for analysis. 12. Prior to the grant of the consent the council had received several reports from Mr Kennedy dating from 14 September 1995 and relating to the site. Mr Kennedy was a qualified civil engineer holding a tertiary degree of Bachelor of Civil Engineering. He has experience in a wide range of development projects which required investigation of matters concerning effluent disposal design and soil contamination. He has had experience as a subcontractor in the construction of a bridge and was specifically involved in geotechnical testing. 13. Mr Joseph Patrick Hogan was a Senior Environmental Assessment Officer for the council at the relevant date and had held such position since 1987. Mr Hogan also possesses tertiary qualifications, namely a degree of Bachelor of Applied Science, Environmental Health. Mr Hogan was the delegated officer for the purpose of condition C6. 14. Mr Hogan testified that he was aware of the background of Mr Kennedy and had dealings with him in respect of the site and other matters. Mr Hogan considered that Mr Kennedy was a suitably qualified person for the purpose of condition C6. 15. The applicants relied upon the evidence of Mr Gregory Albert Alderson, a chartered professional engineer. Mr Alderson said that he would not undertake soil samples and prepare reports on site contamination as a civil engineer. He had never undertaken soil sampling. Mr Alderson considered that it would be necessary to undertake a course in environmental auditing and have the benefit of the knowledge of an environmental scientist in order to provide soil sampling as required by condition C6. He also expressed the opinion that a report should incorporate the experience and qualifications of the sampler and that the council required such details in their guidelines for investigation of contaminated sites. 16. Mr Alderson acknowledged that he had no knowledge of Mr Kennedy's experience, and had never met Mr Kennedy. Mr Alderson claimed that scientific qualifications were necessary to undertake soil sampling, namely the gathering of soil samples for independent laboratory analysis. He nevertheless considered that because of his experience as well as his qualifications as an engineer he was able to express an opinion concerning Mr Kennedy's qualifications. 17. Mr Alderson acknowledged that Mr Hogan was himself qualified to assess the qualifications of Mr Kennedy as follows:- Question: Mr Alderson I want to take to experience [sic] , would you agree that, I think you talked about a person with an environmental degree and perhaps a soil science degree and I think you might have even mentioned a chemical engineer perhaps, would be suitable people with suitable qualifications to fulfil C6, do you recall that? A: Yes. Q: Would you accept that Mr Hogan is a qualified person in that matter? A: Yes I understand Mr Hogan has an environmental science degree. Yes. Q: And you agree that he's had quite a deal of experience in this area? A: Yes. I've never challenged that, no. 18. Mr Hogan did not express any doubt that Mr Kennedy was qualified to undertake soil sampling and to prepare the report in satisfaction of condition C6. 19. Ms Anne Hicks, a resident of Byron Bay, testified for the applicants that she had carried out a development on her land which required soil testing and had retained Mr Kennedy for this purpose. Mr Kennedy had provided a report which was provided to Mr Hogan. Due to certain disparities that were revealed in the tests, Mr Hogan required Ms Hicks to have further testing undertaken. According to Ms Hicks, Mr Hogan had said that Mr Kennedy was 'not qualified' to undertake the further testing, although she acknowledged that Mr Kennedy's report was accepted by Mr Hogan. 20. When cross-examined Ms Hicks said that she could not recall the conversation which had preceded the words 'not qualified' and she did not know whether such words were used in the context of a second opinion being obtained. Council records suggest that an additional report, independent of Mr Kennedy was required. It was obtained and confirmed Mr Kennedy's report. In view of the fact that Ms Hicks could not remember the precise context in which the words 'not qualified' was said the Court cannot find that it related to the qualifications of Mr Kennedy to undertake soil testing. 21. Based upon the knowledge that Mr Hogan possessed of Mr Kennedy, and of his unchallenged qualifications and experience, the opinions of Mr Alderson do not demonstrate that the council acted unreasonably in accepting that Mr Kennedy was a suitably qualified person. The Tricend reports 22. Initially the council had been supplied with a Tricend report dated 14 September 1995 relating to the site. The site was comprised of rural land which had been used as a piggery until 1997. Soil sampling was undertaken for organo-chlorine insecticides and organo-phosphorus insecticides. The test results indicated that the level of soil contamination by agricultural chemicals within the vicinity of the proposed house site were below minimum reportable levels. 23. A further contamination report dated 8 November 1995 was prepared by Tricend. It referred to the fact that a preliminary investigation had been carried out on the site which included a thorough site investigation and review of its history. It noted the prior uses of the land for pig farming, cattle grazing and agricultural use and that chemicals stored and used were suspected to be organo-phosphates and organo-chlorines. It referred to soil samples having been taken in accordance with 'EPA guidelines' which are known as 'Draft Guidelines for Consultants Reporting on Contaminated Sites' ("the EPA guidelines"). The EPA guidelines and guidelines known as 'The Australian and New Zealand Guidelines for the Assessment and Management of Contaminated Sites' ("the ANZECC Guidelines") are the guidelines referred to in condition C6. The report which included a laboratory analysis of the samples taken from the site concluded that the samples were within Environmental Protection Authority ("EPA") acceptable limits with minimal risk to public health. 24. In response to a request for further information by Mr Hogan Tricend prepared a supplementary report on 12 August 1996 which was forwarded to council by letter dated 13 August 1996. This report provided additional information and diagrams and included an additional chemical, namely arsenic, which was suspected of having been used or stored upon the site. Despite soil sampling and analysis the conclusions remained unchanged from the previous report. 25. Following the grant of development consent on 2 July 1997 the first respondent applied for building approval. By letter dated 2 July 1999 Tricend provided additional information to Mr Bob Harris, the Principal Officer, Health and Compliance, of the council concerning various aspects of the development. Such letter confirmed that the soil sampling process had been carried out in accordance with proper procedures and that samples had been delivered to the NSW Agriculture Soil Contamination Laboratory within 24 hours of sampling and analysed shortly thereafter. The letter stated inter alia:- It was decided after deliberation to locate the sites in areas where it was believed that contamination was most likely to be present and on the basis of topography and drainage lines and adjacent to the exiting [sic- existing] ponds previously used for effluent storage by the piggery as well as adjacent to the proposed cabins. 26. By facsimile dated 9 November 1999 Mr Harris sought further detail concerning the testing procedures and by letter dated 30 November 1999 Tricend responded providing the additional information requested by way of report. The report considered chemicals which might have been stored and used on the subject site and included laboratory analysis for all suspected chemicals including lead. The conclusions in the report were unchanged from the previous reports. 27. An addendum to the report dated 24 February 2000 was provided to the council. It stated, inter alia:- The results of the testing undertaken in November 95 and further testing in November 1999 indicated that the levels of contaminates tested are below minimum reportable levels . Additional testing in November 1999 was undertaken at the request of Council as a precautionary measure and for the sake of conservatism to prove beyond doubt that the site is not subject to contamination. Prior litigation 28. The second named applicant had instituted proceedings 40249 of 1997 in this Court challenging the validity of the consent upon the ground that the council had failed to consider relevant matters. On 31 March 1998 Bignold J delivered a judgment in which he rejected the various challenges. One challenge related to the alleged failure of the council to consider contamination of the site. His Honour observed as follows:- In the light of my acceptance of Mr Hogan's evidence and of the documentary evidence, I do not think the Applicant's allegation can be, or has been, sustained. The evidence clearly establishes that the Council's consideration (including that of its professional staff that is to be imputed to the Council) included consideration of the risk of chemical contamination of the development site. 29. His Honour also held:- However Mr Hogan's evidence, which I accept, puts an entirely different complexion on condition C6. It is a standardised type condition imposed on the precautionary principle. But the Council's evidence rises much higher than that, because the staff report (upon which the Council was entitled to rely) unequivocally stated that there is "no known risk" and that "environmental issues have been adequately addressed". 30. When council made its decision that condition C6 had been satisfied it had the supplementary reports of Tricend. A tabulation was provided to council members for the meeting held on 14 March 2000 which set out in summary how the testing complied with the ANZECC guidelines and the EPA guidelines. Upon the information supplied council resolved that condition C6 was satisfied. 31. The applicants were critical of the fact that several reports were provided by Tricend for the purpose of satisfying condition C6. However the additional detail sought by council showed that by the date of the resolution council had before it comprehensive information to enable it to make a decision. Applicants' contentions 32. The applicants claim that in various respects the requirements of the ANZECC and EPA guidelines were not followed. However the Court should not intrude upon the merits of the decision which is the responsibility of the council unless there are obvious and radical departures from a reasonable and rational approach: see for example Hale v Parramatta City Council (1981-1982) 47 LGRA 269. Rather the question for determination is whether the decision that condition C6 was satisfied was one reasonably open to the council. 33. Certain paragraphs of Mr Alderson's affidavit sworn on 27 September 2000 were disallowed during the hearing. Although the applicants, in final submissions, requested the Court to reverse such ruling, to do so would be contrary to the established principles relating to judicial review. Nevertheless the Court has considered every claim raised by the applicants. 34. The eight challenges made by the applicants to the Tricend reports are as follows:- i. The EPA guidelines recommends that when reporting upon a contaminated site a summary of sampling results should be provided in a tabulated format. The Tricend reports contain no tabulated format of the results but rather state the conclusions of the author. ii. The soil testing was limited in the number of samples that were undertaken. Approximately 35 samples were required. Further testing should have been undertaken especially in locations where more intensive uses of the land may have created contaminated areas ("hotspots") as recommended by the Sampling Design Guidelines published by the EPA ("the sampling guidelines"). The sampling guidelines were published to 'encourage the use of a statistically-based approach to the design of sampling plans for contaminated sites and the interpretation of these samples for assessing and validating contaminated sites;' and to 'provide a convenient summary of statistical methods'. iii. No testing was undertaken for known contaminants associated with specific uses of the land although it was known that a piggery was one of the historical uses of the site. Since zinc and copper are known to have been one of the chemicals resulting from piggery effluent, testing was required. The applicants submit that a full site history should have been obtained in consultation with the neighbours of the site to verify all uses of the land. Without such history the Tricend reports are claimed to be incomplete and inadequate because the selection of appropriate tests can only be determined in view of such history. iv. More intensive sampling should have been undertaken in those portions of the site which were to be developed for human use such as residential cabins and the waste disposal area. v. Mr Kennedy adopted inappropriate methods for taking soil samples. Sampling around suspected hotspots were undertaken by excavating test holes to a depth of 200 mm below ground level and soil immediately below the root zone between 50 to 200 mm were collected for sampling. The sampling guidelines provide:- To establish the vertical extent of the contamination, samples should be collected from two or more different depths at each sampling location: at the surface, (ie. between 0 and 150 mm below the surface) at depth or at a number of different depths Accordingly it is submitted that the Tricend test results are flawed because contamination in soil could exist from the surface to 50 mm and samples at lower levels at a depth of 200 mm could in effect be diluted by the presence of uncontaminated soil at such depth. vi. Further it is submitted that four samples were mixed together ("composite sampling") for the purpose of analysis. In consequence to test the results the concentration would need to be divided by the number of samples to establish the background environmental soil quality guideline as provided in Table 2 to the ANZECC Guidelines. The sampling guidelines provide that composite sampling should only be used provided specific methods are adopted which were not undertaken by Tricend and their test results are accordingly unreliable. vii. To validate all soil samples, a chain of custody is required to ensure that the samples are not the subject of interference at any stage. The applicants submit that the chain of custody recommendations as contained in the EPA guidelines has not been satisfied. The chain of custody exists only in relation to the samples once they have been received by the laboratory for testing. viii. The Tricend reports do not contain the subjective criteria against which the results from soil samples are recorded. The determination is made by Tricend concerning the level of contamination but it is not possible to independently assess the accuracy of such determination. Response of respondents 35. The respondents have replied to the challenges of the applicants as follows:- (i) Tabulated form 36. Although a table of findings is not included in the Tricend reports the respondents submit that a tabulation is not necessary if the decision maker has independent knowledge of the site and the method of investigation was appropriate. The purpose of testing in a grid or systematic sampling enables statistical analysis to determine variations between different sectors. Judgmental assessment takes into account geography, hydrology and knowledge of potential contaminated sites. Such method is accepted as appropriate under the ANZECC Guidelines. (ii) Insufficient samples 37. The sampling guidelines contain recommendations for minimum sampling points which are based on detecting circular hotspots. Specifically, the recommendations do not apply for sites larger than five hectares. The total area of the subject site is approximately seven hectares but the actual area for development comprised in the building site is 0.25 hectares. The sampling guidelines recommend that seven samples be taken for sites of 0.20 hectares and nine samples for 0.30 hectares. Mr Kennedy selected eight sampling sites. The sampling guidelines make specific provision for judgmental sampling patterns as was done by Mr Kennedy. 38. Clause 3.3 of the sampling guidelines specifically states that the minimum number of samples required depends upon the complexity of the contamination, knowledge of the site and site specific requirements. Accordingly, the appropriate number of samples depends upon expert judgment. (iii) Zinc and Copper 39. The respondents deny that tests for zinc and copper were necessary. State Environmental Planning Policy - Managing Land Contamination Planning Guidelines - Remediation of Land ("SEPP 55") itemises the types of industries and associated chemicals commonly used on land used by such industries. Mr Hogan testified that zinc and copper were ingredients used in pig feed but that such elements were absorbed by the animal. If any effluent contained traces of zinc or copper it would dissipate rapidly and would not pose a risk of soil contamination. (iv) Choice of sampling sites 40. Mr Kennedy had undertaken sampling below the site of the former evaporation ponds and in the locations of the proposed holiday cabins. Mr Kennedy explained his reasons as follows:- Samples were taken where it was suspected that contamination would most likely be present in the area where the proposed cabins and community building are to be located ie. samples were taken where the risk to public health would be highest if soil contamination was present. … The samples taken were as representative as possible of the extent of likely or suspected contamination. It was decided after deliberation to locate the sites on the basis of topography and drainage lines and as mentioned adjacent to cabins 5 & 11. … In conclusion the soil contamination investigation, sampling methodology, testing and analysis have all been undertaken in accordance with the relevant EPA and ANZECC guidelines. 41. Mr Hogan did not consider that further sampling was required in view of his familiarity with the site and its past uses. (v) Depths of soil sampling 42. The sampling guidelines recommend that samples be collected from two or more different depths at each sample location. The depths of such samples is suggested to be between 0 - 150 mm below the surface and at 'depth or at a number of different depths'. Mr Kennedy has taken his samples at depths between 0 - 200 mm. 43. The physical method of soil testing was described by Mr Kennedy as follows:- Intensive sampling around suspected hot spots was undertaken. Four (4) test holes per site were be [sic] excavated to a depth of 200 mm below ground level using a 100 mm hand auger. The soil immediately below the root zone between 50 to 200 mm was collected and placed into a container. The combined samples were sealed and marked then taken to the Dept of agriculture laboratory for analysis within 1 hour of sampling. (vi) Composite sampling 44. The use of composite sampling is addressed in the sampling guidelines. The sampling guidelines require the results of testing on a sample to be divided by the number of samples included in the composite. This has been done and the results are below reportable levels. Whilst the applicants insist that the dividing factor should be a multiple, there is no basis stated for such assertion in the guidelines. (vii) Chain of custody 45. The EPA guidelines recommend that a chain of custody form acknowledging receipt of samples be included in shipments of samples for laboratory analysis. Initially a chain of custody form had not been provided to council. However council requested details and were provided with such information in the letter of 2 July 2000 from Tricend to Mr Harris. (viii) Judgmental assessment 46. The ANZECC guidelines acknowledge that testing and reporting is essentially judgmental. The ANZECC guidelines state inter alia in relation to investigation levels:- Investigation levels provide a trigger to assist in judging whether a detailed investigation of a site is necessary. 47. The sampling guidelines (par [3.1]) also make specific provision for judgmental sampling patterns. Paragraph 3.2 of the sampling guidelines refers to a more intense sampling pattern which is applicable to detailed investigations. According to Mr Hogan such level of investigation would only be required if initial testing revealed contamination. In his opinion, such level of investigation was not required at the site. Was it reasonable for council to be satisfied that condition C6 had been fulfilled? 48. The application before the Court required the applicants to establish that the council's decision was 'unreasonable' within the principle established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The initial Tricend reports did not deal with possible contamination by arsenic and lead, and were not acceptable to council. However such deficiencies were subsequently rectified by the later reports. 49. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Gleeson CJ and McHugh J said at 626:- Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable,' or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong then they may have no particular legal consequence. 50. The limits of the power of a court of judicial review have been clearly stated by Mason J in Peko Wallsend where His Honour said at 40-41:- The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on that discretion and a decision made within those boundaries cannot be impugned: Wednesbury Corporation . It follows that in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd v McKellar (1981) 38 ALR at p375; Reg v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at p205; Elliott v Southwark London Borough Council [1976] 1 WLR 499 at p507; [1976] 2 All ER 781 at p788; Pickwell v Camden London Borough Council [1983] QB 962 at p990 . 51. Based upon the Tricend reports, Mr Hogan's knowledge of the site and Mr Kennedy's experience, council was entitled to regard condition C6 as having been satisfied. The resolution was made in the face of serious contention concerning alleged contamination of the site and litigation which was resolved in favour of the council. The evidence of the applicants does not establish that the council acted unreasonably in adopting the resolution. Claim of conflict of interest 52. The applicants claim that Mr Kennedy was compromised since he was a director in a company known as BBCL Pty Ltd which was involved in the development on the subject site. 53. BBCL Pty Ltd changed its name to CBCL Pty Ltd on 15 April 1999. On that date two shares were issued in CBCL Pty Ltd. One share was issued to Gregory Robert Ross and the other to Alan Kennedy, each for a consideration of $1.00. Mr Ross in fact paid for both shares. 54. CBCL Pty Ltd purchased the site from the first respondent by agreement dated 1 December 1999 and held the land as a trustee for a unit trust. Mr Kennedy has no beneficial interest in the unit trust or in any share held in the company. He was not a beneficial shareholder and his involvement in such company took place in consequence of his appointment as project manager for the development. 55. It has not been established that the council has been compromised because of Mr Kennedy's association with the owner of the land. The fact that Mr Kennedy was appointed project manager does not lead to the result that he was not competent to perform his professional role, nor that he or the council have colluded to achieve the satisfaction of condition C6. 56. It should also be observed that the site was transferred by Dudley Pastoral Co Pty Limited (the first respondent) to CBCL Pty Ltd on 1 December 1999. Accordingly any interest of the first respondent in the land ceased on that date and no order can be made against it which requires any action in respect of the site. Further since CBCL Pty Ltd is not a respondent no orders can be made against that company which affect the land. Bad Faith 57. The applicants have submitted that the council have acted in bad faith by adopting the resolution. No evidence has been adduced which would support such a serious allegation. Orders 58. In view of the above findings the applicants have not established any claim for relief. 59. The court orders that:- 1) the application be dismissed. 2) costs be reserved. 3) 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.