Land and Environment Court of New South Wales CITATION : Woolworths Limited v Wyong Shire Council & Ors [No 2] [2005] NSWLEC 607 APPLICANT: Woolworths Limited FIRST RESPONDENT: Wyong Shire Council PARTIES : SECOND RESPONDENT: Errol Investments Pty Limited THIRD RESPONDENT: Minister Administering the Environmental Planning and Assessment Act 1979 FILE NUMBER(S) : 41492 of 2004 CORAM: Pain J KEY ISSUES: Discretion :- whether Court should declare development consent invalid - whther Court should make orders under s 25B of the Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 s 79C, s 103 LEGISLATION CITED: Land and Environment Court Act 1979 s 25A, s 25B, s 25C, s 25E Centro Properties Limited v Warringah Council & Anor [No 2] (2003) 132 LGERA 45; Glowpace v South Sydney City Council (2000) 111 LGERA 84; CASES CITED: Noble v Nowra Shire Council (2001) 114 LGERA 440; Woolworths Limited v Wyong Shire Council & Ors [2005] NSWLEC 400; WRF Property v Armidale Dumaresq Council [2003] NSWLEC 223 DATES OF HEARING: 17/10/2005 (written submissions) 20/10/2005 (written submissions) DATE OF JUDGMENT: 11/22/2005 APPLICANT: Ms J Jagot (barrister) SOLICITORS: Corrs Chambers Westgarth FIRST RESPONDENT: Mr T Robertson SC and Mr J Lazarus (barrister) LEGAL REPRESENTATIVES: SOLICITORS: Abott Tout SECOND RESPONDENT: Mr T Hale SC SOLICITORS: Shane Boesen THIRD RESPONDENT: submitting appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 22 November 2005 41492 of 2004 Woolworths Limited v Wyong Shire Council and Errol Investments Pty Limited and Minister Administering the Environmental Planning and Assessment Act 1979 [No 2] JUDGMENT 1 Her Honour: These are Class 4 proceedings brought by the Applicant against Wyong Shire Council ("the Council"), Errol Investments Pty Limited ("Errol Investments") and the Minister Administering the Environmental Planning and Assessment Act 1979. In Woolworths Limited v Wyong Shire Council & Ors [2005] NSWLEC 400 I found at [221] – [226] that the Council had failed to consider the acoustic impacts of development application no. 797/04 lodged by Errol Investments with the Council on 16 April 2004. That finding arose from my determination that there was insufficient information before the Council about the impacts of the 24 hour operation of the supermarket on neighbouring residential properties to enable adequate consideration. The Respondents have asked that consideration be given to whether s 25B of the Land and Environment Court Act 1979 ("the Court Act") should apply. Relevant provisions 2 Section 25A of the Court Act states: (1) This Division applies to: … (b) a development consent granted, or purporting to be granted, under the Environmental Planning and Assessment Act 1979 : (i) by any other consent authority, and (ii) in respect of a development application made on or after the commencement of this subsection. (2) This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority, or by any other person or body. … 3 Section 25B of the Court Act states: (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act. 4 Section 25C of the Court Act states: (1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order: (a) declaring that the terms have been substantially complied with, and (b) declaring that the consent is valid, and (c) revoking the order of suspension. (2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979 , the Court may make an order: (a) declaring that the terms have been complied with, and (b) declaring that the development consent has been validly regranted, and (c) declaring that the suspended development consent has been revoked, and (d) revoking the order of suspension. 5 Section 25E of the Court Act states: It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part. Council's and Errol Investment's submissions 6 The Council and Errol Investments submitted that the Court should decline to make a declaration of invalidity and should instead make an order suspending the operation of the consent. Pursuant to s 25A of the Court Act, an order may be made under s 25B where the invalidity arises from any steps preliminary to the granting of consent. The Council and Errol Investments submitted that the failure to obtain a noise report was a step preliminary to the granting of development consent. In these circumstances, where the Court has found there to be a deficiency of consideration of the 24 hour operation of the supermarket, it was appropriate for the Court to make an order under s 25B of the Court Act. 7 Alternatively, the Council and Errol Investments submitted that s 25A of the Court Act does not limit the circumstances in which s 25B of the Court Act applies. The approach in Glowpace v South Sydney City Council (2000) 111 LGERA 84 and my decision in Centro Properties Limited v Warringah Council & Anor [No 2] (2003) 132 LGERA 45 ought not be followed. Applicant's submissions 8 The Applicant submitted that the Court should declare the development consent invalid. The Applicant argued that the Court's power under s 25B of the Court Act was only available where invalidity arose from any steps preliminary to the granting of a development consent where those steps were taken, or should have been taken, by the consent authority. The failure to consider a relevant matter under s 79C of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") does not give rise to invalidity arising from "any steps preliminary to the granting of a development consent" because the obligation under s 79C of the EP&A Act is not a preliminary step at all. The obligation can only be satisfied in determining the development application. 9 The Applicant submitted that this principle applied irrespective of the Court's characterisation of the failure to consider a relevant matter under s 79C of the EP&A Act as going to the conditions of consent or the grant of consent. This was because there was only one act of determination and one exercise of consideration under s 79C of the EP&A Act that was not capable of dissection. Having found a failure to consider a mandatory relevant matter, the Court was not in a position to know what weight the issue of noise might have had in the assessment process, nor how its treatment by the consent authority would have interacted with the weight to be given to other aspects of the development and conditions of consent. The nature of the breaches was such that they could not be isolated from the process of consideration and decision-making mandated by the EP&A Act. Accordingly, the Applicant submitted that the Court should not make an order under s 25B of the Court Act and should declare the consent invalid. Finding 10 In Glowpace, Pearlman J declined to make an order under s 25B of the Court Act in circumstances where the development consent was invalid by reason of both the failure of the council to give notice of the application and because the consent lacked finality and certainty. Pearlman J noted at [30] that the application of s 25B was constrained by s 25A(2) of the Court Act. Accordingly at [34] – [35] Pearlman J held that s 25B applied to the first ground of invalidity, but not the second: These provisions apply, in my opinion, to the council's breach of procedural fairness by its failure to adhere to its notification policy and to notify Glowpace of the development application. The consequent invalidity of the development consent clearly falls within s 25A(2) because it is an invalidity which arises from a step preliminary to the granting of the development consent. The Court could make an order, pursuant to s 25B, suspending the operation of the development consent and specifying terms which require re-notification under the notifications policy. Of course, such a step has consequences. Glowpace, and others, may or may not make a submission consequent upon such re-notification. If such a submission is made, the council is bound to take it into consideration under s 90(1)(r) of the EP&A Act. Such consideration may lead the council to conclude that development consent should not be granted, and if that is the case the council is empowered, under s 104C(2) of the EP&A Act, to revoke the suspended development consent. On the other hand, such consideration may lead the council to exercise its power under s 104C(3) to revoke the suspended development consent and grant a new development consent with appropriate alterations, or it may decide not to regrant the suspended development consent. In either of these latter two cases, the council may apply to the Court for the appropriate orders under s 25C(1) or 25C(2). However, the council's breach of the Mison principle is another matter. The lack of finality and certainty in the development application is not a step preliminary to the granting of a development consent in terms of s 25B(2), and, accordingly, div 3 of pt 3 of the Court Act does not apply. Furthermore, the breach of the Mison principle gives rise to a fundamental flaw in the development consent because, as Clarke JA pointed out in Mison v Randwick at p 740 (and Priestley JA pointed out in the same case at pp 738 - 739), the consequence of that breach is that the council has not finally disposed of the development application, and has not granted a development consent at all. 11 In Noble v Nowra Shire Council (2001) 114 LGERA 440, Pearlman J held that a development consent was invalid on the basis that the Council failed to take into account the provisions of an environmental planning instrument. At [30] Pearlman J declined to make an order under s 25B of the Court Act stating that: the Court cannot safely conclude that, if the provisions of SEPP 30 had been taken into consideration, the council would have granted development consent. The omission to consider whether or not the provisions of SEPP 30 were relevant might result in a decision that they were relevant, and, in addressing them, the council might conclude that development consent should not be granted. In my opinion, it would be inappropriate in these circumstances to make orders of the sort contemplated by s 25B. 12 In WRF Property v Armidale Dumaresq Council [2003] NSWLEC 223 Talbot J made an order suspending a development consent under s 25B of the Court Act where a condition of consent left a matter for future determination. The Applicant criticises this decision as being out of step with Glowpace and my decision in Centro. 13 In Centro, I considered whether the failure to consider a relevant matter under s 79C of the EP&A Act gave rise to an invalidity arising from "any step preliminary to the granting of a development consent" pursuant to s 25A(2) of the Court Act. I stated at [12] – [14] that: The wording of s 79C(1) states at the outset that " In determining a development application, a consent authority is to take into consideration "… this confirms that the consideration under s 79C is part and parcel of the determination of the development application under s 80(1). Section 80(1) requires a consent authority to determine a development application by granting consent or refusing consent to the application. I agree with the applicant that the appropriate and logical characterisation of the deliberation under s 79C is that it is part of the decision whether or not to grant development consent under s 80 of the EP&A Act. It is not a step preliminary to it, meaning " introductory ", " preparatory ", or " preceding and leading up to the main matter or business ": Macquarie Concise Dictionary, (3rd ed, Macquarie Library Pty Ltd, 1998). This finding reflects the wording of s 79C and the process of granting development consent under s 80(1)… How should the failure to consider economic impact be characterised? It is not simply a failure to supply information to the council and the public on a relevant matter under s 79C. Rather it is a failure by the council to consider that material as part of the weighing up process under s 79C. It is not a situation exactly on "all fours" with either of the circumstances in Glowpace and drawing directly on that case by way of analogy is not particularly helpful. I do not consider that Div 3 of Pt 3 of the Court Act applies in these circumstances as, in terms of the scope of s 25A(2), I see no reason to disagree with Pearlman J in Glowpace where she held that s 25A(2) confines the application of Div 3 of Pt 3 so that that division does not apply to matters which are not steps preliminary to the grant of a development consent. 14 In this matter I found that there was a lack of data available to the Council in relation to the noise impacts of overnight operation of the supermarket on neighbouring residents. I stated at [224] that the Council could be presumed to have sufficient knowledge of the site and its surrounds and the nature of the development to be able to determine its suitability for a supermarket with normal operating hours in light of the school opposite and future neighbouring residential property. The Applicant has argued that such consideration cannot be separated from the consideration of the whole development under s 79C. In this case I have had to consider the development consent process for this supermarket exhaustively in order to consider the Applicant's numerous arguments. It is clear that this is in fact a discrete matter which relates only to whether the Council should have more information on acoustic impacts of the night operation of the proposed supermarket before the hours of operation are set at 24 hours or should be limited so that there is no overnight operation allowed. This situation is different to that considered in Glowpace, Noble and Centro where the issues in question were not able to be separated from the general consideration of a development application required under s 79C. I consider it is appropriate to characterise this matter as a step preliminary to the grant of consent being the failure to obtain a noise report in relation to the impacts of the night time operation of the supermarket. As I said in my judgment at [226] this is not a matter fundamental to determining whether consent ought be granted but simply whether the Applicant ought be allowed 24 hour operation of a supermarket adjacent to a residential area, a matter which goes to the conditions of consent which should be imposed on this development. 15 I am mindful that s 25E of the Court Act imposes on the Court a duty to consider making an order under this Division rather than declaring a development consent to be invalid. 16 There are a number of possible approaches to orders under s 25B of the Court Act. I consider the Council's and Errol Investment's suggested approach, to the effect that the operation of the consent be suspended pending the obtaining of a noise report by the Council about overnight operations, is an appropriate course of action in the circumstances of this case. After considering that report, the Council can then decide whether to confirm its original decision to allow 24 hour operation or regrant development consent with different operating hours. So that there is some finality to these orders I will allow six months for this to occur. It is then open to the Council to return to the Court under s 25C(1) or (2) of the Court Act seeking appropriate orders from the Court declaring the development consent is valid or that the development consent has been validly regranted depending on whether the Council confirmed the consent conditions or regranted development consent under s 103 of the EP&A Act. I have prepared draft orders which I will ask the parties to comment on before finalising these within seven (7) days. 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.