Land and Environment Court of New South Wales CITATION : C.W. LAINSON v. SUTHERLAND SHIRE COUNCIL [1998] NSWLEC 87 (13 May 1998) [1998] NSWLEC 42 PARTIES : C.W. LAINSON v. SUTHERLAND SHIRE COUNCIL [1998] NSWLEC 87 (13 May 1998) FILE NUMBER(S) : 10062 of 1998 CORAM: Bignold J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 McCaughey v Stamp Duties Commissioner (1945) 46 SR (NSW) 192 ; McHugh and Gummow JJ in Commission of Stamps (SA) v Telegraph Investment Co Pty Limited (1995) 184 CLR 453 at 484; Masterplan Consultants Pty Ltd v Ku-ring-gai Council (unreported 14 October 1997 per Bignold J; Blue Mountains City Council v Hudson (1985) 56 LGRA 360 ; Pimas Group Pty Ltd v Maritime Services Board of NSW (1994) 82 LGERA 205; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109/110 per Barwick CJ; Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 at 163; The Minister for Urban Affairs and Planning v Rosemount Estates Pty Limited (1996) 91 LGERA 31 at 48; CASES CITED: STSFS Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 53; Kioa v West (1985) 159 CLR 550 at 584; Coles Supermarket Australia Pty limited v K-Mart Australia Pty Limited and others (1996) 90 LGERA 341 at 358/9; Breitkopf v Wyong Council (1996) 90 LGERA 265 at 286/7; Leichhardt Council v Minister for Planning (No. 2) (1995) 87 LGERA 78 ; Noroton Holdings Pty Limited v Friends of Katoomba Falls Creek Valley Incorporated (Court of Appeal - unreported 11 June 1996; Water Conservation v Browning (1947) 74 CLR 492 at 505; Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757, 758; Minister for Primary Industries and Energy v Austral Fisheries Pty Limited (1993) 40 FCR 381 at 382; Slattery v Naylor (1888) 13 App Cas 446 at 452 DATES OF HEARING: 20, 28 April 1998 DATE OF JUDGMENT: 05/13/1998 Mr T Hale, Barrister LEGAL REPRESENTATIVES: Mr G Newport, Barrister JUDGMENT: This is a reference from the Registrar of a series of questions of law requiring determination as a preliminary issue in class one proceeding involving an appeal by the Applicant pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the EP&A Act ) against the Council's deemed refusal of the Applicant's development application to erect a residential flat building containing 18 dwellings on land known as Nos. 15-17 Tonkin Street Cronulla (the development site). The present reference came about in the following circumstances. At the callover conducted by the Registrar on 3 March 1998 the parties filed their respective statements of issues and in response to the issues filed by the Applicant the Council filed a question of law concerning the validity of the Cronulla Development Control Plan 1997 (the DCP). Thereupon the Registrar heard argument in respect of the parties' competing applications, the Applicant seeking a direction that the whole of the proceedings be set down for hearing by a Judge and the Council seeking a direction that the question of law be determined by a Judge in advance of a hearing on the merits. The Registrar directed that the question of law be determined by a Judge as a preliminary issue. She set the hearing of that matter for 20 April 1998 and gave directions for the filing of evidence relevant to that issue. On 12 March 1998 Sheahan J, sitting as Duty Judge, dismissed the Applicant's Motion seeking review of the Registrar's decision. On that occasion the Applicant had advanced the following propositions (and I quote from the affidavit in support of the Motion): " (i) the question of law should be heard as part of the hearing on the merits; (ii) given that the question referred to is a mixed question of fact and law and as such is not a question of law; (iii) procedurally it is inappropriate and undesirable to have the matter referred for hearing in this way." B. The Challenge to the Procedure Adopted by the Court I have set forth the background to the present reference because of the Applicant's continuing objection to the procedure adopted by the Court in the present case. Although the Applicant presented a case that the Court determine that the DCP was invalid (for reasons that will presently be discussed) he maintained his strenuous objection to the procedure adopted by the Court, to such an extent that it must be regarded as an objection to jurisdiction, despite the Applicant's express disavowal that his objection was that fundamental. Rather in his comprehensive written argument, Counsel for the Applicant questioned the Registrar's power to have directed that the question of law raised by the Council be determined as a preliminary issue in the proceedings. However unless the Applicant's submission is taken as going so far as to challenge jurisdiction, the short answer to the submission is that his appeal against the Registrar's decision was dismissed by Sheahan J on 12 March 1998 and it is simply not open to the Applicant to seek to re-agitate the same question before me. Accordingly I propose to examine the question of jurisdiction for the Court to determine as a preliminary issue the question of the validity of the DCP and of the legitimacy of the procedure adopted by the Court to secure that end. The question of the validity of the DCP has arisen in the proceedings in the following circumstances. Included in the Statement of Issues filed by the Council was the alleged non-compliance of the Applicant's proposed development with a number of provisions of the DCP, most notably the maximum floor space ratio of 1.4:1 fixed in respect of Precinct 11 so designated under the DCP in which precinct is included the Applicant's land (the development site). In response to this issue the Applicant filed his statement of issues in the following terms: "The applicant will contend that the Cronulla Centre Development Control Plan is invalid as it relates to the subject site and to the floor space ratio imposed for the subject site." In response to the Applicant's Statement of Issues the Council raised at the Registrar's callover held on 3 March 1998 the following questions of law and requested that they be referred to a judge: " 1. Is the Cronulla Development Control Plan 1997 invalid as it relates to the floor space ratio for the subject site? 2. If the answer to Question 1 is in the affirmative, then what floor space ratio applies to the subject site?" It was these questions that the Registrar directed to be determined as a preliminary issue, and that form the subject matter of the present reference. It is not in dispute that the question whether the DCP is valid or invalid, raises a question of law, although the Applicant contends that it may involve a mixed question of fact and law. The latter may be so, depending upon the grounds for any suggested invalidity, eg. any alleged defect in procedure may require a factual determination as to the circumstances in which the DCP came to be made. What is an unusual feature of the present reference is the fact that it is the Council that is raising the issue of the validity of the DCP (rather than the Applicant who has stated that he will contend that the DCP is invalid). The DCP being a statutory instrument having force and recognition under the EP&A Act - see s72 and s90(1)(a)(iv) - is entitled to the benefit of the presumption of regularity: Hoffmann v La Roche & Co. v Secretary of State for Trade and Industry (1975) AC 295 at 365. In raising the question of its validity the Council of course does not seek to impugn it. Rather it seeks to defend its validity against the foreshadowed attack to be made upon it by the Applicant in the proceedings. This is how the question was debated before me. Of course the onus is upon the Applicant, as challenger, to establish his claim of invalidity. The disputed question of the validity of the DCP involved the reception of some documentary evidence tendered by the Council concerning the processing of the DCP and some affidavit evidence adduced by the Applicant concerning the effect upon the Applicant of the Council's alterations made to the draft DCP when making the DCP, involving the change in the relevant maximum floor space ratio (from 1.8:1 in the draft DCP to 1.4:1 in the approved DCP). However none of the evidence was in dispute and the relevant facts concerning the DCP and its processing (from its draft form to its finally approved form) emerge clearly and indisputably from the documentary evidence. In regarding the Applicant's objection to the procedure adopted by the Court as going to jurisdiction I should note that the Applicant expressly conceded that there may be sources of jurisdiction that would relevantly support the adopted procedure, if they had been invoked in the present case (but this, it was claimed, was not the case). For example it was submitted that there had been no order pursuant to Part 31 of the Supreme Court Rules as adopted by the Land and Environment Court Rules 1996: see Part 6 Rule 1(1). Since no order pursuant to Part 31 of the Supreme Court Rules has been given in the present case I do not stay to deal with the Applicant's bold submission that in the circumstances of this case no such order would have been made, other than to say that the adoption of that Rule by the Rules of Court obviously requires some adaptation in its application to this Court and to the discharge of the Court's specialist jurisdiction. Somewhat curiously the Applicant expressly disavowed wishing "to upset the procedure" of "true questions of law" being referred to a Judge for determination in advance of any adjudication by an Assessor of the Court, describing such procedure as "a most valuable and cost saving procedure". However in the Applicant's submission only "true" questions of law should be so referred, ie. questions which do not require any factual finding which, so the argument ran, is the task that falls to the Assessor or Judge who hears the whole of the case. The position adopted by the Applicant in the present case, in my opinion, has very little to commend it in view of the fact that he was the party who questioned the validity of the DCP, and having failed to persuade the Registrar that the whole of the case should be heard by a Judge, opposed the procedure adopted by the Court whereby the question of the validity of the DCP could be separately determined by a Judge, in advance of any hearing of the appeal on the planning merits by an Assessor, conformably to the conventional practice of the Court. The procedure for a question of law raised in a planning appeal to be determined as a preliminary issue (ie. in advance of any hearing of the appeal on the planning merits) has long been the established practice in this Court. Its obvious utility enables the Court, in appropriate cases, to resolve at the earliest possible time questions of law in dispute in planning appeals thereby facilitating the hearing of such appeals by Assessors of the Court on the planning merits of the case, untrammelled by legal complexities. Such an outcome is entirely consistent with (a) the Court's statutory charter and (b) the fact that according to the administration of the Land and Environment Court Act 1979 (the LEC Act) the vast majority of planning appeals are pursuant to s36(1) delegated to be heard and decided by Court Assessors. The Court's statutory charter includes: (i) s38(1) of the LEC Act which provides that proceedings in class 1, 2 or 3 of its jurisdiction be conducted "with as little formality and technicality…as the proper consideration of the matters before the Court permit" and (ii) the Rules of Court, and in particular Division 7 of Part 13 of the Rules in respect of proceedings in class 1, 2 or 3 of the Court's jurisdiction. It is necessary to refer in some detail to some of the relevant Rules: Part 13 Rule 14 provides: "Issues, including questions of law, are to be identified with precision and settled at the first callover before the Registrar. They cannot later be added to or expanded without leave." An obvious reason for the requirement to precisely identify any question of law is to enable the Registrar to give appropriate directions for the disposal of the proceedings. Part 13 Rule 8(4) empowers the Registrar at callover to do the following things: "(a) consider the preparations for hearing, the identification of the issues, and the probable length of the hearing; (b) so far as possible, deal with all matters which may be dealt with on application to the Court before the hearing; (c) give such directions for the conduct of the proceedings as appear best adapted for the just, expeditious and economical disposal of the proceedings; (d) on being satisfied that the proceedings are ready for hearing, fix a date for the hearing;" Part 13 Rule 16 includes the following requirements in respect of proceedings which have been fixed for hearing: "(f) unless a point of law is raised at the call-over referred to above, in accordance with rule 14 it can only be raised in the hearing by leave by notice of motion; (g) subject to the foregoing it shall not be open to a party to raise any question of law in proceedings before an assessor and the determination by the assessor shall be made- (i) on the issues in dispute between the parties, and (ii) on the merits of the case; (h) despite paragraph (f) and (g) where in proceedings heard by an assessor a dispute arises as to whether there is power in the Court to grant the application, the assessor shall refer the question to the Chief Judge pursuant to s36(5) of the Act…" The clear policy of the foregoing Rules is that (i) pre-hearing procedures identify any disputed questions of law so that the Registrar can give appropriate directions in cases where such questions are raised and (ii) hearing procedures enable adjudication by Assessors on the planning merits untroubled by questions of law. These procedures do not effect an inflexible regime that all questions of law that are identified be determined by a Judge in advance of any merits hearing by an Assessor, but rather, that where appropriate such procedure can be adopted. This must necessarily be the case because experience in litigation has long demonstrated that not every question of law raised in proceedings requires an answer and that often times what at the outset of litigation looms as an important question of law simply disappears in the course of the litigation or does not feature in the reasons for judgment. But that said, it remains the principal task of the Registrar at callover to determine appropriate directions "for the conduct of the proceedings as appear best adapted for the just, expeditious and economical disposal of the proceedings." Part 13 Rule 8(4)(c). Whereas in the present case, the Registrar clearly exercised that power in giving directions for the determination of a question of law as a preliminary issue, Part 3 Rule 6 empowers the Registrar to refer any proceedings before her to the Court and Part 3 Rule 8 empowers the Court, upon such reference, "to determine any question arising in the proceedings…" In my judgment the foregoing statutory provisions clearly support the procedure adopted by the Court in the present case to enable the question of the validity of the DCP to be determined by a Judge as a preliminary issue in advance of any hearing by an Assessor of the appeal on the planning merits. The powers so provided, are of course supplemented and amplified by the power conferred by s23 of the LEC Act for the Court "to make orders of such kind, including interlocutory orders, as the Court thinks appropriate". In particular the direction given by the Registrar on 3 March 1998 is supported by the power vested in her pursuant to Part 13 Rule 8(4)(c) of the Rules of Court and the reference of the proceedings to a Judge of the Court is supported by the power vested in the Registrar pursuant to Part 3 Rule 6. In so concluding I would adopt a broader view of what constitutes a reference of "a question of law" than the narrow view advanced on behalf of the Applicant (namely that a question of law is relevantly confined to a pure question of law). I take this view because it better promotes the express purpose of the power, namely the just, expeditious and economical disposal of the proceedings, in the context of the virtual certainty that the appeal on the merits will be heard by an Assessor "whose determination of the appeal is to be based upon the merits of the case": Part 13 Rule 16(g) of the Rules of Court. In so concluding I readily accept the proposition that in other contexts what constitutes a question of law may be regarded more strictly or narrowly. For example the power conferred by s36(5) of the LEC Act on an Assessor to refer to the Chief Judge a question of law raised in the proceedings being heard by an Assessor, may properly be construed as being limited to a pure question of law. This interpretation is reinforced by the inclusion within s36(5) of an express reference to a question as to whether the particular question referred is a question of law. To similar effect is the decision of Zeeman J in Re Appeal No. 195/94P Pending before the Resource Management and Planning Appeal Tribunal (1995) 87 LGERA 117 where his Honour interpreted the power to refer to the Supreme Court a question of law arising in an appeal before the Tribunal conferred by the Tasmania Resources Management and Planning Tribunal Act 1993, as "only permitting the reference of a pure question of law and not a mixed question of law and fact": at 120. Similarly in contexts which permit the stating of a case for the opinion of a court, it has been held that prima facie the court's role is confined to answering the question of law "on the facts as stated and on those facts alone": McCaughey v Stamp Duties Commissioner (1945) 46 SR (NSW) 192 cited with approval by McHugh and Gummow JJ in Commission of Stamps (SA) v Telegraph Investment Co Pty Limited (1995) 184 CLR 453 at 484. However in the context of the administration of the LEC Act and particularly in the context of the conventional distribution of the Court's business so that it is usual for a planning appeal to be delegated to be heard by an Assessor of the Court, there is very good reason not to adopt a narrow view of what constitutes a question of law, in relation to any reference by the Registrar to a Judge for determination as a preliminary issue. Accordingly I would hold that the present reference relevantly involves a question of law, even if it may properly be characterised as a mixed question of law and fact. Moreover even if the reference is properly regarded as a reference of a mixed question of law and fact, I would uphold the legitimacy of both the reference and the determination of the reference, as being sustained by the enabling powers that I have earlier recited. In so concluding I would firmly reject that Applicant's submission that the Registrar's reference in the present case is "in truth" a reference of a question of law pursuant to s36(5) of the LEC Act. That power, as I have earlier indicated, is a power vested in an Assessor to refer to the Chief Judge a question of law "raised in the proceedings" that are being heard by the Assessor. It is a power altogether separate from the power available to, and exercised by, the Registrar in the present case, pursuant to the powers conferred by the Rules of Court that I have earlier referred to. The Registrar's power is necessarily exercised before the hearing and disposal of the proceedings is delegated to an Assessor pursuant to s36(1) of the LEC Act. For reasons I have already given the power conferred upon the Registrar in respect of the determination by a Judge of a question of law as a preliminary issue in advance of the hearing of the appeal on the merits, is wider than the power conferred upon an Assessor by s 36(5) of the LEC Act. Next the Applicant submitted that "unless s36 is relied upon in the present case there is no means of giving effect to the Judge's opinion." I would entirely reject this submission. A determination by a Judge on a question of law referred by the Registrar for determination as a preliminary issue in advance of the hearing on the merits gives rise to an estoppel per rem judicatam: see Masterplan Consultants Pty Ltd v Ku-ring-gai Council (unreported 14 October 1997 per Bignold J). In this sense it is binding on the parties to the proceedings and upon the Assessor who ultimately hears the appeal on the planning merits. The conclusion so expressed in Masterplan is consistent with the judgment of Hope JA (which had the concurrence of Glass JA) in Blue Mountains City Council v Hudson (1985) 56 LGRA 360 which involved an appeal against the determination of Cripps J made on a reference from the Registrar of the Court in a pending planning appeal. That determination had settled a dispute between the parties as to the precise ambit of the relevant development application. Having determined that the ambit of the development application was confined to Stage 1 (comprising 6 units) of a proposed large retirement village, Cripps J expressed himself as follows: "The order I will make therefore is that this matter be remitted to the registrar for allocation conformably with the ruling I have made, namely that it is not open to Mr Hudson to pursue in this appeal an entitlement to erect forty units for the aged on the subject land. My determination will be incorporated into the record. It will be followed by the assessor and the council undertaking that no objection will be raised to Mr Hudson exercising his appeal rights within the time limit for appeal after the final decision is announced by the assessor." At 363 Hope JA expressed the following views on the effect of Cripps J's determination: "What Mr Justice Cripps determined in the present case was, of course, not the final decision in Mr Hudson's appeal; that decision will be made in due course by an assessor. What he did, for the purposes of enabling the Registrar to give the appropriate directions in relation to the hearing of the appeal, was to mark out the limits of the appeal. The assessor will apply those limits when he hears the appeal, and his final judgment will incorporate explicitly, or will be based upon the limits imposed by, the determination of Cripps J ." (my emphasis) Mahoney JA in a separate judgment appears to have taken a somewhat contrary view of the effect of Cripps J's determination when he held at 364 that his Honour had adopted "a particular conclusion, without more" and that his Honour's conclusion "may be followed" by the appropriate Judge or Assessor who ultimately heard the appeal in the Land and Environment Court. To the extent that there is a difference of opinion in the judgments in Hudson concerning the effect ultimately to be given in the planning appeal, to Cripps J's determination, the view of Hope JA reflects the majority view of the Court of Appeal, and accordingly is to be preferred. It may be that Mahoney JA's opinion is founded exclusively upon the absence of any appropriate "order" embodied in Cripps J's determination in that case. Accordingly his Honour's approach would not appear to be relevant to the current practice of this Court in respect of references of questions of law for determination as a preliminary issue where the usual form of disposal of the reference is for formal answers to be pronounced in respect of formal questions posed in the reference. Accordingly I would utterly reject the Applicant's submission that because "the two questions of fact of weight and invalidity of the DCP are so interrelated" it would be open to the Applicant to re-agitate the question of the validity of the DCP before the Assessor if additional facts emerge at the hearing before the Assessor, and it would be open to the Assessor to reach a different conclusion from the Judge on the question of the validity of the DCP. In support of his very bold submission the Applicant relied upon the decision of Stein J (as he then was) in Pimas Group Pty Ltd v Maritime Services Board of NSW (1994) 82 LGERA 205. Although in the exercise of his discretion Stein J declined to answer one of the referred questions of law because his Honour "fear(ed) that it is possible that a full merits hearing could affect the issues as stated and furthermore the questions are not purely legal in content" (207) I do not understand his Honour's decision to give any support to the Applicant's proposition that it would be open to a party to re-agitate on the hearing of the planning merits the very question that has been determined by a Judge on a reference of a question of law for determination of a preliminary issue. The Applicant's proposition is manifestly contrary to both principle and authority. Finally the Applicant raised concerns as to the consequences of the Court's procedure adopted in the present case, on rights of appeal conferred by s57 of the LEC Act. In my judgment there is no substance in this submission. Clearly the determination by a Judge on a reference of a question of law is an appealable decision in terms of s57(1) and (4) of the LEC Act. This right of appeal is not affected by my decision in Masterplan to the effect that the appeal provisions contained in ss56A and 57 of the LEC Act although making specific provision in respect of a question of law determined pursuant to a reference under s36(5) - see ss56A(3) and 57(3)(c) - contain no provision in respect of a question of law determined as a preliminary issue pursuant to the procedure of the Court that was the same as that adopted in the present case.(Masterplan rejected the notion that there could be a further appeal pursuant to s56A against the Judge's determination as given effect to by the Assessor in the hearing of the appeal). C. Conclusion - the Challenge to the Court's Adopted Procedure Fails For all the foregoing reasons the Applicant's challenge to the procedure adopted by the Court in respect of the reference of the question of law fails. Insofar as that challenge directly or indirectly challenged the Court's jurisdiction and power to determine the referred question of law, that challenge likewise fails. It may be helpful if I restate in propositional form my conclusions in respect of the validity of the procedure adopted by the Court for the reference of the question of law for determination as a preliminary issue: (i) the adopted procedure accords with long established practice of the Court; (ii) the practice is amply supported by the powers conferred by the LEC Act and the Rules of Court; (iii) the determination of the question of law will create an estoppel per rem judicatam and accordingly will be binding on the parties and on the Assessor who ultimately is delegated the function of determining the appeal on the planning merits; (iv) it is not open to either party when the appeal is ultimately before an Assessor to challenge or question or re-agitate the determination in respect of the referred question of law; and (v) the determination of the question of law is susceptible to the appeal process provided by s57(1) and (4) of the LEC Act. Although in determining the Applicant's challenge to the procedure adopted by the Court I am not called upon to determine the appropriateness of the Registrar's reference (that question was determined by Sheahan J when dismissing the Applicant's Motion to review the Registrar's directions) I would wish to say that the adopted procedure was, in my opinion, entirely appropriate in the present case. This is so because it would have been entirely inappropriate for the Applicant's challenge to the validity of the DCP to be left to the Assessor who hears the appeal on the planning merits, but even more inappropriate to allow the case to proceed to hearing without the parties knowing, by virtue of the uncertainty concerning the validity of the DCP, what were the applicable planning controls prescribing the maximum floor space ratio in respect of the Applicant's proposed development. The need for, and utility of, determining the Applicant's challenge to the validity of the DCP in advance of the hearing on the planning merits in the present case, were at least as compelling as the need and utility of the determination made in Hudson concerning the ambit of the development application. Finally I would reject the Applicant's submission that the utility of a determination of the question of law will be undermined by the fact that even if it be held that the DCP is valid, the Applicant on the hearing of the appeal will be entitled to rely upon the same evidence adduced on the question of validity, in support of a submission that the Assessor in determining the appeal on the planning merits should give little or no weight to the DCP. In my judgment the question of the weight to be given to the DCP as a relevant consideration in terms of s90(1)(a)(iv) of the EP&A Act is an entirely different question as to whether the DCP is valid. The weight to be given to a relevant consideration under s90 of the EP&A Act is of course a matter for the ultimate decision maker, and except for the most exceptional circumstances, that decision is a finding of fact. Accordingly it is not for me to opine on the weight to be given to the DCP on the hearing of the appeal on the merits, assuming that I were to hold the DCP to be valid. However I am constrained to say that a determination of the validity of the DCP is not to be undermined or re-agitated under the guise of a question of the weight to be given to the DCP. D. The Questions of Law As I have stated the fundamental question of law concerns the validity of the DCP. A series of questions consequential upon the answer to that question were also raised and debated on the reference. The questions as formulated by the Council are as follows: (i) Is the Cronulla Development Control Plan 1997 invalid as it relates to the floor space ratio for the subject site? (ii) If the answer to Question 1 is in the affirmative, then what floor space ratio applies to the subject site? (iii) Is the Cronulla Development Control Plan 1997 invalid? (iv) Whether the floor space ratio provisions in Cronulla Centre DCP (adopted on 29.8.89) have effect pursuant to cl.58 of Sutherland Shire LEP 1993. (v) Alternatively to question (iv) Whether the floor space ratio provisions in Cronulla Centre DCP (adopted on 13.10.97) have effect pursuant to cl.58 of the Sutherland Shire LEP 1993. I propose to deal with the fundamental question concerning the validity of the DCP recognising (i) that the reality behind the question is the Applicant's challenge to the validity of the DCP insofar as it applies to his development site forming part of Precinct 11 so designated by the DCP and (ii) that it is the Applicant, as challenger, who has the legal onus of establishing invalidity. In order to appreciate the Applicant's challenge to the validity of the DCP it is necessary to recite the relevant provisions of the EP&A Act and of the Regulation made thereunder. Section 72 of the EP&A Act provides as follows: " (1) Where a council considers it necessary or desirable to provide more detailed provisions than are contained in local environmental plan or a draft local environmental plan in respect of a part or parts of the land to which plan or draft plan, as the case may be, applies, it may prepare or cause to be prepared a development control plan. (2) The format, structure, subject matter and procedures for the preparation, public exhibition, approval, amendment and repeal of such a development control plan shall be as prescribed. (3) Such a development control plan shall generally conform to the provisions of the local environmental plan or the draft local environmental plan which applies to the land to which the development control plan applies. (4) A development control plan prepared in accordance with this section shall be available for public inspection, without charge, at: (i) the office of the council during ordinary office hours; and (ii) such other premises operated or controlled by the council and at such times ass may be prescribed." Part 3 of the Environmental Planning and Assessment Regulation 1994 (the Regulation) provides the required statutory regime for the making of development control plans. That regime includes the requirement that (i) public notice be given of the preparation of a draft development control plan and, (ii) the plan be publicly exhibited for a minimum prescribed period: cl.17 . Clause 19 provides as follows: "Any person may make written submissions to the Council about the draft development control plan during the period specified in the relevant notice." Clause 20 provides as follows: " (1) After considering any submissions about the draft development control plan that have been duly made, the council; (a) may approve the plan in the form in which it was publicly exhibited; or (b) may approve the plan with such alterations as the council thinks fit; or (c) may decide not to proceed with the plan. (2) The council must give public notice of its decision in a local newspaper within 14 days after the decision is made. (3) Notice of a decision not to proceed with a development control plan must include the council's reasons for the decision. (4) A development control plan comes into effect on the date that public notice of its approval is given in a local newspaper or on a later date specified in the notice. (5) The council must give the Secretary a certified copy of any development control plan approved under this clause." The draft form of the DCP is a document comprising some 66 pages. Its stated purpose is "to provide the development control mechanism to guide…the future development of the Cronulla Centre". It applies to all development within the Cronulla Centre which is divided into 11 designated development Precincts. The draft DCP designated the Applicant's development site within Precinct 11 (Tonkin Street). Section 3.2 of the draft DCP specifies building height and floor space ratios for each of the Precincts. For Precinct 11 the relevant floor space ratio is 1.8:1. The draft DCP was publicly exhibited from 21 November to 21 December 1996. A number of written submissions were received by the Council to the draft DCP including a submission from the Applicant (which generally supported the draft DCP). Thereafter the Council established a Steering Committee comprising Councillors and Council servants and community representatives to review the public comments received in respect of the draft DCP. At the meeting of the Steering Committee held on 4 September 1997 a number of decisions were taken in respect of the draft DCP, including a decision in respect of the Tonkin Street Precinct (ie. Precinct 11). The minutes of the Steering Committee record that the Committee agreed, inter alia, to impose a 1.4:1 floor space ratio for Precinct 11. On 13 October 1997 the Council adopted the recommendations contained in the report of the Director of Environmental Services. That report summarised the history of the draft DCP including the input made by the Council's Steering Committee when it agreed to a number of final amendments to the draft DCP and recommended that the Council adopt the draft DCP with the amendments it had made. The Director's report summarised the Steering Committee's recommended amendments including the amendment to the prescription of floor space ratio of 1.4:1 for properties on the Western side of Tonkin Street. The Director's report recommended the Council adopt the draft DCP subject to the amendments recommended by the Steering Committee. In relation to the floor space ratio of 1.4:1 for Precinct 11 prescribed by the adopted DCP it should be noted that cl.58 of the Sutherland Shire Local Environmental Plan 1993 which applies to the development site (including it within Zone No. 9(a)) provides as follows: " (1) Except where a floor space ratio is specified in any development control plan, all development must not exceed a floor space ratio of 2:1. (2) Council must consider floor space ratios specified in any development control plan applying to the land." The foregoing facts clearly emerge from the documentary evidence tendered by the Council and are not in dispute. The Applicant adduced further evidence via affidavits respectively sworn by himself and his architect, Mr McIntyre. The Applicant deposes to the fact that he began discussions concerning his proposal to develop the development site with the Council servants in 1996 and these continued in 1997 and at no stage was he informed of any proposal to reduce the floor space ratio provided in the draft DCP to 1.4:1 and that had the draft DCP proposed such a floor space ratio he would have made submissions objecting to the proposal and would have engaged professional assistance in making such submissions. Mr McIntyre stated that in designing the proposed development for the Applicant, he had been aware during 1997 that the draft DCP proposed to reduce the relevant floor space ratio prescribed by the LEP of 2.1:1 to 1.8:1 and that he had designed the proposed development having regard to the draft DCP. He also stated that in his regular contact with the Council servants he had not been informed of any proposal that the floor space ratio prescribed by the draft DCP would be further reduced to 1.4:1 and that had the draft DCP so provided he would have made submissions on behalf of his client objecting to the proposal on the grounds that the practical effect of the reduction in floor space ratio would be to generally limit development to three storey "walk up" flats compared with luxury development with lift access which would have been achievable with a floor space ratio of 1.8:1 and that there were no (or no appreciable) advantages to anyone in the further reduction of the floor space ratio. The deponents were not cross-examined and there was no evidence in rebuttal of their testimony, which I readily accept. What then on the foregoing facts are the legal bases for the Applicant's challenge to the validity of the DCP? As I understood the Applicant's argument there were three suggested bases for invalidity: (i) procedural ultra vires in that the Applicant was entitled to the opportunity to object to the proposed alteration to the draft DCP reducing the relevant floor space ratio from 1.8:1 to 1.4:1; (ii) substantial ultra vires in that the alteration to the relevant floor space ratio exceeded the statutory power of the Council to approve the draft DCP "with such alterations as the council thinks fir": cl.20(1)(b) of the Regulation; and (iii) manifest unreasonableness in the 'Wednesbury' sense in that there was no reasonable or plausible basis for the Council's decision to change the relevant floor space ratio from 1.8:1 to 1.4:1. In my opinion the Applicant's challenge to the validity of the DCP fails on all grounds. My reasons for so concluding need to be separately stated in respect of each of the grounds of invalidity raised by the Applicant. (i) Procedural ultra vires The Applicant does not assert any failure on the part of the Council to comply with the statutory procedures for the making of the DCP contained in Part 3 of the Regulation. Rather it asserts that the Council, notwithstanding compliance with those statutory procedures, was required by the dictates of natural justice or procedural fairness to inform the Applicant of the proposed alteration to the draft DCP reducing the floor space ratio from 1.8:1 to 1.4:1, to give him the opportunity to make submissions on the proposal. In my opinion the Council, in making the DCP, was not required to give the Applicant notice of the proposed alteration, because in exercising its statutory powers under Part 3 of the Regulation the Council was not bound by the rules of natural justice to give such prior notice to the Applicant. In my judgment the Council was not so bound for the following reasons: (i) Part 3 of the Regulation which conformably to s72(2) of the EP&A Act provides the statutory code or regime for the making of a development control plan contains express provision for public participation in the process and thereby expresses the legislative intention to displace the rules of natural justice to the extent that they would otherwise operate to supplement what the Regulation has expressly provided for with respect to public participation: Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109/110 per Barwick CJ; (ii) the statutory power conferred upon the Council by s72 of the EP&A Act and Part 3 of the Regulation is more in the nature of a quasi legislative or policy making power rather than an administrative discretion and as such is not a power, the exercise of which is controlled by the rules of natural justice: Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 at 163; The Minister for Urban Affairs and Planning v Rosemount Estates Pty Limited (1996) 91 LGERA 31 at 48; STSFS Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 53. (iii) The Applicant is one of hundreds (if not thousands) of persons who own or occupy lands or properties to which the DCP applies. He is also one of a much smaller number of persons who own or occupy properties in Precinct 11 designated by the DCP. He is also one of the far greater number of persons than those affected by the alteration to the draft DCP concerning the floor space ratio for Precinct 11 who were apt to be affected by the totality of alterations to the draft DCP recommended by the Steering Committee on 4 September 1997 and adopted by the Council at its meeting held on 13 October 1997. A copy of the Council's resolution is annexed hereto from which it will be seen that many alterations to the draft DCP were made affecting many properties to which the DCP applies. Because the Applicant's position is not relevantly distinguishable from other persons whose interests were apt to be affected by the DCP or the alterations to the draft DCP he is not specially qualified to invoke the rules of natural justice: see Kioa v West (1985) 159 CLR 550 at 584, 619 and 632; Coles Supermarket Australia Pty limited v K-Mart Australia Pty Limited and others (1996) 90 LGERA 341 at 358/9; Breitkopf v Wyong Council (1996) 90 LGERA 265 at 286/7; and Rosemount at 91. The fact that the Applicant lodged with the Council his development application for the redevelopment of the development site on the very same day that the Council resolved to make the DCP with the recommended alterations to the draft DCP does not specially qualify the Applicant. Nor does the fact that throughout 1996 and 1997 he and his architect were in discussion with Council servants concerning the Applicant's proposal to redevelop his site. There can be no suggestion that in the course of these discussions the Council concealed its hand to alter the relevant floor space ratio controls for Precinct 11. Indeed it was not until the meeting of the Steering Committee held on 4 September 1997 that the proposed alteration to the draft DCP came into existence and it was not until 13 October 1997 that the proposed alteration was adopted by the Council in its decision to approve the DCP with the recommended alterations. For all the foregoing reasons the Applicant's claim that the DCP was invalid based upon a denial of natural justice must fail. (ii) Substantive ultra vires The Applicant seeks to apply to the present case the decision of the Court of Appeal in Leichhardt Council v Minister for Planning (No. 2) (1995) 87 LGERA 78 where it was held (and I quote from the headnote) that a regional environmental plan was invalid because the discrepancy between the plan and the draft version of that plan that had been publicly exhibited was so great that the plan was not in all important respects the product of a process under Part 3 Division 3 of the EP&A Act. Although I think the headnote aptly captures the essential holding of the majority judgment given by Priestley JA I would emphasise what his Honour said at 88 concerning the factual significance of the alteration made to the draft plan: "It was a plan which in all respects but one, in my opinion, was a proper product of a Part 3 Division 3 process but in one important respect, that of height controls was not. That is a matter of such potential importance to the future development of the land to which [the plan] applied the [the plan] cannot, in my opinion, be said to be a plan which the Minister had power to make under s51(1)". His Honour had earlier described the differences, so far as building heights were concerned, between the draft plan and the plan made by the Minister as "stark" (86) and "very significant" (87). The draft plan had, inter alia controlled building height by reference to the limits imposed by a development control plan prepared by the Director of Planning. By contrast the plan as made by the Minister had deleted all reference to development control plan and no relevant development control plan was brought into effect when the Minister made the plan producing the result described by Priestley JA at 87 as "freeing the relevant site from any height limit at all". In Coles Pearlman J at 361 was prepared to apply by analogy to the local environmental plan process the principle enunciated in Leichhardt. If by further analogy the principle in Leichhardt were to applied to the making of the DCP in terms of the procedures specified in Part 3 of the Regulation, in my opinion it could not be reasonably concluded that the alteration in the floor space ratio for precinct 11 from 1.8:1 to 1.4:1 created such an important difference between the draft DCP and the approved DCP as to render the latter to be in excess of the power to alter the draft DCP conferred upon the Council by cl.20(1)(b) of the Regulation. Here the relevant difference is a reduction by some 20% of the relevant maximum floor space ratio. That difference, in my judgment, does not involve any difference in kind, and involves only a moderate difference in degree. In my judgment the difference is not so significant as to lead to the conclusion that the statutory power conferred upon the Council has been exceeded in this case. Although the foregoing conclusion is sufficient reason to hold that the Applicant's challenge to the validity of the DCP on this ground fails, I would wish to reserve for a more appropriate case the question whether the principle in Leichhardt applies by analogy to the power conferred upon a council by cl.20(1)(b) of the Regulation. My reservation is based upon the fundamentally different functions and legal effects of an environmental planning instrument made under the EP&A Act on the one hand and a development control plan made under that Act on the other, a difference expounded upon by Priestley JA in Leichhardt at 89/90. (iii) 'Wednesbury' unreasonableness The final ground of challenge to the validity of the DCP is based upon the ground of legal unreasonableness. In my judgment this challenge has not been sustained and must be held to fail. Increasingly in recent times the courts have emphasised that "Wednesbury unreasonableness" must not be allowed to open the gate to judicial review of the merits of a decision or action taken within power: per Sheller JA at 42 in Rosemount. Pausing here, it is apparent that the Applicant's challenge on this ground is no more than a complaint against the merits of Council's decision to change the floor space ratio for Precinct 11. As such, the complaint does not attract judicial review jurisdiction. The Applicant relies upon Mr McIntyre's opinion. Mr McIntyre is an architect who is no doubt entitled to an opinion. However the existence of that opinion barely touches upon the question of whether the Council's decision to change the floor space ratio for Precinct 11 was unreasonable in the "Wednesbury" sense. Recognising the apparent hopelessness of the claim the Applicant points to the concession made by the Council that there is no planning justification for the Council's decision other than what is to be found in the minutes of the Steering Committee when it recommended the relevant changes to the draft DCP at its meeting held on 4 September 1997, and in the Planning Director's report submitted to the Council which led to the Council's decision on 13 October 1997 to approve the DCP with the alterations recommended by the Steering Committee. However since the statutory power of the Council to alter the draft DCP is unconfined except by the purpose and object of the EP&A Act and Regulation the absence of planning explanation, rationale or justification for the Council's decision to change the relevant floor space ratio for Precinct 11 does not materially assist the Applicant's challenge because "no consideration is to be inferred to be irrelevant to the exercise of the instant power unless from the nature of the power and in its context it appears to be so" per Mahoney JA in Noroton Holdings Pty Limited v Friends of Katoomba Falls Creek Valley Incorporated (Court of Appeal - unreported 11 June 1996) referring to the seminal decision of Dixon J in Water Conservation v Browning (1947) 74 CLR 492 at 505 where his Honour had said: " But, though the discretion is neither arbitrary nor completely unlimited, it is certainly undefined. I have before remarked on the impossibility, when an administrative discretion is undefined, of a court's doing more then saying that this or that consideration is extraneous to the power ( Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757, 758). But there must be some warrant in the provisions, the nature or the subject matter of the statute before so much can be said of a particular consideration that has been acted upon. What warrant have we in point of law for saying that the considerations governing the Commission's refusal of consent to the transfer to Carbone can be material to no purpose falling within the scope and object of the Commission's discretion? " In my judgment it simply cannot be concluded that the Council's decision to alter the relevant floor space ratio is not material to any purpose falling within the scope and object of the Council's statutory power. However, if as I have earlier held, the Council's statutory power to make the DCP is more in the nature of a quasi legislative power than an administrative discretion, then the Applicant's attempt to impugn the DCP on the ground of Wednesbury unreasonableness must fail because that doctrine has an even more confined application to the question of the validity of delegated legislation: see Rosemount at 43/44 per Sheller JA and 80/81 per Cole JA. Each of their Honours adopted the following statement of principle found in the judgment of Lockhart J in Minister for Primary Industries and Energy v Austral Fisheries Pty Limited (1993) 40 FCR 381 at 382: "Delegated legislation is not invalid on the ground of unreasonableness in the sense that the Courts may form a different view as to what is reasonable. Unreasonableness in this branch of the law means unreasonableness in the sense that 'a merely fantastic and capricious by-law, such as reasonable men could not make in good faith' is bad, because delegated legislation of this kind could not be regarded as an exercise of the power conferred upon the subordinate legislative body making the delegated legislation: Slattery v Naylor (1888) 13 App Cas 446 at 452." For all the foregoing reasons this ground of challenge to the validity of the DCP fails. E. Answers to the Questions of Law It follows that the Applicant's challenge to the validity of the DCP wholly fails. It further follows that the questions of law should be answered conformably to that conclusion and to its corollary that the DCP is, on that account, and by virtue of the presumption of regularity, valid. Accordingly I answer the questions of law as follows: Question (i) No. Question (ii) Does not arise in the light of answer to Question (i). Question (iii) No. Question (iv) No, because Cronulla Centre Development Control Plan accepted by the Council on 13 October 1997 supersedes the earlier Development Control Plan. Question (v) Yes I remit to the Registrar my determination of the questions of law. The exhibits may be returned. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 36 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD. 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.