Land and Environment Court of New South Wales CITATION : Boulton & Ors v Burwood Municipal Council [1988] NSWLEC 128 APPLICANT Boulton and Others PARTIES : RESPONDENT Burwood Municipal Council FILE NUMBER(S) : 40058 of 1988 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act, 1979 Tooth & Co. Ltd v. Lane Cove Municipal Council (1968); CASES CITED: Fuller v. Bellingen Shire Council, 16th June (1988); Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986); Sordini v. Wilcox, (1983) DATES OF HEARING: DATE OF JUDGMENT: 07/28/1988 LEGAL REPRESENTATIVES: JUDGMENT: HIS HONOUR: The applicants, as concerned neighbours, seek orders relating to the lawfulness of a development consent granted by the respondent ("Council") as consent authority under the Burwood Planning Scheme Ordinance, to itself as the registered proprietor of premises known as 7-9 Elm Street, Enfield for the purpose of a child care centre. The land is situate within a Residential 2(a) zone pursuant to that scheme and the said development is permissible with consent thereunder. Erected thereon is a large industrial style building which enjoyed existing use rights pursuant to the Environmental Planning and Assessment Act, 1979 ("the E.P.& A. Act"), and which has been vacant since 1985. The land was acquired by the Council in 1987. I accept that Council has been aware for some years, as a consequence of submissions by residents and representatives of the Burwood Kindergarten, of an urgent need to provide premises for pre-school education in the Municipality. The subject land was identified in 1986 by interested persons as appropriate for acquisition by Council and renovation for use as a child care centre. Council called for a report from its Community Worker and on 26th November, 1986 it resolved to negotiate for its acquisition for use as a child care centre. An application was submitted for funding under relevant Commonwealth and State legislation in accordance with a Children's Capital Works Programme to convert it to a child care centre. Wide publicity was given of such decision. Support for the centre, including that of some residents in Elm Street, depended upon whether the centre was to be used for a "long day" or "sessional" kindergarten. On 26th October, 1987 Council made a development application to itself as consent authority to use the subject premises as a "forty place long day care centre". The application was accompanied by a statement of environmental effects and a set of plans. Notice of such application was hand delivered to premises in Elm, George and Faunce Streets. The Deputy Chief Town Planner, Mr D.H. Rollinson, presented a report on the application to the Planning Committee of Council for consideration at its meeting on 17th November, 1987. One of the applicants herein, Graeme Charles Frederick, addressed the said committee at that meeting. At its meeting of 26th November, 1987 Council considered the matter and was addressed by its Town Planner and about twelve of the forty (approximately) residents from the locality. It is common ground that all interested persons were given full opportunity to place before Council all matters considered relevant concerning the subject application. At its meeting of 8th December, 1987 Council resolved:|CF2.|PSI Application for the use of premises 7-9 Elm authority being extended to the Town Clerk and conditions, generally as listed at the previous b) That the Centre operate for six months then the the residents. of the Centre in regard to both starting and d) That the traffic proposals be referred to the Committee. to comment upon the proposals." |CF1.|PSO On 17th December, 1987 all properties in George, Bligh, Elm and Faunce Streets, Enfield were given written notice of such approval, and of a special meeting of Council to be held on 22nd December, 1987 to deal with the application. At that meeting Council again considered the matter and resolved: |CF2.|PSI "That no action be taken to implement the Council decision of 8th December, 1987 until the Mayor and Senior Staff have approached the representatives of the Commonwealth Government and made every effort to secure a three month delay in the deadline for the acceptance of funds, and in the meantime the Mayor to do what he can to find a suitable alternative site and that the matter be referred to the first Council Meeting on 27th January, 1988." |CF1.|PSO The development application was again considered by Council at its meeting of 27th January, 1988. Council was addressed by a representative of the Burwood Neighbourhood Child Care Centre and also a representative of the residents of Elm Street. The only Alderman to speak against the proposed development was Alderman Brown, who raised many matters of concern on behalf of the local residents. A large number of residents attended that meeting. Council resolved:|CF2.|PSI ".... that the recommendations of the Chief Clerk be adopted following amendment of part "a" to read as follows: 'A. That Council re-affirm its approval of the development application for the use of premises 7-9 Elm Street as a child care centre with delegated authority being extended to the Town Clerk and Chief Town Planner to frame appropriate conditions, generally as listed at the 17th November, 1987 meeting of the Planning Committee including conditions of approval as resolved by Council at its Meeting of 8th December, 1987 on the understanding that the review of operations after six (6) months does not include the option of cessation of the use.'" |CF1.|PSO Notice to itself as applicant of the determination of the application by the granting of consent subject to specified conditions was given by Council on 18th February, 1988. The applicants submit: Such development consent is void - a) because Council failed to give "real" consideration to the matters relevant to the development; and b) because Council took into account irrelevant matters. The Council submits that it considered all matters as were of relevance to the development the subject of the application, and did not take into account irrelevant matters. It submits that, being aware of public opposition and it being the applicant, it gave more detailed consideration and permitted more public participation than ever given to any other application. The applicants called two residents. Patricia Boulton is one of the applicants and is authorised by each of the other twenty-four to speak on his or her behalf. She had obtained copies of all town planning reports and attended at the meeting of 26th November. She spoke at that meeting, together with about eleven others, and neither she nor any other speaker was denied the opportunity to voice fully any objection to the proposed development. Her major concern was the volume of traffic likely to be generated by the proposed development. It is common ground that Elm Street is very narrow, with resultant parking and traffic problems. Christine MacDonald, also an applicant, did not attend any Council meeting, but stated her objections to Aldermen who attended one of the site inspections of the subject premises. The determination of the development application is the exercise of a statutory power and is valid if the act falls within the statutory provisions which confer the power. The orders sought by the applicants concern the enforcement of a public duty imposed on Council by the E.P.& A. Act. However, this Court has no power of administrative review of Council's decision on its merits and is confined to an examination of its lawfulness. This case, in my opinion, is a prime example of persons aggrieved by a Council's decision but, having no right of appeal, have examined such decision with a fine tooth comb to try to discover a possible breach of the E.P.& A. Act. The applicants submit that the said development is void for the reason that the Council as consent authority failed to discharge its duty to take into consideration and only consider such of the matters specified by s.90 of the E.P.& A. Act as are of relevance to the development the subject of the application. The principles relevant for the resolution of this dispute are explained by Street C.J. in Parramatta City Council and Anor v. Hale and Ors, 47 L.G.R.A. 319, at 335: |CF2.|PSI "The law is clear that a provision such as s.90(1) necessitates, as a precondition to the validity of a council's decision, consideration being given to such of the matters listed therein as objectively are of relevance to the application. Secondly, if a council takes into account irrelevant considerations, that will vitiate the decision. Thirdly, if a council misdirects itself in law as to the scope or content of its statutory powers or duties, that, too, will vitiate the decision. All of these three grounds of invalidity have three points in common. In the first place, in each of them proof of the invalidity rests upon the challenger. In the second place, none will lead to invalidity unless it was a material error such as to justify the intervention of the court: it need not be shown to be of critical or decisive significance in the council's decision; on the other hand de minimis non curat lex. In the third place the reference in each to 'the council' is to the council as a group; it is the council's collective state of mind, as found by the court, which will be of critical significance." |CF1.|PSO The applicants therefore assumed the heavy onus of ascertaining and thereafter challenging the Council's mental process. Being a statutory corporation it has no mind, but inferences and conclusions upon the purpose, intention or opinion on the part of Council may be drawn and reached as a result of evidence of objective facts; Tooth & Co. Ltd v. Lane Cove Municipal Council (No. 4), [1968] 2 N.S.W.L.R. 17. The principles which must be applied are also stated by Moffitt P. in Hale's case at 345: |CF2.|PSI "Where it is a collegiate body which makes the s.91 determination, s.90 requires that the collegiate mind in granting its approval shall have considered the s.90 matters. Proof of a state of mind whether of a person or collegiate body may be a matter of difficulty, but the person, who seeks under s.123 to bring down a decision, must discharge that onus however difficult that may be and he must do so in accordance with proper legal requirements and by inference not suspicion. The responsibility to make the consent determination is given to a responsible authority, which will normally be a council democratically elected. The court exercising jurisdiction under s.123 does not sit on appeal from its determination. A conclusion by a court finding a breach of s.90 by way of inference is one to be come to only after anxious consideration, but when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has d rawn."|CF1.|PSO However, Council's state of mind can be proved by inference from what it does or says or omits to do or say. An inference that an act was done with a particular state of mind may be drawn from a decision on a number of matters, although each decision considered alone may be possible of explanation with a state of mind otherwise. The applicants sought to discharge that onus by calling each Alderman (with the exception of one who was ill). Without objection, each was asked to recall matters raised at each meeting and the discussion and debate, if any, which took place during consideration of the said application. As can be expected, individuals differed in the ability to recall with precision the events of November, 1987 to January, 1988. However, with the possible exception of the matter of a need, if any, to preserve existing trees, I am completely satisfied that each of the matters particularised was extensively and adequately discussed and debated by Council. Even Alderman Brown, who was the only Alderman to dissent expressly and who strongly put forward the residents' objections, confirmed in evidence to my satisfaction that all such relevant matters were put to Council. The consideration and determination of a development application is not necessarily confined to one act or occasion, and may involve a lengthy "process". I expressed the same opinion in Fuller v. Bellingen Shire Council and Anor., 16th June 1988 (unreported), and said that it may extend from the date of the application including site inspections, discussions and formulations of conditions or reasons for determination. It is clear on the evidence and, I think, now conceded by the applicants, that most if not all matters particularised, except the matter of the need to preserve trees, were considered by Council in the determination of the application. The applicants challenge what they call the "quality" of such consideration. The Court is invited to draw an inference of fact from the lack of conditions of the consent relating to some of those matters, that "real" consideration had not been given or that such consideration of some matters had been deferred (cf. Hale's case at 344). What inference, if any, therefore can be drawn from the decision of Council, and does it suggest that such consideration was not "real" and that merely lip service was given to the obligations imposed by s.90? The applicants point to an absence of conditions with respect to: i) acceptable noise levels; ii) protection of the amenity of adjoining premises and, in particular, No. 5 Elm Street; iii) limitation on number of children or staff; iv) provision of adequate parking bays; v) the requirements of the Board of Fire Commissioners; vi) change of traffic flow as a precondition; vii) retention of trees. I have carefully considered all of the evidence, including the many reports, objections and the correspondence. However, its bulk makes it inappropriate to set it out here in full and it is sufficient to state my reasons with respect to the above matters: i) Acceptable noise levels; and ii) Protection of the amenity of No. 5 Elm Street Council imposed no condition limiting noise levels which can emanate from the premises. Condition 2 provides |CF2.|PSI"No injury being caused to the amenity of the neighbourhood"|CF1.|PSO. I am satisfied, however, that Council considered the likely noise levels from traffic associated with the development, and from children using the premises, and the impact on the enjoyment of adjoining premises. Such noises were dealt with as a specific objection by some residents. The objections, after consideration, were clearly rejected by Council as being not justified. One Alderman stated firmly that in his view the sound of children playing was not noise. In my opinion, after consideration of the matter it was open to Council to find likely noise levels from and associated with the development acceptable, and I infer that it did so. iii) Limitation on number of children or staff I note that the application referred to a child care centre with forty "places", but that the notice of approval does not. No reason was given for not specifying the number of children. By condition 1 the approval specifically incorporated the approved plans which have endorsed thereon the number of children accommodated in the relevant rooms. I am satisfied that Council considered and assessed an application for a centre for forty children, and by its decision approved a child care centre with that capacity. I note that the application referred to the provision of six staff. The applicants submit that the absence of a condition concerning staff makes staff numbers unlimited; cf. Ryde Municipal Council v. The Royal Ryde Homes and Anor, 19 L.G.R.A. 321. That may be so, but it does not mean necessarily that staff numbers were not considered by Council in the determination of the application. I accept that such numbers were considered, and that there is a prescribed relationship to the number of children. I am s atisfied that it was open to Council to consider that a condition limiting staff was therefore unnecessary, and that it did so. iv) The adequacy and provision of layback areas. The approved plans require the construction of layback facilities within the footpath, but no condition specifying construction prior to occupation. The facility allows for two vehicles to stand in the area whilst children alight or are collected. Council considered a report on such facility and its ability to be extended should a need arise. The effect of the determination is that the facilities must be constructed as part of the approved works. In my opinion, it was open to Council to decide that such circumstances do not compel a specific condition for time of completion, and that it did so. v) The requirements of the Board of Fire Commissioners; and vi) Alteration to traffic flow. The applicants stress that Council on 8th December, 1987 considered the usual requirements of the Board of Fire Commissioners and resolved that it be asked to comment upon the traffic proposals, but nevertheless later "reaffirmed" its approval of the development without such comments. The traffic proposals involve a consideration of a need for the reversal of the flow of traffic in Elm Street. Such proposals are intended to improve congestion. I reject the submission that it was not open to Council to approve the application unless and until such proposals were implemented. It follows that I am of the opinion that the comments of the Board of Fire Commissioners, if any, do not call for consideration until the resolution of the traffic flow issue. I note that condition 7 requires |CF2.|PSI"compliance with the requirements of the Board of Fire Commissioners in relation to fire safety requirements".|CF1.|PSO vii) Whether any trees on the land should be preserved. The consideration of this matter arises if it is of relevance to the subject of the Development Application. The approved plan provides for landscaping of the area in the vicinity of existing trees. Few Aldermen recollect existing trees being discussed. It is open to Council to accept the adequacy of proposed landscaping without the retention of existing trees and I infer from its approval that it did so. The applicants further submit that the approval is also vitiated because Council took into consideration the following alleged irrelevant matters - a) A risk of losing a Commonwealth grant. At its meeting of 27th January Council was advised in a report by the Chief Clerk that, notwithstanding negotiations, the Department of Community Services and Health would not accept any further delays by Council in the acceptance of funding. The Department was, however, prepared to extend time for the signing of construction contracts to 31st April, 1988. To meet that time limitation Council was informed that if it wished to proceed with the Elm Street site it had to make a "firm decision" on 27th January, 1988. In my opinion, such advice does not compel or suggest a breach by Council of its obligation to consider the application properly. A request for an early, or the earliest possible, determination is a matter which might be properly advanced for consideration by a consent authority (see also my decision in Fuller v. Bellingen Shire Council, 16th June, 1988, unreported). In any event, only two of the twelve Aldermen thought that consideration of the matter was material to their determination of the appli cation, and neither voted in favour of its approval. b) Previous use. Council considered reports which referred to the history of the use of the land and the impacts of traffic previously generated. The applicants do not submit that consideration of the prior use is wholly irrelevant. If I understand the submission, Council was said to be diverted from a proper consideration of impact of the proposed development by a comparison with a use which no longer could be continued as an "existing use". I reject that claim. I am satisfied on the evidence that Council properly discharged its duty to consider the impact of the proposed development, and that the impact of prior uses of the land was considered merely as a relevant "circumstance of the case". As I understand the applicants' remaining submission, Council erroneously took into account the fact that it also was the owner of the subject land and for that reason deferred consideration of relevant matters. Some Aldermen had a recollection that during debate it was suggested that Council, as owner, had a continuing opportunity to monitor and therefore avoid or rectify unforeseen problems arising from the operation of the centre. It also discussed, but did not decide, that a committee of interested persons could be formed to monitor such use. In my opinion, Council could hardly put out of its mind that it was the owner of the land, or that, if approval was granted, it was likely to be faced with continued scrutiny and opposition to its activities. In my opinion Council could properly take such matters into consideration. I am not satisfied that it has thereby taken into account an irrelevant matter or deferred consideration of relevant matters merely by discussing procedures to monitor the development. Even if I be wrong and any of the above are extraneous matters and were and should not have been taken into account, whether the decision is set aside must depend upon the seriousness of the breach in relation to the totality of factors to be considered by Council; Sordini v. Wilcox, (1983) 70 F.L.R. 326. A factor might be so insignificant that taking it into account could not have affected the decision; Minister for Aboriginal Affairs v. Peko-Wallsend Ltd, (1986) 60 A.L.J.R. 560, at 565. In my judgment consideration of none of the above matters was a material error such as to justify the intervention of the Court (Hale supra at 335), or of such significance in the totality of factors to be considered by Council so as to set aside the decision. I am completely satisfied that in determining the subject application Council properly discharged its duty pursuant to s.90 of the E.P.& A. Act to take into consideration such of the matters specified as were of relevance to the development the subject of the application, did not defer consideration of any relevant matter, and did not take into account matters which were of no relevance. No inference arises from its determination of the application or conditions imposed thereon that "real" consideration was not given to relevant matters. In my judgment the applicants are not entitled to the orders claimed. I order: 1. Application dismissed. 2. Exhibits may be released. 3. Applicants to pay the costs of the respondent. 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.