Land and Environment Court New South Wales

• Medium Neutral Citation: DeAngelis v Pepping [2014] NSWLEC 108
• Hearing dates: 14 to 15 July 2014
• Decision date: 25 July 2014
• Jurisdiction: Class 4
• Before: Adamson AJ

Decision

1. Amended Summons dismissed.

2. Subject to an application for a different order being made to my Associate within seven days, order the applicant to pay the second respondent's costs of the proceedings.

• Catchwords: ADMINISTRATIVE LAW - validity of Local Environmental Plan (LEP) - whether statutory community consultation requirements had been complied with - certain sections of the Council guidelines, which were referred to by the gateway determination, could not be treated as mandatory notice requirements due to the absence of the language of compulsion - Planning Proposal materials not misleading - unnecessary for Planning Proposal to address consequential changes to be made to Development Control Plan (DCP)- Environmental Planning and Assessment Act 1979 (NSW) provides for community consultation and implicitly excludes the common law rules of procedural fairness in terms of the right to be notified and heard - there was valid authority to make amendments to the Local Environmental Plan 2010 - first respondent was agent rather than delegate authorised by the council to sign instruments - breach of requirement for public exhibition of DCP under the Environmental Planning and Assessment Regulations 2000 (NSW) did not lead to invalidity of DCP as amendment of DCP amounted to no more than a regularisation of a change effected by an LEP - in any event discretion to award relief would have been declined given the status of DCPs relative to LEPs; EVIDENCE - Jones v Dunkel inference available that the applicant's evidence would not have assisted given the absence of evidence to explain absence from the jurisdiction -
• Legislation Cited: Criminal Procedure Act 1986 (NSW), s 126; Environmental Planning and Assessment Act 1979 (NSW), ss 5, 23, 24, 34, 35, 53, 54, 55, 56, 57, 58, 59, 74B, 74C, 79B, 79C, 122, 123, 124; Environmental Planning and Assessment Regulation 2000 (NSW), cl 16, 18, 20, 21, 22, 88; Local Government Act 1993 (NSW), ss 355, 377, 378
• Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33; 182 LGERA 370; Australians for Sustainable Development Inc v Minister for Planning (No. 2) [2011] NSWLEC 70; Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139; 130 LGERA 52; Carltona Limited v Commissioner of Works [1943] 2 All ER 560; Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; 135 LGERA 257; Columbia Holdings Pty Ltd v City of Armadale [2012] WASC 422; 193 LGERA 77; Curac v Shoalhaven City Council (1993) 81 LGERA 124; Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7; Homeworld Ballina v Ballina Shire Council [2010] NSWCA 65; 172 LGERA 211; Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638; O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47; 153 CLR 1; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; R v Halmi [2005] NSWCCA 2; 62 NSWLR 263; R v Janceski [2005] NSWCCA 281; 64 NSWLR 10 in; Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Lam [2003] HCA 6; 214 CLR 1; Re Reference Section 11 Ombudsman Act for an Advisory Opinion (1979) 2 ALD 86; Saeed v The Minister [2010] HCA 23; 241 CLR 252; Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; 129 LGERA 195; Vanmeld Pty Limited v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78
• Texts Cited: JD Heydon, Cross on Evidence (9th Edition, 2012, LexisNexis online version)
• Category: Principal judgment
• Parties: Alcide DeAngelis (Applicant); Mark Pepping (First Respondent); Wingecarribee Shire Council (Second Respondent); Minister administering the Environmental Planning and Assessment Act 1979 (Third Respondent)
• Representation: Counsel: Solicitors:
• File Number(s): 2014/40245
• Publication restriction: Nil

Judgment

Introduction

1 Alcide DeAngelis (the applicant) challenges a Local Environmental Plan (LEP) made on 28 March 2014 which was signed by Mark Pepping (the first respondent), who is the Group Manager Strategic & Assets at the Wingecarribee Shire Council (the Council), the second respondent. Mr Pepping purported to sign the LEP as delegate either for the Council or for the Minister for Planning and Infrastructure (the Minister), the third respondent. Mr Pepping and the Minister have filed submitting appearances. The Council is the only active respondent to these proceedings.

2 The applicant also challenges a Development Control Plan (DCP) which was made on 28 March 2014. The DCP incorporated the charges that had been made in the LEP.

3 The applicant owns all the land that is the subject of the LEP (the Site). He wishes to develop the Site for a partly commercial use. The Site is located at the south-eastern corner of the intersection of Bowral Street and Moss Vale Road, although there is a park, Maynard Park, on the actual corner, which does not form part of the Site. The area of the Site is 7,816.8m² and is generally rectangular, apart from the park on the corner. The effect of the LEP, if valid, is to change the permitted uses and zoning of the site from mixed uses to residential use.

Statutory framework

4 This Court has jurisdiction to hear proceedings in respect of breaches (which include failures to comply) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPAA) (s 122). Any person has standing to bring such proceedings (s 123). The Court is to make any order that it thinks fit to remedy or restrain a breach (s 124). This jurisdiction involves the exercise of discretion.

5 The objects of the EPAA include to provide increased opportunity for public involvement and participation in environmental planning and assessment (s 5(c)).

6 The relevant legislative provisions of the EPAA, the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) and the Local Government Act 1993 (NSW) (the LGA) are summarised below.

Making of LEPs: the current provisions

7 An environmental planning instrument, relevantly a local environmental plan (LEP), is to be made in accordance with Part 3 of the EPAA by the Minister or delegate (s 24). Section 53 provides for the making of a LEP by the Minister. Section 54 relevantly provides that the relevant planning authority is to be the council for the local government area for which the proposed LEP is to apply.

8 Before an environmental planning instrument is made, the relevant planning authority is required to prepare a planning proposal which sets out the effect of the proposed instrument and the justification for its making (s 55(1)). Section 55(2) provides that if maps are to be adopted by the proposed instrument, a version of the maps is to be included which contains sufficient detail to indicate "the substantive effect of the proposed instrument".

9 Once the planning proposal is prepared, the council forwards it to the Minister who then makes a "gateway determination" whether the matter should proceed and the community consultation required before consideration is given to the making of the proposed instrument (s 56). Section 56(8) provides:

A failure to comply with a requirement of a determination under this section in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. However, if community consultation is required under section 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered under that section.

10 Before consideration is given to the making of a LEP, the council must consult the community in accordance with the community consultation requirements for the proposed instrument (s 57(1)). The planning proposal is to be made publicly available (s 57(2)). The council may vary its proposals at any time (s 58(1)).

11 When the council has considered submissions made as a result of community consultation it forwards its final proposal to the Department which, through the Director-General, makes arrangements for the LEP to be drafted (s 59(1)). The Director-General is to consult the relevant planning authority (the RPA), in this case the Council, on the terms of such draft instrument (s 59(1)). The Minister (or delegate) then either makes, in amended form or otherwise, or choses not to make, the LEP. A LEP is then published on the NSW legislation website. It commences from the date of publication, or a later date specified in the instrument (s 34(5)).

12 Any proceedings to challenge a LEP must be brought within three months of the publication of the instrument on the NSW legislation website (s 35). These proceedings were brought within time. There is no right to a review of the merits of a LEP. The only challenge that can be made to a LEP is on the basis of this Court's jurisdiction under s 123 and 124 of the EPAA. This is to be contrasted with Development Approvals, in respect of which there is a right to review on the merits by a Commissioner of this Court.

Making of LEPs: the previous legislative provisions

13 In 2008 the EPAA was amended to make provision for gateway determinations as referred to above. It gave the Minister the responsibility for determining community consultation requirements and required the public exhibition of the planning proposal, including its justification, rather than the draft instrument, the LEP, itself. The Second Reading Speech of the 2008 Bill contained the following explanation of the relevant changes:

To simplify the system, one level of plans, regional environmental plans, will be deleted. However, the big reforms in relation to plan making are those applying to the local environmental plans. The key change is the introduction of the new Gateway process. As the name suggests, the Gateway will ensure there is sufficient justification early in the process to proceed with the planning proposal. This stops wasting time with planning proposals that are not credible. If it is agreed in principle, the planning proposal then can proceed to a full assessment. The Gateway determination settles what assessment is required to develop the details of the plan, including infrastructure needs, what community or agency consultation is required, and whether a public hearing is required. These provisions provide for flexibility and a strong emphasis on effective community consultation.

In response to community submissions on the Exposure Bill, the consultation provisions have been amended to clarify that a local environmental plan cannot be made unless the applicable community consultation requirements have been complied with and submissions have been considered. Consultation will be tailored to the specific proposal, meaning that proposals with potentially significant environmental policy or neighbourhood implications will have more extensive consultation requirements than a simpler, smaller-scale proposal. Under the current system there is a one-size-fits-all approach, irrespective of the significance of the proposal.

14 The Explanatory Note to the 2008 Bill in the Overview of the Bill said:

The environmental planning reforms in Schedule 1 to the Bill seek to simplify and provide flexibility to the plan-making process, while retaining community and related consultation procedures. In particular, the reforms:

(a) make provision for a gateway determination. . .

(b) require explanations and justifications for planning proposals for gateway determination and consultation purposes, rather than technical legally drafted documents. . .

DCPs: their making, status and effect

15 Division 6 of Part 3 of the EPAA provides for DCPs. A DCP is not an environmental planning instrument (see definition in s 4 of the EPAA). The relevant planning authority for present purposes is the Council (s 74B), which may prepare a DCP if it considers it necessary or desirable to do so (s 74C). At any given time there is only one DCP in force (s 74C(2)). Any amendment to an existing DCP results in a new DCP (s 74C(4); EPA Regulation, cl 22 (1)). The public is to be notified of a draft DCP and it must be publicly exhibited for at least 28 days (EPA Regulation, cl 18). Any person may make submissions about the draft DCP during the submission period (EPA Regulation, cl 20).

16 A provision of a DCP has no effect to the extent to which it is the same or inconsistent with a LEP (s 74C(5)). It must take the form of a written statement and must describe the land to which it applies, as well as identifying any LEP that applies to the land (EPA Regulation, cl 16). After considering submissions, the council may approve the plan and must give notice of its decision (EPA Regulation, cl 21(1), (2)). The DCP comes into effect on the date that public notice of its approval is given in a local newspaper or a later date specified in the notice (EPA Regulation, cl 21(4)).

17 Section 74F of the EPAA provides that a Minister may direct councils with respect to DCPs. If a council fails to comply with such a direction the Minister may make, amend or revoke the DCP as if the Minister were the council. In such cases, the Minister is not subject to the Regulations.

Provisions concerning delegation of powers

18 Section 23 of the EPAA empowers the Minister to delegate any function to a council or an officer or an employee of a council (s 23(1)(d) and (e)). A council may delegate to the general manager or any other person or body (not including another employee of the council) any of its functions subject to specified exceptions (s 377(1) of the LGA), which include any function that is expressly required to be exercised by resolution of the council (s 377(1)(u)).

19 Section 378 of the LGA provides that the general manager of a council may delegate any functions other than the power of delegation and may sub-delegate a function delegated by the council. This power extends to a function sub-delegated to the general manager by the council under s 377(2).

20 Section 355 of the LGA provides that a function of a council may be exercised by the council by means of the councillors or employees (s 355(a)) or by a delegate of the council (s 355(e)).

21 Section 381 of the LGA provides that a person must not under any other Act delegate a function to the general manager except with the approval of the council or to the employee of a council except with the approval of the council and the general manager.

Other provisions of relevance

22 Section 79A of the EPAA provides that notice of a development application for consent to carry out advertised development is to be carried out in accordance with the EPAA, the Regulations, the relevant instrument and any relevant DCP. Clause 88 of the EPA Regulations require written notice to be given to such persons as appear to the consent authority to own or occupy the land adjoining to the land to which the application relates.

23 These notice requirements are to be contrasted with the community consultation requirements for a planning proposal (as a prelude to a LEP) which are determined by the Minister in the gateway determination (and who may dispense with any community consultation at all), or by the Council if the Minister's determination allows latitude for that to be done.

24 Section 79B of the EPAA makes provision for consultation and concurrence. S 79B(1) provides:

(1) General

If, by an environmental planning instrument, the consent authority, before determining the development application, is required to consult with or to obtain the concurrence of a person, the consent authority must, in accordance with the environmental planning instrument and the regulations, consult with or obtain the concurrence of the person, unless the consent authority determines to refuse to grant development consent.

25 Section 79C (which is contained in Division 2 of Part 4) provides that a consent authority is to take into account such of certain listed matters as are relevant to the development the subject of the application. The list in s 79C(1) includes:

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Director-General has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, . . .

26 The EPA Regulations (cl 88) require written notice of development applications to be given to persons who own or occupy the land adjoining the land to which the application relates.

Relevant facts

27 In November 2007, a draft comprehensive LEP was exhibited for the Wingecarribee area which included the Site. The draft LEP as originally exhibited proposed that the Site be rezoned R3 (Medium Density Residential). The applicant objected and made submissions against the proposal. In 2010, a LEP was finally made that included the Site: Wingecarribee Local Environmental Plan 2010 (the 2010 LEP). The Site was zoned B4 (Mixed Use).

28 Clause 1.8A of the 2010 LEP provided:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

29 Since the 2010 LEP came into force, there have been eleven planning proposals which had the effect of amending the LEP. None of these amendments included a savings provision.

30 On 8 March 2012, the applicant lodged a Land Use Application (LUA 12/0193) for retail and residential development over the Site which was zoned B4 (Mixed Use). The LUA included a proposal that there be a K-mart (or equivalent) store on the Site. There was considerable community opposition to the applicant's LUA, of which the Council was made aware by numerous submissions.

31 On 14 December 2012, after the Council was deemed to have refused his LUA, the applicant commenced Class 1 proceedings in this Court, appealing against the refusal (the First Class 1 Proceedings). After the deemed refusal, the Council received an assessment of the LUA which recommended its refusal, which Council considered at its meeting on 27 February 2013. However by that time, the applicant had already commenced the First Class 1 Proceedings.

32 By resolution made on 12 June 2013, the Council resolved to submit a planning proposal for the site to the Minister. The effect of the planning proposal, if ultimately brought into effect by a LEP, was to change the use of the site from B4 Mixed Use (which included residential and commercial) to R3 Medium Density Residential, which is a wholly residential zoning. This change would have the effect of stymieing the applicant's plans to develop the site as he envisaged. The report to Council for its meeting of 12 June 2013 recorded that no community consultation had occurred but that it would occur if a gateway determination was made. The report also concluded:

The review of the three zoning options concludes that rezoning the subject land to R3 Medium Density Residential is the preferred option because the land is surrounded by R3 Medium Density Residential zoned land and future residential development offers more opportunity for a compatible outcome compared with a large commercial based development such as that currently proposed for the site.

33 The Planning Proposal set out the proposed community consultation in the following terms:

Part 5 - COMMUNITY CONSULTATION

It is proposed that a community consultation period of 28 days will occur. It is intended to:

1. advertise the Planning Proposal in the Southern Highland News.

2. Provide details on Council's website, at the customer service centre and at Bowral library.

3. notify the same property owners who were contacted during the exhibition of LUA12/193

34 The planning proposal which was the subject of the Council's resolution of 12 June 2013 was tendered in the First Class 1 Proceedings.

35 On 24 June 2013, the Council lodged its planning proposal with the Department. The Department responded, by letter dated 16 July 2013, and recommended that the Council resubmit its proposal once the First Class 1 Proceedings had been determined.

36 On 14 August 2013, Commissioner Brown refused LUA 12/0193. On 28 August 2013, the Council submitted a revised planning proposal to the Department. The section concerning community consultation, Part 5, was in identical terms to the version forwarded to the Department in June 2013.

37 On 25 September 2013, the Minister issued a gateway determination (the Gateway Determination). The covering letter of the same date from the Acting Director-General to the General Manager of the Council recorded:

The Minister delegated his plan making powers to councils in October 2012. It is noted that Council has requested to be issued with delegation for this planning proposal. I have considered the nature of Council's planning proposal and have decided to issue an authorisation for Council to exercise delegation to make this plan.

38 In the Gateway Determination, the Minister, by a delegate, determined that an amendment to the 2010 LEP to rezone the site from B4 Mixed Use to R3 Medium Density Residential should proceed; it applied a minimum lot size of 700 sqm and removed floor space ratio and maximum building height controls for the subject land, subject to conditions that included the following:

1. Prior to undertaking public exhibition, Council is to update the planning proposal to include existing and proposed land zoning, lot size and other applicable maps, which are at an appropriate scale and clearly identify the subject lands.

2. Community consultation is required under sections 56(2)(c) and 57 of the Environmental Planning and Assessment Act 1979 ("EP&A Act") as follows:

(a) the planning proposal is classified as low impact as described in A Guide to Preparing LEPs (Department of Planning & Infrastructure 2013) and must be made publicly available for a minimum of 14 days; and

(b) the relevant planning authority must comply with the notice requirements for public exhibition of planning proposals and the specifications for material that must be made publicly available along with planning proposals as identified in section 5.5.2 of A Guide to Preparing LEPs (Department of Planning & Infrastructure 2013).

...

5 The timeframe for completing the LEP is to be 9 months from the week following the date of the Gateway determination.

39 On 25 September 2013, the Acting Deputy Director-General also gave the Council written authorisation to exercise the delegation dated 14 October 2012 with respect to the planning proposal to rezone the site. The authorisation concluded:

In exercising the Minister's function under section 59, the Council must comply with the Department's "A guide to preparing local environmental plans" and "A guide to preparing planning proposals".

40 Section 5.5.2 of "A guide to preparing local environment plans" (the Guide) relevantly reads:

5.5.2 Community consultation

The gateway determination will specify the community consultation that must be undertaken on the planning proposal. The consultation will be tailored to specific proposals.

. . .

Public exhibition of the planning proposal is generally undertaken in the following manner:

notification in a newspaper that circulates in the area affected by the planning proposal

notification on the website of the RPA [relevant planning authority]

Notification in writing to affected and adjoining landowners, unless the planning authority is of the opinion that the number of landowners makes it impractical to notify them.

The RPA can undertake additional consultation if this is deemed appropriate or necessary. This may include, but is not limited to, broad consultation by letter, open days or public forum.

The written notice must:

give a brief description of the objectives or intended outcomes of the planning proposal

indicate the land affected by the planning proposal

state where and when the planning proposal can be inspected

give the name and address of the RPA for the receipt of submissions

indicate the last date for submissions

confirm whether the Minister has chosen to delegate the making of the LEP to the RPA

During the exhibition period, the following material must be made available for inspection:

the planning proposal, in the form approved for community consultation by the Gateway determination

the Gateway determination

any information or technical information relied upon by the planning proposal.

The community consultation is complete only when the RPA has considered any submissions made concerning the proposed LEP . . .

41 At some time prior to 4 October 2013, the applicant's solicitor, Mr Sonter, learned, through accessing the tracking facility on the Department's website, that the Gateway Determination had been made on 25 September 2013. It is common ground that Mr Sonter is a specialist in litigation in this Court as well as in the processes of assisting his clients to obtain approvals under the EPAA.

42 The Council decided that the period of public exhibition for its planning proposal (the Planning Proposal) would be from Wednesday 9 October to Wednesday 23 October 2013. It caused a notice to be published in the Southern Highland News in two editions: 9 October 2013 and 16 October 2013. The applicant did not take issue with the form of the notice but contended that, because the first advertisement was published on the first day of the public exhibition, this did not conform to the requirement of public exhibition for 14 days.

43 There is no complaint about the documents that were publicly exhibited. There was no reference in such documents to a savings and transitional provision.

44 On 8 October 2013, the Council updated its website to record against the lots that comprised the Site that they would become "Subject to Planning Proposal" from 9 October 2013. It also published the Planning Proposal on its website and provided hyperlinks to the relevant documents including the Gateway Determination and the Planning Proposal. Mr Pepping's unchallenged evidence was that the exhibited material was made available on the Council's website for the whole of the exhibition period. The applicant did not take any issue with the material exhibited on the website, save for the omission of the draft DCP (which became the March DCP) from the documents exhibited.

45 The Planning Proposal included a series of proposed map amendments which depicted and indicated the following differences for the Site between the current and proposed provisions:

	Current	Proposed
Zoning	B4 zone	R3 zone
Minimum lot size	Nil	700 m2
Floor space ratio	1.1	None proposed
Height of buildings	9m	None proposed

46 The Council also sent pro forma letters to 435 persons who had made submissions to the Council in respect of the applicant's proposed development of the Site as well as to some adjoining property owners. The letters were dated 8 and 14 October 2013 and identified the affected land and the period of public exhibition. The letters sent on 14 October 2013 appear to be duplicates of the earlier letters. The pro forma letter said:

The Proposal and supporting documentation may be viewed at the Customer Service Centre, Wingecarribee Shire Council, Elizabeth Street, Moss Vale or at Bowral Library (during office hours) or via the 'What's on Exhibition' page on Council's website (www.wsc.nsw.gov.au).

47 The evidence reveals that one of the addressees of the letters, John Robson, received letters dated 8 and 14 October 2013.

48 The Council admitted that letters were not sent to the two owners of premises at 441 Moss Vale Road and the owners of 445 and 449 Moss Vale Road Bowral. These properties are located on the other side of Moss Vale Road and diagonally opposite the Site. The names of these owners did not appear on the list of persons to whom the Council sent pro forma letters on 8 and 14 October 2013.

49 The Council file contains a copy of a letter dated 10 October 2013 which was signed by Susan Stannard on behalf of the Council and addressed to the applicant and other members of his family at PO Box 660 Moorebank NSW 2170. The applicant disputes that this letter was either sent or received. I rejected his affidavit and that of Peter DeAngelis as to its non-receipt on the basis that neither was available for cross-examination despite reasonable notice having been given. The applicant adduced evidence which was not challenged in cross-examination from three employees of the applicant's company who have access to the relevant post office box: Christopher Lee, the in-house book keeper; Enna Mazzucco, also a book keeper; and Jenny Boreland, a secretary. Each of these deponents swore to having no recollection of seeing the letter but said that if it had been received it would have been shown to the applicant. The resolution of this factual issue will be addressed later in these reasons. The applicant also disputes that the letter complied with the Guide.

50 On 11 November 2013, the applicant submitted a further LUA for a residential and retail development on the Site. In support of the application he provided a Statement of Environmental Effects dated 5 November 2013 by Dickson Rothschild, town planners (the Dickson SEE). The Dickson SEE identified the 2010 LEP and the Planning Proposal as being instruments that apply to the Site. The Dickson SEE addressed observations and findings made by Commissioner Brown in the determination of the First Class 1 proceedings and outlined the modifications that had been made to the LUA since the Commissioner's decision. For example, there was no longer a proposal that there be a K-mart, or equivalent, store on the Site. The Dickson SEE addressed the proposed amendment to the 2010 LEP in the following terms:

6.4 Proposed LEP Amendment

A draft LEP amendment is currently under consideration by Council to rezone the subject site from its existing zoning of B4-Mixed Use to R3-Residential. The proposed rezoning has been placed on public exhibition and exhibition closed on 23 October. The planning proposal has not been reported to Council after exhibition and it has not been sent to the Department of Planning and Infrastructure with a request for gazettal. In the spirit of the Savings Provisions under WLEP 2010, a plan is not to be considered as commenced until it has been made. This application has been lodged prior to the LEP amendment being made and therefore, the applicant is within their rights to lodge a development application under the existing B4 zoning.

It is noted, the proposed development is consistent with the general patter of zoning in the town centre, with the northern and southern entrances to the town centre being zoned B4, providing a buffer between B2 zoning and R3 zoning. The current zoning arrangement which includes the zoning of the site as B4 echoes the zoning pattern of the northern entrance which includes B4 zoning north of Bundaroo Street and east of Mittagong Road/Bong Bong Street.

The proposed mixed use development is consistent with the existing LEP which has been in place for several years and State strategic studies which identify Bowral as a major regional centre with a commercial focus.

51 The Dickson SEE also addressed the relevant DCP.

52 After the public exhibition period had concluded and the Council had considered the submissions made to it, the Council prepared a report pursuant to s 59 of the EPAA. The report is undated but referred to a Council resolution made on 27 November 2013 and therefore may be taken to have been completed on or after that date. It identified the conditions of the Gateway Determination and documented what had been done to comply with the conditions. The map amendments identified in the Planning Proposal were included. The community consultation was listed and comprised the public exhibition of the Proposal and supporting documentation. The report also stated:

Some 400 letters were sent to nearby property owners and those who made submissions with regard to the previous land use application advising them of the Planning Proposal. A total of 78 submissions were received, all but one (1) supporting the planning proposal.

53 There was no reference in this part of the report to the applicant's having been notified of the proposal. However, under the heading "Community Consultation" in the report, it is recorded:

The owners of the subject site were advised of the Planning Proposal and invited to comment, but no response was received. However, a Land Use Application almost identical to the one previously refused by Council and the Court from the same applicants is currently before Council.

The Planning Proposal complied with the community consultation requirements of the Gateway Determination. No amendments were made to the Planning Proposal in response to the submissions received.

54 The report recorded that the Council, at its meeting on 27 November 2013, resolved to proceed with the making of the amendment to the 2010 LEP by varying the controls over the identified land and rezoning the land from B4 to R3. The meeting papers recorded that the owners of the Site had been notified of the proposal and invited to comment but no response had been received.

55 On 3 December 2013, the Council forwarded to the Department an electronic file of the map sheets that were to be revoked and the map sheets that were to be adopted in the proposed amendment (Amendment 13). It also specified that the instrument was to be signed by Mark Pepping, Group Manager, Strategic & Assets. The NSW Parliamentary Counsel's office then allocated an officer to draft the plan. By email dated 19 December 2013 the Council instructed Parliamentary Counsel as to the order in which the amendments to the 2010 LEP ought be made (Amendment 13 being the present amendment and the most sensitive) and how the maps referable to each amendment would be affected.

56 On 23 January 2014, the applicant commenced Class 1 proceedings in this Court (the Second Class 1 Proceedings) relating to the second LUA which was deemed to have been refused by the Council. In the applicant's Statement of Facts and Contentions filed on 12 February 2014, he referred in the facts to the draft LEP and alleged relevantly:

"[27] The draft LEP was exhibited from 9 to 23 October 2013 . . .

[28] On 27 November 2013, the Council voted unanimously to proceed with the making of the draft LEP.

[29] Council is currently working with NSW Parliamentary Counsel's Office and the Department of Planning & Infrastructure to finalise the LEP amendment prior to publication on the NSW Legislation website."

57 The applicant referred to the draft LEP in the contentions (it being a mandatory relevant consideration under s 79C of the EPAA) and provided the following particulars:

(a) The draft LEP was exhibited from 9 to 23 October 2013 and proposes to rezone the site to R3 Medium Density Development.

(b) The Council has resolved to proceed with making the draft LEP.

(c) Within the R3 zone, shops, cafes and shop top housing are each prohibited forms of development.

(d) The development is fundamentally inconsistent with the objectives of the R3 zone viz . . .

58 Mr Dickson, the author of the Dickson SEE, prepared a report in the Second Class 1 Proceedings which was dated 14 March 2014 and filed on 18 March 2014. He referred, correctly, to the "existing permissibility of the proposed land use" since Amendment 13 to the 2010 LEP had not yet been made. He also recorded, in [196]:

According to Council's website, the LEP is currently under review by the Department of Planning and Infrastructure.

59 The draft instrument was sent by email dated 26 March 2014 from Parliamentary Counsel's Office to the Council. By email dated 27 March 2014, the Council sent to the Department a signed and dated draft instrument. The cover sheet of Amendment 13 relevantly read:

I, the Minister for Planning and Infrastructure, make the following local environmental plan under the Environmental Planning and Assessment Act 1979.

MARK PEPPING GROUP MANAGER STRATEGIC & ASSETS

WINGECARRIBEE SHIRE COUNCIL

Minister for Planning and Infrastructure

[The underlined words were in handwriting]

60 Mr Pepping signed the document and dated it 27 March 2014. The second page of the LEP contained the details of the LEP and the maps affected by Amendment 13 which had been provided by the Council to Parliamentary Counsel's Office. Amendment 13 did not contain a savings and transition provision.

61 By email dated 27 March 2014, the Council emailed the signed and dated document to the Department and asked that it be notified on Friday 28 March 2014. The handwritten parts of the emailed document were then engrossed and Amendment 13 was published on 28 March 2014. The printed version was the same as the version set out above except that the words "As delegate for" appeared before the words "Minister for Planning and Infrastructure".

62 A new DCP was also published on 28 March 2014 which depicted the Site as being included in the red R3 zone which was adjacent to, and not included within, what was known and described as the "Southern Entrance Precinct". It differed from the previous version in that the words in the following passage which are bracketed and underlined were deleted:

To the west the precinct fronts both sides of Station Street, in the centre it fronts both sides of Walker Street as well as the southern side of Bowral Street [and the western side of Moss Vale Road. To the east it fronts the southern side of Bowral Street and the eastern side of Moss Vale Road].

63 The only substantive change was to alter the identification of the Site as being within the Southern Entrance Precinct of the B4 Mixed Use zone (Part B of the DCP) to its being within the Southern Entrance Medium Density Precinct of the R3 Medium Density Residential zone (Part C of the DCP). The DCP controls applicable to each zone differed. The new DCP had not been publicly exhibited before it was made.

64 By letter dated 28 March 2014, the solicitors for the Council (in these and the Second Class 1 Proceedings) wrote to the applicant's solicitors and informed them of the making and publication of Amendment 13 to the 2010 LEP and enclosed a copy of the instrument. The letter concluded:

As you will further note, amendment No. 13 does not contain a savings provision.

On the basis of the new R3 zone, the Respondent says the proposed development is now prohibited and incapable of approval.

We invite you to advise at your earliest opportunity how you wish to proceed with the matter.

65 By letter dated 31 March 2014, the Council wrote to the applicant and the other owners of the Site and informed them of the making of Amendment 13 to the 2010 LEP and the updating of the DCP.

66 Subsequent to the gazettal of Amendment 13, the experts for the parties to the Second Class 1 Proceedings prepared a joint report in which the Council's expert, Deborah Laidlaw, recorded in the report that she was unaware of the basis on which the applicant submitted that the development could still be approved.

Facts relating to delegations

67 On 14 October 2012, the Minister, pursuant to s 23 of the EPAA, delegated all of his functions under s 59 of the EPAA to all councils on the following three conditions:

(a) if the council is the relevant planning authority for a proposed instrument;

(b) if the Director-General of the Department of Planning and Infrastructure gives a written authorisation to exercise the delegation; and

(c) subject to the terms of the authorisation.

68 On 13 November 2012 the Council delegated its functions to its general manager pursuant to s 377 of the LGA.

69 At around this time but prior to 30 November 2012, the Minister wrote to the General Manager of Council about the delegation to Council under s 59 of the EPAA, relevantly in the following terms:

To implement the new policy I have delegated to councils all my functions under section 59 of the Environmental Planning and Assessment Act, 1979 for the making of Local Environmental Plans (LEPs). The delegations will operate in respect of draft LEPs for local matters where council receives an authorisation following the Gateway determination. For the first time councils will be fully empowered to complete the plan making process for these LEPs.

. . .

To be able to exercise these delegations, your council must write to the department advising that they are accepted. Councils are also requested in their response to nominate the officers or employee of council who will be granted the proposed delegation. The name and position of the employee is required.

Council is reminded that the provisions of Section 381 of the Local Government Act, 1993 require that such functions cannot be delegated to:

a) The general manager, except with the approval of the council; or

b) An employee of the council, except with the approval of the council and the general manager.

70 By resolution made on 12 December 2012, the Council purported to accept the Minister's delegations under s 59 of the EPAA, purported to delegate these functions to its general manager and to the Manager Strategic & Assets and resolved that the Department be advised that the officers nominated to perform the delegations were Jason Gordon, the General Manager and Mark Pepping, the Manager, Strategic & Assets. The resolution was relevantly in the following terms:

1. THAT Council accepts the Delegations of the Minister for Planning and Infrastructure under section 59 of the Environmental Planning and Assessment Act, 1979 as outlined in the report.

2. THAT in accordance with Section 381 of the Local Government Act 1993; Council delegate to the General Manager and the Manager Strategic & Assets the functions under section 59 of the EP&A Act.

2. THAT the Department of Planning and Infrastructure be advised in writing that Council accepts the right to exercise the delegations under section 59 of the EP&A Act and that the officers of Council nominated to perform the delegations are:

a. Jason R Gordon, General Manager

b. Mark Pepping, Manager Strategic & Assets

71 In April 2013 Parliamentary Counsel issued an Information Sheet on the Online notification of delegated LEPs which read in part as follows:

Before signing an LEP, the Council's delegate must verify that the LEP and map cover sheet (if any) are the same as those listed in the Opinion for the LEP. The map cover sheet must also refer to all the maps accompanying the LEP.

Once the LEP, and any map cover sheet, has been signed by the Council's delegate, send a request to the Department of Planning and Infrastructure for online notification of the LEP on the NSW legislation website. The LEP that will be notified is the one held by PCO for which the Opinion was given. Delegated LEPs must not be retyped or altered in any way. Altered LEPs cannot be notified on the NSW legislation website. If changes to the LEP are required, contact the PCO. For changes to maps or the map cover sheet, contact the Department.

72 By instrument dated 19 December 2013 the General Manager of the Council purported to delegate certain powers to the Group Manager Strategic & Assets, including the following powers under the EPAA:

DEPARTMENT OF PLANNING CONCURRENCE	To be Council's nominated Planning Officer for the purpose of all delegations from the Department of Planning . . .
LOCAL ENVIRONMENTAL PLANS	To prepare a Draft Local Environmental Plan pursuant to Section 54 of the Environmental Planning and Assessment Act in relation to minor or procedural matters to remove anomalies, provided that any such action is to be reported to Council prior to the preparation of a submission to the Minister for the making of a Local Environmental Plan

73 The Council adduced unchallenged evidence from Ann Prendergast, its Deputy General Manager Corporate & Strategy, who has been acting in the role of General Manager since 8 November 2013. She deposed that if she had been aware of any defect in the sub-delegation to the Group Manager Strategic & Assets, she could and would have either obtained a further delegation to the General Manager from the Council or granted a further sub-delegation to the Group Manager Strategic & Assets pursuant to her powers under s 378(2) of the LGA.

74 Mr Pepping's unchallenged evidence is that if he had been aware of any defect in his sub-delegation, he would have obtained a further sub-delegation from the General Manager under s 378(2) of the LGA.

Reasons

Factual issues: whether the letter dated 10 October 2013 was sent to the applicant, whether it was received and whether the applicant was aware of the Planning Proposal

75 The applicant submitted that I ought infer that the Council complied with what it had proposed for community consultation in the Planning Proposals in June and August 2013 and in fact only published the notice in the newspaper, published the material in the website and sent letters to those who had previously been notified. He argued, accordingly, that I ought infer that the letter had not been sent to the applicant. He contended that I ought infer from the evidence of the applicant's staff that the letter had not been received and that, in light of that evidence, the evidentiary onus shifted to the Council to show that the letter was sent and received.

76 The applicant referred to Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139; 130 LGERA 52 where Mason P said, at [55]:

Where, however, relevant facts are peculiarly in the knowledge of a defendant or where the defendant has the greater means to produce evidence relating to those facts, then provided the plaintiff establishes sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden (Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 391; Apollo Shower Screens Pty Ltd v Building and Industry Long Service Payments Corporation (1985) 1 NSWLR 561).

77 The applicant also submitted that the objective probabilities overwhelmingly favoured the inference that, had he received the letter or otherwise been aware of the Planning Proposal, he would have made submissions within the period of public exhibition. He submitted that he had shown himself to be interested and engaged. His opposition to the proposed rezoning of the Site in 2007 to B4 - Medium Density Residential had been successful in that the Site was zoned Mixed Use in the LEP 2010. Mr Seymour contended that it would be inconceivable that the applicant would fail to take advantage of the opportunity afforded to him to make submissions when he had succeeded in dissuading the Council in the past from rezoning the land as residential. He submitted that I should also infer from the fact that commercial zoning gives a better return on the land that the applicant would not have remained silent.

78 The applicant submitted that the fact that other affected or adjoining owners were not notified showed that the Council simply forgot about the persons who had the greatest interest.

79 Mr Seymour also submitted that I ought not draw a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference against the applicant and Peter DeAngelis because they had sworn affidavits and filed them in the proceedings but were unable to attend court because they were overseas.

80 The presence of the copy of a letter addressed to the applicant and the other owners of the Site which was signed and dated on the Council's file is, in my view, powerful evidence that it was not only prepared but sent. It is also, in my view, significant that it was in a slightly different form to the ones that were sent to others which indicates that the Council appreciated the desirability of informing the applicant by letter addressed to him. I do not consider the circumstance that the Council listed three means of notification in the planning proposals that it submitted to the Minister in June and August 2013 tends to prove that the letter was not sent in circumstances where a signed dated letter addressed to them was on the Council file. Further, the fact of its having been sent was recorded in a report to Council to be considered at its meeting on 27 November 2013, which corroborates the inference that arises from the presence of the signed and dated copy letter on the Council file.

81 Nor do I consider that the inference ought be drawn from the applicant's previous submissions on the draft LEP (which became the 2010 LEP) that he would not have omitted to make a submission had he received the letter or otherwise been aware of the public exhibition. By the time of the public exhibition of the Planning Proposal, the applicant well and truly knew that the Council intended to rezone the Site as residential. Although the Council was obliged to take into account submissions from the public, it is unlikely that anything the applicant could put to the Council had not been put by him to it before. He would, in my view, have appreciated that his best, and indeed only, chance of gaining approval for his new LUA was the review on the merits by the Commissioner in this Court in the Second Class 1 Proceedings. At least by the time of the exhibition period he must have expected that the Council would refuse his new LUA since it was entirely inconsistent with the proposed re-zoning envisaged in the Planning Proposal. He had nothing to gain from making a submission from Council in response to the public exhibition and accordingly no inference can be drawn that he was unaware of it from his not having done so.

82 Further, had he not been aware of the public exhibition prior to the end of the exhibition period, it is likely that, if he had wanted to make submissions, he would have complained at the time to Council about not being informed. There is not a single word of complaint in any document before the commencement of these proceedings. Indeed, Mr Dickson recorded the progress of Amendment 13 in his SEE Report and statement of evidence and it was also referred to in the Statement of Facts and Contentions filed in the Second Class 1 Proceedings without demur.

83 The onus of establishing unavailability lies on the party against whom Jones v Dunkel operates (JD Heydon, Cross on Evidence (9th Edition, 2012, LexisNexis online version) at [1215] and fn 23). Although Mr Seymour submitted that the applicant and Peter DeAngelis were unavailable because they were overseas, he conceded that they were in Australia at the time they were required for cross-examination and that the notice that they would be required had been given within a reasonable time. There was no evidence as to the reason for their absence overseas.

84 A Jones v Dunkel inference is available that neither the applicant's evidence, nor that of Peter DeAngelis, could have assisted the applicant's case and no evidence was adduced that might explain the reason for their absence from the jurisdiction and resultant non-attendance. The inference is also available with respect to Mr Dickson, the town planner retained by the applicant in the Class 1 Proceedings, who is in the applicant's camp. I do not draw the inference in respect of Mr Sonter since communications between him and the applicant are subject to legal professional privilege.

85 I consider that in these circumstances, I can more comfortably draw the inference that the applicant and Peter DeAngelis were aware of the public exhibition and the documents exhibited, because they received the letter. I am satisfied on the balance of probabilities that the Council sent a letter to the owners of the Site, including the applicant, dated 10 October 2013. I am also satisfied that the letter was received because I do not regard there to be any satisfactory evidence that it was not and an inference that it was received arises from a letter having been sent and also because the letter to Mr Robson, which was sent, was also received. Further I infer that the applicant and Mr DeAngelis were aware of these matters because they were monitoring the Council's website (by themselves or by agents) or because they had been told by their solicitor or Mr Dickson (the town planner) that the Planning Proposal was being publicly exhibited.

The applicant's challenges

86 The applicant challenged Amendment 13 to the 2010 LEP on the following bases which will be considered in turn:

(1) Statutory non-compliance since the community consultation requirements had not been complied with in the following respects:

(a) Written notice was not sent to the applicant;

(b) Written notice was not sent to the adjoining or affected landowners;

(c) The public notification of where the public exhibition was to occur was made after the commencement of the public exhibition period;

(d) The letters sent by the Council omitted:

(i) the Council's address for receipt of submissions; and

(ii) the fact of the delegation from the Minister to the Council.

(e) The "public exhibition" was not a "public exhibition" within the meaning of the EPAA because it was misleading as the new draft DCP was not exhibited with the Planning Proposal.

(2) Even if there was no statutory non-compliance with the community consultation requirements, there was a denial of procedural fairness at common law in the following respects:

(a) Failure to notify applicant of the Planning Proposal;

(b) Providing a misleading notification since amendment to DCP was not referred to in the Planning Proposal as exhibited within;

(c) Failing to inform the applicant that it was not proposed to include a savings and transitional provision in the amended LEP.

(3) Absence of authority to make Amendment 13.

87 The applicant also challenged the amended DCP on the basis that it was not publicly notified as required by the EPA Regulations. The Council admitted non-compliance but contended that relief ought be refused on discretionary grounds.

Alleged statutory non-compliance

Alleged failure to comply with community consultation requirements: failure to notify the applicant either at all or within sufficient time

88 The applicant contended that section 5.5.2 of the Guide was incorporated by reference into the determination by the Minister of the community consultation requirements in the Gateway Determination and that all of the matters in that section were "notice requirements" within the meaning of the Gateway Determination. Accordingly, he argued that notification to affected and adjoining landowners was required. The applicant submitted that he had established that the letter had not been sent to him and he had not received it. Further, he contended that, in any event, he had established that four separate affected or adjoining landowners had not been notified and that accordingly the community consultation requirements had not been met. The applicant contended that, because of these omissions, the Council had not consulted the community in accordance with the community consultation requirements, and accordingly had failed to comply with s 57(1) of the EPAA.

89 The Council submitted that only those matters in the section which were expressed in mandatory terms in the Guide could sensibly be regarded as "notice requirements". It contended that there was no indication in the Gateway Determination that the Minister intended to convert the text, which was in its nature advisory, into a mandatory requirement. It relied on the circumstance that the reference to notice in writing to affected and adjoining landowners was prefaced with advisory words ("Public exhibition of the planning proposal is generally undertaken in the following manner . . . ").

90 I accept the Council's submissions. I consider that it would be inconsistent with the natural meaning of the text of the Gateway Determination and the Guide to read all matters in section 5.2.2 as being mandatory notice requirements when the Guide does not use the language of compulsion throughout the section but distinguishes between those matters that are mandatory (as signified by the word "must") and those matters which are left to the judgment of the Council, such as by what means public exhibition is to be notified. The words "generally undertaken" are not, in my view, words of compulsion.

91 In addition, the fact that the Minister did not adopt what the Council proposed in its two planning proposals (submitted in June and August 2013 respectively), namely that the planning proposal be notified in the newspaper, the website and to persons who had been contacted in respect of the earlier LUA (12/193), is a further indication that the Minister was incorporating the Guide in terms, rather than making mandatory that which was only advisory in the Guide.

92 In my view, what the Council was obliged to do to comply with the Gateway Determination was to comply with the six dot points of the written notice requirements (signified by the word "must") and the three dot points which describe the documents that "must" be made available for inspection. It was not obliged to comply with the three dot points under the description of how public exhibition is "generally undertaken" as long as what it actually did could be described as "public exhibition". The applicant did not contend that the publication of two notices in the local newspaper together with publication on the website would not, of itself, amount to "public exhibition" (subject to the point about non-inclusion of the draft DCP document).

93 It follows that I do not regard any of the matters relied upon by the applicant that are not expressed in mandatory terms as forming part of the community consultation requirements. Accordingly, non-conformity with advisory matters does not result in statutory non-compliance (cf. Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349; 81 NSWLR 638 (Hoxton Park) at [17] - [20] per Basten JA, Giles and Macfarlan JJA agreeing).

Alleged failure to comply with community consultation requirements: failure to notify all adjoining and affected landowners

94 For the reasons given above I do not consider that the Council was required to notify all adjoining and affected landowners by written notice addressed to them. It follows that I do not consider that Council has failed to comply with the requirements by not sending notices to some affected landowners.

Alleged failure to comply with community consultation requirements: failure to advertise the public exhibition before the commencement date of the exhibition

95 The applicant argued that the public exhibition began prior to the time at which those members of the public who did not become aware of it on the internet could have become aware of it by reading the local newspaper since the edition of the newspaper delivered or disseminated on 9 October 2013 was likely to have been delivered or available to be read after the Council's premises or the local library had opened.

96 There was no evidence about the time of day when the local newspaper was delivered, or when it became available to be read through dissemination in any other way. The evidence did not show whether, for example, it may have been delivered in the early morning and may be stacked in the main street to be picked up by locals. It may be that those interested persons who used the tracking facility on the Council's website had a head-start, perhaps of some hours, on those who relied on the local newspaper for such information.

97 Because I do not regard the publication of a notice in the newspaper advertising public exhibition as being a mandatory requirement I do not consider that the circumstance that it is possible that the public exhibition commenced before it was notified in the local newspaper (by a matter of hours at most) as giving rise to the consequence that the community consultation requirements were not met.

98 In my view, for the reasons given above, the Gateway Determination shows that the Minister intended to leave a measure of latitude to the Council as to the way in which it would conduct a public exhibition. The Council was entitled, consistent with the Gateway Determination, to place an advertisement in the local paper on the first day of the exhibition.

99 In any event, the Council has established that its website was updated prior to the commencement of the public exhibition. Although it may be accepted that some members of the community are not conversant with the internet or do not have access to it, in my view, it was open to the Council to determine that the posting of the material on the internet and notifying its existence on its website amounted to public exhibition for the requisite period.

Alleged failure to comply with community consultation requirements: failure to identify the address for receipt of submissions

100 The address for receipt of submissions appeared in the newspaper advertisement and on the website. The applicant's complaint is that the address for receipt of submissions was not specified in the letters sent by the Council to interested persons or the letter addressed to the applicant himself. Because of the findings I have made above, it would not amount to statutory non-compliance if the letters did not include the address since it was not mandatory that written notice be given by letter. However, in my view, the letters in fact sent by the Council were sufficient to identify the address for receipt of submissions.

101 The body of the letter contained the following invitation to the recipients:

You are invited to inspect the Planning Proposal and may make a submission in writing to Wingecarribee Shire Council.

102 The body of the letter does not, in terms, specify the address at which submissions may be received. However, it informs the recipient that the material can be viewed at the Customer Service Centre, Wingecarribee Shire Council, Elizabeth Street, Moss Vale. The letterhead on which the letters were produced contained the Council's street address, its DX number, its PO Box address, its fax number and its telephone number as well as its email address. I consider this to be ample to comply with the requirement that the notice specify the address for the receipt of submissions. The letterhead forms part of the letter, which ought be read as a whole.

Alleged failure to comply with community consultation requirements: failure to include confirmation whether the Minister had chosen to delegate the making of the LEP to the Council

103 The letters sent by the Council did not include a confirmation that the Minister had chosen to delegate the making of the LEP to the Council. However, for the reasons given above, the sending of the letters was not a requirement. Accordingly, such omission in the letters does not amount to a failure to comply with the community consultation requirements.

Alleged failure to comply with community consultation requirements: failure to despatch the letters prior to the commencement of the public exhibition period

104 For the reasons given above, the sending of the letters was not a requirement. Accordingly, the fact that the letters were dated 8 October 2013 and might not have been received prior to the commencement of the public exhibition period does not amount to a failure to comply with the community consultation requirements.

Alleged failure to comply with community consultation requirements: failure to exhibit draft DCP with Planning Proposal during exhibition period

105 The applicant submitted that the failure to exhibit the draft DCP with the Planning Proposal and associated material meant that the exhibition of the Planning Proposal was misleading and therefore did not amount to a valid public exhibition at all, the community consultation requirements were not complied with and that there has, accordingly, been a breach of s 57(1).

106 The Court of Appeal considered in Homeworld Ballina v Ballina Shire Council [2010] NSWCA 65; 172 LGERA 211 (Homeworld Ballina) that if material presented in a public exhibition was misleading, the resultant instrument might be invalid. The Court decided that the relevant test for what was misleading depended on the understanding that would be obtained by the reasonable reader who is assumed to understand the inter-relationship between the documents on public exhibition.

107 In my view, the materials accurately described the changes proposed by the Planning Proposal: to rezone the land, to remove height and FSR controls imposed by the 2010 LEP and to apply a minimum lot size requirement.

108 The applicant's real complaint is that the Planning Proposal did not advert to any changes that the Council intended to make to the DCP. In order to address this submission, it is necessary to set out the structure of the DCP.

109 The unamended DCP (in force before the March DCP) was divided into three parts. Part B applied to development in business-zoned land. All the business-zoned land was divided into seven precincts, of which the first, the Southern Entrance Precinct, contained the Site. Section C related to controls over residential land. There were eight precincts of residential land. There was also land which was zoned residential that was not allocated to a specific precinct.

110 Section C1.4 provided in part:

Applicants need to confirm whether or not their development site is included within an identified Precinct. If not, only the controls of Sections A and Sections C1-16 apply. If it is, applicants must also refer to the relevant Section for Precinct-specific objectives and any additional controls which may apply.

111 Section C4.2 provided for controls for land which is zoned residential but which was not contained in any precinct. Such controls include the following:

(a) A residential flat building shall not exceed three (3) storeys in height...

(b) The maximum density for residential flat buildings shall be 0.6:1.

112 Section C20 is concerned with the controls over the Southern Entrance Medium Density Precinct which abuts the southern and eastern side of the Site. It provides:

This Precinct is classified as Sub-Zone C so a maximum floor space ratio of 0.6:1 applies and residential flat buildings are permitted with consent.

113 If the DCP had been left unchanged and the LEP made, what would have occurred is that the land would no longer be zoned mixed use and would instead be zoned residential. Accordingly, there would have been an inconsistency between Amendment 13 and the unamended DCP which would have been resolved in favour of Amendment 13: 74C(5) of the EPAA. Because the Site would not have been included in any particular precinct, C4.2 would apply.

114 In my view it was not necessary for the Planning Proposal to address changes to be made to the DCP. First, the requirement in s 55(2)(d) of the EPAA is that those maps contain sufficient detail to indicate the substantive effect "of the proposed instrument". It does not require the maps to indicate the substantive effect of every other planning instrument that might have an effect on the Site. Secondly, the Gateway Determination did not require the DCP to be publicly exhibited. Thirdly, the changes proposed in the Planning Proposal were independent of, and not affected by, changes to the DCP. I do not consider that the fact that the draft March DCP was not exhibited with the Planning Proposal made the Planning Proposal misleading. I consider that a reasonable reader of the Planning Proposal would have understood that there would be other instruments that would continue to apply in their terms to the Site.

115 Furthermore, the hierarchy of instruments places LEPs higher than DCPs. Accordingly, any inconsistency between the documents is resolved in favour of the applicable LEP. If land is rezoned by a LEP, the DCP in terms will apply to the rezoned land. So, for example, if land is rezoned from commercial to residential by the LEP, the provisions of the DCP which apply to residential land automatically apply to the land.

Conclusion

116 The applicant has not established any failure on the part of Council to comply with its obligations under s 57(1) of the EPAA to consult the community in accordance with the community consultation requirements. Nor has it been established that the public exhibition was misleading.

Alleged breach of natural justice with respect to Amendment 13

Whether common law requirements of procedural fairness have been excluded by the EPAA

117 There is a preliminary question that arises by reason of the applicant's alternative argument. The applicant contended that even if the community consultation requirements did not oblige the Council to notify him or other affected or adjoining landowners, common law procedural fairness required that he, and they, be notified. He also argued that the common law required that he be notified of the proposed absence of a savings and transitional provision and that a public exhibition without the draft DCP was misleading and therefore not a valid public exhibition.

118 The question whether the EPAA as a matter of construction excluded common law procedural fairness (in the sense of the right to be notified and the right to be heard) was considered in Vanmeld Pty Limited v Fairfield City Council [1999] NSWCA 6; 46 NSWLR 78 (Vanmeld). Justice Meagher said:

[181] In this case, the Council publicly exhibited its draft LEP between March and June 1992, and again from 17 August to 9 October 1992, and for five months from December 1992 until May 1993 held a public hearing into submissions received concerning the draft LEP. It may thus be seen that the Council consulted with its ratepayers as far as possible, and did nothing clandestine. But, more than that, during the public hearing there was extensive discussion about flood mitigation and flood management, which led directly to the prohibition of fill in flooding areas contained in cl13(3). The appellant must have known from this discussion in what direction policies were moving and could have said all it wanted to say on the matter either at or after the public meeting; and, indeed, despite the litany of alleged wrongs on behalf of the Council, it was never suggested that the provisions of cl 13(3) were surprising or unexpected, much less that there was a reasonable expectation that no amendment of the sort would be made.

[182] In these circumstances, I think the Act specifies exactly to what extent procedural fairness must be accorded to a ratepayer.

119 Justice Powell's conclusion as to this matter was the same. His Honour expressed his view at [190]:

...it seems to me that the provisions of Pt III of Division 4 of the EPA Act are such as to indicate a legislative intention that, except to the extent of the requirements to notify, and to consult, there provided for, a council seeking the making of an environmental planning instrument was not to be subject to any duty to accord procedural fairness to any person, or body, who, or which, might be affected by the provisions of the proposed instrument...

120 Chief Justice Spigelman dissented in the result in Vanmeld. His Honour's remarks on procedural fairness in the dissenting judgment are often cited in circumstances where the principles of common law procedural fairness are held to apply.

121 The decision of the majority in Vanmeld appears to be based on the proposition that Parliament has evinced an intention to make exhaustive provision for community consultation of which the applicant is part and that therefore the applicant ought not be taken to be entitled to a greater right to be notified and heard than accorded to the general community in which the proposed development is located.

122 The applicant submitted that the law had substantially changed since Vanmeld and referred to the decision of Saeed v The Minister [2010] HCA 23; 241 CLR 252 (Saeed). The High Court strictly construed the words "in relation to the matters it deals with" (in a statutory provision purporting to provide an exhaustive statement of the natural justice hearing rule in such matters) which left the natural justice hearing rule available in respect of matters not dealt with. The subject matter of Saeed (an application for a visa) was wholly different from the present case, which concerns development of land which requires, as a matter of statute, community consultation. The statements of principle articulated by the High Court in Saeed, while apposite to a visa application, cannot be applied without adjustment to a system of environmental planning and assessment which has, as an important feature, the consultation of the community, of which the applicant, as landowner, is part. I do not regard Saeed as overruling or undermining the decision of Vanmeld, by which I am bound.

123 The EPAA has been amended since Vanmeld, in particular by the introduction of the procedure for gateway determinations and the requirement that a planning proposal be publicly exhibited rather than the draft proposed instrument itself. I do not consider the statutory amendments give rise to any relevant distinction or indeed any different conclusion than was reached by the majority in Vanmeld that the right to be heard and notified that would otherwise arise at common law has been excluded by statutory implication. The applicant, as with other affected landowners, is part of the community that is required, in accordance with the Minister's gateway determination, to be consulted, unless the Minister determines under s 56(3) and s 73A of the EPAA that there be no consultation.

124 The applicant also sought to distinguish Vanmeld from the present case on the basis of the following circumstances of which (1)-(3) are extracted in terms from his written submissions:

(1) "the Council would gain a secret benefit in proceedings before the Court [the Second Class 1 Proceedings] by making the Amendment without providing advance notice to the Applicant";

(2) "the Planning Proposal as exhibited was incomplete or misleading in that it was expressed to remove the floor space ratio and maximum building heights for the Subject Land [the Site] even though the Council knew and intended that new controls would be placed in the (also unpublished) March DCP. This was an additional way that the Council was intended to gain a secret benefit in the proceedings without providing advance notice to the Applicant.";

(3) "the fact that the Council held the Minister's delegation to make the Amendment made the Applicant particularly vulnerable to the Council's exercise of the power to make the Amendment";

(4) The making of the Amendment without a savings or transitional provision would render the proceedings nugatory.

(5) The LEP was Site-specific and the applicant was the sole owner of the Site.

125 I do not accept that any of these bases, whether taken together or separately, provides any warrant to distinguish the finding that the EPAA has by necessary implication excluded the rules of procedural fairness as the right to be notified and heard are concerned. To the extent to which the expression "secret benefit" is alleged, I do not consider it to be an apposite term. It connotes bad faith and I do not understand there to be any basis for the allegation. I do not regard the Council as having acting in any clandestine way.

126 I do not see any basis on which the applicant could be said to be entitled to procedural fairness as to whether a savings and transitional provision would be included in Amendment 13. One might, in any event, think that the applicant could reasonably be expected that it would not be. The Planning Proposal which became Amendment 13 was specific to the Site. It represented what the Council envisaged for the Site. The LUA which was the subject of the Second Class 1 Proceedings was inconsistent with Amendment 13. Amendment 13 could be rendered of no effect if there was a savings and transition provision, such as clause 1.8A of the 2010 LEP (set out above), because it would, in that event, have left open the possibility that the Commissioner in the Second Class 1 Proceedings would approve the LUA.

127 The evidence established that the applicant was well aware of the progress of the draft LEP in that he knew that it had been forwarded to the Department to be made. What he did not know (and what the Council might not have been able to tell him) was the precise date on which Amendment 13 would be published and accordingly take effect and whether the Second Class 1 Proceedings would be determined prior to that date. It is, in my view, inconceivable that the applicant did not appreciate that there was, effectively, a race against time and that his only chance of obtaining approval for the development was if the Commissioner decided the Second Class 1 Proceedings before Amendment 13 took effect.

128 Mr Seymour argued that the making of the LEP was not "imminent and certain" (a well-established description: see the authorities referred to at [46]-[47] in Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; 129 LGERA 195). My reading of his client's statement of facts and contentions filed in this Court in the Second Class 1 Proceedings was that his client appreciated that that was precisely its status as at 12 February 2014 when the statement was filed.

129 Where a party to proceedings is also in a position to change the law which may render the proceedings nugatory and does so, this may in exceptional circumstances give rise to a special costs order (see the discussion in Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33; 182 LGERA 370 at [298]-[308]; and Australians for Sustainable Development Inc v Minister for Planning (No. 2) [2011] NSWLEC 70 per Biscoe J). However I do not see any basis for considering that an applicant's status as a party to proceedings gives rise to a right to be notified and heard by the relevant decision-maker (the Council) where such a right has been otherwise excluded by statute.

130 Of the matters identified by the applicant above, the only one which in my view is not foreclosed by Vanmeld is the question whether the failure to exhibit the proposed March DCP rendered the public exhibition misleading such that it cannot be considered to be a public exhibition. This question has already been considered in the context of the statutory requirements and will be referred to further below.

131 However, in any event, I consider that common law principles of procedural fairness, even if applicable, have been complied with in the present case. The applicant, as I have found, was aware of the Planning Proposal, by receipt of the letter and also by the same processes as were used by the Council to inform the community of it. Furthermore the adjoining and affected landowners were accorded natural justice by similar means (internet and public exhibition, and in some cases by letter). I do not consider that a personal letter was required to accord natural justice to each of these people in the present case.

Alleged misleading notification by reason of omission of draft DCP from exhibited material

132 Although the applicant relied on this ground as part of his statutory non-compliance case, he also relied on it as amounting to a breach of the requirements of procedural fairness. Because of the conclusions to which I have come, that the non-exhibition of the DCP did not make the Planning Proposal misleading, and that there is no independent right to procedural fairness, I reject the challenge to Amendment 13 on this ground.

133 However, for completeness, I add that I accept the Council's submission that there was nothing in the change to the DCP that changed the controls applicable to the Site, since it was Amendment 13 that had that effect. There was relevantly no practical unfairness or injustice in the Council not exhibiting the draft DCP with Amendment 13 or before Amendment 13 was made: Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Lam [2003] HCA 6; 214 CLR 1 at [36]-[38] per Gleeson CJ.

Absence of authority to make Amendment 13

134 It is common ground that the Minister validly delegated to the Council the power to make what became Amendment 13.

135 The facts set out above establish that, after the community had been consulted, the Council considered the submissions received during the exhibition period and resolved, at its meeting on 27 November 2013, to proceed with the making of the amendment to the 2010 LEP (which became Amendment 13).

136 Mr Seymour put the applicant's submissions as to the invalidity of Amendment 13 on the basis of Mr Pepping's lack of power on the following bases:

(1) The General Manager was vested with sub-delegated power from the Council to sign the draft LEP but the General Manager could not, and as a matter of fact did not, delegate that power to Mr Pepping.

(2) Notions of agency are inapplicable to the statutory regime created by the LGA.

(3) A purported authorisation of Mr Pepping would be inconsistent with s 377(1) and s 377(1)(u) of the LGA.

(4) The Court ought not exercise its discretion not to grant relief in a matter of such importance.

137 Mr To put the Council's submissions as to the validity of Amendment 13 on three alternate bases:

(1) The decision to make Amendment 13 was a decision of Council. The decision was carried into effect by its servant or agent, Mr Pepping, signing the instrument prior to its publication. This act was done by Mr Pepping as the Council's servant or agent and therefore was done by the Council as principal (the Agency Route);

(2) The Council had sub-delegated its power to its General Manager who in turn had sub-delegated his or her power to Mr Pepping (the Delegation Route);

(3) Relief ought be refused on discretionary grounds since any deficit could and would have been remedied had it been appreciated at the time.

138 It is common ground that the General Manager could have signed the LEP since he had a delegation from the Council to do so. The first question that arises is whether the General Manager could, and did, sub-delegate his power to Mr Pepping.

139 Mr To submitted that the Delegation Route occurred by the General Manager sub-delegating his power to Mr Pepping. He relied on the instrument dated 19 December 2013 which is set out above and contended that the delegation in the line where the words "Department of Planning Concurrence" appear was sufficient to show that the General Manager had sub-delegated his power to Mr Pepping. I do not accept this argument. I consider that the reference to "Concurrence" was intended to cover those matters under the EPAA where the term "concurrence" is used, rather than the present case where the Minister has delegated a particular power (s 59) to a Council. I am not persuaded that the Council or the General Manager had sub-delegated its, his or her power to Mr Pepping.

140 The alternative way in which the Council puts its case on delegation is that it was the Council, as delegate, which made the relevant decision and that to the extent to which Mr Pepping did certain acts, he did so as the Council's servant and agent and not as its delegate.

141 The relevant act of the Council, for present purposes, was the resolution Council made at its meeting on 27 November 2013 in which Council resolved to proceed with the making of the LEP. As the Minister's delegate, the Council had the delegated power to make the plan, subject to the provisions of the EPAA which required Council to forward its final proposal to the Department and which envisaged the preparation of a draft instrument (s 59). The Council also sent an electronic file of the map sheets that were to be revoked and the new map sheets to the Department on 3 December 2013.

142 In specifying that Mr Pepping was to sign the instrument, I consider that it was appointing Mr Pepping as its agent to sign the document on its behalf, as distinct from vesting him with any delegated power to do so (see the discussion of the distinction in O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47; 153 CLR 1 (O'Reilly) at 12-13 per Gibbs CJ). As Mason J said in Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 at 37, an express statutory power of delegation does not necessarily exclude an implied power to act through agents.

143 The draft instrument (which was prepared by Parliamentary Counsel) did no more than had been exhibited in the Planning Proposal and incorporated the map material provided to it by Council. It was returned to the Council and signed by Mr Pepping. I consider that Mr Pepping signed the document as authorised agent for the Council, which was the Minister's delegate, rather than as sub-delegate. The document was returned to the Department which then published Amendment 13. Although there is a slight ambiguity in the coversheet, I consider that it can, and ought reasonably, be read as conveying (correctly) that the Council was the delegate for the Minister rather than that it was Mr Pepping who was the delegate. I do not consider this to be a case of an agent misconceiving his power and considering himself to be a delegate (Cf. Re Reference Section 11 Ombudsman Act for an Advisory Opinion (1979) 2 ALD 86 at 95 per Brennan J). Accordingly, s 377 of the LGA does not apply since it concerns delegations rather than authorisations and Mr Pepping was, in my view, an agent and not a delegate.

144 The applicant relied on R v Halmi [2005] NSWCCA 2; 62 NSWLR 263 and R v Janceski [2005] NSWCCA 281; 64 NSWLR 10 in support of the proposition that the identity of the signatory is highly significant to the validity of a document. However, in those cases the relevant document was an indictment and there was an express statutory provision (s 126 of the Criminal Procedure Act 1986 (NSW)) which required an indictment to be signed by certain nominated persons. When the signatory of the indictment did not fall within the specified list, the indictment was held to be invalid. These cases are distinguishable from the present. I reject the applicant's contention that the mere act of signing was of itself significant in the circumstances of the present case where there was no statutory provision that governed the identity of the person signing the draft instrument and the draft instrument reflected no more than that which the Council itself, as the delegate, had resolved.

145 Because all Mr Pepping was doing was acting as a functionary, amanuensis and signatory, he was, in my view, an agent who could be authorised by the Council (see s 355 of the LGA) to perform acts that had to be performed by natural persons, such as signing an instrument to signify that it corresponded with the Council's resolved intent. He was neither forming an independent judgment, nor making any decision that was within the Council's function to make. He was merely carrying into effect that which the Council, as a statutory body rather than a natural person, could not itself practically do. There was a "practical necessity" (see O'Reilly at 12 per Gibbs J) for a natural person to check, for example, that the maps identified in the draft instrument corresponded with that were identified in the Planning Proposal.

146 For these reasons I do not consider it to be necessary to express a view on the unresolved debate whether consideration by an employee of the Council of a matter which the Council itself as decision maker is obliged to take into account is sufficient: see the consideration of the Carltona principle (Carltona Limited v Commissioner of Works [1943] 2 All ER 560 in Hill v Woollahra Municipal Council [2003] NSWCA 106; 127 LGERA 7 at [59] per Hodgson JA; Ipp and Davies AJA agreeing; Centro Properties v Hurstville City Council [2004] NSWLEC 401; 135 LGERA 257 at [55] per McClellan CJ and Columbia Holdings Pty Ltd v City of Armadale [2012] WASC 422; 193 LGERA 77 at [76]-[78] per Pritchard J.

147 In conclusion, I do not consider that Amendment 13 was invalid by reason of the circumstance that the draft LEP was signed by Mr Pepping rather than by the General Manager, who was then Ms Prendergast.

148 Had I considered that Mr Pepping was not authorised to sign the draft LEP on behalf of the Council, I would have exercised my discretion not to grant relief on the grounds that Ms Prendergast would have taken the necessary steps to sign the draft instrument herself or to sub-delegate her authority to Mr Pepping to permit him to sign the instrument as the sub-delegate of Council. I am satisfied that the operative act required to be made by the Council qua delegate, namely the resolution to proceed with the making of the plan, was in fact performed by Council at its meeting on 27 November 2013. The acts that remained to be done in order to give effect to the Council's decision (the transposition of maps that were identified in the Planning Proposal into the draft instrument and its signature) were of a secretarial nature, the performance of which by employees of the Council in no way undermined the Minister's delegation to the Council itself or the public's right and expectation to have the Council make the requisite decision in the absence of valid sub-delegation.

Admitted failure to exhibit draft DCP

149 The Council concedes that it failed to comply with its statutory obligation under the EPA Regulation, cl 18, to exhibit the draft DCP publicly and thereby deprived the public of its right to make submissions about the draft DCP during the submission period as provided for by EPA Regulation, cl 20.

150 Whether statutory non-compliance leads to invalidity is to be considered in accordance with the approach established by the majority in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky) at [91] and [93]:

[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

[93] [The] ... test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.

151 The nature and status of a DCP is relevant to the question of whether its non-publication leads to invalidity. Unlike a LEP, a DCP is not an environmental planning instrument (see s 4 of the EPAA). One of the purposes of a DCP, as identified in s 74C and s 74BA is to "provide guidance" on the following matters to persons proposing to carry out development and to the consent authority: giving effect to the aims of any applicable enviromental planning instrument; facilitating development that is permissible under any such instrument and achieving the objectives of land zones under any such instrument. A DCP has no effect to the extent to which it is inconsistent with a environmental planning instrument. A DCP or draft DCP is a mandatory relevant consideration in decisions of a consent authority (s 79C(1)(a)(iii)) but it is not to be applied as if the controls were included in an environmental planning instrument.

152 The EPAA allows substantial latitude in what is contained within a DCP. Accordingly, an amendment to a DCP may be very significant and provide for substantial controls on the one hand but, on the other, it might merely bring an existing DCP into conformity with a new or amended environmental planning instrument and reconcile a discrepancy or remove an inconsistency which would be resolved in favour of the LEP in any event.

153 The difference between environmental planning instruments on the one hand and a DCP on the other was adverted to by Priestley JA (Sheller JA agreeing) in Leichhardt Municipal Council v Minister for Planning (1995) 87 LGERA 78 (by reference to the now repealed Regional Environmental Plans (REP) in the following terms at 89:

An REP is an environmental planning instrument. As such, it controls with the force of law the use of land; see for example s 26, s 31 and s 76 of the Act. A DCP prepared pursuant to s 51A is not an environmental planning instrument (see the definition in s 4(1)) and does not have that effect. S 51A contemplates a plan for a part or parts of the land, to which an REP or a draft REP applies, where it is necessary or desirable to provide more detailed provisions than are contained in the plan or draft plan. The plan must generally conform to the provisions of the REP or draft REP, subs(3). The plan is designed to amplify or explain; cf Willoughby Municipal Council v Local Government Appeals Tribunal (1974) 2 NSWLR 415 at 421D. But even so its force seems to be no more than persuasive and not even that if it is inconsistent with the REP.

154 Clause 18 of EPA Regulations provides that the Council "must" give public notice of the public exhibition of a draft DCP and "must" publicly exhibit the draft for at least 28 days. The word "must" imports an obligation. When determining the significance to be attached to non-compliance with these provisions, it is relevant that one of the objects of the EPAA is to provide increased opportunity for public involvement and participation in environmental planning and assessment (s 5(c)); see also Vanmeld per Spigelman CJ at 90). The obligations under the EPA Regulations do not apply where it is the Minister who is making, amending or revoking the DCP. This is some indication that lack of public consultation was not essential to validity, although against this it might be said that when it is the Minister who is the relevant decision-maker, no public consultation is required since the Minister is not affected by local concerns, as a council might be.

155 The issue whether there has been non-compliance with the regulation is relatively readily determined since the question of public notice and public exhibition for the requisite period are, in the main, matters of fact rather than matters for judgment (Cf. the provision under consideration in Project Blue Sky at [95]). This is a factor in favour of non-compliance resulting in invalidity.

156 The issue of public inconvenience is another relevant factor (Project Blue Sky, at [97]). The present case is an illustration of potential public inconvenience. In circumstances where an amendment to a LEP creates an inconsistency with an extant DCP, it is desirable that the Council amend the DCP as soon as possible to bring its form into conformity with the applicable environmental planning instrument to reduce the risk that the public will have to engage in the reconciliation between instruments and apply s 74C(5).

157 I consider it to be significant that there is no obligation on a council to amend a DCP to bring it into conformity with applicable environmental planning instruments. The Council in the present case could have achieved the same outcome had it done nothing since the unamended DCP would have yielded to Amendment 13 to the extent of the inconsistency.

158 A further relevant consideration is whether invalidity of non-complying conduct is necessary or desirable to ensure compliance. Having regard to the status of the DCP I do not consider that invalidity is necessary for this purpose.

159 I do not consider that, having regard to the status of a DCP and the circumstance that its amendment might amount to no more than a regularisation of a change effected by a LEP (as I consider it to have been in the present case), non-compliance with the provisions of the Regulations ought to be construed as leading to invalidity.

160 In any event, had I found the March DCP to have been invalid by reason of non-compliance with the Regulations, I would have exercised my discretion to decline relief for the following reasons.

Discretion to decline relief regarding the March DCP

161 The applicant submitted that, as the statutory requirement was not complied with, the discretion ought not be exercised to refuse relief because of the importance of community consultation. He submitted further that because the residential precinct has sub-precincts, the Council had to make a choice as to which sub-precinct the Site would be allocated to, or indeed to none. Because the Council had a choice, the community, which included the applicant, had a right to be consulted about the choice that should be made and it was not. The applicant also contended that he had the right that the community be consulted. The applicant argued that he had lost a potentially valuable opportunity to make submissions and to have others make submissions.

162 The applicant relied on the following passage from the judgment of Stein J in Curac v Shoalhaven City Council (1993) 81 LGERA 124 at 130:

The problem for the respondents on the issue of discretion is that while they can point to a lack of prejudice to the applicant, and many others, caused by the breach, they cannot be sure that some members of the public would not have come forward with objections if there had been compliance with the requirements of the statute. One will never know. As Mr Maston, appearing on behalf of the applicant, submits, it is the rights of the unknown objectors which the applicant presses.

163 However, the Council submitted that its breach had no real effect. The changes to the DCP and the effect of such changes are outlined above. The Council submitted that the controls applicable to the Site and the effect on its development potential did not depend on how the Site was identified as being within one precinct or another in the DCP but rather on the rezoning of the Site effected by Amendment 13. The Council contended that the proposition could also be tested by asking whether the invalidity of the DCP would make any difference to the controls applicable to the Site. It submitted that the question must be answered in the negative since, to the extent to which Amendment 13 was inconsistent with the unamended DCP, Amendment 13 would prevail. The Site would accordingly necessarily be zoned residential and not allocated to a particular residential precinct in the DCP and therefore the controls applicable are those in Section A and Sections C1-16. These are precisely the controls that apply under the March DCP.

164 Whether an instrument in respect of which procedural fairness (imposed by the common law rather than by statute) has not been accorded has any legal effect or consequence is not determinative of how a discretion to grant relief ought be exercised: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564, at 581. Prima facie, statutory provisions that require notice to be given, either to particular persons or to the community at large are to be respected and enforced: Hoxton Park at [27]-[28] per Basten JA (Giles and Macfarlan JJA agreeing).

165 However, in the present case, the applicant was on notice (as I have found he was) that if the LEP were amended in accordance with the Planning Proposal, the use proposed in his LUAs would be prohibited. The contest was, in substance, in the arena of the LEP, not the DCP which, in any event, is a policy document which, although it must be taken into account, does not prescriptively govern development. The community consultation that was undertaken through the public exhibition of the Planning Proposal and associated material does not, as a matter of law, amount to compliance with the Council's statutory obligation to publicly exhibit the draft DCP. Nonetheless, as a matter of practical reality the public exhibition of the Planning Proposal put the community including the applicant and other affected landowners on notice not only that non-residential development would, if the LEP were amended, become prohibited but also the residential controls that would apply when the proposed amendments were read with the unamended DCP over which they took precedence.

166 In my view, all that the Council has done by purporting to make the DCP is to remove the inconsistency between Amendment 13 (which rezoned the Site R3- Medium Density Residential) and the DCP which depicted the Site as being B4- Mixed Use. It has accordingly regularised the DCP to make it refect the legal effect of Amendment 13 and the primacy that s 74C(5) accords to the LEP (Amendment 13) over the DCP. In these circumstances, I would have declined relief, even had I been persuaded that the March DCP was invalid.

Orders

167 I make the following orders:

1. Amended Summons dismissed.

2. Subject to an application for a different order being made to my Associate within seven days, order the applicant to pay the second respondent's costs of the proceedings.

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Decision last updated: 25 July 2014