Land and Environment Court New South Wales

• Medium Neutral Citation: Howarth v Gosford City Council (No 2) [2014] NSWLEC 40
• Decision date: 17 April 2014
• Jurisdiction: Class 4
• Before: Sheahan J

Decision

1. The amended summons is dismissed.

2. The Applicants are ordered to pay the Respondent's costs, on a party-party basis, as agreed or assessed, unless within 28 days one or both parties file(s) a Notice of Motion seeking some different costs order.

3. All exhibits are returned.

• Catchwords: JUDICIAL REVIEW: DEVELOPMENT CONSENT: deferred commencement conditions; whether deferred commencement condition valid; whether deferred commencement condition satisfied; whether unreasonably satisfied; discretion; whether a s 25B order under the Land and Environment Court Act 1979 should be made?
• Legislation Cited: Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2000; Fisheries Management Act 1994; Interpretation Act 1987; Land and Environment Court Act 1979; Land and Environment Court Rules 2007; Rivers and Foreshore Improvement Act 1948; Rural Fires Act 1997; Uniform Civil Procedure Rules 2005
• Cases Cited: Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; (2006) 148 LGERA 439; Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139; Blanch v British American Tobacco Australia Services Limited [2005] NSWCA 241; (2005) 62 NSWLR 653; Casa v Ryde City Council [2009] NSWLEC 212; (2009) 172 LGERA 348; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning & Ors [1999] NSWCA 317; (1999) 106 LGERA 243; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; CSR Ltd v Fairfield City Council [2001] NSWLEC 221; (2001) 117 LGERA 77; Dooralong Residents Action Group Pty Ltd v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274; Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33; GPT Re Limited v Bell Morgan Property Development Pty Ltd [2008] NSWCA 256; (2008) 72 NSWLR 647; House of Peace v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498; Howarth v Gosford City Council [2012] NSWLEC 126; Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43; 190 LGERA 119; K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23; Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72; Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737; (2005) 143 LGERA 237; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23;143 LGERA 277; Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; (2005) 64 NSWLR 695; 147 LGERA 234; Marrickville Metro Shopping Centre Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67; Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Ltd [2007] NSWLEC 411; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 [2005] NSWCA 9; (2005) 137 LGERA 320; Newbury District Council v Secretary of State for the Environment [1981] AC 578, 616; Northey v Bega Valley Shire Council [2010] NSWSC 527; Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Reid's Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171; 169 LGERA 307; Rich v Lennox Palms Estate [2009] NSWLEC 167; Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321; Scott v Wollongong City Council (1992) 75 LGRA 112; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55; Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333; Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245; Winn v Director General of National Parks & Wildlife [2001] NSWCA 17; 130 LGERA 508
• Category: Principal judgment
• Parties: Russell Howarth (First Applicant); Cherie Reid (Second Applicant); Gosford City Council (Respondent)
• Representation: Mr D Wilson, barrister (Applicants); Mr J Maston, barrister (in 2012), Mr P Larkin SC (in 2013), both with Ms S Ross, barrister (Respondent); Landers & Rogers (Applicants); P J Donnellan & Co (Respondent)
• File Number(s): 40221 of 2012

Judgment

A: Introduction

1 This complex Class 4 matter was commenced on 28 February 2012, and concerns the conditions attached to, and the validity of, a 2003 development consent, but, relevant events, and negotiations between the parties, date back to about 2000.

2 The hearing commenced on 30 October 2012, but did not conclude until 18 July 2013. The issues shifted substantially over that period, and there was a change in senior counsel for the Council (from Mr J Maston to Mr P Larkin, SC). It will be necessary to explain those events in some detail, but, firstly, the broad context of the matter should be sketched.

Brief Background to the dispute

3 On 25 November 2003, the delegate of Council granted development consent ("DC" 15954/2003) to a development application ("DA") for a tourist facility, namely a "proposed community titled (154 suite) motel/destination resort", at 10 Townsend Ave, Avoca Beach, a project with some bushfire and other complications.

4 Such complications are often addressed by an "integrated development" process, but the applicants chose not to seek that course, and they now concede that, despite various documents labelling the DC as "integrated development", the application and the consent were not for "integrated development" (T17.7.13, p4, L7-10, and p35, LL24 - 25).

5 Instead, the DC was made subject to a series of six deferred commencement conditions ("DCC"), and the project required "sign-off" from several other government agencies, including the Rural Fire Service ("RFS"), and the State's fisheries and water regulators. As the respondent says (amended subs par 134, and T17.7.13 p35, LL35 - 8), the DCCs reflect the applicants' election not to seek integrated DC.

6 The DC has since been modified on four occasions, the relevant outcomes of which, for present purposes, were the finalisation of the wording of the only DCC of concern in these proceedings ("A(iv)"), and the fixing of 3 December 2008 as the last date by which the applicants had to comply with it.

7 The applicants primarily assert (1) that the key DCC is invalid, or (2) that, if that DCC is valid, they have fulfilled it, or (3) that Council's satisfaction as to their fulfilment of it has been invalidity or unreasonably withheld. They seek (T17.7.13 p24, LL20 - 22), essentially, a decision that they have the "benefit of an operative consent".

8 Council is not hostile to the project, provided its requirements are met, but contends, primarily:

(1) that the DC lapsed on 4 December 2008 (according to Mr Maston early in the hearing), if not on 3 December (Mr Larkin later); and

(2) that mere submission of material in response to a DCC does not necessarily satisfy either the condition itself, or its time stipulation.

9 DCC A(iv) was imposed on the DC pursuant to the power found in s 80(3) of the Environmental Planning and Assessment Act 1979 ("the EPA Act"), as a condition to be "met to the satisfaction of Council [by the date finally stipulated] ... Such satisfaction will be achieved by:

...

"iv. Development plans be amended and submitted to Council for approval to incorporate the requirements of the Commissioner of the NSW [RFS]. Amended plans shall not further impact upon existing vegetation; rather requirements of the Commissioner of the [RFS] shall be accommodated through a reduction in the size of the proposed development, including the deletion of buildings as required." (my emphasis)

The history of the delayed hearing

10 On 5 April 2012, the case was fixed for hearing on 20 June 2012, but when points of claim ("POC") were not filed, and none of the Court's directions of 5 April had been complied with, the hearing date was vacated by Pepper J on 1 June 2012: Howarth v Gosford City Council [2012] NSWLEC 126.

11 Her Honour was very critical of the conduct of both sides (see [6] - [10]), and considered dismissing the proceedings for want of prosecution. She made clear that the Court would need to be satisfied, before a new hearing date would be allocated, that pleadings were closed, and all evidence was on. New hearing dates of 30-31 October 2012 (two days) were fixed, and I was rostered to hear the matter.

12 The evidence upon which both counsel opened the matter on the first day of hearing was overwhelmingly documentary. The three volumes tendered by the applicants (as Exhibit A1) include almost 1,000 folios, and they were supplemented by another 230-odd folios of documents, in one volume tendered by the Council (Exhibit C1 - tabs 1A, 4A, 4B, 8A, and 10A). Much of that material was not seriously in contest, but needed to be closely examined by the Court.

13 In addition, there was an affidavit from the applicants' planner, (Stanley) John Hancock (CV in Exhibit A2), upon which he was eventually cross-examined, briefly, at the very end of the hearing (on the morning of the last day, 18 July 2013).

14 As the end of the first hearing day (30 October 2012) approached, and Mr Maston, then senior counsel for the respondent, was nearing the conclusion of his opening address, Mr Wilson, counsel for the applicants, announced that he would seek, next morning, leave to amend the applicants' POC to add a further claim based on estoppel. Both counsel adhered to the view that the hearing would still conclude on the second of two scheduled hearing days (T30.10.12, p37).

15 Just before the resumption at 10am the next morning (31 October 2012), draft amended POC ("APOC") were provided to the respondent, and at 10am leave to amend was sought from the Court. The respondent argued that the discretion to allow the amendment ought not be exercised, largely on the basis of the principles established by Aon Risk Services Australia Ltd v Australian National University ("Aon") [2009] HCA 27; (2009) 239 CLR 175, and Minister for Immigration and Ethnic Affairs v Kurtovic ("Kurtovic") (1990) 21 FCR 193.

16 The estoppel count in the draft APOC was extensively particularised in what was the then proposed new POC 12; minor non-controversial amendments were also proposed to POCs 3 and 11; and, with no advance notice to the respondent, the applicants also sought to add four additional, substantial particulars to what was to become POC 13, which argued the invalidity of the DCC at the heart of the matter.

17 Mr Maston sought an adjournment, and Mr Wilson made no objection to that course, nor to an order for costs thrown away. As I could not see any real prejudice to the respondent which could not be, at least largely, compensated by a costs order, and by my granting it leave to put on additional evidence, I allowed the amendment, made a costs order, and gave appropriate directions.

18 The parties then reported to the Court that they were in negotiation about a possible way to resolve their impasse altogether (given that Council is not really opposed to the project), and, to allow those discussions to continue, I adjourned the matter, by consent, for mention on 7 November 2012.

19 The mooted settlement was not achieved, and the applicants again indicated, at that 7 November mention, that they would seek to amend their summons and POC, and to resume the hearing before me, on a part-heard basis. A further series of directions was agreed, and I made them by consent.

20 On 11 December 2012, the solicitors for the applicants exercised their liberty to apply, and the matter came before me again. Mr Wilson filed in Court, and moved on, a Notice of Motion seeking the Court's leave to amend the summons and POC. The amendments sought to the POC were more extensive than the Court had expected, but I granted leave to amend both pleadings, ordered the parties to agree on a timetable, and made further directions. The hearing was then fixed to resume on 23 - 24 April 2013, counsel believing that probably only the first of those days would be required.

21 In mid-April 2013, I was heavily involved in the lengthy hearing of a very urgent Class 4 matter, and the listing of this part-heard case had to be vacated. The hearing was then rescheduled for 17 - 18 July 2013, and it proceeded before me on those dates.

22 The July 2013 hearing was conducted on the basis of the amended summons and APOC, which were filed on 19 December 2012. Further Amended Points of Defence ("FAPOD") were filed on 2 May 2013.

23 Despite the earlier foreshadowing by Mr Maston of the possible filing of further evidence in response to the applicants' APOC, none were filed. Amended respondent's submissions were, however, filed on 16 July 2013, when Mr Larkin SC replaced Mr Maston as senior counsel for the respondent.

24 The majority of the first day of the resumed hearing (17 July 2013) was utilised by Mr Wilson to recapitulate the matter. Mr Wilson worked off the APOC filed 19 December 2012, and informed the Court that the matter had been "refined" (T17.7.13, p3, L16).

25 However, he indicated (T17.7.13, p24, LL1-3) that, if invalidity were made out, and the Court were minded to grant an order under s 25B of the Court Act (set out in [28] below, but see also [26] 7, [27] 7g, and [27] 8(viii)), further submissions would need to be made on the appropriate terms of such an order. Mr Larkin submitted (T17.7.13, p31, LL 14 - 37) that s 25B was not "available in this case".

The Pleadings and the Issues in final form

26 The amended summons seeks (emphasis added):

1. A declaration that DCC A(iv) of modified DC. 19594/2003, or so much thereof that is uncertain or ambiguous, is invalid and of no effect.

2. Alternatively, a declaration that the Applicants had on or from 3 December 2008 satisfied the DCCs of that said DC.

3. Further or in the alternative, a declaration that on the true construction of DC No. 19594/2003 and in particular DCC A(iv), the DCCs have been satisfied and the DC is operative, subject to the conditions thereof.

4. Alternatively, a declaration that the satisfaction of the Respondent required by DCC A of the said DC has been and is unreasonably withheld.

5. Further, a declaration that the said DC was an operative DC on and from a date not earlier than 3 December 2008 pursuant to the provisions of the EPA Act as amended.

6. Alternatively, a declaration that the decision of the Respondent that it was not satisfied that the terms of DCC A(iv) of the DC were not satisfied was invalid and of no effect.

7. That insofar as the effect of the declarations and orders herein sought by the Applicants have or may have the consequence that the DC granted by the Respondent is invalid, that the Court make an order pursuant to the provisions of S25B of the Land and Environment Court Act 1979 ("the Court Act").

8. "Further or other order or direction or inquiry".

9. Costs.

27 I am content to adopt the respondent's summary (in its amended submissions of 16 July, pars 6, 7 and 8) of the APOC, FAPOD and the remaining issues between the parties, viz:

6. By the [APOC], the Applicants contend that:

a. paragraph [7] - they have done all things necessary to meet the satisfaction of the Respondent with respect to DCC A(iv) on or before 3 December 2008;

b. paragraph [8] - the Respondent has refused and continues to refuse to be satisfied in respect of DCC A(iv);

c. paragraph [9] - the Respondent has failed to determine that the requirements of DCC A(iv) were satisfied;

d. paragraph [10] - the refusal by the Respondents to determine, or alternatively, the absence of satisfaction of the Respondent that DCC A(iv) has been met, is unreasonable, or, alternatively, contrary to fact;

e. paragraph [11] - on the true construction of the Development Consent and in particular DCC A(iv), the Applicants have satisfied all of the DCCs, the Development Consent is operational and the Development Consent has not lapsed;

f. paragraph [12] - the failure of the Respondent to be satisfied, or alternatively the Respondent's determination that it was not satisfied, that the requirements of DCC A(iv) were not satisfied on or before 3 December 2008, was erroneous;

g. paragraph [13] - the Respondent is estopped from asserting that the Development Consent has lapsed by reason of the failure of the Applicants to satisfy the Respondent of the requirements of DCC A(iv) on or before 3 December 2008; and

h. paragraph [14] - DCC A (iv) of the Development Consent was, or ought to have been treated by the Council as having been, satisfied.

7. The Respondent contends:

a. DCC A(iv) is valid;

b. DCC A(iv) is so fundamental to the Development Consent that the Development Consent would never have been granted by the Council without a DCC which enabled the Council to determine the impact on vegetation due to the requirement of the Commissioner of the Rural Fire Service, and that a consent without DCC A(iv) would operate as a fundamentally different consent. Thus, DCC A(iv) cannot be severed from the Development Consent;

c. DCC A(iv) was never met to the satisfaction of the Council and no such satisfaction was ever communicated to the Applicants;

d. it is not open to the Court in these judicial review proceedings to determine whether DCC A(iv) ought to have been held by the Council to have been satisfied;

e. the Development Consent lapsed on 4 December 2008, which affects the whole of the Applicants' claim;

f. the Council cannot be estopped from asserting that the Development Consent lapsed on 4 December 2008;

g. an order pursuant to section 25B of the Land and Environment Court Act should not be made in the circumstances of the case; and

h. in the exercise of the Court's discretion, relief would not be granted on the basis of delay, the failure of the Applicant[s] to avail itself of merit review rights and the proceedings only raise hypothetical or academic questions because the proceedings were commenced some 4 years after the Development Consent lapsed.

8. Accordingly, the issues raised ... are:

(i) First, whether the Council, as a matter of fact, was satisfied that DCC A(iv) had been fulfilled on or prior to 3 December 2008;

(ii) Second, whether it is open to the Court in these judicial review proceedings to determine whether DCC A(iv) ought to have been held by the Council to have been satisfied;

(iii) Third, whether the Development Consent is operational and the Development Consent has not lapsed;

(iv) Fourth, whether the lack of satisfaction of the Council that DCC A(iv) had been complied with was unreasonable, contrary to fact or erroneous;

(v) Fifth, whether the Council is estopped from asserting that the Development Consent lapsed on 4 December 2008;

(vi) Sixth, whether DCC A(iv) is invalid and of no effect for uncertainty or absence of finality, and if it is, whether DCC A(iv) can be severed from the Development Consent or whether the Development Consent as a whole must be set aside;

(vii) Seventh, whether any of the relief sought by the Applicants ought to be granted in the exercise of the Court's discretion; and

(viii) Eighth, whether an order pursuant to section 25B of the Land and Environment Court Act should be made in the circumstances of the case.

Statutory Provisions and other relevant instruments and publications

28 Section 25B of the Court Act provides:

25B Orders for conditional validity of development consents

(1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order:

(a) suspending the operation of the consent in whole or in part, and

(b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2) Terms may include (without limitation):

(a) terms requiring the carrying out again of steps already carried out, or

(b) terms requiring the carrying out of steps not already commenced or carried out, or

(c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

29 Section 80(3) of the EPA Act provides:

A development consent may be granted subject to a condition that the consent is not to operate until the Applicant satisfies the consent authority, in accordance with the Regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

30 Section 80A(4) of that Act provides (emphasis mine):

A consent may be granted subject to a condition expressed in a manner that identifies both of the following:

(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b) clear criteria against which achievement of the outcome or objective must be assessed.

31 At all material times, cl 95 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation") relevantly provided:

(1) A "deferred commencement" consent must be clearly identified as a "deferred commencement" consent (whether by the use of that expression or by reference to section 80 (3) of the Act or otherwise).

(2) A "deferred commencement" consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions.

(3) A consent authority may specify the period within which the Applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters.

(4) The Applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period.

(5) If the Applicant produces evidence in accordance with this clause, the consent authority must notify the Applicant whether or not it is satisfied as to the relevant matters.

(6) If the consent authority has not notified the Applicant within the period of 28 days after the Applicant's evidence is produced to it, the consent authority is, for the purposes only of section 97 of the Act, taken to have notified the Applicant that it is not satisfied as to those matters on the date on which that period expires.

32 Clause 100(4) of the Regulation also relevantly provided:

In the case of a development consent granted subject to a condition that the consent is not to operate until the Applicant satisfies the consent authority, or a person specified by the consent authority, as to any matter specified in the condition:

(a) the date from which the consent operates must not be endorsed on the notice of determination, and

(b) if the Applicant satisfies the consent authority, or person, as to the matter, the consent authority must give notice to the Applicant of the date from which the consent operates.

33 Council's case is that the DC lapsed on either 3 or 4 December 2008. (It does not much matter which - see [91] - [92] below). The relevant law on lapsing was substantially changed by an amending Act in 2006, which inserted s 95(6) in the EPA Act, in these terms:

Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 80(3) lapses if the Applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority within the period so specified.

34 The 2006 amending Act also added a special transitional provision (cl 111) to Sch 6 of the EPA Act:

LAPSING OF CONSENT

111. A development consent granted before the commencement of section 95(6) as inserted by the amending Act, that is subject to a deferred commencement condition under s.80(3), lapses if the Applicant fails to satisfy the consent authority as to the matter specified in the condition within:

(a) five (5) years from the date consent was granted; or

(b) two (2) years after the date of commencement of section 95(6), whichever is the later.

35 Both s 95(6) and cl 111 commenced on 4 December 2006. The relevant dates stipulated for this project, in terms of subclauses (a) and (b) of cl 111, are (a) 25 November 2008 (i.e. 5 yrs after DC) and (b) 4 December 2008 (i.e. 2 yrs after the 2006 amendment), so the "lapsing date" for the subject DC is the later of those, namely 4 December 2008 (or certainly no later than that date).

36 Section 32 of the Interpretation Act 1987 provides (emphasis mine):

32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.

(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.

37 The provisions of the relevant local environmental plan ("LEP"), and the requirements of relevant development control plans ("DCP"), are not in contest.

38 However, the requirements of several RFS publications, namely the 2001 and 2006 versions of its manual entitled "Planning for Bushfire Protection" (both versions in Exhibit C1, tabs 1A and 10A), and the RFS document entitled "Standards for Assessment Protection Zones", were also important to the matter in dispute. Section 100B of the Rural Fires Act 1997 ("the RF Act") relevantly provides:

(1) The Commissioner may issue a bush fire safety authority for:

(a) a subdivision of bush fire prone land that could lawfully be used for residential or rural residential purposes, or

(b) development of bush fire prone land for a special fire protection purpose.

(2) A bush fire safety authority authorises development for a purpose referred to in subsection (1) to the extent that it complies with standards regarding setbacks, provision of water supply and other matters considered by the Commissioner to be necessary to protect persons, property or the environment from danger that may arise from a bush fire.

(3) A person must obtain such a bush fire safety authority before developing bush fire prone land for a purpose referred to in subsection (1).

(4) Application for a bush fire safety authority is to be made to the Commissioner in accordance with the regulations.

...

39 The RFS manual (e.g. fol 652A) clearly explains "the components of an asset protection zone", distinguishing between the "inner protection area" and "outer protection area" within a property's boundary with the hazard.

40 Various other Acts and regulations were also referred to in the context of the requirements of other government agencies, eg as to Riparian Zones, but they need not be set out here.

B: The Key Documentary Evidence, and the History of the Project

Early days

41 The project was the subject of close consultation with relevant officers of the Council prior to the submission of any DA. Proponents had also consulted with relevant State Government authorities to ensure the protection and re-enforcement of existing vegetated areas (Exhibit A1, Vol 1, tab 5, fols 22 and 23).

42 Originally there was a DA (No 12130/01) for a substantially larger development of the site. The relevant Statement of Environmental Effects ("SEE"), prepared for that DA by Hancock, and dated May 2000 (included in the 2003 DA documents at fols 43ff), noted, in the introduction (at fol 49), that the site had previously been used for farming, and that "the existing pattern of vegetation, cleared areas, dams etc reflect (sic) that traditional agricultural use which was common to the locality". DA 12130/01 was refused, and was the subject of earlier proceedings before this Court, which were current in 2003.

The 2003 DA

43 Hancock submitted the 2003 DA at issue in these proceedings, under cover of his letter of 31 March 2003. The nominated "applicant" (for consent) was Hancock's then firm, "Longhill Planning". The "DA documentation" is included in Exhibit A, Vol 1 (with the DA itself at tab 4). The estimated construction cost for the project was $15,000,000.

44 That 2003 DA was accompanied by a "Supplementary Statement Of Environmental Effects" ("SSEE"), which embraced the 2000 SEE and included various supporting documents. It was collated/prepared by Hancock and dated March 2003 (fols 20 - 543 of Exhibit A, Vol 1, tab 5). Relevant accompanying documents included reports prepared by Conacher Travers ("Conacher"), Morse McVey ("Morse"), and Gunninah Environmental Consultants ("Gunninah"). A bushfire hazard assessment report by consultants Building Code & Bushfire Hazard Solutions, dated June 2003, appears to have followed (Exhibit C1, tab 4A).

45 The SEE/SSEE expressed the view that the application complied with the objectives of the relevant zone, under the LEP, and with the requirements of various DCPs.

46 The subject site is relevantly zoned 7(c3) "Scenic Protection - Tourist Accommodation" under the LEP. Something like 45% or more of it comprises bush vegetation, which "contains" the cleared areas (fol 49):

It is the extensive vegetation cover which gives the land its essential visual character and its relationship within the sub-regional landscape. This vegetation was intentionally left by the owners in the operation of farming the land so as to provide windbreaks for the protection of the cleared areas. The extent of that vegetation cover will remain visually as it exists with only minor modifications.

47 The SEE proposed (at fol 53) that:

Throughout the site, maximum advantage will be made of the natural flora and fauna features and other attributes including landscape view opportunities as well as the construction of bird-hides and walking trails. It is envisaged that the walking trails would also be employed during the hours of darkness for wildlife spot-lighting activities to identify the nocturnal animals that are likely to inhabit the site.

The existing vegetation and associated biophysical systems comprise one of the dominant attributes of the site and hence its suitability for tourist orientated accommodation. It is therefore in the interest of the operation of the complex that the natural resources are managed in an environmentally responsible manner.

48 Any exotic vegetation was to be progressively removed to allow regeneration of native species or replacement of the exotics with species consistent with the landscaping plan. Any native species that needed to be removed for construction purposes would be replaced with the same or similar species in appropriate locations (fols 53 - 4).

49 It was also proposed (fol 54) to fence the whole site in a manner designed to exclude "marauding exotic fauna".

50 Section 5.4 (fols 56 - 57) of the SEE dealt with bushfire management in these terms:

It is noted that vegetated areas exhibit the features of a medium fire hazard, although the moist gully areas reduce the potential for fire movement through the area. The owners have noted that over the more than two generations they have been involved with the land, no bushfire has traversed through these moist gully areas. In this situation, it is proposed that hazard reduction be ensured by:-

• a 10 metre fuel-reduced zone within the perimeter of the bushland;
• construction of buildings with enclosed undercroft areas and non-combustible materials;
• reticulated mains pressure water system with hydrants and hose reels;
• preparation of a detailed Bushfire Management and Action Plan to identify procedures for the ongoing management of the hazard reduction system.

51 The SEE noted (at fol 59) that "existing vegetation is retained to the maximum extent by confining the development to those areas which have previously been cleared" (site plan at fol 69).

52 A flora and fauna assessment (commencing at fol 93) was prepared by Conacher in October 1999. It noted (at fol 97) that the vegetation at the site consisted of Open Forest, Closed Forest, Mosaic Closed Forest, and Cleared Land, and the Gunninah materials noted that the native vegetation included individuals of the threatened Magenta Lilly Pilly (fol 428).

53 Conacher's report noted, in conclusion (at fol 133), the following impacts on vegetation and fauna habitats:

The proposed developments are likely to result in minimal disturbance to fauna habitats within the site as the tourist cabins will be predominantly incorporated into the areas already cleared with only small areas of selective tree removal being undertaken. Much of the site has been previously cleared for agricultural activities. Due to the minimal tree clearing involved, and the extent of prior disturbance and the future management of the site it is expected that the impact on [flora] and fauna habitats would be minimal.

The vegetation on the site generally consists of a vegetation community similar to the Open Forest (9g) community described by Benson (1986). This community covers approximately 80,000ha of the Gosford/Lake Macquarie 1:100,000 scale map sheets and the site represents a very small proportion of this community. It is expected that the impact of the proposed development will be low due the current level of disturbance and small area of this vegetation community to be disturbed by the proposed development. The areas of Closed Forest will not be cleared for the proposed development.

The areas of natural vegetation will remain relatively undisturbed by the proposed development, thereby retaining substantial areas of natural vegetation throughout the site. The use of adequate soil conservation measures will minimise sedimentation of the low-lying areas of the site. Likewise downstream environments and habitats will not be adversely affected if adequate soil conservation measures are implemented.

54 Morse prepared an augmented report on water management systems and associated matters, on 28 March 2003 (commencing at fol 278).

55 Gunninah prepared reports in 2002 and 2003 (see fol 414). Their November 2002 report noted (at s 4.6 on fol 427, cf [50] above) the following in respect of Bushfire Protection Measures:

The vegetation on the subject site has been classified as representing a medium fire hazard, although the moist gully reduces the potential for fire movement in the area. The owners have noted that over two generations on the site, no bushfire has traversed through the moist gully area.

Bushfire hazard reduction measures proposed on the subject site include:

a 10m fuel-reduced zone within the perimeter of the bushland;

construction of buildings with enclosed undercroft areas and non-combustible materials;

reticulated mains pressure water system with hydrants and hose reels; and

preparation of a detailed Bushfire Management & Action Plan to identify procedures for the ongoing management of the hazard reduction system.

56 In terms of fauna, Gunninah noted (at fol 428) that:

most of the fauna species of conservation significance recorded on the site (the Yellow-bellied Glider, Greater Broad-nosed Bat and East-coast Freetail Bat) are wide-ranging and highly mobile, and the site constitutes only a very small fraction of the suitable habitat and resources in the vicinity and locality.

57 The Gunninah conclusion (at fols 430 - 431) was as follows:

The proposed tourist development in Precincts 1-5 on the subject site at Avoca Beach has been designed in response to the site constraints and existing circumstances by essentially restricting development activities to those portions of the site which are already cleared and which have long been used for grazing and other agricultural purposes. Most of the native vegetation on the subject site is to be retained, notwithstanding the long-term practice of selective logging which has occurred on the property.

The proposed development of the subject site at Avoca Beach is both environmentally sensitive and site-responsive, and will involve:

the retention of most native vegetation on the subject site;

its long-term management and enhancement for conservation purposes;

the implementation of an Environmental Management Plan (EMP) which incorporates a Construction Management Plan for both construction and operational phases of the proposed development and a long-term Bushland Management Plan for the management of vegetation on the site; and

the implementation of appropriate impact amelioration and environmental management measures to reduce and/or manage impacts which may or will arise from the proposed development.

Given the extent of retention of vegetation and habitats on the subject site, and their long-term management, and the implementation of appropriate impact amelioration and environmental measures as an integral part of the proposed development, it is not likely that significant adverse impacts will be imposed on the natural environment in terms of s.79C of the EP&A Act.

Furthermore, given the retention of most vegetation and habitats on the site, and their appropriate long-term management, as well as the extent of such resources in the locality, the proposed development is not "likely" to impose "a significant effect" upon any "threatened species, populations or ecological communities, or their habitats", pursuant to s.5A of the EP&A Act. As a consequence, there is no requirement for the preparation of a Species Impact Statement for the proposal.

As indicated above, the proposed development of the subject site at Avoca Beach incorporates the preparation and implementation of a detailed EMP designed specifically to protect the natural environment and to provide long-term management measures.

58 On 31 March 2003, Conacher made further comments (at fol 542), noting that the mosaic of surrounding vegetation would be classed as "Group 3" under the 2001 RFS manual. That group of vegetation has the lowest bushfire hazard classification of the various vegetation types identified. Conacher recommended the following measures:

1. Enclosure of all undercroft areas with either steel mesh and/or non-combustible material;

2. Protection of openings by installation of metal mesh screens;

3. Reticulation of mains pressure water lines throughout the relevant precincts;

4. Installation of hydrants and/or hose reels at strategic locations not more than 40 metres apart; and

5. Preparation of an evacuation plan (displayed graphically on the inside of entry doors to every suite.

Assessment

59 The Council officers prepared their assessment report on or about 14 October 2003, for Council's ordinary meeting on 4 November 2003 (Exhibit C1, tab 4B, fols 42A - 82A).

60 That report notes (at fol 44A) that the subject site lies within "Precinct 11 - Scenic Buffers of the Kincumber Character Statement". The "desired character" statement in DCP 159, for that precinct, is introduced by a paragraph saying that the areas involved should remain scenically distinctive backdrops to a major tourist route, as well as semi-rural buffers between surrounding residential suburbs. Council's Urban Planning Design Planner agreed that the proposal "generally" complied with the principles in that DCP for the immediate locality, and noted that the development is generally located in existing cleared areas conserving existing visual buffers, and that it proposed additional landscape works and bush regeneration. As a result of these matters, the development would be largely screened from surrounding development and the site would continue to contribute to the scenic buffer between the residential areas (fol 45A).

61 DCP 149 (fol 47A) deals with conservation and scenic protection in the 7(c) zones, and requires a number of things, including that the project maximise retention of existing vegetation, with all development confined to existing cleared areas. Council may consider sensitive design that minimises native vegetation removal either by construction of buildings or by radiation zones. The officers' report commented that the development was confined to existing cleared areas, and that driveways generally followed existing access tracks. The proposed buildings would not require the removal of trees, except for four particular trees in precinct 5: "This is considered satisfactory" (fol 48A item (b)).

62 The report further noted (at 49A) that the proposal was considered to be "integrated development", requiring a Bushfire Safety Authority permit under Part 3A of the Rivers and Foreshore Improvement Act 1948 and a permit under the Fisheries Management Act 1994. It noted that the applicants had indicated they did not wish the Council to treat the application as integrated development. Council's solicitors advised that that was the applicants' choice, and that, should the matter be considered for approval, a deferred commencement consent would be appropriate, requiring the applicants to obtain approvals and/or licences from all relevant authorities.

Consent granted

63 The DC was granted on 25 November 2003, subject to the DCCs.

64 The resolution recommended by Council's review committee (Exhibit A1, Vol 2, tab 6, fols 544ff) included the original version of DCC A(iv) (numbered "B(iv)" on fol 544, because the paragraph numbered "A" in that version was a recommendation that Council apply SEPP 1 to vary a development height standard).

65 The formal notification of the determination of the DA in accordance with the recommendation changed the numbering to A(iv), but mistakenly refers to the determination (at tab 7, fol 564) as concerning "integrated development".

Modifications/Lapse date

66 Various modifications followed.

67 The notice of determination of the modification application dated 10 November 2004 was sent to Hancock on 30 November 2004 (Exhibit A1, Vol 3, tab 86, fols 934 - 6).

68 The notice in respect of the modification application dated 20 April 2005 (Exhibit C1, tab 8A), sent on 17 May 2005 (Exhibit A1, Vol 2, tab 9, fols 602ff), includes the final version of A(iv) (at fol 603).

69 On 4 December 2006, both s 95(6) of the EPA Act, and the relevant transitional provision ([33] and [34] above), commenced.

70 The DCCs' "satisfaction" date gradually shifted to 3 December 2008 (as above at [6]), the date specified on determination of the third modification on 3 September 2008.

Other approvals

71 A controlled activity approval from the Department of Water and Energy ("DWE") was issued on 12 May 2008 (Exhibit A1, Vol 2, tab 15). It includes (at fol 641) the following conditions in respect of Vegetation Management and Riparian Zones:

23. The approval holder must delineate, protect and maintain a riparian zone with a minimum width of 20 metres on both sides of Saltwater Creek.

24. All areas identified in the approved vegetation management plan must be revegetated in accordance with that plan. The revegetation works must be monitored and maintained for a minimum period of 2 years in accordance with the approved vegetation management plan.

25. The approval holder must fence the riparian zone with a stock proof fence prior to commencement of controlled activities.

26. The approval holder must not remove or damage vegetation on waterfront land.

27. The approval holder must not compromise the implementation of the vegetation management plan for any work and/or controlled activity at the site.

72 On 13 June 2008, the requirements of the RFS were provided to representatives of the proponents (Exhibit A1, Vol 2, tab 17, fols 643 - 6).

73 The RFS Commissioner considered the matter as if it were integrated development and provided "general terms of approval", pursuant to s 100B of the RF Act, with the response to be deemed a bushfire safety authority, as required by that section.

74 The letter dealt with each of the five precincts depicted on the plans, and then said (as Condition 6 - at fol 644):

All forest areas on slopes less than 18 degrees shall be ... maintained as an outer protection area (OPA) as outlined within section 4.1.3 and appendix 5 of Planning for Bush Fire Protection 2006 and the NSW Rural Fire Service's document 'Standards for asset protection zones'.

The outer protection area shall comprise of the following:

• vegetation that does not provide a continuous path for the transfer of fire; and
• fuel loadings are maintained below 8 tonnes per hectare by mowing, slashing or other approved hazard reduction methods.

75 At the end of its 13 conditions, the RFS approval letter provided the following "General Advice" (at fol 645):

This assessment was based upon the development proposal composite plan prepared by Longhill Planning, ref. 991110-08/G, dated 07.05.08. and information contained within the Riparian Buffer Zone and Vegetation Management Plan prepared by Canacher [sic] Environmental Group, ref 8049V, dated April 2008.

76 On 23 June 2008 (Exhibit A1, Vol 3, tab 87, fol 937), Council wrote to Howarth (C/o Hancock), referring to the transitional provisions, and rejecting any proposal to extend the deferred commencement period beyond 3 December 2008. On 10 July 2008 (Vol 2, tab 19, fol 648), Hancock wrote to the Council, confirming the applicants' amendment of their then current modification application, such that the DCC period would extend to, and expire on, 3 December 2008 (see Vol 3, tabs 88 and 89, fols 937 - 41). The letter of 10 July 2008 continued:

As discussed, the further refined plans for the whole of the site (plans reflecting the RFS requirements) are in the course of preparation and will be delivered to Council as soon as possible in accordance with Condition AIV of the Deferred Commencement Condition.

You will note in relation to the other Deferred Commencement Conditions that:-

i A valid permit from the Department of Water and Energy has been issued;

ii A valid permit from NSW Department of Primary Industries (Fisheries) has been issued;

iii We are in receipt of the Bushfire Authority from NSW Rural Fire Service and are currently modifying the precinct plans to accord with the requirements of that authority (those plans will be with Council as soon as possible).

iv Development plans are being amended as mentioned above;

v The report of Treers Rose & Associates dated March 2006 was supplied previously in relation to sewer system capacity analysis;

vi Your Mr Favetta has received and endorsed concept engineering plans prepared by BT Ryan & Associates.

77 On 17 July 2008, a composite plan, incorporating the RFS requirements, was submitted (Vol 2, tab 20, fols 651 - 656).

78 On 3 September 2008, the relevant Council officer Mr Peter Drew sent a letter to the applicants Howarth/Hancock, confirming the extension of the deferred commenced period to 3 December 2008 (tab 21, fol 657).

79 On 16 September 2008, Hancock submitted, in accordance with A(iv) (mistakenly referred to as A(v)) development plans amended to incorporate the RFS requirements (tab 22, fol 658f). The most relevant drawing (at fol 659) has been the subject of much focus in submissions. Hancock noted in his letter that the provision of the plan "now concludes The Deferred Commencement component of the Consent with all other issues attended to previously".

80 The Council suggested, on 29 September 2008 (tab 23, fol 660), that a s 96 application was required to accompany the amended plans. Hancock pointed out on 29 September 2008 (fol 660), that, in his view, the plan submitted on the 16th satisfied Condition A(iv), and he sought confirmation that the applicants had "now fulfilled the deferred commencement component of the Consent".

81 On 3 October 2008 (tab 25, fol 667), Hancock submitted the requested s 96 application (the fourth modification - tab 26, fol 668f), accompanied by a "Concise Statement of Environment Effects" he had prepared ("CSEE" - tab 27, fols 670-698), dated October 2008.

82 The CSEE noted (at fols 672 - 4) that compliance with A(i) occurred on 14 May 2008, A(ii) on 14 April 2008, A(iii) on 30 June 2008, A(iv) on 16 September 2008, and A(v) and A(vi) on a date not specified, and then noted (fol 675, par d):

In response to Deferred Commencement Condition A(iv), detailed discussions were held via Building Code and Bushfire Hazard Solutions directly with the Rural Fire Service Authority and in consideration of those discussions, amendments were effected to accommodated (sic) the inner protection areas of various widths as now described on the plans.

Contemporaneously, the Riparian Zone Management Plan considerations were integrated with the revised Site Plan to provide for the optimum protection of vegetation within the site consistent with sound planning purposes, particularly with respect to the bushfire protection and management of the Riparian Zones which, in part, overlap.

The plans as amended, give due regard to both issues ...

83 The CSEE concluded (fol 677), in respect of A(iv):

No additional issues are raised by the modification to the plans other than to confirm compliance with the relevant Deferred Commencement of (sic) Conditions and accordingly, we anticipate the issue of the Council's formal Consent to the amendments and confirmation that the Deferred Commencement Conditions have all been complied with.

84 On 13 November 2008 (tab 28, fol 699), Drew wrote to the DWE:

The applicant has submitted amended plans and a copy of the Controlled Activity Approval, issued by your department, in order to comply with deferred commencement conditions for the above DA. It appears that the asset protection zone conflicts with the riparian restoration area. Your comments on this matter would be appreciated.

85 Algis Sutas, the Gosford licensing officer of the DWE, replied on 18 November 2008 (tab 29, fol 700):

Any amended plans, which are different to those previously submitted to DWE, must be referred to DWE for assessment. The CAA has been issued based on documentation supplied, and referenced within the CAA. Condition 5 of the CAA issued by DWE refers to "Riparian, Buffer Zone and Vegetation Management Plan" prepared by Conacher. This document (hopefully you have been provided with a copy) states on pages 3 and 10, that any bushfire protection zones will be outside the riparian buffer zones, and within the development area. If the applicant is unable to achieve the works as advised within his supporting documentation, he would need to resubmit to DWE for reassessment, or otherwise change his development.

86 On 26 November 2008 (tab 30, fol 701), Drew sought from Hancock "an accurate site plan for the above application", as there appeared to be "numerous discrepancies between the various plans". He asked Hancock to "ensure all plans are consistent". Hancock responded (tab 31, fol 702), regarding concern expressed at a meeting on the 25th about "the overlap" of the inner protection area and the riparian zones, contending that there was no overlap, and therefore no conflict in terms of riparian zone management:

... areas to be managed in accordance with the Conacher Environmental advice will largely feature native grasses and other "under storey" at levels consistent with the Inner Protection Zone requirements of the Rural Fire Service Publications.

87 Hancock went on to note that precinct 3 may require some minor pruning of trees to ensure no interconnecting and that similar work may be required in precinct 4. He did not see these as "significant works", but they would require confirmation by DWE that the work is acceptable, so that Council could issue its approval.

88 A copy of that letter was forwarded to Sutas, who replied to Hancock on 2 December 2008 (tab 32, fol 703):

The Controlled Activity Approval issued by DWE dated 12 May 2008, refers to the Riparian, Buffer Zone and Vegetation Management Plan prepared by Conacher Environmental Group. This report, in sections 1.4 and 2.8 clearly indicates that no bushfire Asset Protection Zones are to be located within the required 20m wide Riparian Zones. I also note that no bushfire management plan was provided to DWE as part of the application for a Controlled Activity Approval. DWE does not generally support the incorporation of any requirements for bushfire Asset Protection Zones within any Riparian Zones.

The Lapsing date passes in December 2008

89 It appears (from tab 33, fol 704) that, on 3 December 2008, the DCCs' "satisfaction" date, Drew notified a colleague of Hancock that "the deferred commencement expires today".

90 Hancock then wrote to Drew later that day, to "reaffirm our view that all of the deferred commencement elements of the Council's consent have been attended to", notably A(iv), and assert that the fact that the plans submitted formally by way of a s 96(1A) application had not yet been approved "does not dilute the effect of satisfying" the DCC. Noting that "further matters of finite detail" may also require some attention, he commented that any request for further detail would not "diminish the satisfactory performance" of the DCCs. A minor amendment to the precinct plan was also delivered on that day (tab 34, fols 705 - 711).

91 As noted above, Council insisted, in the early stages of the hearing, that the DC lapsed on 4 December 2008, but Mr Larkin, in the later stages, contended that it lapsed on 3 December 2008 (see T17.7.13, p30, LL4 - 23, cf T30.10.12, p33, L30). In opening the applicant's case, Mr Wilson had argued that it was 4 December, and, in his closing submissions (T17.7.13, p12, LL47 - 49), he said: "In its terms A(iv) required the plans to be submitted before 4 December. The condition did not require approval of the council before 4 December 2008".

92 However, as Mr Larkin observed, the date for satisfaction of the condition was 3rd, not 4th, and post-lapse events of relevance to the matter did not commence until 19th, making the argument between 3rd and 4th, as the correct lapsing date, quite otiose.

The Parties' Subsequent relevant dealings

93 On 10 December 2008, Sutas forwarded to Drew a copy of Conacher's "Riparian, Buffer Zone and Vegetation Management Plan", from April 2008 (tab 35, fols 712 - 744), including a detailed marked-up aerial photograph (fol 731).

94 The plan was said (at fol 719) to include "measures and management strategies for the protection of native riparian vegetation, riparian buffers and other retained forest vegetation within the site". It noted (at fol 721):

The proposed development will include associated infrastructure such as access, electricity, telephone and water, [and] ... will also provide for a Riparian Zone with retained creekline vegetation that will be managed together with its associated vegetated buffer on both sides. Additional existing areas of Open Forest will also be retained and managed between some precincts and on steep slopes

95 Section 2.8 of that Conacher Plan dealt with bushfire protection measures (fol 728):

The replanted areas within the Core Riparian Zone (CRZ) and the Vegetated Buffer (VB) zone are not proposed to be managed as a bushfire asset protection zone. The required 10 metre wide asset protection zones are to be located outside of the VB zone and will include areas incorporated into road reserves, stormwater controls, nutrient control grassed swales and building line setbacks. Rainforest type species have been selected for replanting within the riparian buffer zone areas as these species create a lower bushfire risk to the future tourist accommodation developments than eucalypt species.

The bushfire protection measures to be utilised for the future tourist accommodation development will be specified in a Bushfire Assessment Report prepared in accordance with Planning for Bushfire Protection (RFS, 2006).

96 On 17 December 2008, Drew wrote to the applicant Howarth in the following terms (tab 36, fol 745 - some emphasis mine):

I refer to development application DA19594/2003 and advise that the amended plans show a clear conflict between the required bushfire asset protection zones (APZs) and riparian restoration area. Accordingly the deferred commencement conditions have not been met to the satisfaction of Council.

Amended plans shall be submitted to Council which demonstrate compliance with the General Terms of Approval issued by both the Rural Fire Service and the Department of Water and Energy. As the required APZs are not permitted to overlap with the riparian restoration area, a further reduction in the size of the development may be required. Alternatively, Council will accept an amended bushfire report which demonstrates (to the satisfaction of the RFS) that compliance with the requirements of Planning for Bush Fire Protection 2006 can be achieved despite a reduction in the width of the APZs.

Please submit this information within thirty (30) days, otherwise the application with (sic) be refused by Council.

Council's staff is still assessing the development application, and compliance with the information in this letter does not infer or promote approval of the Development Application or Construction Certificate.

97 Cordial correspondence between Hancock and Council continued into 2009, as did meetings with Drew, Sutas and others. Further composite plans, incorporating RFS, Conacher and Council requirements were submitted on 20 March 2009 (tab 43). Drew referred those plans to DWE for comment, and responded to Howarth on 23 March (tab 44, fol 754 - some emphasis mine):

Council is of the opinion that development consent for this application lapsed on 4 December 2008. Notwithstanding this, Council's assessment staff are prepared to delay determination of the current section 96 application for a further twenty one (21) days to allow submission of a legal opinion to support any claim that the development was 'physically commenced' prior to this date, and that Council is therefore empowered to approve the application.

Council will determine the development application based on the information submitted to date, should the information not be received.

Council's staff is still assessing the development application, and compliance with the information in this letter does not infer or promote approval of the Development Application or Construction Certificate.

98 On 8 April 2009, the applicants responded to Drew, through their solicitors, Lakos & Company (tab 46, fol 756f), referring to the "pending application", and contending that the DCCs were duly satisfied prior to 30 October 2008, and that there had been "physical commencement" of the development, for the purposes of the EPA Act.

99 An internal Council memo dated 15 May 2009 (tab 49, fol 760), indicates that Drew was seeking advice as to whether physical commencement had been achieved or whether the consent had lapsed.

100 A further revised Riparian/APZ Plan was submitted on or about 26 June 2009 (tabs 52 and 53, fols 763 and 764).

101 Council's senior town planner, Diane Spithill, noted during June 2009 (tab 54, fol 765), on a copy of Drew's internal memo of 15 May 2009, that the plans submitted on 31 October 2008 were "assessed under s 96", and she communicated with Hancock in late June 2009.

102 Also in June 2009, Conacher prepared a further report on management of the riparian buffer zone (tab 55). His report notes (at fol 769) the "dual function of reduced bushfire hazard and riparian buffer zone" in these terms:

The purpose of a buffer zone is as an area of land / vegetation which can be managed to reduce and control the impacts of a development of landuse on a specific feature which is to be protected. In this particular case the 10 metre wide Riparian Buffer Zone has been required to provide a buffer between the aquatic areas of the creekline and the dwellings and ancillary developments of the future residential land.

103 Hancock submitted that report to Spithill, on 1 July 2009, to "be read in conjunction with our plan dated 26 June 2009" (see tab 56, fol 773).

104 On 6 July 2009 (tabs 57-8, fols 774-5), Spithill sought further advice from the RFS and DWE.

105 On 27 July 2009 (tab 59, fols 776-7), DWE commented that the revised plan of 26 June was "not to a satisfactory standard", and that the Conacher June 2009 report did not meet its requirements.

106 On 4 August 2009 (tab 60, fol 778), the RFS confirmed to Spithill that it raised no objections, provided that its previous terms of approval, dated 13 June 2008, were complied with.

107 On 12 August 2009 (tab 61, fol 779), Hancock referred to Conacher the DWE letter of 27 July.

108 A report was drafted for Council (tab 62, fols 780 - 789). It included the following paragraph (at fol 783):

This information was submitted before 3 December 2008 and accordingly it is recognised that the conditions of deferred commencement consent have been complied with.

109 The draft went on to say that further refinements were required to the plans of 31 October 2008 before they could be considered for approval by Council.

110 On 27 October 2009, a further draft Council report was noted to be not endorsed by the Council's Independent Development & Environment Panel ("IDEP"). Controversially, that draft said (at tab 66, fol 801):

While it is recognised by Council that the consent is now operative, the applicant will need to lodge a further section 96 application ...

111 On 13 November 2009 (tab 67, fol 868), Hancock confirmed to Spithill that, as a result of further discussions involving Conacher and Sutas, a single Riparian Zone Management Plan had evolved (which would appear to be dated 5 November 2009, in the material at tab 64, fol 791).

112 On 17 November 2009 (Vol 3, tab 68, fol 869), Hancock sent to Spithill a copy of Conacher's November 2009 report in support of a Vegetation Management Plan of that time.

113 On 7 December 2009 (tab 69, fol 890), the renamed NSW Office of Water confirmed that it had no objection to Hancock's Riparian Management Plan, dated 5 November 2009, nor to Conacher's Vegetation Management Plan, dated November 2009.

114 On 8 December 2009 (tab 70, fol 891), Hancock asked Spithill to confirm that the DCCs "are now fully satisfied and that the formal consent will now be issued".

115 On 18 December 2009 (tab 71, fol 892), he wrote again to Spithill regarding certification that the site plan, as amended, fulfilled the RFS requirements. He continued:

As discussed, earlier plans tabled were titled "Composite Plans" because they contained Rural Fire Service and Riparian Zone Management Issues.

The plans most recently conveyed to Council focus on the Rural Fire Services issues and accordingly, we will dispatch a Plan, which reflects the Rural Fire Services requirements.

We have in the meantime spoken to Wayne Tucker of Building Code and Bushfire Hazard Solutions and anticipate receipt of certification within the next seven (7) days when we will be in touch again.

116 On 22 December 2009 (tab 72, fol 893), the applicants' bushfire consultant, Wayne Tucker (of Building Code & Bushfire Hazard Solutions), wrote to Hancock certifying that all Asset Protection Zone Inner Protection Areas shown on the Masterplan forwarded to him by Hancock complied with the requirements of the RFS approval of 13 June 2008 points 1 - 5 (which concerned individual precincts so numbered - see [74] above).

117 In respect of Condition 6 (set out in [74] above), which covered all forest areas on slopes of less than 18 degrees, Tucker drew attention to the inclusion of specific requirements that vegetation "does not provide a continuous path for the transfer of fire", and that "fuel loadings are maintained below 8 tonnes per hectare by mowing, slashing or other approved hazard reduction methods". He commented that "this would still apply to the relevant areas outside the steep portions, APZ's and riparian areas shown on the plan".

118 On 15 January 2010 (tab 73, fol 894), Hancock sent a copy of that report to Spithill indicating his view that Council now had all the requirements it needed to "sign off" on the project. He sought her "further formal advice in reply".

119 On 9 February 2010 (tab 74, fol 895), Council's Senior Environment Assessment Officer, M A Stables, informed Spithill that (some emphasis mine):

The objectives of the relevant policies, zoning objectives and potential environmental impacts associated with the proposal have been considered. Based on vegetation removal / modification to existing Open Forest / Closed Forest areas <18 degrees in slope in accordance with Condition 6 of the RFS 100B certificate, the amended plans are not compliant with deferred commencement condition A(iv).

120 On 11 February 2010 (tab 75, fol 896), Spithill emailed Hancock about that non-compliance. She advised him that the application would be referred to Council's IDEP for determination, unless he could clearly demonstrate compliance with the DCC.

121 On 7 March 2010 (tab 76, fols 897 - 8), the applicant Howarth acknowledged Spithill's email to Hancock of 11 February, and commented as follows:

The existing condition of the majority of < 18 degree slope forested areas of the property complies with Condition 6 of the RFS 100B certificate.

The remaining relatively small areas of < 18 degree slope forested areas will require relatively little further modification in order to comply with Condition 6 of the RFS 100B certificate.

The overall foot print area of retained bushland will not be further reduced by compliance with Condition 6 of the RFS 100B certificate.

Under historical and existing usage it has been necessary to remove vegetation. Bushfire hazard reduction is necessary for responsible management of the property and the protection of neighbours. In earlier years the bush was burned off to reduce the hazard, nowadays hazard reduction is achieved by slashing and underscrubbing. The need for regular removal and control of invasive species (such as lantana, blackberry, privet and camphor laurel) also requires that vegetation be removed.

The need for ongoing hazard reduction and vegetation removal will remain during the life of the proposed development or any alternate private use of the property.

Deferred commencement condition A (iv) requires - - no further reduction of vegetation- -. I hold that this is most reasonably interpreted as no further reduction of the retained footprint area of bushland rather than no further modification of the retained area of bushland. As such I believe that the amended plans are in compliance with deferred commencement condition A (iv).

I am unaware that it was previously requested that the bush fire consultant would certify the amended plan and provide clear evidence/justification that no further impact upon existing native vegetation would result from compliance with RFS 100B requirements. My understanding was that the bush fire consultant was requested to certify that the amended plans met the requirements of the RFS 100B certificate.

I will instruct Mr Hancock to obtain bushfire consultant advice on specific detail of what additional bushfire hazard reduction works may be required to achieve OPA standard on <18 degree slope forested areas outside APZs and riparian areas to assist your further consideration of the amended plan.

122 Stables commented to Spithill on 9 March 2010 (fol 897):

I am happy to review any further bushfire advice relating to specific details of what additional bushfire hazard reduction works may be required to achieve OPA standard on <18 degree slope forested areas outside APZs and riparian areas.

This advice should be based on plans showing those areas that are <18 degree slope forested areas and >18 degree slope areas. Specific details of vegetation removal / modification ought be provided (if required).

It should be noted that Condition 46 requires a bushland management plan to be prepared and implemented for those land identified as 'Area A' on the approved plans. APZ's including OPA's will not be supported within 'Area A'.

It is recommended that final bushfire advice provided by the applicant if forwarded to RFS for final certification to hopefully once and for all address this issue.

123 Stables's comments were emailed by Spithill, later that day, to the applicant Howarth (fol 897).

124 On 10 March 2010 (tab 77, fol 899), Howarth confirmed to Spithill that, despite his contention that all outstanding issues had been "achieved", he and the applicants were seeking further clarification/certification from their bushfire consultants.

125 Council officers' final, but undated, draft report on the 31 October 2008 application was then prepared (tab 78, fols 900-917), and it noted (at fol 903):

This information was submitted before 3 December 2008 and accordingly it is recognised that conditions of deferred commencement consent have been complied with [with] the exception of deferred commencement condition A(iv). In this regard, further refinements are required to the plans submitted with the current section 96 application (lodged on 31 October 2008) before they can be considered for approval by Council.

126 On 16 June 2010 (tab 78, fol 908, repeated at tab 79, fol 918), Spithill advised "Greg Flynn" that the DA report had been "amended as discussed". She drew attention to the wording of A(iv), which was "development plans to be amended and submitted to Council for approval ...", rather than "for approval by Council or to Council's satisfaction". She annexed an advice from Council's solicitors (which is not before the Court), and then commented:

Alternatively, if Council recognises that [DCCs] have been complied with, the applicant may choose to act on the consent and GTA's issued by RFS/Water integrated approval bodies based on plan(s) submitted and not make further amendments to minimise impact on vegetation.

127 The Council report in its final form (dated 25 June 2010) is twice included in Vol 3 (tab 78, at fols 910ff, repeated in tab 80, fols 919ff). That document is marked "authorised by IDEP". The relevant paragraph, that had undergone the several drafts quoted earlier, was finally worded as follows (at fols 913 and 922):

This information was submitted before 3 December 2008 and accordingly it is recognised that conditions of deferred commencement consent have been complied with [with] the exception of deferred commencement condition A(iv). In this regard, further refinements are required to the plans submitted with the current section 96 application (lodged on 31 October 2008) before they can be considered for approval by Council.

128 Later (at fols 914 and 923), the report commented that the amended plans were:

still not in accordance with the Deemed Bushfire Safety Authority issued by the NSW [RFS] and conditions of consent. The applicant has failed to demonstrate that no further impact upon existing native vegetation would result from compliance with RFS 100B requirements.

129 The report says, in its conclusion (at fols 915 and 924 - emphasis in original):

The objectives of the relevant policies, zoning objectives and potential environmental impacts associated with the proposal have been considered. Based on vegetation removal / modification to existing Open Forest / Closed Forest areas <18 degrees in slope in accordance with Condition 6 of the RFS 100B certificate, the amended plans are not compliant with deferred commencement condition A(iv).

130 The assessment report concludes with the following "assessment comment" (at fols 915 and 924):

The section 96(1A) application is therefore recommended for refusal having regard to the length of time the section 96 application has been with Council, despite repeated granting of extensions of time, ongoing negotiations and various revisions to environmental reports and plans. The applicant has failed to demonstrate that no further impact upon existing native vegetation would result from compliance with RFS 100B requirements within a reasonable time frame. Accordingly the amended plans are not compliant with Deferred Commencement Condition A(iv) and it would appear that the deferred commencement consent has lapsed.

131 Paragraph A3 of the recommendation which followed says (at fols 916 and 925 - emphasis mine):

The proposal as amended does not comply with deferred commencement condition A(iv). In this regard, the application has failed to demonstrate that amended plans shall not further impact upon existing native vegetation as a result of compliance with Condition 6 of the General Terms of Approval for a Bush Fire Safety Authority issued by the NSW Rural Fire Service, based on vegetation removal / modification to existing Open Forest / Closed Forest areas less than 18 degrees in slope.

132 On 29 June 2010 (tab 81, fol 927), Council wrote to the applicants (c/o Hancock), indicating that the negative recommendation, including paragraph A3 quoted immediately above ([131]), had been considered by Council's IDEP and been approved. The result being a refusal, the applicants were advised of their s 97 appeal rights.

133 On 25 July 2011 (tab 82, fol 928), the relevant Council officers, including Council's internal solicitor, Alan Ford, agreed that the Council had to be satisfied that the DCCs had or had not been satisfied:

Unless 'satisfaction' of the conditions of 'deferred commencement consent' has been achieved and Council have 'notified' the applicant with 28 days (cl.95(6) EP&A Regulation 2000)) after the applicants evidence is produced, the consent authority (GCC) is, for the purposes only of s.97 of the EP&A Act, 1979, taken to have notified the applicant that it is NOT SATISFIED as to those matters on the date on which that period expires. If we have not notified the applicant that the consent is 'operative' and he can prove 'physical commencement' under s.95(4), I cannot see how it is possible that the 'deferred commencement consent' has not lapsed.

134 Spithill wrote to Lakos & Company, on 22 August 2011 (tab 83, fol 930 - 1), saying, in conclusion (fol 931), that:

satisfaction of deferred commencement condition A(iv) has not been achieved within the time frame specified ... and accordingly the 'deferred commencement consent' ... has lapsed.

135 Lakos wrote back to Spithill on 26 August 2011 (tab 84, fol 932), challenging that advice, and requesting reconsideration of the matter. Land and Environment Court proceedings were foreshadowed.

136 Spithill responded to Lakos, on 18 November 2011 (tab 85, fol 933), reaffirming Council's view that "the consent lapsed on 4/12/2008".

C: Mr Hancock's Evidence

137 Hancock's evidence was received in relation to factual matters, and was not accepted as expert evidence.

138 Hancock swore an affidavit in July 2012 - it would appear from the witness's certificate that it may have been on 31 July 2012 - and it was filed on 6 August 2012. It was read, subject to my dealing with some objections from Mr Maston, on 30 October (T30.10.12, p24, L31), but the exhibited bundle of tender documents was withdrawn, as much of the material was already before the Court.

139 He was originally not required for cross-examination (p27, L41), but Mr Larkin wanted to question him when the hearing resumed in July 2013 (Tp17.7.13, p11, LL1 - 20).

140 Hancock's curriculum vitae (Exhibit A2) shows him to be a qualified town planner, who commenced work as a trainee in 1972. He worked for councils, including Gosford City Council, until 1985, and has since been in private practice as a consultant planner and project manager.

141 He deposed (par 1) that he has been involved with this DA since early 2003, but he may have been involved in the site even earlier than that ([42] above). He enumerated (in par 6) the documentation submitted to Council in support of the DA, and deposed (par 7) that, in or around March 2003, the original development plans were amended at the request of Council to address the height of buildings and other issues.

142 His affidavit went on to describe the conditions imposed on the DC, the impact of the original plans on existing vegetation, and the requirements of the RFS.

143 On the subject of his client's asserted compliance with condition A(iv) he deposed:

14. On 16 September 2008 I caused to be submitted to the Council a composite plan ("Amended Plan") ... [on] 16 September 2008 ...

15. I am satisfied that the Amended Plan:

(a) did not further impact upon existing vegetation;

(b) complied with the requirements of the NSW Rural Fire Service; and

(c) did not require a reduction in the size of the proposed development nor the deletion of buildings.

16. I am also satisfied that on 16 September 2008, when I caused the Amended Plan to be submitted to Council for approval, Condition A(iv) had been satisfied.

144 In his oral evidence on 18 July 2013 (T18.7.13, p1 - 16), Hancock adhered to the contents of his affidavit, and identified, in response to Mr Larkin, some plans lodged with the final form of application to which the DC was granted. He adhered to his opinion that the relevant amended plan satisfied the requirements of DCC A(iv), as it embraced the requirements of the RFS (Tp7, LL30 - 34). He accepted responsibility for the content of the letter of 16 September 2008 (at tab 22, folio 658), which accompanied the plan.

145 Mr Larkin primarily cross-examined Hancock in relation to his understanding of the impact of the proposed development on the existing vegetation, and how he had formed the opinion that A(iv) had been satisfied.

146 He conceded that the second requirement of the condition was that there be "no further impact" on existing vegetation. The edge of the "clearing" areas, as depicted on the plans, was determined by reliance on surveys, and aerial photographs (T18.07.2013, p3, LL35 - 48). He maintains that there was no further vegetation removal required, but he noted that the subject land had a history of having been cleared for timber, salad vegetable production, and cattle grazing. The concept of the development was a number of buildings located in discrete precincts surrounded by existing vegetation (Tp9, LL24 - 8).

147 Hancock was cross-examined on his familiarity, as a planner, generally, with provisions relating to bushfire protection (Tp9). The original DA did not propose asset protection zones of the scale ultimately proposed. Although DCC A(iv) says nothing about specific areas of the site, Hancock contends that he was informed by conversations with council officers (Tp10, LL24 - 8, and p16, LL36 - 9).

148 Mr Larkin questioned him on the inner protection zone's relationship with the application (Tp9, LL39 - 47):

Q. I suggest to you that you know full well that an inner protection zone involves the substantial clearing of vegetation and the removal, substantially, of all groundcover vegetation. That's correct isn't it?

A. It involves managed fuel loads and--

Q. Managed to such an extent that one is required to substantially clear the whole area and substantially remove all groundcover, isn't that right?

A. But no further clearing than was originally proposed in the application as lodged.

149 He testified (at Tp11, L30 - p12, L10) as follows:

A. The intention from the outset was to contain the buildings and the works to within the existing cleared areas and I think from memory there may have been one or two trees required to be removed in total with the application. The further refinements, particularly to the RFS requirements for access, in my understanding required no further tree removal. Most certainly the implications of the bushland management plan or the RFS IPAs and so on would have an impact and I suppose it is a point of, is that more or less than on the revised plan than the original plan and I say it's no different.

Q. Let me test that proposition. You accept don't you - withdraw that. Your understanding is that the original proposal and consent contemplated no adverse impact on the heavily vegetated areas well outside of the clear areas?

A. None was proposed as part of the application.

Q. Also, your understanding was the consent did not authorise impact on vegetation well outside of the clear areas?

A. The consent required a bushland management plan, so it certainly contemplated something happening. If nothing happens on the land something will need to be done in perpetuity to manage the vegetation.

Q. What was proposed was remediation by removal of weeds and a bushland

management plan directed towards ends such as that, that's correct isn't it?

A. Yes, we also contemplated - and I think the landscape plan that was lodged with the application showed tree hides or areas of passive recreation and so on within those forested areas.

Q. It's fair to say isn't it that the proposal involved substantially no adverse impact on the very heavily tiered timbered areas outside of the main cleared areas?

A. The intention was to comply with the Council's requirements in its policy to limit the location of developments to existing cleared areas ...

150 Hancock noted that the intention of the DA, in its final form, was to contain buildings and works within the cleared areas with the removal of "one or two trees" in total (T18.07.2013, p11, L31 - 3). That proposition was tested by Larkin (LL39 - 48):

Q. ...Your understanding is that the original proposal and consent contemplated no adverse impact on the heavily vegetated areas well outside of the clear areas?

A. None was proposed as part of the application.

Q. Also, your understanding was the consent did not authorise impact on vegetation well outside of the clear areas?

A. The consent required a bushland management plan, so it certainly contemplated something happening. If nothing happens on the land something will need to be done in perpetuity to manage the vegetation.

151 Mr Larkin further questioned Hancock on compliance with the requirement of the RFS in relation to bushfire hazard management and particularly on forested areas on slopes less than 18 degrees (see [74] above) (Tp12, LL22 - 27, and p12, L36 - p13 L6):

Q. I suggest to you that compliance with that requirement involved additional impact on vegetation well outside of the cleared areas, you agree with that don't you?

A. No, the "All forest areas on slopes less than 18 degrees--", on my reading of the information most of the forest areas that were near the areas wrong (sic?) are areas of greater than 20 degrees slope.

...

Q. Do you mean to say that there is nowhere on this site well outside of the cleared areas that has a slope of less than 18 degrees, is that your evidence?

A. I wouldn't say nowhere but I'd be surprised if we didn't identify those areas for development if they were suitable.

Q. I suggest to you that the areas that were identified for development were the cleared areas?

A. Yes.

Q. They were not identified by reference to slope were they?

A. Well by their previous use - in fact as I speak to you now there's an area central to the southern side that probably is not cleared, it is forested and probably is less than 18% (as said).

Q. Let's take that area?

A. Yes.

Q. You accept that implementation of the Commissioner's requirements would involve an additional impact on that area wouldn't it?

A. Well it's not an additional impact; it's what would've been on the periphery of the - Precincts 3 and 4 anyway. ...

152 Hancock drew attention to the construction of the sewerage infrastructure as support that there would indeed need to be some form of impact on existing vegetation but could not point to where in the documentation that was proposed (T18.7.2013, p13, LL14 - 30).

153 Mr Larkin cross-examined Hancock on his understanding of the basis of the application (Tp13, LL38 - 45, p14, L27).

Q. I go back the basis for your evidence that there's no additional impact, if I've understood it correctly, and you please tell me if I am wrong, is that you think that the original consent required clearing outside of the cleared areas, is that it?

A. The original application didn't propose any clearing and I suppose it was in my mind as the author of the application, in the context of what had been contemplated on this land previously and approved I recall, was for a lighter impact on the land than was previously contemplated.

...

Q. ...I'm asking about what the application proposed?

A. It contained itself to the existing cleared areas.

Q. It made much of the virtue that it was not impacting upon vegetation outside of the presently cleared areas, true?

A. Correct, yes.

Q. When you received the deferred commencement development consent and read condition A(iv) you understood the condition to be adopting in substance that aspect of the proposal?

A. I understood the condition in the context of the discussions which led up to its approval to direct my attention in particular to that area down slope of Precinct number 2. I accept that some years later in the bright lights of the Courtroom, that condition reads and applies to the whole site, but--

Q. There's no doubt about that is there?

A. I'm trying to put it in--

Q. There's no doubt in your mind but that condition applies?

A. There's very much a doubt in my mind as to the voracity of the assertion that you've given me when I have had the carriage of the application from very early times and I know for certain that the words were crafted in the condition and applied primarily to apply to an area down slope of Precinct number 5. Yes it now applies to the whole site.

154 Hancock believes that the wording of the condition, instead of making it clear that it primarily applied to a particular area down slope of precinct number five, appeared to apply to the whole site. The original impact of the approval was not defined (Tp14, L33), so there is no precise basis upon which to calculate "additional" impact. The extent of impact beyond the footprints of buildings was always going to be a consequence of the approval (Tp15, LL20 - 21).

155 Mr Larkin then further cross-examined Hancock on the issue of the impact of the original proposal (Tp15, L23 - p16, L2):

Q. But may I suggest to you that your understanding of the original proposal did not involve impact on vegetation of the sort that would be caused by the implementation of paragraph 6 of the Commissioner's requirements, that's correct isn't it?

A. The proposal didn't but it was lodged for the Council's consent. For separate approval of the RFS as it was required, is what required the removal of vegetation or the management of vegetation or the removal of undergrowth and so on.

Q. The proposal, thank you, did not contemplate that impact did it to your understanding?

A. The proposal didn't propose it no, but it's a logical expectation that there's going to be some collateral impact of any development. As I said earlier, even the running of the sewerage infrastructure will require some impact.

Q. The proposal didn't propose it, you agree with that?

A. No, correct.

Q. The condition said not further impact on existing vegetation didn't it?

A. That's what the words in the conditions say and I say that the plan as revised to embrace the RFS requirements, would not have had any greater impact than did the original proposal.

Q. You know full well that the application proposed the retention of all vegetations outside of the cleared areas?

A. Well it was a broad statement in the application as an eco type proposal to maintain the vegetation. We did not propose - for example, the whole of Precinct 6 originally had - no longer part of the application, that's the area that goes through and fronts Scarbrook Avenue - has more vegetation in it. We removed that from our proposal.

156 Hancock was questioned, finally, by Mr Larkin, on his understanding of condition A(iv) (Tp16, L24 - 39):

Q. You told us that the genesis of the condition A(iv) was focussing on a particular area that you just nominated and it's that discussion with Council officers which is right now influencing your understanding of the condition, that's right?

A. Yes.

Q. It's that understanding which is the basis for or at least one essential basis for your opinion that there's no additional impact, that's correct isn't it?

A. No further impact on the development at large, there would have been to the original proposal, which was amended primarily to provide interconnection of the road works within each precinct.

Q. Your understanding of the scope of the condition A(iv) is influenced by your understanding and participation in the discussions about particular areas on the site, that's right isn't it?

A. Naturally, yes.

D: The Issues And Submissions

The Issues restated

157 The hearing having concluded, and all the evidence having been summarized, I shall now restate the issues, as they finally emerged before the Court:

(i) Is DCC A(iv) valid or invalid?

(ii) If invalid, (a) can it be severed from the DC?, and (b) can s 25B be applied?

(iii) If valid, were its requirements satisfied, such that the DC became operative?

(iv) Was Council correct in finding that it was not satisfied that such requirements were satisfied? Was Council's satisfaction that the requirements have been satisfied unreasonably withheld?

(v) Is the Council estopped from asserting that the DC lapsed?

(vi) Should relief be denied in the exercise of the Court's discretion.

The Applicants' Submissions

158 In his submissions on behalf of the applicants, Mr Wilson noted (in part 2 of his subs, at pars 24, 25 and 30) that the NSW Court of Appeal has made clear that conditions of consent ought to be construed, if possible, to achieve validity and avoid uncertainty. Council must bear the consequences of not framing its consents and conditions in clear terms of certain meaning: Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321, at 324 per Else-Mitchell J.

159 The Court will not search for what Council actually intended, or what it would say that it intended; the consent (including its conditions) "must speak according to its written terms, construed in context, but having regard to its enduring function". He cited Westfield Management Ltd v Perpetual Trustee Company Limited ("Westfield") [2006] NSWCA 245; and Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; (2006) 148 LGERA 439, on this question.

160 He went on to submit (T17.7.13 p11, LL3 - 6) that the challenged condition is "open ended ... in circumstances where truly understood ... [it] conceivably would or may require there to be no built form of development on this site", and (T17.7.13 p11, LL32 - 34) that DCC A(iv) is, therefore, invalid because it is uncertain, and lacks finality, and so results in the 2003 DC, as notified, being not truly a determination of the DA.

161 It required amendment of plans to an extent unknown at the time the DCC was imposed, as the RFS requirements were then unknown, but it stipulated how those requirements were or were not to be met ("reduction in the size of the development, including the deletion of buildings as required", but no "further impact upon existing vegetation").

162 In his submission, A(iv) had "extraordinary linguistic uncertainty inherent" in it (T18.7.13 p38, L18), and, on the documents the Court is permitted to consider in construing the DC, it doesn't "make any sense at all", because of the vague delineation, on the plans, of the vegetation then present on the site, and the uncertainty of the meaning of the key words "further" and "existing" (T18/7/13 p39, LL13 - 18, and L42 - p40, L19).

163 The RFS could, in the exercise of its discretion under s 109B of the RF Act, significantly alter, if not totally preclude, the applicants' development. The condition left the design and layout of the whole development to be resolved, and did not sufficiently identify the intended outcome.

164 His central submission is that DCC A(iv) required only the submission to Council of complying amended plans by 3 December 2008, and that the determination of the Council in respect of those plans, including as to its satisfaction as to whether the DCC had been satisfied or not, could come at any time thereafter.

165 Council chose to require the amended plans to be the subject of a s 96 modification application, which the applicants lodged on or about 26 October 2008. Council was still assessing that application as at 4 December 2008. Mr Wilson submits (Part 1, pars 44 - 49):

44. The assessment and eventual determination of the s96 modification application after 4 December 2008 could only have occurred if the deferred commencement conditions had been satisfied. If the deferred commencement conditions had not been satisfied, the council would not have been required to do anything further in respect of the development consent. It would have lapsed.

45. It is submitted that the council, in continuing to assess the s96 modification application after 4 December 2008 was confused as to what it was that A iv required.

46. To satisfy A iv, to the extent that the development consent would become operative, the submission of a plan as required by that condition was necessary. The approval of that plan after the deferred commencement condition was satisfied could only have taken place if there was an operative consent.

47. The Council's actions after 4 December 2008 could not be attributed to a mistake, or a mistake without a consequence.

48. The true position is, it is submitted, that the council accepted the plan submitted on 16 September, 2008 in compliance with A iv and the events after 4 December 2008 was inter alia the assessment of that plan. The council did not approve the plan, but that is irrelevant to compliance with A iv.

49. A s96 modification application was not necessary it is submitted, to fulfill the requirements of A iv to prevent the consent lapsing by reason of cl111 of the Regulations.

166 Council notified its determination of the s 96 modification on 29 June 2010 (fol 927), and Mr Wilson submits (par 51):

... that the notice could not have been given unless the council had accepted that the deferred commencement conditions had been satisfied. The notice is silent on the consent having lapsed on 4 December 2008. Further, it is submitted that the notice is consistent with the deferred commencement conditions having been satisfied.

167 He further submits (part 2, par 6) that A(iv) was not a condition "ancillary to the core purpose of the development", as required by s 80A(2) - see Dooralong Residents Action Group Pty Ltd v Wyong Shire Council [2011] NSWLEC 251; (2011) 186 LGERA 274 at [58]. A(iv) was (par 8) directed to "the core of the development itself" - deletion, or reduction in the size of, approved buildings is not "ancillary to the core purpose", but has the effect of (par 13) "significantly altering the development", such as to "invalidate the consent because the development consented to is not that for which approval was sought" - see Kindimindi Investments Pty Ltd v Lane Cove Council & Anor ("Kindimindi") [2006] NSWCA 23; (2006) 143 LGERA 277, per Basten JA at [54] - [55], applying ss 80 and 80A; see also Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Ltd [2007] NSWLEC 411, per Jagot J.

168 In the event that the Court holds A(iv) to be invalid, Mr Wilson submits that it is severable from the DC, and that, while his estoppel point does not then arise, the application of s 25B should be considered.

169 A s 96 modification application was not a necessary vehicle for the applicant's compliance with A(iv). Mr Wilson submits (T17.7.13 p9, L19 - p10, L13) that the s 96 application "was required in ignorance of the last sentence of s 80(3)" (see [29] above), and/or that A(iv) was not properly construed, leading Council into error which infected its actions post 3 December 2008, including its decision that the DC then lapsed (see T17.7.13 p23, L36 - p24, L6).

170 However, it had the effect, Mr Wilson says (T17.7.13 p7, LL37 - 44), of diverting Council's attention from the question of "mere compliance" - by lodgement of a plan, a more minor or "narrow" process not requiring Council to "assess" it - towards a full merits assessment of it, drawing in s 79C considerations which were "not relevant to the questions that arose under A(iv)" (T17.7.13 p23, LL24 - 5).

171 Mr Wilson did not accept (T17.7.13 p17, LL36 - 45) my suggestion that Council may have just been "abundantly cautious ... because of the sensitive nature of the site". His position is that Council required the plan to be in by 3 December 2008, and, as it was in, Council should be "estopped" from denying compliance with A(iv), because it continued processing the application.

172 Hancock testified, and Mr Wilson submitted, that, in the end, the plan incorporated the RFS requirements, without further impacting on the existing vegetation. However, that is a matter for subjective judgment, "beyond the terms of the consent" (T17.7.13 p13, LL5 - 6 and p41, L32 - p42, L6), and Council came to a different view of them.

173 The applicants contend that the timely lodgement of the plan by 3 December 2008 was compliance with A(iv), and so the trigger for the DC to become operative.

The Council's Submissions

174 Mr Larkin says (T18.7.13 p24, LL2 - 6) that the applicants are essentially complaining that the DC was "perfectly and precisely responsive to what was proposed", and that they are being "held to [their] word".

175 Mr Larkin (T18.7.13 p24, LL29 - 41) drew a distinction between a DCC and an operational condition, in the context of claimed invalidity - a DCC contemplates the possibility that the consent will never operate, so the possibility of non-fulfilment by the applicants of a DCC in this matter "is not a reason for inferring that [it] is invalid".

176 He submits that "that possibility is not relevant to validity", and went on to say (at Tp25, LL23 - 8) that the exercise against the applicants of the RFS's discretion regarding issue or refusal of a s 100B certificate, in the context of a valid condition, would have the statutory consequence that "the consent would not operate". He rejects (Tp43, LL10 - 18) the claim of linguistic uncertainty regarding the wording of DCC A(iv), and he commented that "there's nothing unusual or surprising or unlawful about such a condition", and that the history of what passed between the applicants and Council, cannot be used to construe the DC, unless it comprises documents properly incorporated in it: Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632, Westfield, Allandale Blue Metal Pty Ltd v Roads and Maritime Servies ("Allandale") [2013] NSWCA 103; (2013) 195 LGERA 182, and Rich v Lennox Palms Estate [2009] NSWLEC 167.

177 Nor can those dealings generate an estoppel in the present circumstances, lacking as they are the necessary private law character, element of representation, assumed state of affairs, and evidence of some detriment caused by reliance on it: Kurtovic, and Northey v Bega Valley Shire Council ("Northey") [2010] NSWSC 527 at [38].

178 The first three of the six DCCs imposed in this matter required only the production of specified documents, but the last three required (par 57) "things to be done which require the Council to make a judgment".

179 Council concedes (APOD 6) that A(v) and (vi) were complied with by the stipulated date, 3 December 2008. It submits (pars 164 - 5) that DCC A(iv) was "of critical importance to", and "integral to", the consent, as it dealt with the fundamental issue of fire safety. The DC would not have been granted without it, but, as Mr Larkin submitted (T17.7.13 p25, LL3 - 9), the "sole inquiry in the proceedings" is into whether the satisfaction of the "Council as a collegiate body", and as the relevant consent authority, "existed or didn't exist", in the case of A(iv), by that date. The applicants bear the onus of proving positively that Council had the necessary state of satisfaction, and Council relies (par 105) on many of the documents in Exhibit A1 (at tabs 28, 31 - 4, 36, 44 - 6, 48 - 9, 73 - 5, 80 - 3, and 85 - 6), dated between November 2008 and November 2011, to demonstrate the opposite.

180 DCC A(iv) required that the amended plans the applicants submitted must have two characteristics - incorporation of the RFS requirements, and absence of further impact on existing vegetation. However, Mr Larkin submits that they lacked the second characteristic, as extensive clearing would be involved in establishing the required APZs, etc. The wording of the condition identified the required outcome, and established clear criteria for assessing compliance, ensuring its validity. On the evidence, the Council could not be - and indeed was not - satisfied, and the Court must not embark on a merits review: Casa v Ryde City Council ("Casa") [2009] NSWLEC 212; (2009) 172 LGERA 348 at [64], Coalcliff Community Association Inc v Minister for Urban Affairs and Planning & Ors ("Coalcliff") [1999] NSWCA 317; (1999)106 LGERA 243.

181 If a condition is found to be invalid, the issue of severance arises. Mr Larkin submits (T18.7.13 p25, LL49 - 50, and p26, LL8 - 23) that the threshold test for severance is "different" from, and "lower" than, that for invalidity (see LL22 - 23). That for invalidity is whether the condition has the effect of altering the core purpose of the DC (here motel or ecotourism), whereas the test for severance is whether the balance of the DC would operate in a manner different from the consent as a whole.

182 Mr Larkin contends that DCC A(iv) was imposed "within power", and so is valid (T17.7.13 p27, LL13 - 14), but, if it be not valid, and is not jurisdictional, it is not severable: Maitland City Council v Anambah Homes Pty Ltd ("Anambah") [2005] NSWCA 455; (2005) 64 NSWLR 695; 147 LGERA 234.

183 Even if severable, the consent lapsed by force of the statute, and the proceedings become "entirely academic and futile" (T17.7.13 p28, LL19 - 29 and p30, LL41 - 2). The Court has no power to declare that the DC remains on foot, and Council had no remaining power to modify it.

184 Mr Larkin argued utility and discretion together, relying on delay, and on the applicants' failure to exercise appeal rights which have arisen at various stages of the project: Coalcliff (at [67]).

185 He also submits (pars 129 - 30) that s 25B is not available to the applicants, as post 3 or 4 December 2008, i.e. as at 24 July 2012, the date on which the proceedings were commenced, there was no "live consent": Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) ("Hoxton") [2012] NSWLEC 43; 190 LGERA 119 (at [30] - [51]).

186 During what Mr Larkin describes as "the critical period", namely from the RFS approval on 13 June 2008, to the lapsing date early in December 2008, there was further extensive communication, including the Council's decision to require a s 96 application and the applicant's submission of one. Mr Larkin notes (T17.7.13 p44, LL20 - 3) that none of the documentation "suggests satisfaction on the part of the Council either that the plan fulfilled the two necessary criteria or that the Council approved of the plan", and submits (p44, LL46 - 8) that the Court "could not be satisfied that the Council's lack of satisfaction was so manifestly unreasonable that no Council could have come to it".

187 As Mr Larkin submits (T18.7.13 p18, LL41 - 6), "for the applicant (sic) to propound evidence and to assert in submission that somehow we should've been satisfied ... misses the point ... If the applicant thought that its plans were sufficient it could and should have appealed", and their expressions of disagreement with Council's stand are not decisive. Once the statutory lapsing occurs, the Court has no discretion to intervene: Casa. Council chose to continue considering the project, but it could equally have declined to do so.

E: Consideration

Issue (i) - Certainty, Finality, and Validity

188 I agree with the submissions of the Council that A(iv) clearly says to the applicants what it means - i.e., you must ascertain and incorporate in your plans what the RFS requires, and submit to Council the plans, as so amended, for approval, but those plans must accommodate the RFS requirements without "further impact upon existing vegetation ...". Council, therefore, submits that, as imposed, that condition can be accepted as "certain".

189 Insofar as it is also submitted that the DC, as a result, lacked finality, I adopt and apply what the Court of Appeal said in Scott v Wollongong City Council ("Scott") (1992) 75 LGRA 112, per Samuels AP (at 118 - 119):

...The principle of "finality" is intended to protect both the developer and those in the neighbourhood who may be affected by a proposal, against the consent authority's reservation of power to alter the character of the development in some significant respect, thereby changing the expectations settled by the consent already granted. That consent may, of course, be subject to conditions; and those conditions are subject to principle.

However, it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the development with absolute precision.

...

However, what distinguishes them is that the exercise of the decision-making power they each contemplate will certainly not alter the development "in a fundamental respect", nor will the development be "significantly different" from that which the application for consent contemplated. They are all conditions which may be described as ancillary to the core purpose of the application. Moreover, in my view the attachment of conditions of this kind, which leave final details to be settled, should be approached with the degree of flexibility indicated, for example, by Pape J in Weigall Constructions Pty Ltd v Melbourne & Metropolitan Board of Works [1972] VR 781; (1972) 30 LGRA 333. ...

190 His Honour found in Scott (at 119) that the DC had settled, in final terms, the particular use of the land, and the specific character of the building, and that the circumstances of the use had been substantially prescribed, leaving only ancillary matters for final determination.

191 In Kindimindi, Basten JA (Handley JA and Hunt AJA, agreeing) determined an appeal in relation to the validity of conditions of a development consent. His Honour explained the Court of Appeal's earlier decision in Mison v Randwick Municipal Council ("Mison") (1991) 23 NSWLR 734, and the subsequent amendment of the EPA Act, when dealing with the first ground of appeal in Kindimindi, which challenged "uncertain conditions", and some of His Honour's remarks bear repetition, although rather lengthy:

[28] Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests.

[29] Since Mison, the EP&A Act has been amended to include new s 80A and in particular subs (4), which provides as follows:

(4) Conditions expressed in terms of outcomes or objectives

A consent may granted subject to a condition expressed in a manner that identifies both of the following:

(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,

(b) clear criteria against which achievement of the outcome or objective must be assessed.

...

[35] ... It is those plans to which express reference is made in condition 1, noted above. It is those plans to which certain alterations or modifications are required to be made by the conditions of consent. It follows that the conditions of consent, and therefore the consent itself, will be meaningless unless taken to incorporate those plans.

[36] ... The same analysis as set out above with respect to condition 1 applies to condition 2, which may be treated as incorporating the relevant plans.

[37] Condition 3 is in a different form and reads as follows:

A complete set of revised plans, addressing the matters in conditions 1 and 2 above, to the satisfaction of Lane Cove Council, shall be submitted to Council PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE. The development shall be completed generally in accordance with the plans approved to satisfy this condition except as otherwise modified by this Notice.

This condition would appear to be, in large part, administrative or mechanical in effect. Rather than requiring reference to a set of plans, plus a further set of amendments, a single complete revised set of plans was required to be lodged. A second purpose was to permit Council to satisfy itself that the operative plans reflected the changes which Council required or which had been agreed. Except to the extent that conditions 1 and 2 required alterations, the substantial effect of conditions 1, 2 and 3 taken cumulatively, was to approve the plans lodged with the statement of environmental effects which, by express reference in the development application, constituted the description of the proposed development. In my view, there is no substance in the first ground of appeal.

Grounds 2 and 3: Changes to proposed development

[38] The preceding conclusion leaves open a possible challenge based on the nature and extent of the alterations required by conditions 1 and 2. Ground 2 alleged both that the conditions of the original consent rendered the consent otherwise than final and certain in that they altered the development in a significant or fundamental respect. The underlying premise of this ground was that the plans had not been incorporated into the consent. That conclusion being rejected, ground 2 must fail.

[39] Ground 3, however, challenged the validity of conditions 1(b) and (e) and 2(m) on the basis that they failed to comply with the requirements of s 80A(4) and were therefore invalid. The cumulative effect of those conditions, together with condition 1(a), which the trial judge had accepted failed to comply with s 80A(4), was to render the consent invalid. Because the appeal relied upon, rather than asserting, a finding of invalidity in relation to condition 1(a), it is convenient to deal first with the three other conditions said not to satisfy s 80A(4).

[40] Section 80A makes provision in a number of respects in relation to the imposition of conditions: thus, subs (4), set out at [29] above, identifies a form of condition which may be imposed in granting a consent. Unlike Mison, it says nothing about the validity of a consent which is subject to a condition which fails to comply with s 80A(4). It is appropriate therefore to consider whether the challenged conditions are valid, before considering the possible consequences of invalidity of a condition for the validity of the consent.

...

[54] According to the first category identified in Mison, the imposition of a condition which has the effect of significantly altering the development, will invalidate the consent because the development consented to is not that for which approval was sought. That test requires, of course, an evaluative judgment. Mison itself involved the construction of a single house. The principle it established would not necessarily operate in the same way in relation to a complex and extensive development with a number of severable elements. In the present case, accepting that a certain lack of precision in the two conditions 1(a) and (b) may make an evaluative judgment difficult, treating the development as a whole, neither the proposed change to the roof line of the residential component, nor the closing in of two sides of the carpark component, could be seen as significantly affecting the development. On the other hand, it would be possible, in some circumstances, to treat a change in the roofline of the residential part of the development as a significant alteration, if viewed in isolation as a separate part of the development. Whether that is the appropriate question to ask is an issue which can be put to one side, however, as no challenge was mounted on that basis.

[55] A challenge based on the second category identified in Mison, which was relied upon, involves two elements which may need to be separated. Thus, a condition may be uncertain but final, in the sense that it does not foreshadow a further judgment, either by the consent authority, or by a delegate or a third party. However, as noted by Mason P in Transport Action Group Against Motorways Inc v Rd and Traffic Authority [("Transport Action Group")] (1999) 46 NSWLR 598 at [112] mere uncertainty may not give rise to invalidity. Whether or not it does is likely to depend upon a different question, namely whether the condition complies with the statutory limits imposed upon the power of the authority. To the extent that the cases accept that a degree of "practical flexibility" (as in Scott ... at 118 per Samuels AP) or imprecision (as in Genkem Pty Ltd v Environment Protection Authority ["Genkem"] (1994) 35 NSWLR 33, per Gleeson CJ) may not result in invalidity, the reason is that the relevant degree of flexibility or imprecision does not contravene any statutory limit on the power being exercised.

[56] In [Winn v Director-General of National Parks and Wildlife ("Winn") [2001] NSWCA 17; (2001) 130 LGERA 508], Stein JA at [213], cited with approval a statement of Lord Reid in Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 at 90:

Suppose that a planning authority purports to impose a condition which has nothing whatever to do with planning considerations, but is only calculated to achieve some ulterior object thought to be in the public interest. Clearly in my view the condition should be severed and the permission should stand.

The reference to an "ulterior object" clearly suggests an impermissible, and therefore legally invalid, exercise of power. On the other hand, in the previous paragraph, Stein JA had noted:

A condition (or part of one) may be severable where it is superimposed on a consent if it is incidental, trivial, unimportant or mere surplusage.

If one is considering the effect of invalidity, that point may be accepted. However, there is an antecedent question to be answered, which concerns the lawfulness of the condition. A condition will not necessarily be beyond power because it is incidental, trivial, unimportant or mere surplusage, or because, as in Genkem, it lacks specificity or particularity.

192 In Transport Action Group, Mason P also said (at [136]):

136 There is nothing objectionable in deferring to the greater expertise of appropriate authorities such as the Environment Protection Authority, Department of Land and Water Conservation, National Parks and Wildlife Service or Sydney Water Corporation, or contemplating that such bodies will exercise their statutory powers in future as particular issues are referable to their severable expertises arises. Mison or any variant of it does not precule such a sensible way of carrying out an activity in the future.

193 In GPT Re Limited v Bellmorgan Property Development Pty Ltd ("GPT") [2008] NSWCA 256; (2008) 72 NSWLR 647, Basten JA (Bell JA and Young CJ in Eq, agreeing) again outlined the relevant principles in relation to the validity of conditions of consent:

[45] ... Aspects of an application, especially one involving a large development with disparate elements, are likely to give rise to a number of matters requiring evaluative judgment on the part of the consent authority. These are likely to be the subject of conditions. Such conditions may fall into one of four broad categories (though the categorisation is not intended to be exclusive):

(a) variation to aspects of the development identified in the application;

(b) compliance with the requirements of other agencies (including those responsible for road safety and fire safety);

(c) control of the construction of the development, and

(d) control of its operation once constructed.

[46] It is only in relation to the first category of conditions that issues arise in the present case. Where a consent requires a variation of the application, there is potential for departure from so much of the statutory scheme as requires that the consent be given or refused in relation to the development identified in the application: [EPA Act], s 80. Whether specific conditions involve such a departure from the application as to prevent the consent satisfying the scheme of the Act will involve questions of degree. Such questions have been the subject of consideration by this Court in a number of cases over the years. In [Mison], this Court identified two broad categories of case in which a consent might fail to comply with the statutory scheme. These were later described in [Kindimindi] at [54]-[55] ...

[47] In Transport Action Group ..., this Court considered whether certain decisions with respect to the construction of a motorway were invalid because of modifications to the proposed works after the completion of a required environmental impact assessment. This provided a different context (the relevant statutory provisions being found in Pt 5 of the EP&A Act) to questions of consent to a development application. Nevertheless, the Court noted, with respect to Mison, two different aspects of a valid consent, namely that a condition should not significantly alter the nature of the development and that the granting of consent imported a requirement of finality and certainty: at [115] (Mason P).

[48] Questions of finality and uncertainty will often be related, but are likely to bear upon the same question as that addressed in the first category discussed in Mison. In each respect the question must be whether a consent has been given to the development which was the subject of the application. Where conditions give rise to uncertainty, the fact that it is not possible to know whether the satisfaction of the conditions will give rise to a significantly different development may demonstrate that the consent is not a final and valid consent to the development as proposed. A degree of "practical flexibility" is likely to be necessary, especially in respect of complex developments: see Scott ... . Where a condition requires variations which can be checked and approved by a council officer, by reference to prescribed criteria, it may readily be said that the consent is sufficiently final and certain. Where the criteria for future assessment are imprecise or unspecified, there may be an effective delegation of authority to the officer to exercise his or her judgment: if the delegation is not in itself a valid means of disposing of the application, the result will be invalid. On the other hand, if the delegation is valid, it may suggest that the consent purportedly given by the Council is not itself a valid consent.

[49] The extent to which departure from the development described in the application is permissible may depend in part upon the requirements of public notice and the opportunity to be given for those potentially affected by the development to lodge objections.

194 After quoting the statutory provisions of s 80 and s 80A (in [52] and [53]), His Honour made some observations in relation to the validity of consents subject to DCCs ([54] - [57]):

[54] These provisions have a number of aspects. First, s 80(1) is permissive as to the scope of conditions but appears not to expand that scope beyond conditions which would be permissible in the legal exercise of the powers of a planning authority: see generally, Winn ... at [213] (Stein JA).

[55] Secondly, and consistently with Mison, s 80A permits the modification of "details" of the development. This language appears to be inconsistent with any suggestion, contrary to Mison, that the condition could significantly alter the development: see s 80A(1)(g).

[56] Thirdly, to the extent that a consent may not be final in the sense of being immediately operative, but may have effect only upon the satisfaction of one or more conditions, it would appear that the principles expressed in Mison in relation to uncertainty are qualified by the validation of consents conditioned upon the requirement to achieve an express outcome or objective, assessable according to "clear criteria": s 80A(4).

[57] As noted in Kindimindi (at 293 [57]) the various elements of s 80A, subs (1)-subs (6) are permissive and, at least in some parts, address different aspects of development approval, thus suggesting that they are not cumulative. They affect the statutory scheme, but not the test of validity of a consent. They allow that the conditions will not be uncertain or imprecise if, although in general terms, they identify the outer limits of what is being authorised: see Genkem ... at 44 per Gleeson CJ, 49 per Powell JA, Dunford JA agreeing with both.

195 The law on construction of consents/conditions has been well established by the higher courts, and it will suffice for the purposes of this judgment for me to now quote it from two recent Court of Appeal judgments (in cases unsuccessfully appealed from decisions given by me in this Court).

196 In K and M Prodanovski Pty Ltd v Wollongong City Council ("Prodanovski") [2013] NSWCA 202; (2013) 195 LGERA 23, Meagher JA said (at [23]):

The principles governing the construction of the consent are not in issue and were summarised by this Court in House of Peace v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [23], [37]-[41] per Mason P (Stein and Giles JJA agreeing). The meaning of the language is to be determined objectively having regard to the context in which the consent was issued and taking into account the fact that, unlike a contract between parties, the consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant ...

197 His Honour had earlier said, in Allandale (omitting citations):

42 The relevant principles are, in some respects, more easily stated than applied. The task is to construe the document constituting the consent mindful of the fact that the approval is a unilateral act of the consent authority which has an enduring function. The consent is not the result of a bargaining process between two or more parties, and is not personal to the applicant but enures for the benefit of subsequent owners and occupiers. Its meaning must be determined objectively, having regard to these matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority. To that extent, the principles of construction appropriate to contracts, which provide that in the case of ambiguity or uncertainty reference may be made to surrounding circumstances known to the relevant parties, do not apply: ...

43 The extrinsic evidence to which reference legitimately may be made when construing a public document, such as a development consent, is more limited. Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication: ...

Conclusion on Validity

198 The development in the present case is large and complex, and the flexibility referred to in Scott is relevant. Bushfire safety would have been dealt with, prior to the grant of consent, had the DA been for integrated development, and I accept the respondent's submission that the DC is responsive to the DA as made.

199 Condition A(iv) provides an objective, the development plans are to incorporate the requirements of the Commissioner of the RFS, with criteria and an outcome, that the requirements are to not further impact on existing vegetation and incorporate the Commissioner's requirements through a reduction in the size of the development. The condition identifies with enough clarity what is to be achieved and necessary criteria for that achievement.

200 In my opinion, condition A(iv) does not fail for uncertainty or lack of finality. It, and so the consent, are held to be valid.

Issue (ii) - Severance and/or Section 25B

201 Having found the condition valid, there is no need for me to consider either

(a) the question of severability, upon which I would have applied the principles laid down in Anambah (at [162] - [176]); or

(b) an order under s 25B of the Court Act, which Hoxton indicates, as Mr Larkin submitted, would not have been appropriate.

Issue (iii) - Whether Condition A(iv) was Satisfied

202 Section 80(3) (see above [29]) restricts the applicants' consent from becoming operational until Council is satisfied that the requirements of Condition A(iv) have been duly complied with.

203 Condition A of the consent requires the DCCs to be met to the satisfaction of Council. Condition B stipulates that upon compliance with the DCCs, and notification by Council, the consent will commence operation.

204 It is common ground that the DCC had to be satisfied by 3 (or 4) December 2008 (T17.7.2013, p24, L30). The effect of the transitional provision (see [34]) on the applicants' DCC is that it provides the consent with a date after which, if the conditions are not satisfied, the consent will lapse. That date, it is agreed, was 4 December 2008.

205 Recently, Biscoe J in Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73 usefully outlined in detail the principles in relation to subjective and objective jurisdictional facts (citations omitted):

112 ... A jurisdictional fact is a fact that, by statute, is a condition precedent to the decision-maker's exercise of jurisdiction. An objective jurisdictional fact is that X exists or occurred. A subjective jurisdictional fact is that the decision maker has a prescribed mental state, such as being satisfied or holding the opinion that X exists or occurred. In the case of a subjective jurisdictional fact, the court determines on the evidence before it whether the decision maker was satisfied or held the opinion that X exists or occurred. But (as discussed below) even if that is so, if that state of satisfaction or opinion was seriously irrational or illogical the decision will be unlawful. In contrast, in the case of an objective jurisdictional fact the court determines on the evidence before it whether X exists or occurred; therefore, inquiry into irrationality by the administrative decision maker is irrelevant. ...

113 A subjective jurisdictional fact is open to challenge on the basis that the subjective state of mind was "irrational, illogical and not based upon findings or inferences of fact supported by logical grounds": ... These were all cases of subjective jurisdictional fact (the decision-maker was empowered to make a decision if "satisfied" as to prescribed matters).

206 His Honour then went on to discuss "serious irrationality" and "Wednesbury unreasonableness" (again many citations omitted):

114 It is convenient to call this ground "serious irrationality" since not every rational or logical lapse will suffice. That is the basis on which I would distinguish the principle that there is no error of law in simply making a wrong finding of (non-jurisdictional) fact: ... Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321 at 356 (Bond); ... In Bond Mason CJ held at 356: "Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place". Acceptance of serious irrationality as a basis for judicial review resolves, in effect, the "serious question" whether such a suggested error "is of the kind to which the Wednesbury principle is directed": [Minister for Immigration and Multicultrual Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611] at [40] per Gleeson CJ and McHugh J. It is difficult to reconcile the serious irrationality ground with the majority decision in Azzopardi v Tasman UEB Industries Ltd [1985] 4 NSWLR 139 at 155-156 (per Glass JA, Samuels JA agreeing) that even a perverse finding of fact is not an error of law. The dissenting view of Kirby P in Azzopardi at 151 has prevailed that there is an error of law where there is "manifest error or illogicality in the reasoning process" or reliance on facts which "indicate such an unexplained perversity as to suggest that an error has taken place".

115 This serious irrationality ground sets the same very high standard as for manifest (Wednesbury) unreasonableness. Thus, an attacked finding of fact must be one that no rational or logical decision-maker could have made: ... [T]he characterisation of a decision as seriously irrational or illogical should "not receive an affirmative answer that is lightly given": ...

116 It has been said that Wednesbury unreasonableness is "confined to the exercise of a discretion in circumstances where no reasons are required" or (alternatively) that there is an overlap between Wednesbury unreasonableness and a standard of rationality: [Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611] at [128] per Crennan and Bell JJ. In New South Wales, the exercise of a discretion "in circumstances where no reasons are required" is limited in scope because court rules and practice notes provide machinery whereby an applicant for judicial review can obtain reasons from the decision-maker: Part 59 r 59.9 Uniform Civil Procedure Rules 2005; Supreme Court Common Law Division - Administrative Law List; Practice Note SC CL 3 Administrative Law List at [23]; Land and Environment Court Rules 2007 r 4.3(b); Land and Environment Court Practice Note Class 4 proceedings at [14(b)]. In four decisions of the New South Wales Court of Appeal, the serious irrationality formula has been treated as synonymous with Wednesbury unreasonableness itself in a non-jurisdictional fact context. ...

...

118 Before determining that a failure to observe the requirements of a legislative scheme has the consequence that the exercise of a statutory power has failed and that the result of the purported exercise is invalid, it is necessary to ask whether there is a legislative purpose to invalidate the exercise of the statutory power by reason of the alleged failure: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, (1998) 194 CLR 355 at [91]: Nature Conservation Council of New South Wales Inc v Minister Administering the Water Management Act 2000 [2005] NSWCA 9, (2005) 137 LGERA 320 at [90].

207 In Casa, Pepper J discussed the principles of jurisdictional fact in relation to satisfaction of a DCC, and reviewed relevant authorities, before concluding:

64 Having regard to the propositions and decisions referred to above, a proper construction of s 80(3) of the EPAA reveals the existence of a "particular kind of jurisdictional fact" only in the limited sense described in [Timbarra Protection Coalition Inc v Ross Mining NL ("Timbarra") (1999) 46 NSWLR 55; 102 LGERA 52] (at [42]), namely, that the existence of the mental state of the council (its satisfaction) is a jurisdictional fact which enlivens the exercise of statutory power rendering the development consent operational. Judicial review by this Court is accordingly confined to determining whether the mental state existed and if so, whether that mental state was reasonably open on the facts in the Wednesbury unreasonableness sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). It does not permit the Court to inquire into the existence of the facts underlying the achievement of the requisite mental state.

65 The applicants contend that the mental state contained in s 80(3) of the EPAA is a factual reference preliminary to the exercise of statutory power which is strongly suggestive of a parliamentary intention to establish a jurisdictional fact (Timbarra at [44]). I do not agree.

66 The power to impose a condition under s 80(3) derives from s 80A(1)(h) of the Act. The power to impose the condition is not preconditioned upon the existence of any fact, unlike, for example, the power to grant consent for a development in s 80(1) of the EPAA, which is, by contrast, preconditioned on the fact that to do so must not result in a contravention listed in s 80(2). Rather, s 80(3) merely confirms the power of the consent authority to grant a development consent subject to a condition fitting the description contained in that provision should it elect to do so. The power to grant a development consent, and in particular a conditional deferred development consent, derives from ss 80(1) and 80A(1)(h) and not simply s 80(3). Viewed this way there is no jurisdictional factual reference to be made in the statutory conferral of power in s 80(3).

67 To the extent that the applicants rely on cl 95(2) and (5) of the Regulation in support, cl 95(2) merely states that the deferred commencement consent must clearly distinguish between those conditions requiring the consent authority to attain a mental state from those that do not. Clause 95(5) of the Regulation goes on to specify that once the required mental state is achieved by the consent authority as to the matters specified in the condition, then the authority "must notify the applicant whether or not it is satisfied as to the relevant matters". The operation of neither cl 95(2) nor (5) of the Regulation themselves enliven the operation of the development consent. Rather, it is the attainment of a state of satisfaction by the consent authority as to any matter specified in the condition together with the notification that render the development consent operative.

68 Therefore, at its highest the power in s 80(3) which is engaged to permit the development consent to become operational may be expressed "as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs" and the existence of the satisfaction is treated "as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker" (Corporation of the City of Einfeld v Development Assessment Commission (2000) 199 CLR 135 at [34]). This militates strongly against the establishment of a jurisdictional fact (Gedeon at [32]-[33]).

208 I respectfully agree with Her Honour's analysis.

209 In the present case, counsel for both parties (applicants' submissions pt2, at 38, and respondent's submissions, at 62) accept Pepper J's approach as correct. Hence, the satisfaction of DCC A(iv) is a question of subjective jurisdictional fact, and, that the Court can inquire into only the existence of that mental state of satisfaction, and also, whether serious irrationality or Wednesbury reasonableness occurred on the part of Council in not being satisfied. It is not for this Court to decide whether the Council ought objectively to have been satisfied.

210 I turn, therefore, to whether the required mental state of satisfaction existed within Council, in the context of the proper construction of A(iv).

211 There may well have been problems with the plan as submitted, but, according to the applicants, all that was required was the submission of a plan, which incorporated the RFS requirements (T30.10.12 p23, L12). Following the submission of the s 96 application, Council assessed it under s 79C (subs 42 - 3). Council need not have done anything at all after 3 December 2008, and the applicants conclude, from that continued process of assessment, that Council was satisfied that all the DCCs had been complied with. The fact that Council did not approve the s 96 is irrelevant for the satisfaction of condition A(iv).

212 Even on its own, the requirement that a s 96 application be submitted indicates some confusion on Council's part as to what A(iv) meant and required, but it was certainly satisfied that a plan was submitted in time.

213 Hancock relied on communications with Council for his understanding that the second leg of the requirement, namely that there was no further impact on vegetation, was fulfilled by the plan.

214 As communications between an applicant and a consent authority cannot be so relied upon, Hancock's evidence had no real value to the Court.

215 The applicants needed to appeal by 3 December 2008 against the deemed refusal of their s 96 modification application.

216 At no time did Council indicate its satisfaction prior to or on the lapsing date (sub 68), nor is there any evidence of there being a state of satisfaction within Council (T17.7.13 p37, L46). In fact, on the day before the lapse date Council officers communicated that it was their understanding that the consent was not operational (LL48ff).

217 The evidence upon which the applicants seek to rely occurs after the lapse date, but much of that evidence demonstrates that the necessary state of satisfaction did not exist within the Council. Only the attainment of the state of satisfaction, and the notification of it, can render the consent operative (Tp37, L10 - 21).

218 Having regard to Pepper J's principles in Casa, I have formed the opinion that Council was not satisfied as to compliance of DCC A(iv) by 3 December 2008.

Issue (iv) - Correctness and/or Validity of Council's Conclusion

219 In their APOC 8, 9 and 10, the applicants assert:

(a) that the respondent has refused, and continues to refuse, to be satisfied;

(b) that the respondent failed to determine that he requirements of condition A(iv) were satisfied; and

(c) that the failure of council to be satisfied is unreasonable or contrary to fact.

220 The applicants have not pleaded that any irrationality or Wednesbury unreasonableness has occurred, in the sense that Council made a decision so unreasonable that no reasonable Council in the same situation would make it.

221 The respondent admits that it did not determine that the condition A(iv) had been satisfied (subs par 80), but notes that, even if the Council officers lacked authority to engage in the relevant communications with the applicants, the applicants must still prove that the state of satisfaction was reached, and they have failed to do so. The respondent relies on Casa to assert that only the mental state of satisfaction may be enquired into, rather than whether the absence of satisfaction was contrary to fact or unreasonable.

222 Not every rational or illogical lapse in decision making by a consent authority, e.g. a mistaken construction of its own condition, is sufficient for a court to enter into judicial review, particularly if an inference was reasonably open on the facts, the decision must have been one that no rational or logical decision maker would have made.

223 The consideration of the s 96 application following the lapse date may indeed be illogical, and Mr Larkin did not - or possibly could not - explain why the process of approval continued after the lapse date.

224 The applicants rely upon the continuation of the assessment process, correspondence etc relevant to it, and the eventual determination of the s 96 application as evidence of satisfaction of conditions, such that the DC became operative.

225 I have rejected the applicants' case on satisfaction, which rejection has the inevitable consequence that the DC never became operative, and the statutory lapsing provisions had no need operate as they were intended. No contrary interpretation of events subsequent to the lapse date can alter that legal reality: Kinder Investments Pty Ltd v Sydney City Council [2005] NSWLEC 737; (2005) 143 LGERA 237 per Preston ChJ, at [32] - [42], and Reid's Farms Pty Ltd v Murray Shire Council [2009] NSWLEC 171; (2009) 169 LGERA 307, per Pepper J at [55].

226 The applicants must, therefore, also fail on issue (iv).

Issue (v) Estoppel

227 This late-added claim by the applicants was not fully articulated in their submissions, but appears to be based upon drawing an inference, from Council's continued consideration of the s 96 application which it required of the applicants, to the effect (a) that the Council thereby represented to the applicants that the development consent was operative, and (b) that the applicants relied upon that representation, and continued to correspond with, and submit reports to, Council.

228 The respondent Council submitted that estoppel is not available in the present case (T17.7.2013, p29, L9), and that, even if estoppel were available, the necessary elements have not been properly pleaded or made out.

229 Consents are public documents, which operate in rem (Prodanovski), and estoppel is a doctrine which operates in personam to bind individuals on the basis that it would be unconscionable for them to deny what has been represented or assumed.

230 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 held, at 413, that the necessary elements which must be proved by the applicants in order to make out an estoppel by representation are that (see respondent's subs, par 116):

a. the Respondent induced the Applicants to make an assumption that a state of affairs existed;

b. the Respondent knew or intended the Applicants to act on that assumption;

c. the Applicants have acted in reliance on the assumption; and

d. the Applicants would suffer detriment if the assumption were not adhered to.

231 In Kurtovic, at 208, Gummow J observed:

As a starting point, I should note that the present case is not one where a party asserts that the executive or other public authority is estopped from asserting that a particular action, of which the other party seeks performance, would be ultra vires as exceeding the powers given by or pursuant to a law of the Parliament. Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying. Rather, in the present case, the respondent seeks to prevent the appellant from making a decision within the latter's power which would have the effect of altering a previous intra vires decision. The respondent is then met with the objection that to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion.

The principles governing the application of estoppel by representation, or promissory estoppel, and related doctrines, have evolved largely in the context of private law. Difficult issues arise as to the extent to which those principles are to be applied in administrative law. The generally accepted proposition is that:

"Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public."

232 Brereton J noted, in Northey at [38], that these principles do not extend into the "public law of planning control, which binds everyone". His Honour said (most citations omitted):

Equitable estoppel does not operate to enlarge statutory rights to deal with land ... Where the capacity of a public authority to contract or otherwise fetter the future exercise of its powers or discretions is restricted by statute, those restrictions cannot be circumvented by resort to estoppel. Estoppels bind individuals on the basis that it would be unconscionable to deny what has been represented or assumed, but these concepts do not extend into 'the public law of planning control, which binds everyone' [Newbury District Council v Secretary of State for the Environment [1981] AC 578, 616 (Lord Scarman); ...]

233 The Council and the Court lack, inter alia, jurisdiction to grant an extension of the absolute lapsing date under the EPA Act. As Mr Larkin noted (subs par 125 - 126):

125. In Northey Brereton J held at [39] that the applicant in that case could not gain by equitable estoppel what she could not lawfully have been granted by a more formal dealing.

126. Applying the principles in Kurtovic and Northey to the present case, even if there had there been a relevant representation, relevant reliance and relevant detriment there would still be no estoppel because:

a. the Court does not have jurisdiction and the Council did not have power to grant an extension to the absolute lapsing date of 4 December 2008 under clause 111 of the 2006 Amending Act;

b. the Applicants cannot gain by equitable estoppel (ie revival, extension or non lapsing of the Development Consent) what it could not lawfully have been granted by a more formal dealing; and

c. estoppel cannot be raised against a public authority where it would have the effect of compelling the authority to act ultra vires.

234 I accept those submissions, and find that estoppel has not been made out.

235 Hence, issue (v) is also resolved in the Council's favour.

Issue (vi) Discretion

236 As the applicants have been totally unsuccessful in discharging their onus of proof in relation to matters of both fact and law, the issue of discretion does not arise.

237 However, there would have been no utility in making the declarations sought by the applicants (see Blanch v British American Tobacco Australian Services Limited [2005] NSWSC 241; (2005) 62 NSWLR 653), and, in exercising the Court's discretion, relief should have been refused, particularly as the applicants have been guilty of delay (T18.7.13 p34, LL10 - 14), and relevantly failed to pursue rights of appeal arising at various stages of their dealings with the Council (see T18.7.13 p33, L47 - p34 L8, and Coalcliff, at [67]).

F: Conclusion and Orders

238 The amended summons brought by the applicants should be dismissed.

239 Such an outcome would be expected to bring with it an order for costs in favour of the respondent Council, but the parties' submissions were silent on the costs question, and an opportunity should be left open for it to be properly argued, if need be.

240 The Orders of the Court will, therefore, be:

(1) The amended summons is dismissed.

(2) The Applicants are ordered to pay the Respondent's costs, on a party-party basis, as agreed or assessed, unless within 28 days one or both parties file(s) a Notice of Motion seeking some different costs order.

(3) All exhibits are returned.

**********

Decision last updated: 17 April 2014