Land and Environment Court New South Wales

• Medium Neutral Citation: Friends of Malua Bay Inc v Perkins [2014] NSWLEC 95
• Hearing dates: 13 June 2013
• Decision date: 14 July 2014
• Jurisdiction: Class 4
• Before: Craig J

Decision

Orders set out at [122]

• Catchwords: ADMINISTRATIVE LAW - judicial review - development consent for subdivision - whether development consistent with zone objectives - whether opinion or satisfaction of Council required - cl 11(3) of the Eurobodalla Rural Local Environmental Plan 1987 (the LEP) - objective standard imposed - whether consideration given to matters identified in cl 23(2) of the LEP - whether statement of impacts of development on the environment was provided as required by cl 23(3) of the LEP - requirement for such a statement satisfied by the provisions of statement of environmental effects
• Legislation Cited: Civil Procedure Act 2005 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Environmental Planning and Assessment Regulation 2000 (NSW); Eurobodalla Local Environment Plan 2012; Eurobodalla Rural Local Environmental Plan 1987; Land and Environment Court Rules 2007; Local Government Act 1993 (NSW); Standard Instrument (Local Environmental Plans) Order 2006 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190; Anderson v Director-General, Department of Environment and Climate Change [2008] NSWCA 337; 163 LGERA 400; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185; Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; 167 LGERA 52; Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; 150 LGERA 81; Franklins Ltd v Penrith City Council [1999] NSWCA 134; Gillespies v Warringah Council [2002] NSWLEC 224; 124 LGERA 147; Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7; Mackenzie v Warringah Council [2002] NSWLEC 131; Manly Council v Hortis [2001] NSWCA 81; 113 LGERA 321; Notaras v Waverley Council [2007] NSWCA 333; 161 LGERA 230; Parramatta City Council v Hale (1982) 47 LGRA 319; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21; Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74; South East Forest Rescue Incorporated v Bega Valley Shire Council and South East Fibre Exports Pty Ltd [2011] NSWLEC 250; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707
• Category: Principal judgment
• Parties: Friends of Malua Bay Inc (Applicant); Brian Perkins (First respondent); Eurobodalla Shire Council (Second respondent)
• Representation: F J Berglund (Applicant); M E McMahon (solicitor) (First respondent); I J Hemmings (Second Respondent); Legal Department, Environmental Defenders Office NSW (Applicant); M.E. McMahon & Associates (First respondent); Sparke Helmore Lawyers (Second respondent)
• File Number(s): 40082 of 2013

Judgment

1 Among the coastal settlements extending to the south of the major town of Batemans Bay on the New South Wales South Coast is the urban settlement of Malua Bay. A 30 lot residential subdivision of land at Malua Bay is the subject of these proceedings.

2 Development consent to that subdivision was granted by Eurobodalla Shire Council (the Council) on 9 October 2012 (the Consent). Friends of Malua Bay Inc (FMB) challenges, in judicial review proceedings, the validity of that consent. FMB contends that when granting the consent:

(a) the Council failed to determine, as it was required to do by cl 11(3) of the Eurobodalla Rural Local Environmental Plan 1987 (NSW) (LEP 1987), that the development was consistent with the objectives of the relevant zone, being Zone 10 (Urban Expansion Zone) under LEP 1987; and

(b) the Council failed to consider, as it was required to do by cl 23(2) of LEP 1987, the consequences of carrying out the development on the pattern of land use within Zone 10 or to have before it a statement relating to the likely environmental impact of development as required by cl 23(3)

The development application

3 Mr Brian Perkins, the First Respondent, lodged with the Council his development application for a 30 lot subdivision on 17 November 2011. The application was assigned the number DA 320/12. It is convenient to refer to the development application by that number.

4 The land to be subdivided was Lot 5 in DP 246151 (Lot 5 or the Land). The subdivision of Lot 5 contemplated by DA 320/12 was for 23 residential lots ranging in area between 1872m² and 1927m², together with seven larger lots, described as "lifestyle lots". These latter lots ranged in area between 2,960m² and 6.7ha. All lots were shown to have access from an existing public road known as Ridge Road.

5 The development application was accompanied by a Statement of Environmental Effects prepared by a consultant town planner (the SEE). Lot 5 and its immediate environs is described in a manner which, for present purposes, is uncontroversial.

6 Lot 5, which has an area of 18.85ha, is an irregularly shaped Lot that is vacant and predominantly vegetated. The Lot is dissected by a watercourse or drainage line running from the north-west to the south-east, described as a Category 2 riparian corridor by the former Department of Natural Resources. The boundaries of the largest lots have been drawn so as to preserve this riparian corridor.

7 Lot 5 has been identified as having a potential bushfire risk. Parts of its area are subject to steep gradients presenting constraints on development. An area along the drainage line is identified as being subject to a 1 per cent annual exceedance probability for flooding.

8 To the east of Lot 5 is the developed residential area of Malua Bay. At the time of lodging DA 320/12, the Council had granted development consent for residential subdivision of land located to the south of Lot 5. The Council had also granted consent to residential subdivision of land on the northern side of Ridge Road, opposite to Lot 5. By November 2011 a number of dwellings had been completed on lots within that subdivision.

9 The SEE was a document of text, photographs and tables of more than 100 pages (inclusive of a short addendum) that sought to address a range of topics including soils, topography and geology, flora and fauna, hazard management and social impact as well as the subdivision design and layout. It also addresses the "desired future character" of the immediate area, taking account of the context of the statutory planning controls and policies that appeared to apply to that land. Attached to the SEE were specialist consultant reports that were intended to address the topics of archaeology, bushfire planning, impact upon flora and fauna, geotechnical assessment and stormwater quality assessment.

10 I have provided a description and context of Lot 5, together with the matters addressed in the SEE, for the purpose of affording a context to the issues required to be determined in these proceedings. My recitation of these matters is not made for the purpose of reflecting upon the merits of DA 320/12 when determining those issues.

Relevant provisions of LEP 1987

11 The objectives of LEP 1987 are expressed in cl 3 of that instrument. Clause 3(1) sets out the general objectives of the instrument. They include:

"(b) to identify zones where particular classes of development are most likely to be appropriate, having regard to the environmental characteristics of the area, servicing and access requirements and constraints, and the characteristics of the development, ... ."

12 Zone 10 under LEP 1987 is, as I have earlier described, entitled the "Urban Expansion Zone". The objectives of that zone are expressed in the Table to cl 11 as follows:

"Zone No 10 (Urban Expansion Zone)

1 Objectives of zone

The objectives of this zone are:

(a) to identify areas within which urban development may be accommodated,

(b) to ensure that consideration is given by the Council to:

(i) the impact of urban development on the physical environment,

(ii) the social and economic impact of urban development,

(iii) the range and pattern of land uses appropriate to the land,

(iv) the limits of urban development within the urban expansion zone in view of the fact that urban development will not necessarily proceed over all of the land within this zone, and

(v) the extent, range and capacity of services to be provided to the land and the economic, social and environmental cost of providing those services,

(c) to ensure that adequate services and community facilities are provided with development especially but not exclusively within residential areas within this zone,

(d) to ensure that no development is permitted within this zone which would, in the view of the Council, jeopardise the future use of any of the land within this zone for urban purposes, and

(e) to ensure that sensitive environmental features, including wetlands, archaeological sites and areas of high scenic or scientific value, are identified and permanently conserved."

13 In the course of oral submissions, particular emphasis was placed by FMB on the objectives expressed in subparagraphs (b)(i), (iii) and (iv). I will return to address these subparagraphs later.

14 Paragraph 2 of the development control Table for land within Zone 10 identifies those purposes of development that are permitted without the need for development consent. The only such purpose is "agriculture", excluding some of the more intensive forms of agriculture. Paragraph 3 of the same Table provides that use for any purpose, other than a purpose permitted without development consent, is permissible with the consent of the Council while paragraph 4 indicates that there are no purposes of development that are prohibited in Zone 10.

15 The objectives expressed in paragraph 1 of the Zone 10 development control Table are important because of the provisions of cl 11(3). Clause 11 identifies the development control Table for all zones under LEP 1987. The clause relevantly provides:

"11 Zone objectives and development control table

(1) The objectives of a zone are set out in the Table to this clause under the headings "Objectives of zone" appearing in the matter relating to the zone.

(2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which:

(a) development may be carried out without consent,

(b) development may be carried out only with consent, and

(c) development is prohibited,

are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively.

(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the development is consistent with the objectives of the zone within which the development is proposed to be carried out."

16 The other provision of LEP 1987 upon which FMB relies to support its second ground of challenge is cl 23. That clause provides:

"23 Development within Zone No 10

(1) This clause applies to land within Zone No 10.

(2) Before determining an application for development on land to which this clause applies, the Council shall consider the consequences of carrying out that development on the pattern of land use within the zone.

(3) Any development application for consent to subdivision of land to which this clause applies shall be accompanied by a statement relating to the likely impact of that development on the environment and any steps proposed to be taken to mitigate any likely adverse environmental impact, with particular emphasis on the following matters:

(a) the relationship of the development to the pattern of land use of the surrounding land,

(b) proposed arrangements for the provision of sewerage and water supply to the land,

(c) the nature and topography of the land,

(d) the social and economic effects of the development, particularly with regard to the cost of the provision of services,

(e) the likely impact on local and major roads of traffic likely to be generated by the development,

(f) an assessment of the likely bushfire and flooding risks and any other risk likely to be encountered on the land."

 

Consideration and determination of DA 320/12

17 Following lodgement of DA 320/12 with the Council, the application was notified to adjoining owners and the fact of its receipt publicly notified in a local newspaper. As a consequence of these actions, seven submissions by way of objection were received by the Council, one of those submissions being signed by eight individuals. The application was on public exhibition between 22 November and 7 December 2011.

18 FMB asserts in its points of claim that Lot 5 was inspected "by the Council" on 13 December 2011. The Council is unable to confirm that an inspection was carried out on that day. However, records of the Council do indicate that Lot 5 was inspected by "Council representatives" on an unspecified date or dates, including at a time when the subdivision proposal had been submitted to the Council for pre-lodgment advice but prior to its lodgement as a development application (Exhibit A, p 736). The evidence also reveals that the Land and its environs had been inspected at an earlier point in time when zoning under a new planning instrument was being considered.

19 The submissions received by the Council in December 2011 were directed to the impact upon flora and fauna; the suitability of Ridge Road to carry additional residential traffic; vulnerability of the land to bushfire; inconsistency with strategies of the Council for residential development; inappropriate topography for residential development, given the steep slopes on part of the land; likely impact upon water quality of the watercourse running across the land and the demand or need for further residential development. Submissions directed to these topics include a submission from the South East Forest Rescue, a well known environmental organisation, and from The Coastwatchers Association Inc, described as Eurobodalla's environment and climate action group.

20 As a consequence of receiving these submissions by way of objection, two events occurred. First, two Councillors required that the application be "called up" for determination by Councillors rather than by a single delegate. Second, the development application was referred to a "strategic planner" for assessment and report to the Council, presumably to aid its assessment of the application.

21 DA 320/12 was first reported to the combined Policy and Strategy and Finance and Services Committee meeting of the Council on 7 August 2012. The report to that meeting was prepared by the Council's Acting Divisional Manager of Development Services. The report, in narrative form, summarised the proposed subdivision of Lot 5, the topographical and geophysical characteristics of the site, its location in the context of adjoining and surrounding development, the applicable statutory and non-statutory instruments, policies and strategies applicable to development of the land and the extent to which the proposed development addressed those instruments, policies and strategies. The report also addressed the Flora and Fauna Impact Assessment Report that had been provided as part of the development application as well as the proposal for provision of infrastructure services. It also identified the submissions by way of objection that had been received and after identifying, by topic, the principal matters raised by those submissions, sought to provide a response to them. The Acting Divisional Manager concluded the report by stating that the proposed development was "consistent with" the provisions of identified environmental planning instruments and generally consistent with the Council's relevant development control plans. The grant of development consent to the application was recommended, subject to a number of conditions that were attached to the report.

22 The Acting Divisional Manager's Report also made reference to a development application assessment sheet, prepared in respect of DA 320/12 by a Council officer. The assessment sheet, identified in the report as being available at the meeting on 7 August, ran for some 32 pages, followed by a 5 page assessment sheet directed to compliance with the provisions of two development control plans. Each assessment sheet appeared to be a summary assessment of matters directed to consideration of the development application. The development application assessment sheet identified, by name, both the statutory instruments and other Council documents applicable to the determination. It also identified instrumentalities to which the application had been referred, in this case the Rural Fire Service and the Council's Aboriginal Project Officer. The response from each entity was summarised.

23 The development application assessment report also summarised, in tabular form, the substance of the objections received to the application, together with a column under the heading "Officer Notes" in which a response to each objection was recorded. That response was in a narrative form although repeated in almost the same terms to each of the objections. The assessment sheet also contained an overall comment upon the application and listed, in summary form, a number of matters under headings referring to paragraphs (a), (b) and (c) of s 79C(1) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) . A check list of impacts had initially been completed by a series of single word responses, followed by more detailed reference and a summary of comments directed to flora and fauna, traffic and car parking, social and economic impacts, heritage with further references made under the heading "Other 79(c) [sic] issues". The assessment sheet has a short narrative conclusion under the heading "Summary", with a recommendation that the application be approved. At various points in the assessment sheet the need to make reference to the "detailed assessment" provided in the report prepared by the Acting Divisional Manager for the Council Committee meeting on 7 August 2012 is identified.

24 The development control plan check sheet appears to be directed to the provisions of the Council's Development Control Plan 182 - Urban Expansion (DCP 182) that relates to land within the Zone 10 Urban Expansion Zone under LEP 1987. The check sheet required an indication as to whether there was compliance with identified provisions of DCP 182, with space to insert a brief commentary against each response. A second check sheet relating to the Council's Residential Zones Development Control Plan (the Residential DCP) took a similar form to that completed for DCP 182. Reference to and assessment of DA 320/12 against the provisions of each of these development control plans was also the subject of observation in the Acting Divisional Manager's Report.

25 The Committee meeting of the Council held on 7 August 2012 was addressed by four residents who opposed DA 320/12. A summary of the submissions made by each objector is recorded in the minutes of that meeting as is the fact that questions were asked by Councillors of three of those objectors. The subject matter of the questions asked is also recorded in the minutes. Following a division among Councillors, the minutes record that the Council then resolved:

"That Development Application No 320/12 for 30 Lot Subdivision on Lot 5, DP 246151, No 2-60 The Ridge Road Malua Bay dated 21 November 2011 as shown on Plan Number 12/320 and 12/320A1 and described in details accompanying the application be DEFERRED to enable the applicant and objectors to the application to undertake mediation."

26 In fact, no mediation occurred. Despite the Council's resolution, it subsequently indicated to Mr Perkins that it was not its intention to facilitate mediation. Rather, that was a process for him to pursue should he wish to do so. As a consequence of receiving that indication Mr Perkins requested that his development application be promptly considered and finally determined by the Council. In the letter making that request, a short response was made to the objections articulated by objectors, as recorded in the Council's minutes of the Committee meeting held on 7 August 2012.

27 Following that request, Mr Perkins was advised that DA 320/12 would be further considered by the Finance and Services Committee of the Council on 9 October 2012. Objectors whose objections had been received by the Council were also advised of the meeting at which the development application would be considered. The latter notice resulted in the provision to the Council of further objections, including a detailed objection prepared on behalf of a number of residents of the area.

28 The meeting of the Finance and Services Committee of the Council is recorded in its minutes as having commenced at 9.35am on 9 October 2012. The meeting was separately addressed by six people who were opposed to the grant of development consent. Each of them spoke to a written objection or submission that was provided to the Council before or at the meeting. Some submissions by way of objection had been provided directly to Councillors by those preparing objections.

29 The Committee meeting was also addressed by the town planning consultant retained by Mr Perkins. He was the author of the SEE that accompanied the development application. He had earlier provided to the Council a brief written response to matters raised by those objectors who had addressed the meeting of the Committee on 7 August 2012.

30 The Minutes of the Committee record that after it had been addressed by the objectors and by Mr Perkins, the Committee resolved:

"That development application no 320/12 for 30 lot subdivision on Lot 5, DP 246151, number 2-60 The Ridge Road Malua Bay dated 21 November 2011 as shown on plan no 12/320 and 12/320A1 and described in details accompanying the application be APPROVED under Section 80(1) of the Environmental Planning and Assessment Act, 1979 subject to the conditions set out below."

Some 48 conditions were then set out in the Committee's resolution.

31 The events attending the processing and determination of DA 320/12 have been taken from an agreed bundle of documents tendered in the proceedings as Exhibit A. The only other evidence relied upon in the proceedings was an affidavit affirmed by Mr Philip Simms. Mr Simms is a member of FMB. He attended the Committee meeting on 9 October 2012. Evidence of his observations at that meeting is to the following effect:

(a) not all Councillors "had paperwork in front of them" during the course of the meeting;

(b) Councillors did not access any file information during the discussion of the development application;

(c) Councillor Brice and the Council's Director of Planning did have in front of them "a copy of documentation provided by the Friends of Malua Bay Inc." and during the course of the meeting dealing with the development application, "councillors did not acknowledge, make mention of, or read from the submissions."

32 In his affidavit Mr Simms also states that during the course of the meeting he did not "observe" (sic) mention or discussion by Councillors or Council staff of:

(a) cll 11 or 23 of LEP 1987;

(b) the impact on the physical environment;

(c) the pattern of land use within the Zone;

(d) the topography of the land;

(e) the proposed cost of the provision of services;

(f) the impact of traffic on local roads, and

(g) flora and fauna, bushfire protection and scenic amenity.

33 It will be recalled that the minutes of the Committee record the meeting as having commenced at 9.35am. After the Mayor welcomed all present and attended briefly to matters of a formal nature, the consideration of DA 320/12 commenced with the submissions by objectors. Mr Simms records in his affidavit that the resolution of the Council to grant development consent occurred at approximately 11.20am. The sequential numbering of the pages of Committee meeting minutes indicate that consideration of DA 320/12 was interrupted only once by the need for a Councillor to disclose a pecuniary conflict of interest in another item on the agenda for that meeting. It would therefore seem that the Committee's consideration of the development application occupied it for a substantial part of the time between 9.35am and 11.20am.

Failure to comply with cl 11 of LEP 1987

34 Provisions of local environmental plans, having the effect of proscribing the grant of consent to carry out development on land unless the development in contemplation is consistent with the objectives either of the instrument or of the land use zone within which development is proposed, are provisions that are commonplace. Regrettably, provisions of that kind are not uniformly expressed among local environmental plans that have not been prepared under the Standard Instruments (Local Environmental Plans) Order 2006 (NSW).

35 Many local environmental plans containing provisions of the kind that I have identified require that development consent not be granted unless the consent authority is either "satisfied" or is "of the opinion" that carrying out the development being assessed is consistent with "the objectives" or "objectives relevant to the proposal" as are identified elsewhere in the planning instrument. The failure to comply with provisions so expressed has founded a number of challenges, by way of judicial review, to decisions of consent authorities granting development consent. The necessity for the consent authority to direct itself to and to have reached the requisite "satisfaction" or to have identified the need for and formed the requisite "opinion" have each been described as a condition precedent to the grant of a valid development consent (Manly Council v Hortis [2001] NSWCA 81; 113 LGERA 321 at [28]; South East Forest Rescue Incorporated v Bega Valley Shire Council and South East Fibre Exports Pty Ltd [2011] NSWLEC 250 at [90]).

36 However, cl 11(3) of LEP 1987 is not expressed in terms that imposes any subjective requirement upon the Council when determining the consistency of development with Zone objectives. The clause neither requires the formation of an opinion by the Council nor satisfaction on its part that carrying out the development being considered would be consistent with Zone objectives. Rather, the subclause imposes an objective requirement: it proscribes the grant of development consent unless the development in contemplation is consistent with the objectives of the Zone in which the development is to be carried out.

37 The requirement that development be consistent with the objectives of the Zone is undoubtedly an essential precondition to the exercise of power to grant development consent. As an essential precondition, imposed in terms that require determination by reference to an objective standard, it has the hallmarks of a "jurisdictional fact" (Timbarra Protection Coalition Inc v Ross Mining ML [1999] NSWCA 8; 46 NSWLR 55 at [38]; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 at [60]-[61]).

38 The description of the precondition in those terms has important consequences for the manner in which these proceedings are to be determined. Unlike the position that pertained in Hortis or South East Forest Rescue Inc, no examination of the evidence in the present case is required in order to determine whether the Council reached the requisite mental state of satisfaction or formed an opinion as to consistency with Zone objectives. The need so to do in those cases was necessary, having regard to the terms in which the provision of the relevant local environmental plan was framed. In the present case, the Court is required to determine, on the evidence before it, whether the carrying out of the development proposed in DA 320/12 is consistent with the objectives expressed in the development control Table for Zone 10 under LEP 1987.

39 As it transpired, no evidence additional to that available from the Council's records was tendered at the hearing before me. It is therefore from the tendered documentary evidence that the determination required by cl 11(3) will be made.

40 FMB submits that the evidence before the Court failed to demonstrate that the Council "formed the requisite mental state of satisfaction" as to the consistency with the objectives of Zone 10 (submissions at [13]). It contended that the Council "was obliged to form a positive opinion of consistency" with those objectives, citing Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69; 167 LGERA 52 at [84]. According to the submission, the evidence does not disclose that the Council addressed itself to the formation of that opinion.

41 For the reasons I have stated, an assessment of the evidence from that perspective misconceives the determination to be made in the present case. Like Hortis and South East Forest Rescue Inc, the observations of Preston CJ in Conservation of North Ocean Shores Inc were founded upon the provisions of the LEP there being considered, imposing, in terms, the need for the consent authority to form an opinion as to consistency with objectives. What is required in the present case is an assessment of the evidence to determine whether the carrying out of the subdivision posed is consistent with the Zone 10 objectives.

42 Before turning to identify the material both before the Council and the Court, directed to compliance with cl 11(3) of LEP 1987, it is necessary to address the meaning of "consistent" when used in the subclause. In Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 Clarke JA stated that, in the context of the provisions there being considered, the paragraph was intended to prohibit "antipathetic development". Subsequently, that meaning was attributed to provisions of local environmental plans requiring development to be "consistent" with identified objectives (Schaffer Corporation Ltd v Council of the City of Hawkesbury (1992) 77 LGRA 21; Mackenzie v Warringah Council [2002] NSWLEC 131 at [98] and the cases there cited). More recently, the ordinary meaning of "consistent" has been applied to such provisions. In Gillespies v Warringah Council [2002] NSWLEC 224; 124 LGERA 147, Bignold J considered the meaning of the word in the context of planning instruments requiring the opinion by a consent authority that a proposed development be "consistent with the zone objectives". In that context, his Honour considered at [70] that the word "consistent" should assume its ordinary meaning and should not be confined to the notion of a proposed development that is "not antipathetic" to a zone objective.

43 According to the Macquarie Dictionary (on-line) that meaning is: "1. agreeing or accordant; compatible; not self-opposed or self-contradictory." It seems to me that, in the present context, it is appropriate to regard "consistent" as being synonymous with "compatible" (Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45]).

44 Having identified the principles by which the present issue is to be determined, it must be acknowledged that those principles are not easily applied, having regard to the manner in which the objectives of Zone 10 are framed in paragraph 1 of the development control Table for that Zone. That is particularly the case in respect of paragraph (b) of those objectives. It is subparagraphs (i), (iii) and (iv) of that paragraph upon which FMB placed particular emphasis.

45 The difficulty in applying the principles that I have identified to paragraph (b) of the objectives arises from the chapeau to that clause. Read in context, cl 11(3) requires in the present case that development consent not be granted to the carrying out of subdivision of the Land unless that subdivision is compatible ("consistent") with "consideration given by the Council" to the matters enumerated in subparagraphs (i) to (v) of paragraph (b) of the Zone 10 objectives. So understood, consistency or compatibility with consideration of those topics by the Council is required: not compatibility with a particular conclusion drawn by the Council consequent upon its consideration of those topics. Necessarily, that consideration must involve more than mere advertence to those topics. Whether it has done so involves an evaluative process based upon the determination of the Council directed to those topics (Anderson v Director-General, Department of Environment and Climate Change [2008] NSWCA 337; 163 LGERA 400 at [57]-[58]).

46 Further, the context in which the evaluative process is to be undertaken must recognise that the Council is not required by the EPA Act to provide reasons for its decisions. When considering matters to which attention must be given in the process of determination, Councillors are not required to pursue every possible aspect of a topic for themselves. They are entitled to rely upon assessments made and conclusions drawn by appropriately qualified members of staff and to accept or reject conclusions so expressed (Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7 at [59]).

47 The material tendered in Exhibit A in the proceedings constitutes documents in the possession of the Council directed to the consideration and determination of DA 320/12. As such, it is material that should be treated as being in the possession of Councillors when they considered the development application on 7 August 2012 and then further considered and determined that application on 9 October 2012. Those documents included the application for development consent with the accompanying SEE, the submissions received by way of objection to the development application, responses from statutory authorities, the report of the Acting Divisional Manager, Development Services to the meeting of 7 August 2012, a further report of that same officer to the meeting of 9 October 2012 and the development application assessment sheets together with the development control plan assessment sheets.

48 As the documents included in Exhibit A were documents in the possession of the Council at the time at which DA 320/12 was both considered and determined, it is material that should be treated as being in the possession of Councillors (Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67]). No evidence is led to contradict this presumption. The evidence of Mr Simms summarised at [32], reflecting his observations at the meeting of 9 October 2012, does not establish that Councillors did not have recourse to this material or had neither read it nor considered it prior to that meeting.

49 The SEE quoted the objectives of Zone 10 in LEP 1987 and asserts that the subdivision has been "devised to take into consideration" those objectives (Exhibit A, pp 129-130). The SEE then contains discussion on topics that had the potential to inform consideration of the matters identified in paragraph (b) of the Zone 10 objectives.

50 At the time of preparation of the SEE, a new draft local environmental plan for the Council's area and known as Draft Eurobodalla Local Environmental Plan 2011 (DLEP 2011) was on public exhibition. Under the draft instrument, almost the whole frontage of the Land to Ridge Road was proposed to be zoned R2 Low Density Residential while the rear or southern part of the Land was to be zoned E4 Environmental Living. Reference was made to this draft instrument in the SEE as evidence not only that the proposed subdivision was consistent with that draft but also as relevant to those topics requiring consideration by reference to subparagraphs (iii) and (iv) of paragraph (b) of the Zone 10 objectives.

51 By 9 October 2012 when DA 320/12 was determined by the Council, DLEP 2011 had become a statutory planning instrument known as Eurobodalla Local Environmental Plan 2012 (LEP 2012). The zoning of the Land remained generally as indicated in DLEP 2011, that is partially zoned R2 and partially zoned E4. Within each zone, both subdivision and the erection of dwelling houses is development permissible with consent. The lot sizes proposed in DA 320/12 conformed with the minimum lot sizes specified for those parts of the Land that fell within each zone. Notwithstanding the making of LEP 2012 and the zoning of the Land under that instrument, as DA 320/12 was a development application that had not been finally determined before the commencement of LEP 2012, it was required to be determined as if that instrument "had not commenced": cl 1.8A of LEP 2012.

52 The terms of LEP 2012 and the zoning of the Land under that instrument, together with the need to consider both that circumstance and the circumstance that the development application was required to be determined under LEP 1987 was the subject of discussion in the Acting Divisional Manager's report to the meeting of the Council on 7 August 2012 (Exhibit A, pp 459-460). So also was the Greater Bateman's Bay Structure Plan of 2007. That Plan identified the constraints and opportunities for development of the Land in the context of urban structure for Malua Bay. The Plan described Malua Bay as consisting of mixed natural and urban settlement "where the natural environment is intermixed with the built form" a passage referred to in the SEE (Exhibit A, p 135).

53 The fact that DA 320/12 was to be determined as if LEP 2012 had not commenced did not make its provisions irrelevant to that determination. For present purposes, the identification of the zoning and land use within those zones, as discussed in the 7 August planning report, was clearly relevant to a consideration of "the limits of urban development" under subparagraph (iv) of paragraph (b) of the Zone 10 objectives expressed in LEP 1987. By October 2012 when the Council determined DA 320/12, those limits had been established by the making of LEP 2012.

54 The "range and pattern" of land uses appropriate to the Land (objective (b)(iii)) was also identified in part by the references made in the 7 August planning report to the then statutory zoning of the land under LEP 2012. That discussion also informed consideration of objective (d) of Zone 10 which was to ensure that no development permitted in the Zone would jeopardise future use of land within that Zone for urban purposes.

55 On the material available to Councillors, it was clearly open to them to form "the view" that subdivision of the Land for housing would not jeopardise the future use of land within Zone 10 for urban purposes. The use of land within Zone 10 for urban purposes had, by October 2012, been determined by the making of LEP 2012.

56 The discussion in the documents before the Council also addressed the pattern of land use appropriate to the Land (Zone 10 objective (b)(iii)). The SEE identified the basis upon which lots of different dimensions and areas should be located within the Land, having regard both to external elements and internal physical constraints (Exhibit A, pp 87-88; 137-138). The SEE also identified where within each proposed lot any dwelling should be located (Exhibit A, pp 150-151). In combination, the discussion of these matters identified a pattern of land uses appropriate for the Land.

57 The 7 August planning report reiterated these matters and added an assessment of the application against the provisions of DCP 182, particularly directed to the location of building envelopes within the proposed lots (Exhibit A, p 533). The proposed siting of future dwellings on these lots was also addressed in the report by reference to the Residential DCP (Exhibit A, p 534).

58 In short, both the SEE and the report to the meeting of 7 August addressed the range and pattern of land uses appropriate for the Land, together with a justification for adopting that pattern of use. There is no evidence advanced indicating either directly or by inference that Councillors did not consider that material. It was material apt to be considered by reference to objective (b)(iii) of Zone 10.

59 The content of the SEE, the report to the meeting of 7 August and a number of submissions received by way of objection to DA 320/12 all contained material directed to the impact of the proposed subdivision ("urban development") on the physical environment. The location of the Land as it adjoined existing or approved residential development to the north, east and south as well as its proximity to bushland was identified in both the SEE and the report to the 7 August meeting (Exhibit A, pp 78-80; 135-136; 458). So also was the impact of site disturbance for the provision of infrastructure and future housing discussed. This is reflected in the planning report to the Council where both retention of trees to preserve a visual buffer is discussed (Exhibit A, p 460-461) and the need to retain an area of approximately 12.3 ha of native vegetation along and adjacent to the watercourse running through the Land is identified (Exhibit A, pp 463-464). External impacts such as impact on traffic in Ridge Road are identified and discussed both in the report itself (Exhibit A, p 468) and in the development application assessment sheet (Exhibit A, p 739). The substance of written objections sent to the Council each addressed, in different ways, the impact that carrying out residential development on the Land would have.

60 As the minutes of the Committee meeting of the Council on 7 August record, the impact of further urban development in the manner proposed by DA 320/12 was addressed orally by objectors who spoke at that meeting. Both written objections and those articulated orally urged the Council to reconsider the zoning of the Land in a manner that located it within an environmental protection zone. Submissions to that effect were addressed in the planning report to the meeting (Exhibit A, p 467).

61 It is apparent that there was material available to Councillors enabling consideration of the impact of urban development on the physical environment (Zone 10 objective (b)(i)). There is no basis to conclude that the topic was not, in fact, considered. Moreover, that consideration was not necessarily confined to the documents to which I have referred. The planning report to the meeting of 7 August records that the site had been visited "by a number of Council representatives" and by Councillors on another occasion (Exhibit A, pp 457-458). Further, some understanding on the part of Councillors of the impact that "urban development" might have on land within Zone 10 at Malua Bay may be assumed (Franklins Ltd v Penrith City Council [1999] NSWCA 134 at [25]). It cannot be assumed that Councillors have no knowledge of the physical or topographical features of urban areas within the local government area for which they are responsible nor of the general impact that urban development might have upon an existing bushland site.

62 Similarly, a general understanding by Councillors of the social and economic impact of urban development might be assumed. The prospect of increased population, the need to assess the availability of resources to service the needs of that additional population, together with any perceived advantages or disadvantages from population increase, if any, together with the extension of existing urban development into new areas would, as topics of consideration, be likely within the contemplation and experience of Councillors. At a level of generality, those are topics that would regularly arise for consideration under both the EPA Act and the Local Government Act 1993 (NSW).

63 However, determining whether the Council considered the social and economic impact of urban development need not be left to assumptions as to the general knowledge and experience of Councillors. In both August and October 2012, there was material capable of assisting that consideration.

64 In 2006, the Council had adopted the Eurobodalla Settlement Strategy. Discussion of and quotations from that Strategy appears in the SEE (Exhibit A, pp 113-116). At its core it is said to be a belief that "containing new development and accommodating population growth within compact well-planned settlements will bring social, cultural, economic and environmental benefits" (Exhibit A, p 113). Some social and economic impacts of urban development are identified in this Strategy (Exhibit A, p 115). Malua Bay, including the Land, is identified as an area of urban settlement to which the Strategy applies.

65 In 2007, the Council adopted the Greater Batemans Bay Structure Plan. The provisions of that Structure Plan are referred to at some length in the SEE (Exhibit A, pp 117-127). The Structure Plan is also referred to in the report to the meeting of 7 August (Exhibit A, pp 460-461). The quoted passages from the Structure Plan in the SEE provide some insight into the development strategy that addresses social and economic impact of urban development by identifying the economic use of existing resources and public facilities.

66 Further, in 2007 the State Government released the South Coast Regional Strategy. This is a broad based policy directed to planning for development in areas that include the Greater Batemans Bay area. The 2007 Strategy included support for the development of Malua Bay in accordance with the Eurobodalla Settlement Strategy. Relevantly, the South Coast Strategy is identified and addressed in the SEE (Exhibit A, pp 110-113). The extracted parts of that Strategy also provide material informing consideration of the social and economic impact of urban development.

67 The "social impact" of the subdivision proposed for the Land is addressed in the SEE (Exhibit A, pp 173-174) and is adverted to in summary form in the development application assessment sheet (Exhibit A, p 741). In the latter document the social and economic impact is said to be positive by making provision for additional housing and providing the benefit of employment in the construction industry associated with the carrying out of development. While these latter references are specific to the subdivision identified in DA 320/12, they identify matters that might more generally be applied to a consideration of social and economic impact.

68 In all, I am satisfied that there was material within the documents available to Councillors enabling consideration of social and economic impact of urban development upon land within Zone 10 at Malua Bay. Again, there is no basis to conclude that this material was not considered by Councillors, as objective (b)(ii) of the Zone 10 objectives required.

69 The extent, range and capacity of services to be provided (Zone 10 objective (b)(v)) were identified in the SEE (Exhibit A, pp 153-157; 173-174). Onsite services and infrastructure is stated as being provided at the cost of the developer. The level of contribution to be made to the Council for services is also stated. Reference to service "assets" to be provided by the developer and its costs is also made in the report to the meeting of 7 August (Exhibit A, p 465). The extent to which site works for services will impact upon the existing environment are identified in the SEE as being within the areas to be cleared for site works generally and to accommodate the nominated building areas for each Lot. The consideration of costs to the Council and the community of services (the economic and social costs) is reflected in the contribution required by the Council from the developer, as ultimately identified in conditions it imposed when granting development consent (Exhibit A, pp 482-483).

70 As I have earlier recorded, the focus of the challenge by FMB on this ground was directed to objective (b) of the Zone 10 objective. For reasons that I have stated, I am satisfied that there was material before the Council enabling the topics identified in that paragraph to be considered. In the absence of evidence to the contrary, I have no reason to conclude other than that consideration was given by the Council to those topics as the chapeau to paragraph (b) required.

71 Applying provisions of cl 11(3) of LEP 1987 to objective (b), the carrying out of development upon the Land is compatible with the consideration by the Council of each of the topics to which the Council was directed by subparagraphs (i) to (v) of paragraph (b). Clause 11(3) did not therefore operate to deny the Council the power to grant consent to DA 320/12 by reason of inconsistency with that paragraph of the Zone objectives.

72 I do not understand any submission of FMB to be directed specifically to objectives (a), (c), (d) and (e) of Zone 10. However, the general submission is made that the Council failed to form "the requisite mental state of satisfaction" as to consistency with these zone objectives and that the Council was "obliged" to form a positive opinion of consistency with zone objectives". For reasons earlier stated, neither way of expressing the obligation upon the Council reflects the provisions of cl 11(3). Relevantly, for reasons earlier disclosed, it was necessary to determine whether the development proposed was compatible or consistent with objectives (a), (c), (d) and (e).

73 It is apparent that the author of the report to the Council of 7 August recognised the need for consistency with objectives (Exhibit A, pp 457 and 468). Further, reference is made in the development application assessment sheet to cll 1, 2, 3 and 4 of the development control Table for land in Zone 10, cl 1 being the clause in which the zone objectives are stated (Exhibit A, p 736). The zone objectives are set out in full in the SEE (Exhibit A, pp 129-130). In the context of those references, the proposed development is identified as being "generally consistent with the relevant zoning" under LEP 1987 (Exhibit A, p 737). At p 743 of Exhibit A the author of the development application assessment schedule concluded that the proposed development "is consistent" with LEP 1987.

74 It must also be borne in mind that the provisions of cl 11(3) applied to development in all zones under LEP 1987. As at October 2012, those provisions had been in place for about 25 years. Over that period of time it may properly be inferred that the subclause had been regularly applied by the Council when assessing applications for development under LEP 1987 (Schroders Australia Property Management Ltd v Shoalhaven City Council at [60]). In this circumstance, the absence of reference to the provisions of cl 11(3) in the documents before the Council does not demonstrate an absence of understanding of its requirements (Hill v Woollahra Municipal Council at [53]; Notaras v Waverley Council [2007] NSWCA 333; 161 LGERA 230 at [131]).

75 I have earlier identified the circumstance that the Council is not required to provide reasons for its decisions. Relevantly, it was not obliged to express an intermediate determination that the development proposed by DA 320/12 is consistent with the Zone 10 objectives. Its obligation is that imposed by s 80(1) of the EPA Act, namely to determine the application by granting consent, conditionally or unconditionally, or refusing consent. There being material available to the Council upon which consistency with the objectives of Zone 10 could be determined, the grant of development consent implies a determination that the precondition imposed by the provisions of cl 11(3) was satisfied.

76 Assessing the question of consistency with zone objectives as a "jurisdicitional fact" and therefore to be determined by the Court in proceedings of the present kind, I would not reach any different conclusion on that matter from that which I impute to the Council. Clearly, by 2012 any question as to the identity of "areas within which urban development may be accommodated" (objective (a)) had been resolved by the making of LEP 2012 by which the zones earlier identified and the land uses appropriate to them had been determined.

77 The proposed provision of services, the availability of community facilities and their adequacy (objective (c)) are addressed in the SEE both by reference to the Council adopted Strategies, earlier described, as well as the specific provision of on-site services and proposed contributions to community facilities. These matters are also taken up in the planning report to the meeting of 7 August. The "assets" to be provided by Mr Perkins are identified as are the contributions to be made for community facilities.

78 I have earlier addressed those materials tendered in evidence and available to the Council that were directed to objective (d). As DA 320/12 contemplates use for an urban purpose, jeopardisation of future use of the Land for urban purposes does not arise. In a sense, "the view" of the Council in this regard was made manifest in the adoption by it of DLEP 2011 identifying the proposed zoning and land uses under that draft instrument, subsequently made as LEP 2012.

79 A matter critical to the consideration of DA 320/12 was to ensure that "sensitive environmental features" of the Land were "identified and permanently conserved" (objective (e)). Both the tree screen towards the frontage of the Land, providing a visual buffer to development on it and the environmentally sensitive southern section of the Land through which the forested watercourse ran were the subject of assessment in the SEE, informing the subdivision design and location of dwellings on the Lots proposed (Exhibit A, pp 168-172; 267-352). The Council's consideration of the SEE and the flora and fauna impact assessment report attached to the SEE clearly identifies the sensitive features of the Land, the means by which the effects of development may be mitigated, as well as areas to be permanently conserved. The planning report to the meeting of 7 August summarised the subdivision proposal so far as it related to the environmentally sensitive southern area of the Land in the following way (Exhibit A, p 467).

"The key environmental component of the proposal involves the retention of the watercourse and its riparian buffer zones as fully structured, near pristine condition, native vegetation. This part of the property is proposed to be managed in perpetuity to ensure it will maintain the significant environmental values associated with this area. This includes value as a water quality buffer for Reedy Creek, the provisions of valuable habitat for flora and fauna including foraging and breeding areas, provision of a key strategic bio corridor link between adjoining habitat areas to the east and west of the site".

The area that is the subject of that summary is identified as an area of approximately 12.3 ha.

80 The essence of this material is that sensitive areas that may be affected by the proposed development have been identified. Those areas are identified as being within the Land. None of the submissions to the Council by way of objection indicate otherwise. The means by which the area so identified could be permanently conserved was also identified. While there was objector debate in the submissions, both written and oral, as to the success of proposed conservation measures, steps required to be taken before and during site works, together with mechanisms for permanent conservation through the preparation and performance of environmental management plans and vegetation management plans (Exhibit A, pp 481-482; 798-799), coupled with restrictions as to user registered on title, all provide a rational demonstration upon which to conclude that the carrying out of the subdivision proposed in DA 320/12 is compatible with objective (e) of Zone 10.

81 For all these reasons, FMB has not made good its challenge, founded upon a failure to comply with the provisions of cl 11(3) of LEP 1987.

Failure to comply with cl 23 of LEP 1987

82 I have recorded the provisions of cl 23 at [16]. FMB submits that the Council failed to address the requirements of both subclause (2) and subclause (3) of that clause. As each are expressed in different terms, it is necessary to address separately the submissions directed to each subclause.

Clause 23(2) of LEP 1987

83 FMB submits that cl 23(2) "sets a precondition to the exercise of power" to grant development consent. So much may be accepted, taking account of the opening words of the subclause "[b]efore determining an application for development on land to which this clause applies: the Council shall consider ... ".

84 However, accepting that a precondition is imposed does not mandate consideration of development consequences generally in isolation from consideration of the development application itself. Indeed, the requirement of the subclause is that the consequences of carrying out "that development on the pattern of land use within the Zone" be considered. This requirement, so it seems to me, has the consequence that it is open to the Council to undertake the contemporaneous consideration of the requirements of the subsection with the determination of the development application. The subsection really identifies an order of reasoning required before determining what the outcome of the development application should be.

85 It is also necessary to notice that the obligation imposed by the subsection is one of consideration of consequences. It does not direct the manner in which the development application should be determined having regard to the consequences that the subclause requires to be considered.

86 Further, the fact that the subclause identifies an order of reasoning or consideration does not impose an obligation upon the Council to record that order of reasoning or consideration. While it might have been desirable for the Council to have done so, the absence of a recorded reason does not give rise to a presumption that the requirements of the subclause were not observed. Any allegation of failure in that regard must be left to inference from the available evidence. Such an inference is not lightly to be drawn (Parramatta City Council v Hale (1982) 47 LGRA 319 at 345.

87 I have placed some emphasis upon the need for "consideration" and the absence of any directed outcome consequent upon that consideration because of the manner in which FMB has articulated its submission. It contends that the Council failed "to actively consider and form a positive opinion regarding the consequences of carrying out the development on the pattern of land use within the zone". So expressed, the submission does not seem to me to articulate correctly the Council's obligation.

88 As is apparent, I accept that consideration was required but the formation of "a positive opinion regarding the consequences" does not accurately reflect the provisions of the subclause. As I stated when addressing the first ground of challenge, the assessment of the evidence on this issue must be directed to the fact of "consideration" of the required topic and not the formation of an opinion.

89 In support of its submission, FMB contends that there is no explicit reference to cl 23(2) in any document recording the assessment of DA 320/12, including the planning report to the meeting of 7 August, the development application assessment sheet nor in the minutes of meetings of the Council's Committees on either 7 August or 9 October. Further, it is also contended that no explicit reference is made in the documents to the consequence of carrying out the development on the pattern of land use within the Zone. Reliance is also placed on the evidence of Mr Simms, to the effect that the matter identified in cl 23(2) was not discussed at the meeting of 9 October.

90 It is certainly the case that there is no document in the evidence tendered revealing, in terms, that the provisions of cl 23(2) were discussed. While I accept that circumstance as relevant to the inference that FMB seeks to have drawn, it does not, of itself, establish that the substance of the provisions was not considered (cf Hill v Woollahra Municipal Council at [53]).

91 The development application assessment sheet does identify the clause. It does so against a side heading which reads "Relevant Provisions". Under the reference to LEP 1987, zoning of the land as being within Zone 10 is identified along with cll 3 and 4 of that LEP and paragraphs 1, 2, 3 and 4 of the Zone 10 development control Table. The only other provision of LEP 1987 specifically identified is cl 23 in the following manner: "Clause 23; 1, 2, 3." (Exhibit A, p 736).

92 The development application assessment sheet is referred to in the planning report to the meeting of 7 August as a document that will be available at that meeting (Exhibit A, p 459). There is no evidence to suggest that it was not then made available to Councillors. The evidence of Mr Simms extends only to his observations at the meeting of 9 October.

93 Also in the development application assessment sheet is a printed subheading which reads "is the proposal's impact considered satisfactory as regards ...". A number of specific questions follow this subheading for which provision is made for a response to each of them. Relevantly, one such question is framed "compatible to land uses and activities on adjoining land or other land in the locality?" The response box had been completed to this question with the word "Yes" (Exhibit A, p 739).

94 It seems to me that the consideration of "impact" from development is tantamount to a consideration of the "consequences of carrying out" that development. Further, a consideration of compatibility of land uses on adjoining land or other land in the locality necessarily involved a consideration of the pattern of land use within the area. I take the reference to the "pattern of land use" to be a reference to the type and distribution of land uses within that area.

95 While a reference to "area" is not, in terms, a reference to "land use within the zone", the context in which "area" was being considered in the documents before the Council must be recognised. The SEE, the planning report to the meeting of 7 August and the objections addressed to the Council had all been directed to DA 320/12 in the context of its zoning as Zone 10 within the Malua Bay area. The area so zoned was delineated in a plan contained in the SEE (Exhibit A, p 129).

96 There are two further reasons why it is likely that Councillors addressing the development application understood the area being considered as the Zone 10 area of Malua Bay. First, it is the area of the Urban Expansion Zone at Malua Bay that by October 2012 was differently zoned under LEP 2012. The latter LEP had only commenced on 20 July 2012. The proposal to change the zoning of land within the Zone 10 area was apparently controversial, as a consequence of which the area had been visited by Councillors for the purpose of considering those who had made submissions to the Council, contending for a different zone or zonings from that which the Council considered appropriate (Exhibit A, p 457).

97 Secondly, the thrust of several objections to the Council in respect of DA 320/12 was that the proposed rezoning be reconsidered and a different zone be imposed. While those objections were focused upon the Land, they inevitably drew attention to the manner in which the Council had addressed the change from the Urban Expansion Zone to those zones imposed under LEP 2012. In light of the controversy that had attended the change in zoning, particularly a change that had so recently been formalised by the making of LEP 2012, an inference can properly be drawn that in both August and October 2012 Councillors were well familiar with the Land, its location within the former Urban Expansion Zone, the extent of that zone at Malua Bay and the pattern of land use both present and intended under the recently made 2012 statutory instrument.

98 The pattern of land use and the manner in which DA 320/12 related to that pattern was addressed both directly and by necessary inference in a number of documents available to Councillors at the time at which the development application was determined. The SEE contained several maps identifying that pattern, of which the Malua Bay Urban Structure map is an appropriate example (Exhibit A, p 127). That map shows the land subdivision pattern and generic land use both within the urban expansion zone and on land adjoining that zone. Further, the SEE quotes extensively from the Eurobodalla Settlement Strategy, identifying the hierarchy of towns and land use within the urban settlement boundaries of those towns or coastal villages, Malua Bay falling into the latter category (Exhibit A, pp 115-116).

99 Apart from the strategy documents to which reference was made, one of the bases upon which DA 320/12 is sought to be justified in the SEE is that the subdivision pattern proposed is said to be "a sympathetic response" to integration "with the existing urban development to the north, east and south" (Exhibit A, p 78).

100 The character of existing development in Malua Bay and in the vicinity of the land, being land within Zone 10, is described and illustrated in the SEE with the assertion made that the subdivision proposed in DA 320/12 continues the existing "character". Why this is said to be so is explained (Exhibit A, p 135). A purpose of the Council's DCP 182, specifically directed to development in the Urban Expansion Zone, is identified in the SEE as being to "integrate with adjoining land use patterns" (Exhibit A, p 147), it being contended by inference that the subdivision application met that objective. In the context of the various plans and maps extracted in the SEE, its author states that the subdivision proposed "is an extension of the existing urban area of Malua Bay". This reflects a consequence of carrying out the proposed development on the "pattern of land use" within the area which clearly includes the Zone 10 land.

101 As I have earlier stated, what is mandated by cl 23(2) is that the Council consider the topic addressed in that subclause. I have referred to the various documents available to the Council as well as the circumstances in which DA 320/12 was considered, particularly the changed zoning so recently effected, to indicate that there was material before the Council enabling it to consider the consequences of carrying out the proposed subdivision on the pattern of land use within Zone 10. Having identified the available material and the circumstances of consideration, I am not persuaded to infer that the Council did not consider the substance of the requirement imposed by cl 23(2). The absence of explicit reference to the subclause, when weighed with the existence of that material and the circumstance in which the Council considered the development application, does not persuade me that I should draw such an inference.

Clause 23(3) of LEP 1987

102 FMB contends that the provisions of cl 23(3) generally, but particularly cl 23(3)(a), have not been met. The absence of any reference to cl 23 in the development application or accompanying documents as well as the absence from those documents of any statement "setting out the likely impact of the development on the environment with particular reference to the relationship of the development on the pattern of land use of the surrounding land" is said to support the submission. Further, it is submitted that the Council did not identify the absence of a statement "required by clause 23(3)" nor, according to the evidence, did it request such a statement (written submissions at [29]).

103 Clause 23 applies only to land within Zone 10 under LEP 1987: cl 23(1). Subclause (3) is further confined in that its provisions are directed to a development application for consent to subdivision. The subclause has two elements as it relates to such a development application. First is a requirement that the application be accompanied by a statement "relating to" the likely impact of that development on the environment together with such steps as are proposed by the applicant to mitigate any likely adverse environmental impact.

104 The second element of cl 23(3) is subsidiary to the first element. It identifies in paragraphs (a) to (f) those specific topics that should be addressed in the statement required by the first element.

105 The requirement of the subclause for the development application to be accompanied by a "statement relating to the likely impact of that development on the environment" clearly requires the provision of a document. Beyond that, no particular form of statement for the purpose of the subclause is identified. Provided the "statement" relates to the likely impact of the subdivision on the environment, identifies any steps proposed by the developer to be taken in mitigation of any adverse impacts and, in so doing, addresses the six topics identified in the subclause, there is no reason why that "statement" must be discrete from any other document that satisfies the two elements of the subclause.

106 The combined effect of cl 50 of the Environmental Planning and Assessment Regulation 2000 (NSW) (the Regulation) and cl 2 of Pt 1 to Sch 1 of that Regulation is that a development application must be accompanied by, among other documents, a statement of environmental effects. Clause 2(4) of Pt 1 of Sch 1 describes a statement of environmental effects in terms that in substance require the document to reflect an assessment of environmental impacts and measures proposed to mitigate any harm. I see no reason why a document prepared to satisfy that requirement of the Regulation cannot also satisfy the requirement of cl 23(3) of the LEP 1987. Whether a statement of environmental effects does satisfy the requirement of the latter subclause will depend upon its content. For reasons earlier stated, the absence of specific reference to cl 23(3) in a statement of environmental effects will not, of itself, determine that the document does not fulfil the requirements of the subclause.

107 The SEE that accompanied DA 320/12 not only described the subdivision for which development consent was sought but also identified its impacts. In so doing, the SEE was a statement "relating to the likely impact" of the subdivision upon the environment. The SEE also sought to identify how steps to mitigate adverse impacts were proposed. The clear purpose of the SEE, consistent with the apparent purpose of cl 23(3), was to provide the Council with information, better enabling it to determine the development application. Neither the SEE nor any other statement prepared to comply with cl 23(3) would provide a decision-making end in itself. They are documents that could only operate as "tools" intended to assist the Council in its decision making process (Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; 150 LGERA 81 at [83]).

108 Having determined that the SEE is capable of satisfying the requirements of cl 23(3) as a "statement", it is necessary to consider whether its content addresses the likely environmental impact with emphasis upon the matters identified in paragraphs (a) to (f) of the subclause. Paragraph (a) is directed to the relationship of the subdivision to the pattern of land use of surrounding land. I have already identified that topic as it is addressed in the SEE. I will not repeat the references that I have earlier made. In short, it is apparent from those references already given that the pattern of land use on surrounding land informed the subdivision design proposed in DA 320/12 (see particularly Exhibit A, pp 83 and 151).

109 Proposed arrangements for the provision of sewerage and water supply to the Land (cl 23(3)(b)) are the subject of consideration in the SEE. The development application proposes connection to the Council's existing sewerage and water supply systems. The availability of each is identified at Exhibit A, p 90 and the internal site arrangements for connection of each service to the mains is identified at Exhibit A, pp 153-156. The fact that the developer will bear the cost of installing all reticulated services within the Land itself is stated at Exhibit A, p 173.

110 The topography of the Land and its "nature" are addressed at some length in the SEE (cl 23(3)(c)). The fact that the Land has a significant number of trees; that it is steep in part and that there is a watercourse running through the southern section of that Land are factors identified in the SEE as bearing upon the design of the subdivision (Exhibit A, p 76). The topography of the Land is described and mapped (Exhibit A, p 102), slopes are analysed, soils and geology assessed (Exhibit A, p 105) and a geotechnical assessment is discussed, with the expert assessment report attached to the SEE (Exhibit A, p 165; pp 353-370). The latter assessment led to the proposal for limitation of clearing and earthworks, the manner in which site drainage should be designed to mitigate impacts as well the identification of areas that were not suitable for the erection of future dwellings, identified as such as part of the development application (Exhibit A, pp 356-359).

111 In the context of the "nature" of the Land, the SEE includes discussion of the impact on flora and fauna, informed by an attached specialist report (Exhibit A, pp 267-352). It is a consequence of that report that a riparian zone, including intact woodland, is proposed to be excluded from development associated with the subdivision.

112 I have earlier referred to the consideration given to the social and economic impacts of the development. At Section 10 of the SEE, under the heading "Social Impact" (Exhibit A, p 173), the topic of infrastructure is addressed with identification of those infrastructure items to be provided by the developer and those for which a contribution is to be made to the Council. Also discussed in this section of the SEE is public transport, with the statement being made that the viability of transport services may be increased with the additional population "created" as a consequence of the subdivision being approved and, presumably, with housing being accommodated on the Land.

113 Community services are also discussed under the heading of social impact. That discussion is directed to the capacity of schools to cater for the additional demand for places as well as the availability and capacity of local health services, both public and private, to cater for the additional population.

114 The discussion in this section of the SEE is to be understood in the context of earlier discussion in the document in which the existing services and facilities are discussed (Exhibit A, pp 90-101). So understood, it seems to me that the material identified constitutes a "statement" addressing impact upon the environment with specific reference ("emphasis") to the topic identified in cl 23(3)(d).

115 Ridge Road, being the public road to which all lots proposed by DA 320/12 would have access, was identified in the Malua Bay Urban Structure Plan as a "settlement entry road" (Exhibit A, p 27). The Malua Bay Urban Structure Plan is identified as a component of the Greater Batemans Bay Structure Plan. At the time of lodging DA 320/12, Ridge Road had been constructed and was the road to which new residential development on its northern side, opposite to the Land, had frontage and access. The proposed configuration of Ridge Road in affording access to lots in the proposed subdivision is referred to at Exhibit A, pp 91 and 138. Further, as acknowledged in the planning report to the meeting of 7 August 2012, the application proposed the construction by the developer of a footpath within the road reserve and the extension of Ridge Road for the full frontage of the Land (Exhibit A, p 465). The monetary contribution to be paid by the developer for arterial roads is also identified at Exhibit A, p 173. All of this material is directed to meeting the requirement for a statement directed to the topic identified in paragraph (e) of cl 23(3).

116 Likely risks to be encountered on the Land, particularly bushfire and flooding risks, were discussed in the SEE (cl 23(3)(f)). I have earlier identified the risks associated with development on steep sections of the Land, as they were identified in the SEE, and the geotechnical report attached to that document which both identifies the risk and the measures necessary to be taken in order to address it.

117 Risks associated with bushfire are the subject of a number of references in the SEE. Those references are founded upon an expert report entitled "Bushfire Planning and Design Certification: Bushfire Assessment and Recommendations" that is attached to the SEE. The content of the report identified the need for asset protection zones around proposed dwelling sites and other impacts of the proposed development requiring particular measures to be observed by reason of bushfire risk (Exhibit A, pp 161-165).

118 The extent of flood affectation is identified from maps reproduced in the SEE (Exhibit A, pp 125-126). These maps indicate the extent of affectation by critical flood events to be confined within what is described as the riparian zone along and adjacent to the creek and watercourse running through the southern section of the Land. Both because of that risk and the need to preserve intact bushland, all disturbance to the site and location of any structures is shown to be outside the area identified as flood affected. Further, measures to address stormwater from the development of the site, including the impact of that stormwater upon the watercourse and in the flood affected zone, are identified in an addendum to the SEE and an attached expert report (Exhibit A, pp 175-180; 371-404).

119 Identification of this material in the SEE satisfies me that there was a "statement" relating to the likely environmental impact of the proposed subdivision of the Land and steps to be taken to mitigate that likely impact. Further, the material specifically identifies, in substance, those impacts by reference to paragraphs (a) to (f) of cl 23(3). As a consequence, FMB's challenge directed to breach of cl 23(3) has not been established.

Conclusion

120 The challenge made in these proceedings to the consent granted by the Council on 9 October 2012 is founded upon breach of cll 11 and 23 of LEP 1987. For reasons that I have given, I am not persuaded that the breaches alleged have been established. In so deciding, it is not part of my function in these proceedings to express any view as to the merits of the decision made by the Council to grant development consent.

Costs

121 The Council and Mr Perkins, having successfully defended the claims made, would ordinarily be entitled to an order for costs against FMB (s 98 Civil Procedure Act 2005 (NSW) and r 42.1 Uniform Civil Procedure Rules 2005 (NSW)). However, as costs have not been argued, I propose to reserve the question. Whether there should be an order in favour of both respondents or whether any order should be made at all, having regard to the provisions of r 4.2 of the Land and Environment Court Rules 2007, are matters that may need to be agitated if there is a dispute as to the payment of costs.

Orders

122 For the reasons given I make the following orders:

(1) Summons dismissed.

(2) Costs reserved

(3) The application by any party for costs should be notified to the other parties and to my Associate within 14 days from the date of this order and should be accompanied by a short written outline of argument (not exceeding 3 pages) in support of the application.

(4) Any party against whom an order for costs is sought and who opposes that application should serve upon the other parties and provide to my Associate a short written outline of argument in response (not exceeding 3 pages) within 14 days of receipt of the application identified in Order 3.

(5) If, following compliance with Orders 3 and 4, as the case may be, any party seeks to be heard on costs, that party should notify the other parties and my Associate of that fact within 7 days after the outline of argument referred to in Order 4 has been served.

(6) Exhibits may be returned.

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Decision last updated: 15 July 2014