Land and Environment Court New South Wales Medium Neutral Citation: Teys Australia Southern Pty Limited v Burns [2015] NSWLEC 1 Hearing dates: 28, 29 August, 5 September, 27 October 2014 Decision date: 13 January 2015 Jurisdiction: Class 4 Before: Pain J Decision: 1. Summonses in proceedings numbered 40893 of 2013 and 40894 of 2013 are dismissed. 2. Costs reserved. Catchwords: JUDICIAL REVIEW - meaning of proposed instrument in context of s 79C(1)(a)(ii) of the Environmental Planning and Assessment Act 1979 – whether proposed instrument considered in council assessment of subdivision development application – whether failure to properly consider public interest issues including planning history of area in council assessment of subdivision development application Legislation Cited: Environmental Planning and Assessment Act 1979 Pt 3 Div 4, s 79C, s 80, s 117, Pt 3A (repealed) Environmental Planning and Assessment Regulation 2000 Wagga Wagga Local Environmental Plan 2010 Cases Cited: Anderson v Director General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Bruce v Cole (1998) 45 NSWLR 163 DeAngelis v Pepping [2014] NSWLEC 108; (2014) 203 LGERA 61 Gee v Council of the City of Sydney [2004] NSWLEC 581; (2004) 137 LGERA 157 Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366 Hoskins v Waverley Council [1999] NSWLEC 236 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; (1987) 14 ALD 291 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Manousaki v Randwick Municipal Council (1988) 66 LGRA 330 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 Parramatta City Council v Hale (1982) 47 LGRA 319 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 102 LGERA 52 Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 Texts Cited: Second reading speech (New South Wales, Parliamentary Debates, Legislative Council, 17 June 2008, 8074 (Penny Sharpe)) Category: Principal judgment Parties: Teys Australia Southern Pty Limited (Applicant) Craig William Burns (First Respondent 13/40893) Geoffrey Lyford Ashley (First Respondent 13/40894) Wagga Wagga City Council (Second Respondent) Representation: Counsel: Mr A Galasso SC (Applicant) Mr P Larkin SC with Ms E Whitby (First Respondents) Submitting appearance (Second Respondent) Solicitors: Henry Davis York (Applicant) Susan Hill & Associates (First Respondents) Lindsay Taylor Lawyers (Second Respondent) File Number(s): 40893 of 2013, 40894 of 2013 Judgment Judicial review challenges to grant of two development consents 1. The Applicant Teys Australia Southern Pty Limited challenges in different proceedings the grant of two development consents for subdivision by Wagga Wagga City Council (the Council) the Second Respondent to two different First Respondents in relation to different parcels of land. The basis for granting consent by the Council was effectively the same so that both proceedings can be dealt with together. The Council has filed a submitting appearance in both proceedings. 2. The Applicant owns and operates a meat processing facility (the facility) at Dampier Street, Wagga Wagga. The facility is situated within an area of land zoned IN1 - General Industrial under the Wagga Wagga Local Environmental Plan 2010 (the 2010 LEP). This area of industrial zoned land is known as the Bomen Industrial Estate. The First Respondents own land in the adjoining area known as Cartwrights Hill. 3. The Applicant seeks a declaration that the consent granted to Development Application DA 13/0192 for residential subdivision, on land at Lot 28 in DP 2655 on 25 July 2013, and the consent granted to Development Application DA 13/0183 for residential subdivision, on land at Lot 83 DP 751422 on 25 July 2013 by the Council are void and of no effect. Consequential orders restraining the First Respondents from conducting any development under the purported authority of the consents are also sought. 4. For the reasons which follow I consider both Class 4 proceedings should be dismissed as the judicial review challenges are unsuccessful. Environmental Planning and Assessment Act 1979 1. The statutory scheme for the making and consideration of an environmental planning instrument (EPI) was amended significantly in amendments to Pt 3 Div 4 and Pt 4 Div 2 (s 79C(1)) which commenced on 1 July 2009. These amended provisions have not received much judicial consideration to date. Relevant sections of the Environmental Planning and Assessment Act 1979 (EPA Act) are: Part 3 Environmental planning instruments Division 4 LEPs 53 Minister may make environmental planning instruments for local areas (LEPs) (1) The Minister may make environmental planning instruments for the purpose of environmental planning: (a) in each local government area, and (b) in such other areas of the State (including the coastal waters of the State) as the Minister determines. (2) Any such instrument may be called a local environmental plan (or LEP). 54 Relevant planning authority (1) For the purposes of this Part, the relevant planning authority in respect of a proposed instrument is as follows: (a) the council for the local government area to which the proposed instrument is to apply, subject to paragraph (b), (b) the Director-General or any other person or body prescribed by the regulations if the Minister so directs under subsection (2). (2) The Minister may direct that the Director-General (or any other person or body prescribed by the regulations) is the relevant planning authority for a proposed instrument in the following cases: (a) the proposed instrument relates to a matter that, in the opinion of the Minister, is of State or regional environmental planning significance, (b) the proposed instrument makes provision that, in the opinion of the Minister, is consequential on the approval of the concept plan for a project under Part 3A, is consequential on the making of another environmental planning or other instrument or is consequential on changes made to a standard instrument under section 33A, (c) the Planning Assessment Commission or a joint regional planning panel has recommended to the Minister that the proposed instrument should be submitted for a determination under section 56 (Gateway determination) or that the proposed instrument should be made, (d) the council for the local government area concerned has, in the opinion of the Minister, failed to comply with its obligations with respect to the making of the proposed instrument or has not carried out those obligations in a satisfactory manner, (e) the proposed instrument is to apply to an area that is not within a local government area (subject to subsection (6)). (3) A relevant planning authority that is requested by the owner of any land to exercise its functions under this Division in relation to the land may, as a condition of doing so, require the owner to carry out studies or provide other information concerning the proposal or to pay the costs of the authority in accordance with the regulations. (4) The Minister may, in a direction under this section, require a council to provide studies or other information in its possession relating to the proposed instrument to be provided to the person or body specified in the direction as the relevant planning authority for the proposed instrument. (5) Two or more relevant local authorities may together exercise the functions under this Division of a relevant planning authority in connection with the making of a single principal or amending instrument in relation to the whole of their combined areas. (6) A reference in this section to a local government area includes a reference to an adjoining area that is not within a local government area and that is designated as part of that local government area for the purposes of this Division by the Minister by order published in the Gazette. Note. Section 117 enables directions to be given to councils or other relevant planning authorities on the exercise of functions under this Division in relation to the making of an instrument. 55 Relevant planning authority to prepare explanation of and justification for proposed instrument—the planning proposal (1) Before an environmental planning instrument is made under this Division, the relevant planning authority is required to prepare a document that explains the intended effect of the proposed instrument and sets out the justification for making the proposed instrument (the planning proposal). (2) The planning proposal is to include the following: (a) a statement of the objectives or intended outcomes of the proposed instrument, (b) an explanation of the provisions that are to be included in the proposed instrument, (c) the justification for those objectives, outcomes and provisions and the process for their implementation (including whether the proposed instrument will comply with relevant directions under section 117), (d) if maps are to be adopted by the proposed instrument, such as maps for proposed land use zones; heritage areas; flood prone land—a version of the maps containing sufficient detail to indicate the substantive effect of the proposed instrument, (e) details of the community consultation that is to be undertaken before consideration is given to the making of the proposed instrument. (3) The Director-General may issue requirements with respect to the preparation of a planning proposal. 56 Gateway determination (1) After preparing a planning proposal, the relevant planning authority may forward it to the Minister. (2) After a review of the planning proposal, the Minister is to determine the following: (a) whether the matter should proceed (with or without variation), (b) whether the matter should be resubmitted for any reason (including for further studies or other information, or for the revision of the planning proposal), (c) community consultation required before consideration is given to the making of the proposed instrument (the community consultation requirements), (d) any consultation required with State or Commonwealth public authorities that will or may be adversely affected by the proposed instrument, (e) whether a public hearing is to be held into the matter by the Planning Assessment Commission or other specified person or body, (f) the times within which the various stages of the procedure for the making of the proposed instrument are to be completed. (3) A determination of the community consultation requirements includes a determination under section 73A (or other provision of this Act) that the matter does not require community consultation. (4) The regulations may provide for the categorisation of planning proposals for the purposes of this section, and may prescribe standard community consultation requirements for each such category. (5) The Minister may arrange for the review of a planning proposal (or part of a planning proposal) under this section to be conducted by, or with the assistance of, the Planning Assessment Commission or a joint regional planning panel: (a) if there has been any delay in the matter being finalised, or (b) if for any other reason the Minister considers it appropriate to do so. (6) The relevant planning authority may, at any time, forward a revised planning proposal to the Minister. (7) The Minister may, at any time, alter a determination made under this section. (8) A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section. 57 Community consultation (1) Before consideration is given to the making of a local environmental plan, the relevant planning authority must consult the community in accordance with the community consultation requirements for the proposed instrument. (2) The planning proposal (as revised to comply with the determination under section 56 and in a form approved by the Director-General) is to be made publicly available during the period of community consultation. Detailed provisions may be summarised instead of being set out in full if the Director-General is satisfied that the summary provides sufficient details for community consultation. (3) During the period of community consultation, any person may make a written submission to the relevant planning authority concerning the matter (other than any matter that is mandatory under an applicable standard instrument under section 33A). (4) The relevant planning authority may (but need not) make publicly available, in accordance with the community consultation requirements, the submissions made concerning a matter (or a summary of or report on any such submissions). (5) If: (a) a person making a submission so requests, and (b) the relevant planning authority considers that the issues raised in a submission are of such significance that they should be the subject of a hearing, the relevant planning authority is to arrange a public hearing on the issues raised in the submission.(6) The relevant planning authority may arrange a public hearing on any issue whether or not a person has made a submission concerning the matter. (7) A report of any public hearing is to be furnished to the relevant planning authority and may be made publicly available by that authority. (8) The consultation required by this section is completed when the relevant planning authority has considered any submissions made concerning the proposed instrument and the report of any public hearing. 58 Relevant planning authority may vary proposals or not proceed (1) The relevant planning authority may, at any time, vary its proposals as a consequence of its consideration of any submission or report during community consultation or for any other reason. (2) If it does so, the relevant planning authority is to forward a revised planning proposal to the Minister. (3) Further community consultation under section 57 is not required unless the Minister so directs in a revised determination under section 56. (4) The relevant planning authority may also, at any time, request the Minister to determine that the matter not proceed. 59 Making of local environmental plan by Minister (1) The Director-General is to make arrangements for the drafting of any required local environmental plan to give effect to the final proposals of the relevant planning authority. The Director-General is to consult the relevant planning authority, in accordance with the regulations, on the terms of any such draft instrument. (2) The Minister may, following completion of community consultation: (a) make a local environmental plan (with or without variation of the proposals submitted by the relevant planning authority) in the terms the Minister considers appropriate, or (b) decide not to make the proposed local environmental plan. (3) The Minister may defer the inclusion of a matter in a proposed local environmental plan. (4) If the Minister does not make the proposed local environmental plan or defers the inclusion of a matter in a proposed local environmental plan, the Minister may specify which procedures under this Division the relevant planning authority must comply with before the matter is reconsidered by the Minister. Part 4 Development assessment Division 2 The procedures for development that needs consent 79C Evaluation (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. Previous legislation 1. Section 79C(1)(a)(ii) of the EPA Act as at 30 June 2009 provided: 79C Evaluation (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: … (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the draft instrument has been deferred indefinitely or has not been approved), and… 1. The court book was tendered (exhibit A). It contains the amended summonses, agreed statements of fact, agreed chronology and submissions, inter alia. Five volumes of documents were also tendered (exhibit B). The affidavit of Mr Gavin Shapiro solicitor dated 19 August 2014 was read. Mr Shapiro states that the five volumes of documents tendered are all the documents from the Council's files. There is no dispute about the documents in evidence or the chronology of events referred to by the parties 2. The parties agreed a statement of facts (SOAF), which has been expanded with uncontested facts referred to during the hearing, as follows: The 2010 LEP and the decision to defer Cartwrights Hill from inclusion in the Wagga Wagga Local Environmental Plan 2010 4. The Wagga Wagga City Council Planning Panel ("Wagga Wagga Planning Panel") was appointed under section 118 and 118AA of, and Schedule 5B to, the Environmental Protection [sic] and Assessment Act 1979 (the "Act") as the relevant planning authority to prepare and draft local environmental plans under section 64 and 68 of the Act, by order dated 7 November 2007. (It was not disputed that on 17 February 2010, the Wagga Wagga Planning Panel met to consider a report to the Wagga Wagga Planning Panel on the draft Wagga Wagga Local Environmental Plan 2008 (Draft 2008 LEP). The report recommended the exclusion of two areas from the Draft 2008 LEP, being: (a) Land at Cartwrights Hill; and (b) Land at Estella.) 5. At a meeting on 17 February 2010, the Wagga Wagga Planning Panel resolved to forward the draft Wagga Wagga Local Environmental Plan 2008 (the "Draft 2008 LEP") to the (then) Minister for Planning ("Minister"), with a request that the Draft 2008 LEP be made. 6. On 16 July 2010, the Minister made the Draft 2008 LEP (which on gazettal became the current 2010 LEP). 7. Two areas within the local government area of Wagga Wagga City Council (the "Council") were expressly excluded from land to which the 2010 LEP applies, being: (a) Land at Cartwrights Hill (the "Deferred Land"); and (b) Land at Estella. 8. The Deferred Land is subject to the planning controls in the Wagga Wagga Local Environmental Plan 1985 (the "1985 LEP"). 9. The First Respondents' land is within the Deferred Land. 10. Under the 1985 LEP, the First Respondents' land is zoned "Residential". Under the Wagga Wagga Development Control Plan 2005 (DCP), the First Respondents' land is sub-zoned Residential 2a, General (Urban Living Area). The minimum lot size in that sub-zone is ten dwellings per hectare. First Planning Proposal 11. On 21 June 2010, the Wagga Wagga Planning Panel met to consider a report in relation to the Deferred Land. The Wagga Wagga Planning Panel resolved, amongst other things, to place on informal public exhibition a concept proposal for the inclusion of the Deferred Land in the 2010 LEP by amending the 2010 LEP, rezoning that land and establishing controls in relation to minimum lot sizes. 12. From 5 July 2010 to 15 August 2010, the concept proposal for the amendment of the 2010 LEP was placed on informal public exhibition. 13. On 1 September 2010, the Wagga Wagga Planning Panel met to consider a further report in relation to the Deferred Land. At that meeting, the Wagga Wagga Planning Panel resolved, among other things, to formally place the concept proposal referred to in paragraph 11 on public exhibition ("First Planning Proposal"). 14. From 8 September 2010 to 5 October 2010, the First Planning Proposal was placed on formal public exhibition. 15. The First Planning Proposal proposed to rezone the First Respondents' land to R5 (Large Lot Residential) zone with a minimum lot size of 1 hectare. Changes to the First Planning Proposal and to the relevant planning authority for the Deferred Land 16. At a meeting held on 13 October 2010, the Wagga Wagga Planning Panel resolved to approve a number of changes to the First Planning Proposal following its public exhibition. 17. By way of letter dated 10 February 2011, the Minister advised the Chair of the Wagga Wagga Planning Panel that it could not be the relevant planning authority to prepare a planning proposal in relation to the Deferred Land. By way of the same letter dated 10 February 2011, and pursuant to an order published in the Government Gazette dated 25 August 2009, the Minister directed the Wagga Interim Joint Planning Panel (the "Interim JRPP") to be the relevant planning authority under section 23G of the Act. (it was not disputed that between February 2010 and October 2011 various studies and reports were prepared in relation to the Deferred Land. These reports and studies examined noise and odour issues in respect of industries within the Bomen Industrial Estate.) 18. At a meeting on 4 May 2011, the Interim JRPP resolved to prepare a planning proposal, based on the changes approved by the Wagga Wagga Planning Panel at its meeting on 13 October 2010, and to submit the planning proposal for gateway determination. 19. On 12 May 2011, Ian Grant of the Council sent a letter to Brett Whitworth, Regional Director, Southern Region, NSW Department of Planning. There were a number of documents attached to that letter, including: (a) an amended version of the First Planning Proposal; (b) maps accompanying the amended version of the First Planning Proposal; and (c) a copy of a letter referred to in paragraph 17. 20. On 14 September 2011, the Minister abolished the Interim JRPP and Wagga Wagga Planning Panel. A new planning authority for Wagga Wagga City was established called the Southern Joint Regional Planning Panel (the "JRPP") under section 23G of the Act, pursuant to powers granted to the JRPP by order dated 14 September 2011 and gazetted on 16 September 2011. (It was not disputed that the order also had the effect that JRPP became the relevant planning authority for the planning proposal.) Second Planning Proposal 21. By way of letter dated 28 October 2011, the Deputy Director-General of the Department of Planning and Infrastructure decided that the proposed rezoning of the Deferred Land (and the land at Estella) should proceed subject to a number of conditions (the "Gateway Determination"). One of the conditions required community consultation, as well as public exhibition of relevant odour studies. 22. At its meeting held on 8 February 2012, the JRPP resolved to place an amended planning proposal and supporting documents on public exhibition ("Second Planning Proposal") in accordance with the Gateway Determination. 23. The Second Planning Proposal proposed to rezone the First Respondents' land to R5 (Large Lot Residential) zone with a minimum lot size of 1 hectare. 24. From 20 March 2012 to 20 April 2012, the Second Planning Proposal and supporting documents was placed on public exhibition. 25. On 27 June 2012, the JRPP resolved to suspend consideration of the Deferred Land component of the Second Planning Proposal until the completion of a further report and investigations, arising from concerns about possible conflicts between the nearby Bomen Industrial Estate and further residential subdivision and development in Cartwrights Hill, particularly in relation to the issue of odour. 26. By way of letter dated 13 July 2012, the JRPP requested the Minister to make the amendments to the 2010 LEP to the land at Estella as proposed by the Second Planning Proposal and to grant an extension in time for completion of the amendment to the 2010 LEP in relation to the Deferred Land. 27. By way of letter on 28 September 2012, the Acting Director-General of the Department of Planning and Infrastructure amended the Gateway Determination to allow for further time for completion of the amendment to the 2010 LEP in respect of the Deferred Land by 9 months to 4 May 2013. Third Planning Proposal 28. Following further consultations and additional studies, a revised planning proposal was prepared for public exhibition ("Third Planning Proposal").The Third Planning Proposal only applied to the Deferred Land. It proposed to: (a) enlarge the area subject to the RU6 (Transition) zone; (b) alter a portion of Lot 4 DP700113 from R5 (Large Lot Residential) zone to RU1 (Primary Production) zone; and (c) impose a minimum lot size of 8 hectares for land within the proposed R5 (Large Lot Residential) zone. 29. At its meeting of 8 February 2013, the JRPP resolved, amongst other things, to place the Third Planning Proposal on public exhibition. 30. From 18 February 2013 to 18 March 2013, the Third Planning Proposal was placed on public exhibition. 31. The Third Planning Proposal proposed to rezone the First Respondents' land to R5 (Large Lot Residential) zone with a minimum lot size of 8 hectares. 32. By a report dated 16 May 2013 to the JRPP, the Council recommended that the JRPP, among other things: (a1) receive and note submissions; (a) approve the expansion of the RU6 (Transition) zone and the R5 (Large Lot Residential) zone (as described on the relevant map); (b) approve a minimum lot size of 8 hectares for the R5 (Large Lot Residential) zone; (c1) endorse the report; (c) authorise the lodgement of the Third Planning Proposal with the Director-General of the Department of Planning and Infrastructure, with a recommendation that the Minister make the proposed amendments to the 2010 LEP; (d) furnish a copy of the report and other relevant information to the Department of Planning and Infrastructure, in accordance with section 57 of the Act; and (e) advise the Department of Planning and Infrastructure that the JRPP has complied with section 58 of the Act in relation to public involvement in finalising the Deferred Land; and (f) endorse the preparation of a supplementary planning proposal to adjust problematic zoning edges on the western edge of the R5 Large Lot Residential zone. Following the exhibition of the Third Planning Proposal , the JRPP met on 16 May 2013 to consider the Third Planning Proposal . A report was prepared by the Council which recommended, amongst other things, the making of the Local Environmental Plan in accordance with the Third Planning Proposal (including with a minimum lot size of 8 hectares for the proposed R5 Large Lot Residential Zone). 33. At a meeting held on 16 May 2013, the JRPP resolved to, among other things: (a) request a further report on appropriate zonings for the Deferred Land; (b) request the Council to investigate the appropriateness and extent of a minimum lot size of less than 8 hectares in the R5 (Large Lot Residential) zone; and (c) request the council to commission further odour and noise impact studies. 34. The JRPP requested the above be completed within three months of the date of the meeting. 35. By letter dated 17 July 2013, the Executive Director - Rural and Regional Planning of the Department of Planning and Infrastructure amended the Gateway Determination to allow for further time for completion of the amendment to the 2010 LEP in respect of the Deferred Land by an additional 8 months to 4 January 2014. The granting of Development Consent 36. On or around 12 April 2013, the First Respondent (Burns) lodged a development application ("DA 13/0183") with the Council seeking development consent for the subdivision of the First Respondent's land into five residential lots and one residue lot and access road. Each of the five residential lots was proposed to have an area of approximately 800 square metres, with the residual lot proposed to extend to an area of 11.7 hectares. 36. On or around 16 April 2013, the First Respondent (Ashley) lodged a development application ("DA 13/1092") with the Council seeking development consent for the subdivision of the First Respondent's land into two residential lots. One lot was proposed to have an area of approximately 0.12 hectares, while the other lot was proposed to have an area of approximately 1.9 hectares. 37. An officer of the Council, Amanda Gray, produced a report assessing DA 13/0183 (Burns). The report was dated 25 July 2013 by the relevant planner, Ms Gray, and approved by the Council's Development Assessment Coordinator, Cameron Collins on 26 July 2013. 37. An officer of the Council, Amanda Gray, produced a report assessing DA 13/0192 (Ashley). The report was dated 25 July 2013 by the relevant planner, Ms Gray, and approved by the Council's Development Assessment Coordinator, Cameron Collins on 26 July 2013. 38. On or around 25 July 2013, development consent was granted to DA 13/0183 (Burns) by the Council, under delegation. Cameron Collins, Council's Development Assessment Coordinator, was the decision maker that granted development consent under delegation. 38. On or around 25 July 2013, development consent was granted to DA 13/1092 (Ashley) by the Council, under delegation. Cameron Collins, Council's Development Assessment Coordinator, was the decision maker that granted development consent under delegation. 39. On or around 22 August 2013, the Council publicly notified the grant of development consent to DA 13/0183 (Burns). 39. On or around 22 August 2013, the Council publicly notified the grant of development consent to DA 13/1092 (Ashley). 40. On 19 November 2013, the Applicant commenced these proceedings in the class 4 jurisdiction of the Land and Environment Court of New South Wales. 41. As at the date of this Agreed Statement of Facts the amendments to the 2010 LEP relating to the Deferred Land have not been gazetted. 1. The SOAF identifies that the Southern Joint Regional Planning Panel (SJRPP) is the planning authority nominated by the Minister as provided for by s 54(2) and is the body which carried out the planning processes identified in Pt 3 Div 4. The SJRPP is not a party to the proceedings. The Council is the consent authority which determined the development applications pursuant to s 80 and is the Second Respondent in both proceedings. 2. Excerpts from the report of the assessing council officer in relation to the Burns development application dated 25 July 2013 (tab 48 exhibit B) follow. A separate report for the Ashley DA (exhibit B tab 53) was prepared and was the same in all material respects: State Environmental Planning Policies There are no SEPPs of relevance to the application. s 79C(1) (a)(ii) - The provisions of any draft environmental planning instrument There are no draft environmental planning instruments that apply to the site or the proposal. A number of detailed reports and a planning proposal have recently been prepared in relation to the deferred matter of Cartwrights Hill. The reports and the planning proposal have been exhibited and presented to the Southern Region Joint Planning Panel. At this time there has not been an agreed way forward and further reports have been requested that are due to be assessed later in 2013. Until such time that the Joint Regional Planning Panel have made their determination on the deferred matter there is not considered to be a draft LEP that can be considered. The latest report that was prepared for the Planning Panel in May 2013 recommended that the subject site be rezoned under the WWLEP2010 as R5 Large Lot Residential and have a minimum lot size imposed of 8ha. If this were to proceed the current application would be prohibited as the proposed lot sizes are much smaller than 8ha. However as this proposal was not approved it carries no weight in terms of assessment under s79C and the existing provisions of the WWLEP1985 remain as the applicable EPl for the subject land. s 79C(1)(a)(iii) - Any development control plan Wagga Wagga Development Control Plan 2010 Clause 1.6 of the WWDCP 2010 states that Despite any other provision of this plan, the provisions of Wagga Wagga Development Control Plan 2005, as in force immediately prior to 16 July 2010, are incorporated by reference in this plan and apply to the land from time to time referred to in clause 1.3A (1A) of Wagga Wagga Local Environmental Plan 2010, to the exclusion of all other provisions of this plan. The WWDCP2010 further states that This plan does not apply to any land identified as "deferred area" on the relevant Wagga Wagga Local Environmental Plan 2010 Land Application Map and Land Zoning Map. Legal advice obtained on behalf of Council has clarified that because of the words included in the first extract above despite any other provisions of this plan it must be held that the provisions of the DCP2005 continue to apply to Cartwrights Hill however they are deemed to be provisions of the WWDCP2010. Wagga Wagga Development Control Plan 2005 The subzoning of the site under the provisions of the DCP 2005 is a combination of Residential 2a, General (Urban Living Area), Residential 2c - Medium Density (Urban Living Area) and 6a Recreation (Urban Living Area). The purposes of each of the subzones are as follows: 2a General (Urban Living Area) This is the main residential classification and provides the bulk of residential accommodation within the City. The density of housing permitted is ten dwellings per residential hectare. The proposal is for 6 lots to be developed on a site of approximately 12ha, the development is compliant with the density controls stipulated for the 2a zone. 2c Medium Density (Urban Living Area) To allow for various forms of housing at medium density, as follows: 1 x one bedroom dwelling for every 170 square metres of site area 1 x two bedroom dwelling for every 240 square metres of site area 1 x three bedroom dwelling for every 330 square metres of site area Land along the western boundary of the subject site is zoned as 2c, this part of the site is not included in any of the new residential lots to be created. 6a Recreation (Urban Living Area) To provide land within the City for the recreation pursuits of residents. Land along the southern boundary of the subject site is zoned as 6a, this part of the site is not included in any of the new residential lots to be created. 8.6.38 Bomen Industrial Estate, Cartwrights Hill Residential Area and Bomen Industrial Candidate Area As a result of the recently completed WISDOM Study (Wagga Industrial Sustainable Development Opportunities Model) Council will progressively introduce development control guidelines over the subject area to ensure sustainable industrial activity. This special provision is the first of such and is aimed at ensuring that any new development will not have an adverse environmental effect or create a conflict between residents and industries locating [sic] in this area. All proposed development within the subject area is to obtain Council consent. Development is restricted within the prescribed area whether classified as permissible with council consent or without council consent on the DCP landuse guide. The above clause is focused on new industrial development not impacting on local residents. The development application is for new residential development and is not considered to be in conflict with the provisions of this section of the DCP2005. (a)(iiia) - any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and There are no planning agreements in place for this proposal. s 79C(1)(a)(iv) - any matters prescribed by the regulations Matters prescribed by the Environmental Planning and Assessment Regulation 2000 have been satisfied. (b) - The likely impacts of the development Context and setting The subject site is located within Cartwrights Hill a rural residential area located to the north of the city. The subject land is surrounded by open undeveloped land. Other than the dwelling on the subject lot the proposed subdivision area is vacant to both the north and west. There are dwellings on existing large residential lots to both the east and south approximately 250m and 100m away respectively from the proposed lots. Approximately 150 metres south along East Street land has been subdivided into standard sized residential lots of a similar size to those proposed. Each of the these existing lots have frontage to East Street or Cooramin Street. Site Design and Internal Design The subdivision layout covers a very small area of the subject lot and has the potential to result in a stand alone group of five lots (not dissimilar to those referred to above that are sited further south along East Street) if no other subdivision were to occur in the locality. Despite this concern the subdivision is one that is permissible and if the applicant chooses to only develop part of the subject lot in this manner it would be acceptable subject to appropriate servicing being in place. Access, transport and traffic The subject site has frontage to both East Street and Old Bomen Road. East Street is a sealed rural residential road. In order for this road to serve newly created residential lots it will be necessary for an upgrade to the road to occur in accordance with Council's Engineering Guidelines. This will be secured by condition. The development includes a new stub road to serve two of the lots, this will be required to be constructed to fully engineered standards and include an appropriate turning head. These works will also be secured by condition. Services The site is currently connected to a septic system. The proposed new lots will not be of sufficient size to accommodate a new septic system and upgrades will therefore be required. It will be necessary to extend the sewer system to serve the proposed lots. This will be secured by condition. An extension to stormwater at the site will also be necessary. The increased stormwater discharge will be restricted to pre-development flow rates. A condition of consent will ensure that an appropriate stormwater plan is prepared demonstrating compliance with this requirement. Heritage The site covered by the development application is not within a heritage conservation area and contains no heritage items. There are no known items of aboriginal heritage on the land that is the subject of the current application. Man Made Hazards There are no man made hazards that affect the development of this site. Natural Hazards The site is not identified as subject to flooding or bush fire. Construction Construction works will be short term, all access will be taken via the existing access and hours of work can be appropriately conditioned. Noise and Vibration There will be short term noise associated with the subdivision of the land and any subsequent residential development of the lots to be created. There have been various studies undertaken to determine the impact of noise from Bomen Industrial Estate across the area of Cartwrights Hill. The most recent study undertaken to assess noise impacts in Cartwrights Hill was prepared by Atkins Acoustics in September 2012. The Atkins report focused on noise from the Bomen Industrial Sewage Treatment Facility which is anticipated to increase in capacity. The report identified that the plant operates intermittently however noise from the blowers on site does have the potential to impact on all land north of Cooramin Street. The subject lot would therefore be classed as noise affected. The report goes on to identify that when the blowers operate at 75% the noise affected land is limited to that north of Old Bomen Road. With measures such as a 75% operation during certain times of day the subject lot would not be noise affected. As previously referred the findings of the Planning Panel are not yet concluded and those findings include an assessment of recent noise and odour reports. An independent consultant has been appointed to review the findings of the reports and this is still being undertaken. At this point in time there are no grounds to refuse the subdivision application based on risk of noise pollution. Pollution and Off Site Environmental Effects There have been also been studies undertaken to determine the impact of odour from the Bomen Industrial Estate across the area of Cartwrights Hill. The most recent study undertaken to assess odour was prepared by Todoroski Air Sciences in November 2012. The findings of the report suggest that odour levels within Cartwrights Hill are above the set criteria and that odour complaints are likely from residential receptors. It goes on to suggest that whilst industries are working towards ameliorating odour emissions it would be prudent for WWCC to not introduce further receptors into the area that appears to suffer from odour complaints. As previously referred the findings of the Planning Panel are not yet concluded and those findings include an assessment of recent noise and odour reports. An independent consultant has been appointed to review the findings of the reports and this is still being undertaken. At this point in time there are no grounds to refuse the subdivision application based on risk of odour pollution. Social and Economic Impacts The proposal will have a positive social impact as additional residential lots are provided in the locality. The subdivision of existing lots will have a positive individual economic impact on landowners but also be of wider economic benefit in terms of new development within the locality. Cumulative Impacts The creation of new residential lots by the subdivision of existing land titles will result in additional residential lots within Cartwrights Hill. Additional lots will increase the demand for infrastructure and servicing in the area but also increase in [sic] the population with associated social benefits. It is anticipated that additional applications for similar subdivisions will be forthcoming prior to the Joint Regional Planning Panel finalising their decision on the deferred matter. The Principles of Ecologically Sustainable Development The following are principles of ecological sustainability: 1 The precautionary principle Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (a) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (b) an assessment of the risk-weighted consequences of various options. The principle requires decision-making to give the environment the benefit of the doubt. 2 Intergenerational equity The present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations (that is, a partnership among all of the generations that may use or expect to benefit from the nation's resources). 3 Conservation of biological diversity and ecological integrity Conservation of biological diversity and ecological integrity should be a fundamental consideration. 4 Improved valuation, pricing and incentive mechanisms Environmental factors should be included in the valuation of assets and services: (a) polluter pays (that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement), and (b) the users of goods and services should pay prices based on the full cycle costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste, and (c) environmental goals having been established should be pursued in the most cost-effective way by establishing incentive structures, including market mechanisms which enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems. The impacts assessed above have concluded that the proposed subdivision would be acceptable with minimal impact on the environment. (c) - The suitability of the site for the development The subject site is suitable for the proposed development. (d) - any submissions made in accordance with this Act or the Regulations Referrals Internal referrals within Council have resulted in a number of suggested conditions. The application was referred to the Environment Protection Authority Notification The development was notified to neighbouring properties between 8 and 24 May 2013. Advertising The development was advertised between 10 and 24 May 2013. Public Submissions and those from public authorities One submission was received in objection to the proposed subdivision, the grounds of objection can be summarised as follows: 1. There is a growing body of evidence (such as the Buffer Zone Odour Impact Assessment) opposing the introduction of additional residential development in Cartwrights Hill. Comment: The findings of the most recent studies have been challenged by the Joint Regional Planning Panel and further studies have therefore been requested. These studies are not yet complete and reliance on studies that may become superseded is not appropriate. 2. Recent modelling concludes that odour complaints relating to the Bomen industrial estate will still occur without a maintained buffer area. Comment: See comment above under point 1. 3. Section 3.1 of the SEE supporting this application fails to address the relevant planning controls. Comment: The listed section references the LEP1985 which is the correct Environmental Planning Instrument that applies to the deferred area. 4. The SEE does not recognise the draft LEP2010 that proposes a rezone of the subject land. Comment: There is no draft LEP2010 that requires reference. A number of reports have been prepared for the Joint Regional Planning Panel but to date there has been no final recommendation endorsed by the panel. After such time a report will be prepared for gazettal and sent to the Minister. Until this time there are no draft provisions that can be considered either certain or imminent that need to be heads of consideration in the current assessment. 5. Reference to the WWLEP1985 is fundamentally flawed and is inconsistent with the proposed future use of the land as set out in the draft LEP. Comment: As the WWLEP2010 does not apply to land within the deferred area it is appropriate to reference the WWLEP1985. The future use of the land has not yet been determined by the panel members. 6. The proposed lot sizes fall well below the minimum lot size of 8ha that is proposed for this area. Comment: The minimum lot size for future residential subdivision in this area has not yet been determined. At the time of assessment there is no minimum lot size applicable to the land. 7. It appears as though the site falls within the North Wagga Wagga Area of the LEP2010 where restrictions for new dwellings exist under the 1985 LEP. Comment: The site does not fall within the area defined as North Wagga where new dwellings are prohibited. 8. Overall there is significant concern of the incompatibility of land uses that will result if this development is allowed to proceed. Comment: The subject land is within close proximity to the Bomen industrial area and residential properties within the Cartwrights Hill area have existed within such proximity for many years. Whilst the industrial area is predicted to grow industrial regulations and measures under the Pollution Regulations will ensure that properties within the Bomen estate are operating both safely and in accordance with good environmental practice. (e) - the public interest Federal, state and local government interests and general community interests The public interest is best served by the consistent application of the requirements of the relevant planning controls and by Council ensuring that any adverse effects on the surrounding area and the environment are avoided. The proposed subdivision of land for residential purposes within the deferred area is currently subject to many detailed reports and a planning proposal that will impact on the future development of this area. However, at this point in time the applicable legislation allows for subdivision to occur and it is in the interest of the many landholders within the deferred area to process development applications in a timely manner and in accordance with current planning controls. Conditions requiring the servicing and access of new lots are in the wider public interest for other residents in the area and set a precedent for similar subdivisions that may occur in the future. History of second and third planning proposals for Cartwrights Hill 1. A more detailed consideration of the processes taken in relation to the second and third planning proposals (to adopt the parties' descriptions of particular documents) is now set out as this is relevant to the first ground of appeal. In the course of the hearing the Applicant accepted that the so called first planning proposal cannot be a proposed instrument under the Pt 3 Div 4 (including s 79C(1)(a)(ii)) as the Wagga Wagga Planning Panel was not the correct planning authority at that time, inter alia. 2. On 28 October 2011, the Deputy Director-General of the Department of Planning and Infrastructure (the Department) determined under s 56(2) of the EPA Act that the proposed amendment to the 2010 LEP (Planning Proposal PP_2011_WAGGA_001_00) (the so called second planning proposal) to rezone land at Cartwrights Hill (deferred area 1) from 1 Rural, 2 Residential, 3 Business, 5 Special Uses (Community Building) and 6 Open Space to R5 Large Lot Residential Zone with a 1 hectare minimum lot size, RU6 Transition Zone with a 200 hectare minimum lot size, SP2 Infrastructure Zone and IN1 General Industrial Zone (as well as rezoning of other land at an area known as Estella, Referred Area L) should proceed subject to a number of conditions (the gateway determination). One of the conditions required community consultation of the planning proposal, as well as public exhibition of relevant odour studies (exhibit B vol 2 tab 27). 3. The documents that were publicly exhibited in relation to Cartwrights Hill and Estella from 20 March 2012 to 20 April 2012 as part of the so called second planning proposal were (exhibit B tab 30): 1. a letter from the SJRPP to the Department dated 14 February 2012; 2. maps including Attachment A Cartwrights Proposed Zoning Map and the Wagga Wagga Local Environmental Plan 2010 - Attachment A Cartwrights Hill Minimum Lot Size Map which proposed that the First Respondents' land be zoned R5 - Large Lot Residential with a minimum lot size of 1 hectare; 3. 2010 LEP Deferred areas - additional information report; 4. a report titled "Odour Modelling and Impact Assessment: Bomen Industrial Estate, Wagga Wagga", prepared by Holmes Air Sciences dated 31 January 2008; 5. a letter from Holmes Air Sciences to the Council dated 13 October 2009; 6. Minutes of the SJRPP meeting of 8 February 2012 dated 13 February 2012; 7. a letter from the Deputy Director-General to the SJRPP dated 28 October 2011 attaching the Gateway Determination; 8. proposed addition to planning proposal - deferred areas; 9. a letter from the Department to the SJRPP dated 21 February 2012; 10. a letter from the Department to the Council dated 21 February 2012; 11. Planning Proposal - Wagga Wagga LEP 2010 Deferred areas containing Pt 1 objectives or intended outcomes, Pt 2 explanation of the provisions, Pt 3 justification and Pt 4 community consultation; 12. an extract of 1985 LEP; 13. statement of consistency with s 117 directions; and 14. 2010 LEP deferred areas - intent of planning proposal and strategic planning principles. 1. The agenda and business paper of the SJRPP for the meeting on 27 June 2012 states in the attached planning proposal report concerning Cartwrights Hill (exhibit B tab 32 p 11): Consultation and Negotiations ... Submission from Director Infrastructure Services, Monday 4th June 2012 in relation to Buffer Zone Surrounding the Bomen Sewer Treatment Plant on Cartwrights Hill. Wagga Wagga City Council's Director Infrastructure Services, has raised concern that the proposed 400m Buffer Zone surrounding the Bomen Sewer Treatment Plant in the northern sector of Cartwrights Hill, is inadequate because the Plant operates as an Industrial Pre-Treatment Plant - the only one in the state - and generates significant numbers of odour complaints. The Director expressed his reluctance for the Cartwrights Hill component of the Deferred Areas to proceed to determination by the Southern Joint Regional Planning Panel until a "Buffer Zone Odour Impact Assessment"...is completed ... Commentary The Acting Director Planning has discussed with the Regional Director, Southern Region, the recommendation to the Panel to delay a decision on the Cartwrights Hill component (Deferred Area 1) in response to a submission from the Director of Infrastructure Services. The submission raised concerns with the adequacy of the buffers to the Bomen Sewer Treatment Plant. The Regional Director did not object to a recommendation in the report to the Panel requesting the Director General prepare a separate LEP for Estella and for the Minister to approve the LEP. 1. On 27 June 2012 the SJRPP resolved concerning Cartwrights Hill to (exhibit B tab 33): (a) defer the consideration of Cartwrights Hill (deferred area 1) component of the Planning Proposal. (b) the Cartwrights Hill (deferred area 1) be the subject of a further report on the submissions and investigation into the adequacy of the buffer around the Bomen Sewerage Treatment Plant; and (c) advise the Department of Planning and Infrastructure of a) and b), above; (d) request an extension of time from the Department of Planning and Infrastructure for the Cartwrights Hill component of the Planning Proposal. 1. By letter dated 13 July 2012 to the Department, the SJRPP requested in relation to the so called second planning proposal (exhibit B tab 34): That the Director General, under section 59(a) of the Environmental Planning and Assessment Act 1979 (the Act), make arrangements for the drafting of an amendment to the Wagga Wagga Local Environmental Plan 2010 to give effect to Estella (Deferred Area 2) as exhibited; That the Minister make the Local Environmental Plan in accordance with section 59(2)(a) of the Act; That the Minister notes that the separate planning proposal affecting the Estella area (to alter the zoning of land in Dobney Avenue and Pearson Street (Amendment No. 2)) which has been submitted to the Minister, must be approved before this amendment is considered; and That the Director General approves an extension of time of four months for the Cartwrights Hill component of the planning proposal (until November 2012). The original 'approved gateway' proposal contained both the Deferred Areas at Cartwrights Hill (Deferred Area 1) and Estella (Deferred Area 2). The regional panel has determined to withdraw the Cartwrights Hill component of the planning proposal to allow for additional investigations to be undertaken (refer below). Therefore, an approval is sought for Estella (Deferred Area 2) only at this stage. All requirements of the gateway determination have been met in relation to the Estella component of the planning proposal. Cartwrights Hill (Deferred Area 1) Council received a submission during the public exhibition period raising concern about the proposed 400m buffer zone surrounding the Bomen Sewerage Treatment Plant. This submission was considered of such a serious nature that the regional panel determined that the Cartwrights Hill component should be withdrawn at this time and additional investigations be undertaken in relation to noise and odour from the Bomen Sewerage Treatment Plant. To investigate this issue, an extension of time is requested to facilitate the study. The outcomes of this study will be publicly exhibited in conjunction with the re-exhibition of the planning proposal. 1. The minutes of the SJRPP meeting dated 8 February 2013 resolved concerning Cartwrights Hill (Deferred Area 1) to (exhibit B tab 37): a) Approve the extent of the RU6 Transition Zone and the R5 Large Lot Residential Zone as described as Amended Zoning Map - Proposed Zoning Cartwrights Hill on Attachment 3 b) Approve a Minimum Lot Size of 8Ha for the R5 Large Lot Residential Zoned land c) Reaffirm the distribution of other zones for Deferred Area 1 d) Approve Deferred Area 1 be re-exhibited for a minimum period of 28 days: i) In the local newspaper; ii) Notify (in writing) all landowners located within and adjacent to Deferred Area 1; iii) Notify (in writing) all persons/parties who made a submission in relation to Deferred Area 1 at Exhibition 3 e) Following the Public Exhibition, a report on all submissions on Deferred Area 1 be presented to the Panel for determination. 1. Documents placed on public exhibition from 18 February 2013 to 18 March 2013 for the so called third planning proposal were (exhibit B tab 39): 1. maps including the Cartwrights Hill Previously Exhibited Zoning Map, Cartwrights Hill Previously Exhibited Minimum Lot Size Map, Cartwrights Hill Proposed Zoning - Amended and Cartwrights Hill Proposed Lot Size Map - Amended proposing that the First Respondents' land be zoned R5 Large Lot Residential with a minimum lot size of 8 hectares; 2. report public hearing - proposed rezoning of Cartwrights Hill, Wagga Wagga to RU6 Zone; 3. a letter from the SJRPP to the Department dated 13 July 2012 including attachments. The attachments were the report of the SJRPP for meeting held on 27 June 2012, record of decision of the SJRPP for meeting held on 27 June 2012, planning proposal in relation to Estella, statement of consistency with s 117 directions, SEPPs and regional environmental plans and amending land zoning and lot size maps; 4. a report titled "Odour Modelling and Impact Assessment: Bomen Industrial Estate, Wagga Wagga", prepared by Holmes Air Sciences dated 31 January 2008; 5. extension of time for Gateway Determination for the deferred matters dated 28 September 2012; 6. statement of consistency with s 117 directions; 7. 2010 LEP Deferred areas - additional information report; 8. Department of Environment, Climate Change and Water submission dated 1 October 2010; 9. a report titled "Draft Buffer Zone Odour Impact Assessment, Bomen Industrial Sewage Facility", prepared by Todoroski Air Sciences Pty Ltd dated 8 November 2011; 10. a report titled "Noise Impact Assessment Bomen Industrial Sewage Treatment Facility Bomen", prepared by Atkins Acoustics and Associates Pty Ltd dated September 2012; and 11. Minutes of the SJRPP meeting of 8 February 2013 dated 13 February 2013. 1. The minutes of the SJRPP meeting dated 16 May 2013 state that the following motion was carried (exhibit B tab 42): 6. Business Item Recommendations ADV2012STH001 - Planning Proposal to rezone certain land at Cartwrights Hill under the Wagga Wagga Local Environmental Plan 2010 (Cartwrights Hill - Deferred Area 1) Motion: That the Southern Joint Regional Planning Panel in relation to Cartwrights Hill (Deferred Area 1): a) note the report as presented. b) request a further report on appropriate zonings for all the deferred area incorporating issues raised at today's meeting by the Panel and community. c) request Council to investigate the appropriateness and extent of a minimum lot size of less than 8Ha for the R5 zone in consultation with the community. d) request Council to commission further odour and noise impact studies by independent bodies. e) request that the above report be presented to the Panel within 3 months. 1. On 17 July 2013 the Executive Director, Rural and Regional Planning from the Department wrote to the Chair of the SJRPP (exhibit B tab 43). The letter states: I have determined, as delegate of the Minister, in accordance with section 56(7) of the Environmental Planning and Assessment Act, 1979, to amend the Gateway Determination dated 28 October 2011 (as amended on the 28 September 2012). The Gateway Determination is amended by extending the time for completion of the Planning Proposal by an additional 8 months. The Planning Proposal is now due for completion by the 4 January 2014. 1. As identified in the SOAF par 36, 37 the development applications were lodged in April 2013 by the First Respondents with the Council. A report in evidence (exhibit B tab 40 p 12) refers to a moratorium of some ten years by the Council on the approval of subdivision applications in the Cartwrights Hill area. There is no explanation in the evidence for its status, how the policy was implemented and why the policy changed with the decision by the Council to approve the two development applications the subject of these two proceedings. The Court gained the impression the two development consents the subject of these two proceedings are the first to be approved by the Council since the effective termination of the moratorium. Ground One: Failure to consider a mandatory consideration under s 79C(1)(a)(ii) 1. In assessing a development application, the consent authority is required to take into account a number of matters under s 79C of the EPA Act. This includes, under s 79C(1)(a)(ii), "any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved)." 2. The Applicant and First Respondents agreed following further written and oral submissions that the real issues in each set of proceedings in relation to this ground to be determined are: Ground One 1. Whether the Second Planning Proposal, or alternatively the Third Planning Proposal, constituted a "proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority," for the purposes of s 79C(1)(a)(ii) of the EP&A Act (paragraph 36 of the Applicant's Amended Summonses), and whether the relevant processes under Part 3 Division 4 of the EP&A Act were followed such that it could constitute such a "proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority." 2. In the alternative to 1, whether: (a) the Second Planning Proposal constituted a "proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority," which was subsequently varied (including by the two maps at the third and fourth folios of Tab 39); and (b) if so, whether the Second Planning Proposal as subsequently varied (including by the two maps at the third and fourth folios of Tab 39) constituted a valid "variation" in accordance with section 58(1), 58(2) and 58(3) of the EP&A Act. 3. Whether, in its consideration of the respective development applications, the Council was under an obligation to take into account the First Planning Proposal, or alternatively the Second Planning Proposal, or alternatively the Third Planning Proposal, or all of them (paragraph 37 of the Applicant's Amended Summonses), or alternatively the Second Planning Proposal as subsequently varied (including by the two maps at the third and fourth folios of Tab 39). 4. Whether, in its consideration of the respective development applications, the Council failed to take into account the First Planning Proposal, or alternatively the Second Planning Proposal, or alternatively the Third Planning Proposal, or all of them (paragraph 37 of the Applicant's Amended Summonses), or alternatively the Second Planning Proposal as subsequently varied (including by the two maps at the third and fourth folios of Tab 39). 5. Alternatively, whether the Council failed to give any or sufficient weight to the First Planning Proposal, or alternatively the Second Planning Proposal, or alternatively the Third Planning Proposal, or all of them (paragraph 38 of the Applicant's Amended Summonses), or alternatively the Second Planning Proposal as subsequently varied (including by the two maps at the third and fourth folios of Tab 39). 6. Whether the subject development consents are void and of no effect as a result of the alleged failure in paragraph 4 or 5. A. Is there a proposed instrument relevant to s 79C(1)(a)(ii) assessment? Issues 1 and 2 Applicant's submissions 1. The Applicant submitted that the second and third planning proposals were to be considered together as part of an evolving process which gave rise to a proposed instrument to which s 79C(1)(a)(ii) applied, contrary to the approach of the assessing council officer in the report dated 25 July 2013. When considered together the requirements in s 55(2)(a)-(e) were satisfied and were the documents placed on public exhibition as required by s 57(1). A planning authority has a wide power to vary a planning proposal under s 58(1), and that is what occurred in this case. There is no need to have the Minister's approval via a gateway determination for a variation of a proposal under s 58(1) as a precondition to consultation under s 58(3). The same evolving gateway proposal was placed on public exhibition in the second and third public exhibition periods. Alternatively, the second or third planning proposals are separately planning proposals to which s 79C(1)(a)(ii) refers. Planning proposal not withdrawn 1. The First Respondents' assertion of withdrawal of the Cartwrights Hill component of the planning proposal cannot be maintained. The minutes of the meeting of the SJRPP of 27 June 2012 (exhibit B tab 33) record the decision of the panel to "defer" consideration of the Cartwrights Hill planning proposal, and to request a further report on submissions and investigation into the adequacy of the buffer around the Bomen Sewage Treatment Plant (STP). The minutes, being the record of the SJRPP's decision, demonstrate that it did not determine to "withdraw" the planning proposal. 2. Further, while the second page of the letter from the SJRPP to the Regional Director (exhibit B tab 34) does include the word "withdraw" in one reference to the planning proposal, the balance of the letter makes it clear that the decision of the SJRPP was to defer consideration, and seek a further report and investigation. Indeed, the letter was sent to the Regional Director, Southern Region of the Department for the express purpose of requesting more time for completion of the Cartwrights Hill component of the planning proposal, which is anathema to withdrawal. There was no request for a withdrawal. In any event, the meeting minutes, not the letter, are the true record of the SJRPP's decision. 3. Finally, under s 58(4) of the EPA Act, there is a process which planning authorities can avail themselves of if they wish planning proposals not to proceed. That section states that the relevant planning authority may request the Minister to determine that the matter not proceed. This did not occur in the present case. First Respondents' submissions 1. As a matter of fact, no document which could be an "instrument" for the purposes of s 79C(1)(a)(ii) ever existed. 2. Importantly, at no time in the new statutory scheme in Pt 3 Div 4 prior to s 59 is the proposed instrument or a draft of the proposed instrument required to be brought into existence. In this case at no time has such a proposed instrument been brought into existence. Both the text of the provisions and extrinsic materials (the second reading speech and explanatory note) demonstrate that the legislative intention was to provide additional flexibility in plan making. No longer is there a requirement to formulate any proposed instrument until towards the end of the process. 3. "Proposed instrument", an otherwise undefined term, is found in each of the provisions of Pt 3 Div 4 and s 79C(1)(a)(ii). By reason of s 55, "proposed instrument" must be taken to mean the proposed EPI. The "planning proposal" is defined in s 55 as "a document that explains the intended effect of the proposed instrument and sets out the justification for the making of the proposed instrument". It is not the "proposed instrument", or a draft of it. Second planning proposal was withdrawn 1. The publicly exhibited report confirms that the second planning proposal was explicitly "withdrawn". The evidence shows that the Department, via the Regional Director, was also advised that the second planning proposal was explicitly "withdrawn". Proposed instrument relevant for purposes of s 79C(1)(a)(ii) assessment 1. As already noted, there has been little judicial consideration of the new statutory scheme for the making of EPIs and the assessment of these under s 79C. A similar issue arose before two Commissioners in Hood Rural Resources Pty Ltd v Bathurst Regional Council [2009] NSWLEC 1366 and they concluded at [80] that: An interpretation that required consideration of a proposed environmental planning instrument only after the stage of final drafting would be contrary to the purpose of a provision such as s79C(1)(a)(ii) which is intended to ensure that individual applications are considered in the context of both existing and future planning approaches.…Once a proposed instrument has passed the two threshold requirements of s79C(1)(a)(ii), namely, public consultation and notification to the consent authority, whether or not it has reached the penultimate stage of drafting before making if it is an environmental planning instrument for a local area, it is a "proposed instrument", and must be considered in accordance with s79C(1)(a)(ii). The stage which a "proposed instrument" has reached, and the extent to which its approach or likely provisions have been settled, would in our view be relevant factors to consider in determining how much weight to give it. 1. Recently in DeAngelis v Pepping [2014] NSWLEC 108; (2014) 203 LGERA 61 Adamson AJ considered the public participation requirements of Pt 3 Div 4, a different question to that before me. Previous statutory scheme compared to current Pt 3 Div 4 1. Previously a council could decide to prepare a draft local environmental plan (LEP) and inform the Director-General of Planning of that intention (s 54). Under s 55 the Minister provided directions to a council for the preparation of an LEP. The council consulted with affected public authorities and submitted a draft LEP to the Director-General (s 64). The Director-General could issue a certificate permitting public exhibition of the draft LEP (s 65). Public exhibition requirements were specified in s 66 and submissions could be made by the public under s 67. Submissions from the public were considered and alterations could be made (s 68). If alterations were made there was no mandatory requirement for a further certificate or re-exhibition of the draft LEP before submission to the Director-General (s 68(3B)). The Director-General reported to the Minister about the draft LEP (s 69) which the Minister made under s 70. Section 79C(1)(a)(ii) previously stated that when determining a development application a consent authority must take into account any draft EPI that was or had been placed on public exhibition, details of which had been notified to the consent authority. 2. The recent amendments to Pt 3 Div 4 make significant changes in the procedures for making LEPs. The first matter already noted above in par 9 is that the planning authority can be separate from the consent authority, as in this case. The Minister determines to make an LEP under s 53. A planning authority is the council for its local government area (s 54(1)(a)) unless the Minister identifies another body under s 54(2) (s 54(1)(b)), here the SJRPP. A planning proposal is prepared, the contents of which are specified in s 55(2)(a)-(e), and referred to the Minister and a gateway determination is made that it can proceed under s 56. Community consultation requirements are specified by the Minister (not the statute as previously) under s 56(2)(c). Community consultation must occur under s 57. Under s 58 the planning authority may vary proposals or not proceed. Provision for drafting of an LEP occurs in s 59(1) and the Minister makes the LEP under s 59(2)(a). The current scheme is intended to provide greater flexibility in the plan making process according to the explanatory note (Environmental Planning and Assessment Act 2008 p 1) and the second reading speech (New South Wales, Parliamentary Debates, Legislative Council, 17 June 2008, 8074 (Penny Sharpe)). 3. The term "proposed instrument" in s 79C(1)(a)(ii) is not defined. It appears in s 54(1), (2) and (3), s 55 in the context of the planning proposal, s 56(2) (gateway determination) and s 57 (community consultation). Specific reference to drafting a LEP occurs for the first time in s 59(1) in the context of giving effect to final proposals of the planning authority. Draft LEP instrument not required by s 79C(1)(a)(ii) 1. The First Respondents argued that despite these changes in the statutory scheme the reference to proposed instrument in s 79C(1)(a)(ii) could be met only by a specific draft instrument. As I agree with and largely adopt the Applicant's submissions on why no specific draft LEP is invoked by the term proposed instrument in s 79C(1)(a)(ii) I will set out these submissions as part of my finding. The First Respondents' approach erroneously construes the provisions of s 79C(1)(a)(ii) by reference to provisions of the EPA Act which are now repealed. Section 79C in terms refers to "any proposed instrument". Part 3 Div 4 concerns the making of LEPs. Previously, the plan-making process for a LEP explicitly required the exhibition of a draft LEP. Part 3 does not now provide for the exhibition of (and hence public consultation) in relation to a draft LEP. Draft LEP as a specific term first appears in s 59(1), after public exhibition and community consultation. Within the scheme of the EPA Act a draft LEP is not required to be the subject of public consultation. Community consultation within Pt 3 is limited to the circumstances of s 57 in a regime which does not require a LEP to be drafted at that stage. 2. In the planning proposal and gateway process, the concept of "proposed instrument" is embedded within those elements which are then the subject of public consultation. In s 55(1) the planning proposal is "a document that explains the intended effect of the proposed instrument and sets out the justification for the making of the proposed instrument". The planning proposal is to contain details of the proposed instrument: s 55(2)(a), (b), (c), (d), (e). The Minister then makes a gateway determination of "whether the matter should proceed": s 56. Pursuant to s 57(2), "the planning proposal is to be made publicly available…", and any person may make a written submission concerning the matter: s 57(3). Importantly, consultation is completed, as prescribed by s 57(8) "when the relevant planning authority has considered any submissions made concerning the proposed instrument and the report of any public hearing." No draft instrument is required to be placed on public exhibition. Within the scheme of the EPA Act it is the planning proposal which details the proposed instrument to be contained and exhibited. That is the "proposed instrument" referenced in s 79C(1)(a)(ii). Later in the plan making process s 59 does refers to "the drafting of any required local environmental plan". 3. The First Respondents' submission would lead to a situation whereby no proposed instrument is ever brought into existence. Under s 59(1) a "draft instrument" comes into existence, not a "proposed instrument". The First Respondents' approach would mean that s 79C(1)(a)(ii) has no work to do as a "draft instrument" is not expressed under s 79C(1) to be a mandatory consideration. Proposed instrument exists for purposes of s 79C(1) 1. Turning to whether one or more proposed instruments to which s 79C(1)(a)(ii) apply came into existence before consideration of the two subdivision DAs, the SOAF refers to the planning documents in evidence produced by the Council as the first, second and third planning proposals. It is agreed the first planning proposal cannot satisfy the definition of proposed instrument and I will not refer to it again in this ground. It remains relevant to the second ground of review. Amended issue 3 incorrectly refers to it. 2. As identified in the documents in evidence, in October 2011 the Department issued a gateway determination to the SJRPP as the relevant planning authority for amendments proposed to the 2010 LEP for two deferred areas, Estella and Cartwrights Hill. The proposal under consideration for Cartwrights Hill was to change the existing zones to R5 Large Lot Residential with a one hectare minimum lot size and part to RU6 transition zone with a 200 ha minimum lot size (exhibit B tab 27). 3. The documents constituting the second planning proposal contain narrative text and plans which generally meet the description of what is required for a planning proposal by s 55(2)(a)-(e). The documents at exhibit B tab 30 were placed on public exhibition between 20 March 2012 and 20 April 2012. A document "Planning Proposal - Wagga Wagga LEP 2010 Deferred Areas" addresses the criteria in s 55(2)(a)-(c) under the headings "Part 1 - Objectives or Intended Outcomes"; "Part 2 - Explanation of the Provisions"; "Part 3 - Justification"; together with the additional documents "Statement of Consistency with Section 117 Directions"; a document "WWLEP 2010 Deferred Areas - Intent of the Planning Proposal and Strategic Planning Principles"; and "WWLEP 2010 Deferred Areas - Additional Information Report"; and relevant maps. This is accepted by the First Respondents as material addressing the criteria in s 55(2)(a)-(d) in relation to a one hectare minimum lot size for Cartwrights Hill. No submissions were directed to s 55(2)(e), therefore the Court has assumed that this is not in issue. 4. On 5 July 2012 the SJRPP resolved to defer the matter of Cartwrights Hill in order to obtain a further report on the submissions and an investigation into the adequacy of the buffer around the Bomen STP (exhibit B tab 33). This was confirmed in the letter dated 13 July 2012 to the Regional Director at the Department (tab 34) which also requested the making of the Estella component. Documents called the third planning proposal in the evidence were prepared and exhibited (listed above at par 18). 5. After the first hearing the Court asked additional questions concerning whether material meeting the description in s 55(2)(a)-(c) for Cartwrights Hill was contained in the documents placed on public exhibition for the third planning proposal and an extended hearing was held. It was clarified that two maps which refer to the Cartwrights Hill area were contained in the documents placed on public exhibition which showed this area as potentially zoned R5 (Large Lot Residential) with a minimum lot size of eight hectares as referred to in s 55(2)(d). The narrative parts of the planning proposal meeting the description in s 55(2)(a)-(c) concerned the planning proposal for Estella. The letter dated 13 July 2012 from the SJRPP to the Department refers to rezoning certain land at Cartwrights Hill and seeks an extension of time for the Cartwrights Hill component of the planning proposal. According to the Applicant this letter constitutes the consideration by the SJRPP pursuant to s 57(8) for the two parts of the planning proposal. In relation to Cartwrights Hill this was a request for an extension of time to address the matters contained in the letter. 6. The redrafted issues for determination set out above characterise the planning proposals in different ways. The alternative identified in 2 is in my understanding the primary case of the Applicant, that the second planning proposal constituted a proposed instrument that is or has been the subject of public consultation under the EPA Act, which has been subsequently varied by the two maps at the third and fourth folios of tab 39 (part of the documents for the third planning proposal and which have also been publicly exhibited) and which has been notified to the consent authority. 7. The second and third planning proposals should be considered as part of the same evolving planning proposal following the gateway determination made pursuant to s 56. As the Applicant submitted at the second hearing, s 58(1) provides for the variation of a planning proposal by a planning authority for a wide range of reasons in that no explicit limitation on the power to vary is imposed in that section given the reference to "any other reason" in the subsection. I do not agree with the First Respondents' submission that the third planning proposal replaced the earlier second planning proposal. The proposed instrument as conceived of in the two maps contained in the third planning proposal proposes a different minimum lot size for Cartwrights Hill of eight hectares rather than one hectare as referred to in the second planning proposal and is a variation of the proposed instrument envisaged in the second planning proposal. 8. It does not appear from the documentary evidence that the amended proposed instrument of an eight hectare minimum lot size as contained in the third planning proposal for Cartwrights Hill was notified to the Minister as required by s 58(2). The written request made to the Department was for an extension of time for Cartwrights Hill. In these circumstances the third planning proposal may not ultimately satisfy the requirement for a variation contemplated by s 58(2) but I do not need to consider that question at this stage. A failure to notify under s 58(2) if there be any does not alter the circumstance that the SJRPP exhibited a variation of the second planning proposal with the maps in the third planning proposal and hence amended the proposed instrument the subject of the two planning proposals. The second planning proposal as varied by the two maps relating to Cartwrights Hill contained in the third planning proposal constitutes a proposed instrument to which s 79C(1)(a)(ii) applies, subject to the requirement that these must be notified to the Council as the consent authority. Notification of planning proposal 1. No procedure for notification of a proposed instrument is identified in the EPA Act or Environmental Planning and Assessment Regulation 2000. There is no specific document or communication evidencing notification by the SJRPP of the proposed instrument(s) to the Council. The Applicant relied on the following in relation to the second planning proposal: 1. Exhibit B tab 26. On 12 May 2011 the Council, through its Manager Strategic Planning sought gateway determination of a planning proposal for the deferred areas. 2. Exhibit B tab 27. Gateway determination dated 28 October 2011 was produced from the Council's file. 3. Exhibit B tab 28. On 8 February 2012 the SJRPP resolved to publicly exhibit the second planning proposal. The record of decision (first document in tab 28) records that members of the SJRPP included three Councillors (of the Council). Attendees at the meeting included the General Manager, the Director Planning, the Manager Strategic Planning, and the Executive Assistant to the Director of Planning, all being officers of the Council. More specifically, item 3 refers to "Council briefing on referral documentation", specifically addressing the exhibition material for the 2010 LEP deferred areas amendment. 4. Exhibit B tab 29 represents the exhibition of the draft amendment to 2010 LEP. It is a newspaper advertisement published by the Council, by its name. 5. The submissions received in response to the exhibition (exhibit B tab 31) are all addressed to the Council. 6. The report concerning the second planning proposal and exhibition (exhibit B tab 32) was prepared by the Council. 7. On 5 July 2012 the SJRPP met to consider the planning proposal. The minutes (exhibit B tab 33, first document) record two of the members as councillors, and also record as in attendance the General Manager, Director Planning, Manager Strategic Planning, Executive Assistant to the Director of Planning, and the Strategic Town Planner, all of the Council. The meeting was at the Council. 1. For the third planning proposal the following identifies the knowledge (and hence notification) of the Council as the Applicant submitted: 1. The report and minutes of meeting comprising the last two bullet points of the previous paragraph. These documents are specifically referenced in the first two bullet points on page 2 of the letter dated 13 July 2012 from the SJRPP to the Minister (exhibit B tab 34). 2. Exhibit B tab 36, comprises the report to the SJRPP on 8 February 2013. The report to the SJRPP was prepared by the Council. In s 4 (p 9) of the report, the topic of "Submissions to Public Exhibition 3" is addressed, including a column headed "Council officer response" to submissions raised. Within this tab, two expert reports (odour and acoustic) were prepared for the Council and included in the report to the SJRPP. 3. Meeting of the SJRPP on 13 February 2013 (exhibit B tab 37). Two of the members are recorded as being Councillors, and in attendance are four officers of the Council. 4. Exhibit B tab 38 a newspaper advertisement for the exhibition of the third planning proposal was issued by the General Manager of the Council, for the Council by its name. 5. Exhibit B tab 40 is a report to the SJRPP of the exhibition of the third planning proposal. The report to the SJRPP (16 May 2013 – first substantive document within exhibit B tab 40) was prepared by the Council. 1. The Applicant submitted that provided the circumstances demonstrated an awareness by the consent authority of the proposed instrument this requirement was satisfied. Various documents in evidence and the participation of councillors on the SJRPP give rise to an awareness of the planning proposals by the Council. The First Respondents submitted that formal notification was required as the Council is an entity which exists separately from elected councillors and council officers, and there was none. The statutory scheme in the EPA Act requires that notification must be formal, meaning in writing. The First Respondents properly accepted that the Council was aware of the third planning proposal because as a matter of fact the council officer determining the development consents was aware of the third planning proposal, as is clear from the council officer's report dated 25 July 2013. 2. Abundant caution suggests that a planning authority, here the SJRPP, should take steps to formally notify (meaning in writing) a consent authority the process of which results in a proposed instrument as that removes all doubt about the application of s 79C(1)(a)(ii). Such an approach is consistent with the statutory scheme in the EPA Act as the First Respondents submitted. The facts of this case nevertheless give rise to the clear inference that the Council was notified of the process resulting in a proposed instrument through the planning proposals in light of the evidence referred to by the Applicant and the knowledge of the council officer as reflected in the assessment report of 25 July 2013. 3. To the extent there was a failure to comply with a mandatory requirement for written notification to the consent authority under s 79C(1)(a)(ii), about which I need make no finding now, an application of the principles in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91]-[93] suggests that any breach in the circumstances of this case would not give rise to invalidity of the proposed instrument. Planning proposal not withdrawn 1. The second planning proposal was not withdrawn by the SJRPP. The relevant resolution of the SJRPP dated 27 June 2012 (exhibit B tab 33) deferred consideration of the Cartwrights Hill planning proposal and requested a further report on submissions and investigations into the adequacy of the buffer around the Bomen STP. That the word withdrawn was referred to in a letter dated 13 July 2012 has no legal consequence. This was not a formal step taken by the SJRPP. The material decision is that revealed by the resolution in the SJRPP meeting on 27 June 2012. Conclusion on issues 1 and 2 1. I have already held above at par 45 that the Applicant's case is best characterised as the alternative issue 2. The second planning proposal as varied by the two maps in the third planning proposal in relation to Cartwrights Hill is a proposed instrument that has been notified to the consent authority. The First Respondents' submission that the planning proposals have no role to play, other than as potentially relevant or permissible considerations under s 79C (the second ground of judicial review), is not correct. B. Obligation to consider planning proposal as proposed instrument - meaning of "as of relevance" in the chapeau to s 79C Issue 3 1. The third issue identified is whether the Council was under an obligation to take into account a proposed instrument under s 79C(1)(a)(ii) on the facts of this case. This issue as raised in argument concerned the construction of the term "as of relevance" in the chapeau of s 79C. This was construed by the First Respondents as meaning that it is entirely for the decision-maker to determine which of the prescribed matters in s 79C are of relevance to the development application and consider these matters in determining whether development consent should be granted, relying on Manousaki v Randwick Municipal Council (1988) 66 LGRA 330 in the Court of Appeal. This construction was opposed by the Applicant who stated that such an (incorrect) application of Manousaki would impermissibly neutralise authorities such as Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 and Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 102 LGERA 52. Whether I need to determine a less than straightforward (and substantial, the parties referred collectively to some eighteen cases) construction question depends on the answer to issues 4 and 5 of whether in fact the Council acting through its officers did take into account or give weight to a proposed instrument. As I conclude below that the proposed instrument was taken into account, there being clear reference to the planning proposal in the assessing officer's report, it is unnecessary to further consider this issue. C. Taking into account/attribution of weight to proposed instrument Issues 4 and 5 1. The next issues to consider are whether the Council failed to take into account the proposed instrument as described in the second planning proposal as varied, or failed to give sufficient or any weight to that proposed instrument as identified in issues 4 and 5. It is obvious but necessary to state that the decision-maker was a council officer acting under delegation, Mr Collins (SOAF par 38). The Council's assessing officer was Ms Gray. The relevant parts of the council officer's report dated 25 July 2013 for the Burns DA are set out in full in par 10. The particular focus of this part of ground one is the discussion of s 79C(1)(a)(ii). This is headed "the provisions of any draft environmental planning instrument" and the three paragraphs in the report are set out in full. Applicant's submissions 1. Under s 79C(1)(a)(ii) any proposed instrument that is or has been the subject of public consultation is required to be taken into account by a consent authority. Such an instrument was the subject of the planning proposals which existed at the time of assessment of the DAs. The planning proposals as amended following the grant of the gateway determination comprised a proposed instrument for the purpose of s 79C(1)(a)(ii) (as held above). The Council by its delegated officer failed to consider this, an error in decision-making which vitiates the consent per Parramatta City Council v Hale (1982) 47 LGRA 319 at 388, Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 at [29]. Mere advertence to a mandatory relevant consideration is not sufficient: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 Basten JA at [73]-[79], Anderson v Director General, Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 Tobias JA at [51]-[60] (TS 57-58). The Council officer's report fails to correctly consider the second and third planning proposals as mandatory relevant considerations. 2. Alternatively, the Council failed to give any weight, or adequate weight, to the planning proposal. The council officer report dated 25 July 2013 in the section considering s 79C(1)(a)(ii) did not give any weight to the planning proposal. At the time development consent was granted by the Council the planning proposal had been on public exhibition on several occasions, the subject of a number of panel meetings and been the subject of numerous reports. The general planning approach was known, being to zone the First Respondents' lands R5 (Large Lot Residential). The primary uncertainty was whether the First Respondents' lands would have a minimum lot size of one hectare or eight hectares. Either would have meant the development proposed in the DA was not permissible under the terms of the proposed instrument. 3. Even if the draft instrument was taken into account it is a well established principle that determining the weight to be given to a draft instrument (here the planning proposal) depends on the extent to which that draft instrument can be said to be imminent and certain per Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138. There is a difference between relevant consideration and mandatory relevant consideration. Separately there is weight. Here the Council did not consider s 79C(1)(a)(ii) considerations existed so that there was no decision about relevance or weight of any proposed instrument. First Respondents' submissions 1. The weight to be attributed to a draft EPI may be greater if there is greater certainty that it will be adopted: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 per Spigelman CJ at [5]-[7], Ipp JA at [88]. The Court in Terrace Tower also repeated the well established proposition that misattribution of weight to a planning instrument by a consent authority is not an error of law, so long as legally irrelevant factors are not taken into account: per Mason P at [57], applying Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41. 2. Even the giving of no weight to a matter does not involve an error of law. In Hoskins v Waverley Council [1999] NSWLEC 236, Lloyd J considered a case in which a commissioner of this Court overtly gave "no weight" whatsoever to a draft LEP. The commissioner had held (at [5]) "I do not consider the DWLEP 14 to be certain or imminent and I have given it no weight in my consideration of the present application." At [15] Lloyd J stated: in the present case the Commissioner described the facts which led him to the view that he should not give DWLEP 14 any weight. It could not be said that the decision to give DWLEP 14 no weight was one which, on those facts, no reasonable mind could not have come. I am not satisfied, in his careful consideration of the place of DWLEP 14 amongst the various matters for consideration, that the Commissioner committed any error of law in attributing to it an absence of weight. 1. A decision to give no weight to an issue is a legally different concept to a failure to take a mandatory matter into account. A matter may be taken into account, even though it is afforded no weight. That is what occurred in this case. 2. The council report correctly states that there are no draft EPIs. The report is correct as a matter of fact, and is correct having regard to the legislative scheme to which reference has been made. No failure to take into account proposed instrument (issue 4) 1. I have held above that a proposed instrument existed at the date of approval of the two DAs under challenge on 25 July 2013. The council officer's report does not accurately reflect the wording in s 79C(1)(a)(ii) in that these are titled "the provisions of any draft environmental planning instrument". The reference to draft EPI does not reflect the current terms of that section. I should identify that the first sentence in the council officer's report that no draft EPIs apply to the site or the proposal is literally correct as there was no draft LEP then in existence. 2. The discussion in the second longer paragraph is generally correct, as the First Respondents submitted. The paragraph identifies that a number of reports and a planning proposal have been prepared, exhibited and presented to the SJRPP. The officer correctly identifies that as at July 2013 further reports have been requested. The conclusion in the last sentence of the second paragraph is that until the SJRPP determines the deferred matter there is no draft LEP to be considered. That statement is literally correct. 3. The third paragraph correctly identifies that a report was prepared for the planning panel (the SJRPP) in May 2013 recommending R5 Large Lot Residential with a minimum lot size imposed of eight hectares. The report states that were that proposal to proceed these applications would be prohibited. The conclusion in the last paragraph that the third planning proposal as prepared for the SJRPP in May 2013 was not approved and so carries no weight in terms of assessment under s 79C is criticised as failing to take into account the proposed instrument as required by s 79C(1)(a)(ii). The conclusion that until such time that the SJRPP have made their determination on the deferred matter there is not considered to be a draft LEP that can be considered is accurate. 4. The obligation in s 79C(1)(a)(ii) is to consider a proposed instrument. The contents of the report suggest that a proposed instrument such as existed at the time of the decision was taken into account. The report of the officer should not be read as if drafted by a lawyer (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368) so that the absence of reference to the words "proposed instrument" is not indicative of error. Read in context the word proposal in the third paragraph should be inferred to be a reference to a proposed instrument particularly as these are referred to in the planning proposals. 5. The authorities relied on by the Applicant such as Kindimindi must be considered in light of these facts. A failure to consider a mandatory relevant consideration can vitiate a consent per Hale and Maygood. In Kindimindi at [74] Basten JA reviewed numerous authorities such as Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; (1987) 14 ALD 291, at [75] Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 identifying the danger of applying formulations such as proper, genuine and realistic consideration of the merits of a case in judicial review proceedings, the constrained approach adopted by Mason P in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at [80] in contrast to Giles JA in Weal. Basten JA concluded at [78]-[79]: 78 The force of the statement in Bruce v Cole may, however, have been mitigated to some extent by the adoption by his Honour in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589 of the language of Gummow J in Kahn. Although there is reference to the passage in Bruce v Cole (at [62]), at [64] the Chief Justice noted, by reference to Parramatta City Council v Hale at p 339, that "mere advertence to a matter required to be taken into consideration is not sufficient". The reference in Hale, at p 339, in the judgment of Moffitt P read as follows: "It was put to us that the authority could consider relevant matters and reject them. An assertion in these terms has an ambiguity likely to produce error. If the submission means that it is sufficient that the authority advert to a relevant matter and that it can then discard it, the submission must be rejected, because the requirement is that the matter shall be taken into consideration." 79 So much must be accepted: the danger is that adoption of the epithets such as "proper, genuine and realistic" consideration, may be understood to qualify the statutory terminology in a manner inconsistent with accepted principles in relation to judicial review. As noted in Bruce v Cole, they risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review. Adoption of the principles set out by McClellan CJ in the Land and Environment Court in Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; (2004) 135 LGERA 257 at [37], to which this Court was referred by the Appellant, should be applied subject to a similar caution. 1. In Anderson Tobias JA (Spigelman CJ, Macfarlan JA agreeing) also considered the failure to consider a relevant consideration ground of review at [51]-[57] referring to Basten JA in Kindimindi and Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450 at [55], his Honour agreeing on the need for caution in applying formulations developed by courts in relation to the requirement to consider, at [57]. A relevant matter must be more than adverted to and discarded. Whether a matter has been considered is an evaluative process based exclusively on what the decision-maker has said or written, at [58]. 2. The Applicant also relied on Zhang, in which the Court of Appeal found there was a failure by a commissioner to apply a council development control plan as a focal point of the decision-making process, and a similar failure was found to have occurred by the Court of Appeal in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226; (2009) 172 LGERA 338. In both cases part of the reasoning of the Court of Appeal was that the commissioners had applied their own views of what the relevant standard should be not the standard in the development control plans. Neither of these matters has any relevance to the decision-making process before me. 3. No failure to consider a mandatory relevant matter has been demonstrated in the circumstances of this case given my findings in relation to the content of the assessment report above. A relevant matter, the proposed instrument, was referred to and considered by the assessing council officer as required by authorities identified and applied in Kindimindi. The proposed instrument was not simply adverted to and discarded, applying Anderson at [58]. Attribution of weight (issue 5) 1. Turning to the argument of a failure to attribute weight to a relevant consideration by the council officer, the statement in the third paragraph that as the proposal for lot sizes is smaller than eight hectares the DA would be prohibited, but the proposal carries no weight in terms of assessment under s 79C because it was not approved by the SJRPP, is possibly the key sentence. The extent to which weight is given to a relevant factor is generally a matter for the decision-maker, here the assessing council officer advising the delegated decision-maker per Peko-Wallsend at 41, cited in Premier Customs by Macfarlan JA at [22]. 2. Both parties referred to cases determined in relation to the previous statutory scheme where courts considered whether a draft EPI was certain or imminent. Whether a draft instrument was imminent or certain was not explicitly stated in the previous form of s 79C(1)(a)(ii). In Terrace Tower Spigelman CJ held that the greater the certainty that a draft instrument will in fact be adopted, the greater the weight that may be given to that draft, at [5]. There is no limit placed on a decision-maker or court considering the likelihood of a particular proposed instrument as found in a planning proposal. In Hood the commissioners considered that the stage a planning proposal had reached and the extent to which the likely provisions had been settled were relevant factors to consider in determining how much weight to give it, at [80]. I agree but in this case the assessment of the likelihood of a proposed instrument being made is a matter for the council officer not the Court in these judicial review proceedings. 3. The Applicant submitted that the only uncertainty was whether the proposed instrument would specify a one hectare or eight hectare minimum lot size but the resolution of the SJRPP to defer consideration of the Cartwrights Hill area and seek more reports does not support the inference that these were the only options which the SJRPP might consider. As identified in the SOAF par 33 the SJRPP resolved to prepare a further report on appropriate zonings for the deferred land, ask the Council to investigate the appropriateness and extent of a minimum lot size of less than eight hectares in the R5 (Large Lot Residential) zone and ask the Council to commission further odour and noise impact studies inter alia. The view of the council officer Ms Gray that no decision had been made (or was likely to be made) by the SJRPP anytime soon was a view open to the officer given the decision the month before in May 2013 by the SJRPP to defer the third planning proposal of an eight hectare minimum lot size and seek more reports. That view was likely to be informed by the lengthy planning history for the Cartwrights Hill area outlined in the assessment report and which would be apparent from the Council's files given its involvement at all stages of the processes undertaken by the SJRPP. 4. The Applicant is not successful on ground one as no failure by the Council in the assessment of the two DAs has been established. Ground Two: Failure to consider relevant considerations under s 79C(1)(b) (c) (d) (e) 1. This ground is articulated in the summons relating to DA 13/0192 as follows (the same is said of DA 13/0183): 40. In its consideration of the Development Application, the Council failed to take into account the likely impacts of that development, including economic impacts in the locality pursuant to s79C(1)(b) of the EP&A Act. Particulars (a) Council Officer's Report for DA 13/0192 (b) The Council failed to take into account the impact of the development on the Facility 41. In its consideration of the Development Application, the Council failed to take into account the suitability of the site for the development pursuant to s79C(1)(c) of the EP&A Act. Particulars (a) Council Officer's Report for DA 13/0192 (b) The Council failed to take into account the impact of the Facility on the land the subject of the Consent 42. In its consideration of the Development Application, the Council failed to take into account submissions made in accordance with the EP&A Act or the regulations, pursuant to s79C(1)(d) of the EP&A Act. Particulars (a) Council Officer's Report for DA 13/0192 (b) The Council failed to take into account the submission by the Environment Protection Authority (c) The Council failed to take into account the submission lodged by the Applicant on 24 May 2013. 43. In its consideration of the Development Application, the Council failed to take into account the public interest pursuant to s79C(1)(e) of the EP&A Act. Particulars (a) Council Officer's Report for DA 13/0192 (b) The Council failed to take into account the informal exhibition of a planning proposal, the First Planning Proposal, the Second Planning Proposal and/or the Third Planning Proposal, as comprising matters constituting or relevant to the public interest. 44. In the circumstances set out above, the Council breached sections 79C(1)(b), 79C(1)(c), 79C(1)(d) and 79C(1)(e) of the EP&A Act. Accordingly, the development consent to DA 13/0192 is void and of no effect. Applicant's submissions 1. The Council was also bound by s 79C of the EPA Act, to take a number of other considerations into account in assessing the DAs, including: 1. economic impacts in the locality pursuant to s 79C(1)(b) of the EPA Act; 2. the suitability of the site for the development pursuant to s 79C(1)(c) of the EPA Act; 3. submissions made in accordance with the EPA Act or the regulations, pursuant to s 79C(1)(d) of the EPA Act; and 4. the public interest pursuant to s 79C(1)(e) of the EPA Act. 1. The Council failed to take the above four considerations into account. Specifically: 1. The purported consideration of the economic impact of the DA in the council officer's report did not consider any impacts of increased subdivision, and thereby increased receptors, on the nearby Bomen Industrial Estate. This is despite the potential conflict between these land uses being the very reason that the Deferred Land was excluded from the making of the 2010 LEP and despite it being the core issue raised by the Environment Protection Authority (EPA) in its submission on the DA. 2. In considering the suitability of the site for the development, the council officer's report merely stated that, "The subject site is suitable for the proposed development." This consideration was plainly inadequate, and amounted to a failure to give due consideration to the issue. In considering the suitability of the site, the council officer's report did not give any consideration to the conflict between the Bomen Industrial Estate and the First Respondents' Lands. 3. The consideration in the council officer's report of submissions lodged on behalf of the EPA, and the Applicant, is inadequate and flawed. The submission of the EPA states that the Council should minimise potential land use conflicts through informed planning decisions, and that it should consider the findings of the specialist odour and noise studies commissioned by the Council in respect of the Deferred Land. The council officer's report, at p 7-8, notes that the most recent odour study recommended that the Council not introduce any further receptors into the area, and further, notes that an independent review of the findings of previous odour reports was being undertaken. However, in direct contradiction to those earlier statements, and the recommendations of the EPA, the council officer's report concluded, at p 8, that, "At this point in time there are no grounds to refuse the subdivision application based on risk of odour pollution." 4. The public interest is not a fixed or defined concept but rather takes into account matters of a wide ambit. The orderly and economic development of land is one aspect of the public interest. This is achieved through adherence to the EPA Act, and the processes and procedures established under the EPA Act, which includes the requirement for a consent authority to consider the mandatory requirements under s 79C of the EPA Act in assessing a development application. In this instance, there is also a public interest in preventing land use conflicts, and ensuring that one of the largest employers in the local government area can continue to operate. Additionally, the submissions, discussed in par (c) above, also comprise an aspect of the public interest. These public interests are to be contrasted with the private interest of developers, in this case the First Respondents, in realising a capital gain from subdivision of his land. It is therefore apparent that the Council failed to have proper regard to the public interest 1. Each of these failures are errors capable of vitiating the consents, and cumulatively, they vitiate the consents. Concerning "as of relevance" in s 79C(1) and the public interest, what is comprised by the public interest is what must be of relevance. This is illustrated by Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 which was a decision concerning the (now repealed) Pt 3A of the EPA Act where the power for the Minister to grant concept plan approval had no enumerated list of relevant considerations: s 75O. Hodgson JA (with whom Campbell and Bell JJA agreed) found that in the scheme of the EPA Act the public interest was a mandatory relevant consideration: [39]. Hodgson JA went on to observe that that requirement "operates at a very high level of generality and does not of itself require regard to be had to any particular aspect of the public interest", citing the decision of Preston J in Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [41]. That reinforces the proper approach to s 79C as advanced by the Applicant. First Respondents' submissions Impacts and suitability 1. The council officer's report contains a section entitled "(b) - The likely impacts of the development" (exhibit B tab 48, p 6-9). In that section, the council officer's report considers the following matters: 1. Context and setting; Site Design and Internal Design; Access, transport and traffic, Services, Heritage, Man Made Hazards, Natural Hazards, Construction, Noise and Vibration, Pollution and Offsite Environment Effects, Social and Economic Impacts; Cumulative Impacts, The Principles of Ecologically Sustainable Development. 2. As to Social and Economic Impacts, the council officer's report states that: ... the proposal will have a positive social impact as additional residential lots are provided in the locality. The subdivision of existing lots will have a positive individual economic impact on landowners but also be of wider economic benefit in terms of new development within the locality. 1. As to Noise and Vibration: the reports expressly referred to the Atkins Acoustics study which considered the impact of noise from Bowen Industrial Estate across the area of Cartwrights Hills, which was one of the reports which had been provided to the SJRPP on 16 May 2013 (exhibit B tab 40 attachment 18). Based, however, on the location of the site, the council officer's report concludes: The report goes on to identify that when the blowers operate at 75%, the noise affected land is limited to that of north of Old Bowen Road. With measures such as a 75% operation during certain times of day the subject lot would not be noise affected. As previously referred the findings of the Planning Panel are not yet concluded and those findings include an assessment of recent noise and odour reports. An independent consultant has been appointed to review the findings of the reports and this is still being undertaken. At this point in time there are no grounds to refuse the subdivision application based on risk of noise pollution. 1. Pollution and Off Site Environmental Effects: the Council expressly considered the Todoroski Air Sciences November 2012 report undertaken to determine the impact of odour from the Bowen Industrial Estate across Cartwrights Hill. The council officer's report concludes: The findings of the report suggest that odour levels within Cartwrights Hill are above the set criteria and that odour complaints are likely from residential receptors. It goes on to suggest that whilst industries are working towards ameliorating odour emissions it would be prudent for WWCC to not introduce further receptors into the area that appear to suffer from odour complaints. As previously referred the findings of the Planning Panel are not yet concluded and those findings include an assessment of recent noise and odour reports. An independent consultant has been appointed to review the findings of the reports and this is still being undertaken. At this point in time there are no grounds to refuse the subdivision application based on risk of odour pollution. 1. The issue of noise and odour was also considered by the council officer's report in response to the Applicant's submission, grounds of objection one and two, to which the report responds as follows: ... the findings of the most recent studies have been challenged by the Joint Regional Planning Panel and further studies have therefore been requested. These studies are not yet complete and reliance on studies that may become superseded is not appropriate. 1. In relation to this matter, the reports concluded under the heading "C - The suitability of the site for the development" that "the subject site is suitable for the proposed development" (exhibit B tab 48 p 9 and 53 p 8). 2. The Applicant alleges that the brevity of this statement amounts to a failure to consider the suitability of the site, including the "conflict between the Bomen Industrial Estate and the First Respondent's land". In light of the text of the council officer's report and having regard to whole of the report, it is clear that the matters were taken into account. Submissions made under s 79C(1)(d) 1. The council officer's report directly addressed each of the grounds of objection made by the Applicant. The submission of the EPA (exhibit B tab 47 and 52) referred the Council to the SJRPP's deferral of its decision "pending the submission of a report including additional studies to be undertaken by independent bodies" and suggested that "the findings of the specialist noise and odour reports" should be considered. 2. In responding to the EPA submission, the council officer's report comment as follows: Refer to the impact section earlier in the report for a review of these studies. 1. This is a reference to the section of the council officer's report entitled "(b) - the likely impacts of the development". 2. The implications of the existing reports in relation to odour and acoustics for the DAs was specifically assessed in a manner which was open to the Council. The Council was under no legal obligation, in relation to the merits, to delay its determinations until it received still further reports. 3. It was open to the Council respond to the submissions it received by assessing the merits of each of the specific concerns (acoustics, odour, economics, site suitability, and so on) raised by the submissions. It has not been shown that the Council failed to take those submissions into account. Public Interest 1. The Applicant's "public interest" ground, in so far as it refers to the merits, reveals the Applicant's view of the public interest. The Applicant's view of the merits is irrelevant to any issue in the proceedings. The council officer's report expressly addresses the public interest (exhibit B tabs 48 p 10 tab 53 p 10). There is no foundation for any allegation that the Council failed to take the matter into account. No failure by the Council to consider mandatory relevant considerations in s 79C(1)(a) 1. Judicial review of administrative decisions requires the Court to consider whether the decision-making process suffers from the failures alleged by an applicant seeking review. The Applicant submitted that numerous matters in s 79C(1)(b)-(e) were required to be considered by the Council before deciding to grant approval to the two DAs and were not. The Court cannot consider the merits of a particular decision in considering the grounds of judicial review per Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36. 2. There is no obligation for a consent authority to give reasons under the EPA Act. The consent authority here a council officer acting under delegation, did not prepare a statement of reasons about his decisions to approve the two DAs. In the absence of reasons the assessment report of another council officer is effectively taken to be the reasons and analysed for error. Excerpts of this report are set out above in par 10. There is material on the Council's files which relates to the DAs, all of which files were produced to the Court according to the affidavit of Mr Shapiro referred to in par 7. 3. I held above in ground one in relation to notification of a proposed instrument to the Council at par 51 that the Council was aware of the second and third planning proposals being prepared by the SJRPP (which I found were part of one evolving process). Councillors were participating on the SJRPP during the lengthy unfinished process and council officers attended SJRPP meetings and provided numerous reports to the SJRPP, which reports are on the Council's files. The extensive consideration of the appropriate land uses in Cartwrights Hill is identified in the SOAF commencing in 2010 with the decision to defer Cartwrights Hill from amendments to the LEP (the draft 2008 LEP). This history suggests that the Council and its officers were well aware of the potential for land use conflicts between the Bomen Industrial Estate and Cartwrights Hill. That context does inform the council officer's report. Having regard to the May 2013 Council's report to the SJRPP, the community submissions referred to and the resolution of 16 May 2013 of the SJRPP to request further independent studies, it was open to the Council to reach the conclusions on economic impact and suitability of the site as identified in the reports, as the First Respondents submitted. 4. It is important to read the council officer's report as a whole (Gee v Council of the City of Sydney [2004] NSWLEC 581; (2004) 137 LGERA 157 quoting Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291) so that the context for particular sections or sentences is understood. As the First Respondents submitted all the matters said by the Applicant not to be considered in the summons (at par 76) in par 40, 41, 42 and 43 appear explicitly in the council officer's report to a greater or lesser extent. That the Applicant does not agree with the council officer's discussion or conclusions on a topic does not give rise to legal error. The Applicant's case refers to four subsections of s 79C(1). As I understand the case put there is an overarching submission that there was a failure to consider the lengthy planning history of the Cartwrights Hill area as reflected in the first, second and third planning proposals and the need to have an adequate buffer around the Bomen Industrial Estate within Cartwrights Hill by continuing to restrict the number of residences built in the deferred area. 5. Section 79C(1)(b) requires consideration of the likely impacts of the proposed development including the environmental impacts on the natural and built environments and the social and economic impacts in the locality. The report has a section with issues identified that appear entirely relevant, as set out in the First Respondents' submissions above at par 80. 6. Subsection (c) concerns the suitability of the site for development. This is directly addressed in the report and odour and noise issues identified. The report is factually correct in that the SJRPP has requested further studies to be undertaken. 7. Subsection (d) concerns the consideration of submissions made. The particular failure alleged is in relation to the submission of the EPA and the Applicant's submission on 24 May 2013. The council officer's report contains a section headed public submissions and those from public authorities which contains a summary of eight issues. The criticism made is that the consideration was inadequate and flawed. It appears however that the report does correctly identify odour issues. The complaint of the Applicant is with the council officer's conclusion that this is not a basis for refusal, a matter of merit within the subjective consideration of the officer given that it is not demonstrably absurd or unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680). 8. Subsection (e) concerns the public interest and a section of the report deals explicitly with that topic. It refers directly to a planning proposal that will impact on the future development of the area. It also identifies that the current legislation allows for subdivision to occur. The Applicant's complaint is that the public interest is not a fixed concept and the council officer has failed to refer to and take into account the potential for land use conflicts so as to ensure that one of the largest employers in the local government area can continue to operate. The findings of Hodgson JA in Walker relied on by the Applicant also support a conclusion that there is no error demonstrated in the council officer's report. The public interest is a broad concept, as acknowledged albeit in a different context, in O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 where the majority stated: the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission (N.S.W.) v. Browning [13] , per Dixon J. 1. There is no obvious omission along the lines identified by the Applicant. The Applicant's view of how the public interest should have been considered is not material in judicial review proceedings given that the Court is not to consider the merits of a particular case. 2. The Applicant has not established the second ground of judicial review. Accordingly, both Class 4 proceedings are unsuccessful and should be dismissed. I will reserve costs. Orders 1. The Court makes the following orders: 1. Summonses in proceedings numbered 40893 of 2013 and 40894 of 2013 are dismissed. 2. Costs reserved. ********** 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. Decision last updated: 20 January 2015