De Angelis v Pepping

1. [1]

   MACFARLAN JA: I agree with the judgment of Sackville AJA. I add the following observations.

Compliance with the Gateway Determination

1. [2]

   The Gateway Determination referred to in Sackville AJA’s judgment at [39] below stated, inter alia, that “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 the Guide referred to in [41] and [42] below. The latter provision clearly referred to a requirement in s 5.5.2 of the Guide that certain material “must be made available for inspection”. However the Guide did not contain any requirement to which the former provision, so far as it concerned the method as distinct from the period of public exhibition, could relate. The Guide simply stated in this respect that public exhibition of the planning proposal “is generally undertaken” in specified ways, including “notification in writing to affected and adjoining land owners”. I do not consider that this description of how public exhibition usually occurs can be regarded as constituting “notice requirements for public exhibition”. As a result, a departure from the methods by which public exhibition is “generally undertaken” according to the Guide, for example by not giving notice in writing to all affected and adjoining land owners, did not constitute a failure to comply with “notice requirements” for public exhibition stated in the Guide. There was therefore no relevant failure to comply with the conditions of the Gateway Determination.

2. [3]

   In any event, for reasons explained by Sackville AJA at [95] to [113] below, even if the Guide contained relevant requirements as to the means of public exhibition, non-compliance with them would not have rendered the Amending LEP invalid.

Procedural fairness

1. [4]

   I add the following comments to Sackville AJA’s reasons (at [114] to [115] below) for rejecting the appellant’s contention that he was denied procedural fairness.

2. [5]

   The appellant submitted that the Council denied him procedural fairness by failing to inform him that there would not be a savings provision in the Amending LEP which would ensure that the merit review of his Development Application was dealt with in accordance with the existing LEP. However, the fact that there would not be such a savings provision must have been obvious to the appellant and his advisors because they knew that the Amending LEP’s operation was to be confined to his site. To exempt the appellant’s Development Application from its operation would have rendered it futile.

The Making of the Amending LEP

1. [6]

   The terms of the Council’s resolution of 27 November 2013 (see [53] below) did not indicate that the Council intended then and there to make the Amending LEP under the power to do that delegated to it by the Minister. Rather, it resolved to “proceed with the making of the amendment”, consistent with a contemplation that further steps needed to be taken for it to be made, and said nothing about the gazettal of the Amending LEP. Framing the resolution in this way was understandable as the Amending LEP had not been drafted. Irrespective of whether the Council could in fact have made the Amending LEP before the terms of it were finalised in documentary form, it can at least be said that it is highly unlikely that the Council would have intended to do so. The form of its resolution does not suggest that it did.

2. [7]

   Although Mr Pepping may have had authority to perform the ministerial act of signing the Amending LEP to confirm that the Council had made it (if in fact that had occurred), he did not have authority to stand in the shoes of the Council to exercise its power to make the Amending LEP. That would have been a substantive decision requiring the Council’s powers delegated to it by the Minister to be sub-delegated to him. Irrespective of whether that was possible, the Council did not contend that it had occurred.

3. [8]

   GLEESON JA: I agree with the reasons and orders proposed by Sackville AJA. I also agree with the additional observations of Macfarlan JA.

4. [9]

   SACKVILLE AJA: The appellant owns a parcel of land at the intersection of Bowral Street and Moss Vale Road in Bowral (Site). On 28 March 2014, the second respondent (Council) purported to make the Wingecarribee Local Environmental Plan 2010 (Amendment No 13) (Amending LEP) by having the instrument signed by the first respondent (Mr Pepping), the Group Manager Strategic & Assets at the Council. The Site is the only land that is the subject of the Amending LEP.

5. [10]

   The Amending LEP rezoned the Site from “B4 Mixed Use” to “R3 Medium Density Residential”. At the time the Amending LEP was made, the appellant had an application before the Council for approval to redevelop the site for commercial purposes. The rezoning effectively prohibited development of the Site for commercial purposes.

6. [11]

   The appellant brought proceedings in the Class 4 jurisdiction [1] of the Land and Environment Court (L & E Court) challenging the validity of the Amending LEP. The respondents to the proceedings in the L & E Court were the Council, Mr Pepping and the Minister Administering the Environmental Planning and Assessment Act 1979 (Minister). Mr Pepping and the Minister (the third respondent in this Court) filed submitting appearances.

7. [12]

   The proceedings in the L & E Court were brought pursuant to s 123 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act), which permits any person to bring proceedings in the L & E Court for an order to remedy or restrain a breach of the EPA Act.

8. [13]

   The appellant’s challenge to the validity of the Amending LEP was based on three principal grounds:

9. [14]

   The primary Judge rejected the appellant’s challenge and dismissed his amended summons. [3] The appellant appeals to this Court pursuant to s 58 of the L & E Court Act. [4] The notice of appeal identifies 22 grounds of appeal.

Statutory Framework [5]

1. [15]

   The objects of the EPA Act are stated in s 5 and include the following:

2. [16]

   Part 3 of the EPA Act deals with environmental planning instruments (EPIs). Section 24(1) provides that an EPI may be made in accordance with Pt 3 for the purposes of achieving any of the objects of the EPA Act. An EPI may be made by the Minister or a delegate under Div 4 of Pt 3. Such an EPI is called a local environment plan or LEP. [6]

3. [17]

   Division 4 of Pt 3 of the EPA Act was introduced by the Environmental Planning and Assessment Amendment Act 2008 (NSW). [7] According to the Explanatory Note to the 2008 Bill, the amendments “seek to simplify and provide flexibility to the plan-making process, while retaining community and related consultation procedures”.

4. [18]

   Section 53(1) of the EPA Act, which is within Div 4 of Pt 3, empowers the Minister to make EPIs for the purpose of environmental planning in each local government area. For present purposes, the relevant planning authority in respect of a proposed instrument is the council for the local government area to which the proposed instrument is to apply. [8]

5. [19]

   Section 55(1) of the EPA Act provides as follows:

6. [20]

   Section 56(1) provides that after preparing a planning proposal, the relevant planning authority may forward it to the Minister. Section 56(2) is as follows:

7. [21]

   Section 56(8) of the EPA Act is of particular importance to this case. It states that:

8. [22]

   Section 57 of the EPA Act sets out the nature of community consultation that is required. It provides as follows:

9. [23]

   Section 58 of the EPA Act confers power on the relevant planning authority to vary a planning proposal or to request that the matter not proceed. It provides as follows:

10. [24]

    Section 59 deals with the making of an LEP by the Minister:

11. [25]

    An LEP must be published on the NSW legislation website and commences on the date of publication unless a later date is specified in the instrument. [9]

12. [26]

    The validity of an EPI cannot be questioned in any legal proceedings, except in proceedings commenced within three months of the date of its publication on the NSW legislation website. [10] Since these proceedings were commenced within three months of publication, there is no need to consider the scope of a challenge brought outside the specified time limit. [11]

13. [27]

    As the primary Judge pointed out, [12] there is no right to a review of the merits of an LEP. Any challenge to the validity of an LEP must be brought under s 123 of the EPA Act. [13]

14. [28]

    Section 355 of the Local Government Act 1993 (NSW) (LG Act) provides that a function of a council may, subject to Chapter 7 (of which s 355 forms part), be exercised:

15. [29]

    Section 377 of the LG Act provides as follows:

16. [30]

    Section 378 of the LG Act empowers the general manager to make delegations. It provides as follows:

Factual Background

1. [31]

   In 2010, the Council made the Wingecarribee Local Environmental Plan 2010 (2010 LEP). The Site was zoned B4 (Mixed Use) permitting use of the Site for “Commercial Premises” with the consent of the consent authority. The 2010 LEP contained a savings provision requiring a development application made before the commencement of the 2010 LEP to be determined as if the 2010 LEP had not commenced.

2. [32]

   On 8 March 2012, the appellant lodged a Land Use Application (LUA) for a retail and residential development on the Site, including a K-Mart (or equivalent) store. There was considerable community opposition to the proposed development. The Council did not make a decision on the LUA.

3. [33]

   On 14 December 2012 the appellant commenced Class 1 proceedings in the L & E Court, appealing against the Council’s deemed refusal of the LUA.

4. [34]

   On 12 June 2013, before the hearing of the appeal, the Council resolved to prepare a planning proposal under s 55(1) of the EPA Act to rezone the Site from B4 Mixed Use to R3 Medium Density Residential. A change to R3 Medium Density Residential would prohibit use of the Site for “Commercial purposes”. As the primary Judge observed, [15] this change (assuming no savings provision) “would have the effect of stymieing the [appellant’s] plans to develop the site”.

5. [35]

   The planning proposal contemplated a consultation period of 28 days and stated the Council’s intention to:

6. [36]

   The Council forwarded the planning proposal to the Minister on 24 June 2013, as permitted by s 56(1) of the EPA Act. The Department of Planning and Infrastructure (Department) responded on 16 July 2013. The letter suggested that the planning proposal should be resubmitted once the outcome of the pending Class 1 proceedings was known. The letter noted that because of the savings provision in the 2010 LEP, any change to the zoning that prohibited development on the Site would not bind the Court. The letter also suggested that the planning proposal should be revised, should it be resubmitted.

7. [37]

   The L & E Court refused the LUA on merits grounds on 14 August 2013.

8. [38]

   In consequence of the L & E Court’s decision, the Council prepared a revised planning proposal, which it submitted to the Minister on 28 August 2013 (Planning Proposal). The Planning Proposal envisaged the same community consultation procedure as the earlier planning proposal.

9. [39]

   On 25 September 2013, a delegate of the Minister issued a gateway determination under s 56 of the EPA Act (Gateway Determination). The Gateway Determination stated that the revised Planning Proposal should proceed subject (relevantly) to the following conditions:

10. [40]

    On the same day, the Acting Deputy Director-General of the Department issued a written authorisation to the Council to exercise the functions of the Minister under s 59 of the EPA Act in relation to the Planning Proposal. The authorisation included the following:

11. [41]

    The document entitled “A guide to preparing local environmental plans” (Guide) commences with a disclaimer. The Guide states that the “guidelines are provided for general guidance and information only”. It also states that:

12. [42]

    Section 5.5.2 of the Guide is headed “Community consultation”. It provides as follows:

13. [43]

    At some time prior to 4 October 2013, the appellant’s solicitor, a specialist in environmental planning law, ascertained through the tracking facility on the Department’s website that the Gateway Determination had been made on 25 September 2013.

14. [44]

    The Council determined that the period of public exhibition for the Planning Proposal would be from 9 to 23 October 2013. On 8 October 2013, the Council updated its website to record that the Site would become subject to the Planning Proposal from 9 October 2013. It also published the Planning Proposal and provided hyperlinks to relevant documents, including the Gateway Determination. The exhibited material was made available on the website for the whole exhibition period.

15. [45]

    The Council caused a notice to be published in the Southern Highland News in two editions of the newspaper. The first publication of the notice was on 9 October 2013 and the second a week later.

16. [46]

    Between 8 and 14 October 2013, the Council sent pro forma letters to a large number of people who had made submissions in relation to the proposed development of the Site. The letters advised that the Planning Proposal could be viewed at the Council’s premises or on its website.

17. [47]

    Letters were sent to some owners of properties adjoining the Site. However, the Council admitted that letters were not sent to two owners of properties located diagonally opposite the Site. There was a dispute as to whether the Council sent a letter to the appellant.

18. [48]

    On 11 November 2013, the appellant lodged a second LUA for a residential and retail development on the Site. The second LUA modified the first LUA, among other things, by removing plans for a K-Mart or equivalent store on the Site.

19. [49]

    The Statement of Environmental Effects (SEE) submitted on behalf of the appellant in support of the second LUA identified the 2010 LEP and the Planning Proposal as the instruments applicable to the Site. The SEE noted that the Planning Proposal had been placed on public exhibition, but had not yet been sent to the Department for gazettal. The SEE stated that since the Amending LEP had not yet been made, the appellant was “within [his] rights to lodge a development application under the existing B4 zoning”.

20. [50]

    A report was prepared for the Council on the results of the public exhibition of the Planning Proposal. The report stated that the principal purpose of the Planning Proposal was to rezone the land from B4 Mixed Use to R3 Medium Density Residential. Other amendments were proposed to the Site “to provide consistency with other land zoned R3”. The amendments involved three changes;

21. [51]

    Under the heading “Statutory Provisions”, the report stated as follows:

22. [52]

    The report also set out the steps that had been taken to place the Planning Proposal on public exhibition and to notify nearby landowners and persons who had previously made submissions. The report noted that:

23. [53]

    On 27 November 2013, the Council resolved in accordance with s 59 of the EPA Act and the Guide to:

24. [54]

    In a document which was undated, but was prepared after 27 November 2013, the Council reported on the action taken to comply with the Gateway Determination conditions. The report noted that 78 submissions had been received, all but one of which supported the Planning Proposal. The report also included the following passage:

25. [55]

    On 3 December 2013, Ms Stannard, the Co-ordinator Strategic Planning at the Council, requested a Council officer to upload the file relating to the Planning Proposal for the Department and the Parliamentary Counsel’s Office. The email attached a Map Cover Sheet and the maps sheet that needed to be sent. The Map Cover Sheet identified the maps to be revoked and the maps to be adopted. The Map Cover Sheet included the following typed words:

26. [56]

    The NSW Parliamentary Counsel’s office then allocated an officer to draft the plan.

27. [57]

    On 23 January 2014, the appellant commenced Class 1 proceedings in the L & E Court (Second Class 1 Proceedings) appealing against the Council’s deemed refusal of the second LUA. The appellant’s Statement of Facts and Contentions filed on 12 February 2014 set out the history of the Planning Proposal and recorded that the Council was working with the Parliamentary Counsel’s Office to finalise the Amending LEP.

28. [58]

    On 26 March 2014, the Parliamentary Counsel’s Office forwarded the draft Amending LEP by email to the Council. By an email dated 27 March 2014, the Council sent the Amending LEP to the Department. The cover sheet of the Amending LEP include the following statement:

29. [59]

    The text of the Amending LEP consisted of four clauses. Clause 3 identified the Site as the land to which the Amending LEP applies. Clause 4 declared that each of four maps adopted by the 2010 LEP and specified in Column 1 was amended by the map specified in Column 2. The attached maps recorded, respectively, the rezoning of the Site, the imposition of the minimum lot size requirement, the imposition of the maximum FSR and the removal of the previous BHR. The changes were achieved by the maps substituting a different colour for the designation of the Site. The significance of the altered colour could be ascertained by referring to a chart on each map.

30. [60]

    The Council’s email to the Department requested that the Amending LEP be notified on 28 March 2014. The handwritten portions of the emailed version of the Amending LEP were engrossed and the Amending LEP was gazetted on 28 March 2014. The printed version was the same as the version containing handwriting, except that the words “As delegate for” appeared before the words “Minister for Planning and Infrastructure”.

31. [61]

    On 28 March 2014, the solicitors for the Council informed the appellant’s solicitors that the Amending LEP had been made. The letter noted that the Amending LEP did not contain a savings provision and asserted that the proposed development of the Site was now prohibited and incapable of approval.

32. [62]

    On the same day, 28 March 2014, a new Development Control Plan (DCP) was published which depicted the Site as being included in the R3 zone. The primary Judge found that the only substantive change effected by the DCP was to bring the Site within a Precinct of the R3 Medium Density Residential zone. The DCP had not been publicly exhibited before it was made.

33. [63]

    The primary Judge set out the facts relating to the Council’s claim that Mr Pepping was authorised to sign the Amending LEP on its behalf. The facts found by her Honour are as follows: [16]

34. [64]

    To complete this account, it is necessary to refer to the “Written Authorisation to Exercise Delegation” issued to the Council by the Department on 25 September 2013, in association with the Gateway Determination. [17]

Primary Judgment

1. [65]

   The primary Judge summarised the many grounds of the appellant’s challenge to the Amending LEP as follows: [18]

2. [66]

   The Primary Judge referred to undisputed evidence that the Council’s files contained a copy of a letter dated 10 October 2013 which was signed by Ms Stannard and addressed to the appellant and other members of his family at a Post Office Box address. [19] The letter advised the appellant that the Council had resolved to prepare a Planning Proposal to rezone the Site and recorded that the Department had granted the Council permission to proceed with the Planning Proposal. The letter also itemised the exhibition material that was available for inspection and invited submissions on the Planning Proposal.

3. [67]

   The appellant did not give evidence in the L & E Court proceedings, but disputed that the letter had been sent by the Council or received by him. He relied on evidence given by three members of his staff that they had no recollection of seeing the letter when they cleared and processed the mail from the Post Office Box. The appellant also relied on what his counsel said were the objective probabilities that if he had known of the Planning Proposal, he would have made submissions within the period of public exhibition.

4. [68]

   In her Honour’s view, [20] the presence of the copy letter in the Council’s files was “powerful evidence” that it had not only been prepared but sent. The form of the letter was slightly different to the standard letter sent to other interested persons, indicating that the Council appreciated the desirability of informing the appellant individually about the Planning Proposal. Moreover, the fact of the letter having been sent was recorded in reports prepared subsequently by the Council.

5. [69]

   The primary Judge refused to draw an inference from the appellant’s previous submissions that he would have lodged a submission had he known that the Planning Proposal was being publicly exhibited. [21] According to her Honour, the appellant “well and truly knew that Council intended to rezone the Site as residential”. The absence of any submission from him reflected a realistic understanding on his part that he could not put anything new in opposition to the Planning Proposal.

6. [70]

   Her Honour considered it significant that there was not a single word of complaint from the appellant that the Council had failed to notify him of the Planning Proposal. [22] The primary Judge also drew a Jones v Dunkel [23] inference against the appellant by reason of his failure to give evidence. [24] Her Honour inferred that evidence from the appellant and from his town planner (who also did not give evidence) would not have assisted the appellant’s case.

7. [71]

   Accordingly, her Honour found [25] that the Council sent the letter of 10 October 2013 and that it was received by the appellant. He was therefore aware of the public exhibition of the Planning Proposal and of the documents exhibited by the Council. In addition, her Honour was satisfied that the appellant was monitoring the Council’s website (by himself or by his agents) and had been told by his solicitor or town planner that the Planning Proposal was being exhibited.

8. [72]

   The primary Judge rejected the appellant’s contention that the Council had failed to comply with the community consultation requirements imposed by the Minister’s delegate in the Gateway Determination. Her Honour did so because of her finding that the appellant had been notified of the Planning Proposal and for the following additional reasons.

9. [73]

   Her Honour accepted the Council’s submission that only those matters in section 5.2.2 of the Guide which were expressed in mandatory terms could sensibly be regarded as “notice requirements for public exhibition” of the Planning Proposal, within the meaning of par 2(b) of the Gateway Determination. [26] The Guide stated that the public exhibition of the planning proposal was “generally undertaken” in the manner described in section 5.2.2. These were not words of compulsion. 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. [27]

10. [74]

    In the primary Judge’s view, the only actions the Gateway Determination obliged the Council to take were those expressed in mandatory terms in section 5.2.2 of the Guide. The Council was not obliged to comply with the three dot points under the description of how public exhibition is “generally undertaken”, provided the Council undertook what could be described as “public exhibition”. Publication of the notices in the local newspaper and on the Council’s website amounted to public exhibition. [28] Accordingly, notification to adjoining landowners was not a mandatory requirement. [29]

11. [75]

    The appellant submitted that publication of a notice in the local newspaper on 9 October 2013 did not give sufficient notice of the public exhibition to commence on that day. Since her Honour considered that publication of a notice in a newspaper was not a mandatory requirement, it did not matter if the public exhibition occurred a short time before distribution of the newspaper. [30] In any event, the Council had shown that the website had been updated prior to the commencement of the public exhibition. [31]

12. [76]

    The appellant complained that although the newspaper advertisement and website included an address for receipt of submissions, the letters to interested persons did not do so. Her Honour pointed out [32] that the letterhead gave the Council’s address and the body of the letter informed the recipient as to where the material could be viewed.

13. [77]

    The appellant submitted to the primary Judge that the Council’s failure to exhibit the draft Development Control Plan (DCP) with the Planning Proposal meant that the exhibition was misleading and did not constitute a valid public exhibition. In her Honour’s view, the materials exhibited accurately described the changes proposed by the Planning Proposal. [33] It was not necessary for the Planning Proposal to address changes proposed by the DCP. The Gateway Determination did not require the DCP to be exhibited and the changes proposed in the Planning Proposal were independent of and not affected by the changes in the DCP. [34] In any event, any inconsistency between the LEP and the DCP would be resolved in favour of the former.

14. [78]

    The appellant contended that even if the community consultation requirements did not oblige the Council to notify him or adjoining landowners, common law notions of procedural fairness required that he, and they, be notified. In addressing this submission the primary Judge held, on the authority of Vanmeld Pty Ltd v Fairfield City Council, [35] that the EPA Act contains exhaustive provisions as to the right to be notified and to be heard in relation to a planning proposal. [36]

15. [79]

    This conclusion, coupled with her Honour’s holding that the Council had complied with the community consultation requirements, made it unnecessary to go further. Nonetheless, her Honour rejected the appellant’s contention that he was entitled to procedural fairness on the question of whether a savings and transition provision would be included in the Amending LEP. Her Honour thought that the appellant could reasonably expect that no such provision would be included:

16. [80]

    The primary Judge noted that it was common ground that the Minister had validly delegated to the Council the power to make what became the Amending LEP. [37] It was also common ground that the General Manager himself had sub-delegated power from the Council to sign the draft Amending LEP (although he had not done so). [38]

17. [81]

    The first question was whether the General Manager had validly sub-delegated his power to Mr Pepping. The Council relied on the instrument dated 19 December 2013, set out above. [39] Her Honour rejected this contention on the ground that the instrument was confined to matters under the EPA Act where the term “concurrence” was used. [40]

18. [82]

    The Council’s alternative argument was that Mr Pepping was authorised to sign the draft Amending LEP as the Council’s agent, rather than as its delegate. Her Honour considered that the relevant act of the Council was the resolution passed at the meeting of 27 November 2013. Her Honour found that:

19. [83]

    The primary Judge continued as follows:

20. [84]

    The primary Judge said that if she had found that Mr Pepping was not authorised to sign the draft Amending LEP she would have exercised her discretion not to grant relief. [43] She based this conclusion on the evidence of the General Manager of the Council, Ms Prendergast, who said that if she had realised that Mr Pepping lacked delegated authority to make the Amending LEP, she would have taken steps to ensure that he received a valid sub-delegation of authority to do so. Her Honour took into account that the operative act to make the Amending LEP was the Council’s resolution of 27 November 2013 and that the remaining acts were “of a secretarial nature”.

21. [85]

    The Council conceded before the primary Judge that it had failed to comply with the requirement in reg 18 of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation) to publicly exhibit the DCP for a period of at least 28 days. Indeed the DCP had not been exhibited at all.

22. [86]

    The primary Judge pointed out that a DCP is not an EPI [44] and that its principal purpose is to “provide guidance” to persons preparing to carry out development and to the consent authority. [45] Her Honour also noted that a DCP has no effect to the extent to which it is inconsistent with the EPI. [46]

23. [87]

    The primary Judge held that, having regard to the status of a DCP and the fact that the amendment in this case merely regularised the change effected by the Amending LEP, non-compliance with reg 18 of the EPA Regulation did not lead to invalidity of the DCP. [47] In any event, her Honour would have exercised her discretion to refuse relief. [48] The real question was the validity of the Amending LEP. The public exhibition of the Planning Proposal put the community on notice that non-residential development would be prohibited and that the existing DCP would be affected accordingly. [49]

Reasoning: Compliance with Gateway Determination

1. [88]

   The appellant challenged the primary Judge’s finding that the letter of 10 October 2013 was sent by the Council to the appellant and received by him. I have set out the primary Judge’s reasoning on this issue at some length. [50] In my view, the matters identified by her Honour amply support her finding.

2. [89]

   Mr Galasso SC, who appeared for the appellant, relied, as he did before her Honour, on the evidence of three of the appellant’s staff members, each of whom had access to the Post Office Box. They said that their duties included collecting, opening and reviewing mail delivered to the appellant’s Post Office Box. Each said that he or she could not recall seeing the letter of 10 October 2013.

3. [90]

   This evidence is, at best, equivocal. None of the three witnesses suggested that there was anything particularly significant about the letter that would have caused him or her to recall it. None of them alluded to whether other people, including the appellant, might have cleared the Post Office Box from time to time. The appellant himself, of course, did not give evidence.

4. [91]

   Mr Galasso submitted that it was significant that the Council had not adduced evidence as to its procedures for preparing and sending out correspondence. The absence of such evidence was a matter to be taken into account, but it had to be assessed by the primary Judge against all the evidence bearing on the issue of notification. Her Honour was entitled to regard the copy of the signed letter in the Council’s files as cogent evidence that the letter had been prepared and that, in the ordinary course, it would have been posted to the relevant address. Her Honour was also entitled to take into account the Council reports which recorded that the appellant had been notified of the Planning Proposal, but had not responded to the invitation to make a submission. Perhaps if the appellant had given evidence that he had never received the letter, the absence of evidence as to the Council’s postal procedures might have been given greater weight. But the appellant did not give evidence and her Honour was justified in inferring from his absence that his evidence would not have assisted his case.

5. [92]

   The fact that the appellant did not make a submission to the Council in relation to the Planning Proposal is of little assistance to him on the issue of whether the letter was sent to and received by him. The primary Judge found that the appellant’s agents were monitoring the Council’s website. That finding reflected evidence given by the appellant’s solicitor in the Class 1 Proceedings, a transcript of which was tendered in these proceedings. The solicitor accepted that he became aware of the Gateway Determination shortly after it was made. The finding also reflected the contents of the SEE dated 5 November 2013, in which the town planner noted that the “proposed zoning has been placed on public exhibition and exhibition closed on 23 October”. The appellant’s failure to make a submission on the Planning Proposal was not because he was ignorant of its existence.

6. [93]

   Similarly, the fact that the Council did not send letters to several nearby landowners, apparently through inadvertence, does not demonstrate that the letter addressed to the appellant, was not sent. That letter was drafted with the appellant specifically in mind and was signed by an officer of the Council. The need for a letter to the appellant was not overlooked.

7. [94]

   There was no error in the primary Judge’s finding.

8. [95]

   The appellant’s written submissions identified what were said to be numerous errors in the primary Judge’s finding that the Council had complied with the community consultation requirements imposed by the Minister in the Gateway Determination. However, the written submissions said that the “core of the appellant’s case” was that the requirements specified in section 5.5.2 of the Guide were, by reason of the Gateway Determination, mandatory matters to be complied with by the Council in making the Amending LEP. Mr Galasso submitted that the primary Judge should have held that the language of compulsion in the Gateway Determination [51] elevated all the requirements in section 5.5.2 of the Guide into mandatory requirements.

9. [96]

   It followed, according to Mr Galasso, that the primary Judge erred in concluding that the Council was not required by the Gateway Determination to notify all adjoining and affected landowners by written notice. That defect, so he argued, invalidated the Amending LEP. That was so even if, contrary to the appellant’s position, the Council had notified the appellant in writing of the revised Planning Proposal, since it was common ground that several affected landowners had not been notified in writing.

10. [97]

    Mr Galasso cited the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [52] for the proposition that s 56(8) of the EPA Act “legislatively establishes the paramountcy of community consultation”. However, his submissions focused on the construction of the Gateway Determination and the Guide rather than on the proper construction of the EPA Act.

11. [98]

    Project Blue Sky held that in deciding whether an act done in contravention of a statute renders the act invalid, it is necessary to ask whether it is a purpose of the legislation that invalidity should be the consequence of the contravention. In answering that question, regard must be had “to the language of the provision and the scope and object of the whole statute”. [53] The answer is not always obvious: [54]

12. [99]

    It follows from Project Blue Sky that the starting point for determining whether a breach of community consultation requirements rendered the Amending LEP invalid must be the language of the EPA Act. In particular, it is necessary to consider carefully the language of s 56(8), upon which both parties relied.

13. [100]

    Section 56(8) of the EPA Act comprises two sentences, the second of which qualifies the first. The first sentence states that a failure to comply with a requirement of a gateway determination in relation to a proposed instrument does not prevent the instrument from being made or invalidate the instrument once it is made. The qualification in the second sentence is that if community consultation is required under s 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 s 57. Section 57(1) provides that before consideration is given to the making of an LEP, the relevant planning authority must consult the community in accordance with the community consultation requirements for the proposed instrument.

14. [101]

    The essential difference between the parties concerns the extent to which the second sentence of s 56(8) qualifies the first. Mr Galasso did not dispute that the first sentence clearly states the general principle that a failure to comply with the requirements of a gateway determination neither prevents the proposed instrument being made, nor invalidates it once it is made. But, so he argued, the second sentence recognises the importance of community consultation. It expresses the intention of Parliament that any failure to consult in accordance with the community consultation requirements (as distinct from other requirements) for the proposed instrument renders the instrument, once made, invalid.

15. [102]

    These submissions encounter two difficulties, both of which flow from the contrast between the language used in the first and second sentence of s 56(8). The first difficulty arises from the absence of any reference in the second sentence to the validity of the instrument. The general proposition in the first sentence is that non-compliance with a gateway determination requirement does not prevent the proposed instrument being made nor does it invalidate the instrument once made. The qualification in the second sentence is that unless an opportunity is given to make submissions (and unless they are considered) the instrument is not to be made. The second sentence says nothing about the absence of such an opportunity invalidating the instrument once made.

16. [103]

    The contrast in language suggests that the second sentence of s 56(8) may be directed to the Minister as the decision-maker under s 53(1) of the EPA Act. On this approach, the second sentence directs the Minister not to make the LEP if the required opportunity to make submissions has not been provided. But a failure to provide that opportunity does not result in the invalidity of the instrument. In other words, the second sentence of s 56(8) does not qualify the statement in the first sentence, namely that non-compliance with the requirements of a gateway determination (including community consultation requirements) does not invalidate the instrument.

17. [104]

    Mr Leggat SC, who appeared with Mr To for the Council, expressly declined to adopt this construction of s 56(8) of the EPA Act. He accepted that if the community has not been given an opportunity to make submissions concerning a planning proposal, or if the submissions have not been considered, the consequence is that the LEP, once made, is invalid. In making this concession, he no doubt took into account the object stated in s 5(c) of the EPA Act (to provide increased opportunity for public involvement in environment planning and assessment) and the mandatory language of s 57(1). In my view, the construction of s 56(8) is by no means clearcut. Nonetheless, I am content to proceed on the basis of Mr Leggat’s concession, without deciding whether it was correctly made.

18. [105]

    Mr Leggat concentrated on the second difficulty facing the appellant’s submission. The second sentence of s 56(8) does not say that the instrument is not to be made unless all community consultation requirements imposed by a gateway determination have been complied with. When read with s 57, the second sentence states that if consultation is required in accordance with community consultation requirements (that is, the requirements imposed by the Minister pursuant to s 56(2)(c)), 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 s 57.

19. [106]

    If the qualification in the second sentence of s 56(8) is intended to apply whenever the relevant planning authority fails to comply with community consultation requirements, it would have been very easy for the drafter to say so. The second sentence would simply say that the instrument is not to be made unless the community consultation requirements have been complied with. The language would then mirror that used in the first sentence of s 56(8). Instead the drafter has deliberately chosen a different form of words, namely that 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 s 57(1)).

20. [107]

    In my view, the drafting of s 56(8) reflects awareness of the tendency of courts to regard public notification requirements in relation to planning decisions as preconditions to the valid exercise of power. [55] The drafter has been careful not to make the validity of an instrument dependent on strict compliance with requirements imposed, not by statute or subordinate legislative instruments, but by reference to relatively informal Departmental documents. The second sentence of s 56(8) recognises that a failure by a relevant planning authority to comply fully with community consultation requirements will not necessarily have any material effect on the opportunity for interested persons to make submissions on the planning proposal. Understood in this way, s 56(8) is consistent with the statutory objective of providing “increased opportunity for public involvement and participation” in the planning process. [56] The provision attempts to ensure that there is a genuine opportunity for interested persons to make submission on a planning proposal, but it does so without employing the blunt mechanism of invalidity for every breach of community consultation requirements, no matter how inconsequential the breach.

21. [108]

    Mr Galasso accepted that his argument would lead to the invalidity of an LEP if the relevant planning authority failed to comply with apparently inconsequential breaches of community consultation requirements. For example, a gateway determination in the same terms as that made in the present case would invalidate the LEP if the Council failed to comply with any of the requirements specified in section 5.5.2 of the Guide. Thus it would be enough to invalidate the LEP if the Council inadvertently failed to notify an adjoining landowner of the planning proposal, even though the landowner was well aware of the proposal from the public exhibition or other sources. This construction of the legislation is not only difficult to reconcile with the statutory language, but with the object of the EPA Act as stated in s 5.

22. [109]

    It follows that I cannot accept Mr Galasso’s submission that any failure by the Council to comply with the community consultation requirements imposed by the Gateway Determination renders the Amending LEP invalid. Given Mr Leggat’s concession that the Amending LEP will be invalid if (but only if) the community was not “given the opportunity to make submissions” on the Planning Proposal, [57] the question is whether the community had that opportunity.

23. [110]

    The Council, as the primary Judge found, published two notices in the Southern Highland News that constituted notification of the Planning Proposal as contemplated by s 5.5.2 of the Guide. [58] The Planning Proposal was notified on the Council’s website and the appellant made no complaint about the material exhibited on the website. [59] With two exceptions, all affected and adjoining landowners were notified in writing of the Planning Proposal. [60] There was no evidence that the few landowners who did not receive individual letters were unaware of the Planning Proposal or were denied the opportunity to make any submissions they wished the Council to consider. The primary Judge also found that the Council notified the appellant by the letter of 10 October 2013 of the Planning Proposal, and advised him of the material publicly exhibited and the means of making a submissions.

24. [111]

    The primary Judge was not specifically asked to make a finding that the community had not been given an opportunity to make submissions on the Planning Proposal, as required by s 56(8). In any event, on the evidence and the findings to which I have referred, no such finding can be made. The community, including the appellant, had the opportunity to make submissions on the Planning Proposal.

25. [112]

    The appellant submitted that even if the community had been given an opportunity to make submissions on the Planning Proposal generally, he had been denied the opportunity to make submissions on whether the Amending LEP should have incorporated a savings provision (thereby preserving the Second Class 1 Proceedings). This submission encounters the obstacle that there is nothing in the Gateway Determination or section 5.5.2 of the Guide suggesting that the public exhibition of the Planning Proposal or written notices to interested persons had to descend to that level of detail.

26. [113]

    In any event, the exhibited documents made it apparent that the rezoning to R3 Medium Density was intended to prevent the development of the Site for commercial purposes, as the appellant had proposed. A savings provision in the Amending LEP to protect any pending LUA (such as the one made by the appellant on 11 November 2013) would have rendered the rezoning of the Site largely futile. The primary Judge’s finding that the appellant must have appreciated this was well open to her. The appellant or anyone else inclined to do so could have made a submission to the Council that a savings provision should be incorporated in the Planning Proposal at the drafting stage.

27. [114]

    The appellant challenged the primary Judge’s conclusion that the EPA Act contains exhaustive provisions as to the rights of interested persons to be notified and make submissions on a planning proposal. It is not necessary to resolve that issue. For the reasons that have already been given, the appellant had an opportunity to make any submissions he wished to the Council. That he did not make any such submissions at the final stage was his own decision. Thus even if the EPA Act does not exhaustively state the entitlement of interested persons to make submissions on planning proposals, the appellant was not denied procedural fairness.

28. [115]

    Mr Galasso did not explain why the appellant was entitled to complain about any denial of procedural fairness to neighbouring landowners who were not notified of the Planning Proposal. In any event, there was no evidence that those who were not notified suffered any practical injustice by reason of the omission.

Making of the Amending LEP

1. [116]

   The appellant submitted that the Council’s resolution of 27 November 2013, could not have constituted the making of the Amending LEP for the purposes of s 59(2) of the EPA Act. The resolution merely brought the proposed amendment into final form so that it could be sent to Parliamentary Counsel for drafting. Thus, so it was submitted, the primary Judge erred in finding that the resolution of 27 November 2013 constituted the making of the Amending LEP.

2. [117]

   The appellant further submitted that insofar as the primary Judge relied on the doctrine of agency, she was also in error. Mr Pepping did not purport to sign the Amending LEP as agent, but as the sub-delegate of the Council. Mr Galasso contended that since her Honour had found that the General Manager had not sub-delegated authority to Mr Pepping to make the Amending LEP, there was no room for the doctrine of agency. This was not a case of a mere ministerial act, such as issuing a notice or communicating a decision. Once the Amending LEP was drafted in accordance with the Council’s “final proposals” the Council had to decide whether or not to make the Amending LEP, with or without variations, as required by s 59(2) of the EPA Act. In the absence of a valid delegation to Mr Pepping, he could not perform that function as an agent of the Council.

3. [118]

   The Council rejected the appellant’s contention that the primary Judge found that the resolution of 27 November 2013 constituted the making of the Amending LEP. Mr Leggat accepted that the Amending LEP was made by Mr Pepping signing the instrument drafted by Parliamentary Counsel.

4. [119]

   Mr Leggat submitted that the resolution of 27 November 2013 constituted authorisation for Mr Pepping to take what her Honour described as “secretarial steps” to bring the Amending LEP into force. In essence, so Mr Leggat contended, once the Council passed the resolution of 27 November 2013, all that was required was the engrossing of the amendments and “colouring in” of the Site as represented on each of the four annexed plans. Any employee of the Council could have signed the Amending LEP pursuant to s 355(a) of the LG Act.

5. [120]

   Mr Leggat submitted that if the process was understood in this way, the absence of any delegated authority to Mr Pepping did not prevent the Council relying on the doctrine of agency. It was entitled to rely on its express power under s 355(a) of the LG Act to act by its employees or agents.

6. [121]

   It is common ground in the appeal that the Amending LEP was validly made pursuant to s 59(2) of the EPA Act only if Mr Pepping was authorised to sign the instrument on behalf of the Council on 27 March 2014. There is also no challenge to the primary Judge’s finding that the General Manager, although he had power to sub-delegate to Mr Pepping authority to sign the instrument, [61] had not validly done so. Under the legislation, the Council itself lacked the power to delegate authority directly to Mr Pepping to sign the Amending LEP. [62]

7. [122]

   The primary Judge nonetheless stated that: [63]

8. [123]

   It is unclear what her Honour was referring to in the statement quoted in the previous paragraph. Mr Leggat suggested that she may have been referring to the Map Cover Sheet sent to the Parliamentary Counsel’s Office on 3 December 2013, which included Mr Pepping’s name and title as a typed insertion on the document. If so, the insertion was merely an incomplete notation as a draft document. It could not have constituted an authority by the Council to Mr Pepping to sign the Amending LEP as its agent (assuming the Council had power to grant such authority). Mr Leggat did not submit otherwise.

9. [124]

   Mr Leggat’s submissions in support of the primary Judge’s conclusion ultimately rested on the effect of the Council’s resolution of 27 November 2013. Mr Leggat contended that the resolution had to be understood as authorising Mr Pepping (or perhaps other officers of the Council) to carry out what Mr Leggat described as the “secretarial” function of signing the Amending LEP, once the draft instrument was returned by Parliamentary Council.

10. [125]

    In my view, this submission encounters the difficulty that the resolution did not purport to authorise the making of the Amending LEP, by Mr Pepping or anyone else. To appreciate the effect of the resolution, it is necessary to have regard to the sequence of event prescribed by Div 4 of Pt 3 of the EPA Act for the making of LEPs.

11. [126]

    The sequence, for present purposes, is as follows:

12. [127]

    By 27 November 2013, the Council had considered any submissions concerning the proposed instrument and thus the community consultation required by s 57(1) had been completed. [64] The next step in the process was to forward the final proposals of the Council to the Department to draft an LEP to give effect to the proposals. The Director-General was to make the necessary arrangements in consultation with the Council, a process that in practice involves Parliamentary Council. The Amending LEP could not be made under s 59(2) of the EPA Act until the instrument was drafted and the Minister (or the Council under delegated authority) decided to make the LEP as drafted.

13. [128]

    The Council’s resolution to “proceed with the making of the amendment” provided authority for Council officers to forward the “final proposals” to the Department for the drafting of the LEP. Before the Amending LEP could take effect, the final step in the process had to take place. The relevant decision-maker (in this case the Council acting under delegated authority from the Minister, or an officer of the Council acting under delegated authority) had to determine that the Amending LEP, as drafted should be made and exercise the power conferred by s 59(2) of the EPA Act. There is nothing in the language of the resolution of 27 November 2013 suggesting a departure from this process. Specifically the language does not purport to confer authority on anyone other than the Council or an officer acting under delegated authority to exercise the power to make the Amending LEP as drafted by Parliamentary Counsel.

14. [129]

    Mr Leggat characterised the final step in the process as “secretarial”. He did so presumably because the authorities recognise that an express statutory power of delegation does not necessarily exclude an implied power for the body concerned to act through the agency of others. Mason J explained the principle in Minister for Aboriginal Affairs v Peko-Wallsend Ltd: [65]

15. [130]

    Even if it is correct to characterise the final steps in the process after 27 November 2013 as “secretarial”, it does not support the conclusion that Mr Pepping was authorised to make the Amending LEP. As I have explained, the Council’s resolution of 27 November 2013 did not purport to confer that authority on Mr Pepping. Nor is this a case like O’Reilly v Commissioners of the State Bank of Victoria, where it is necessary to imply an authority to allow the decision-making process to be brought to finality. It was always open to the Council or an officer acting under delegated authority to make the Amending LEP after Parliamentary Counsel had settled the draft.

16. [131]

    There is a further reason for not reading the Council’s resolution of 27 November 2013 in the manner suggested by Mr Leggat. The authorities usually concern a decision-maker such as a Minister, who has statutory power of delegation, and the question of whether the decision-maker, independently of that power, can authorise another person to act as his or her agent. [67] This case is different. Section 377(1) of the LG Act permits the Council to delegate functions to the general manager or to any other person, but not to another employee of the Council (such as Mr Pepping). (As has been noted, the General Manager could have sub-delegated functions to Mr Pepping but did not do so validly). In the light of the limitation on the Council’s power, it is difficult to construe the resolution of 27 November 2013 as intended to authorise Mr Pepping to do as agent that which the Council could not authorise him to do in the exercise of delegated authority.

17. [132]

    In any event, I do not accept Mr Leggat’s characterisation of the steps remaining after the Council’s resolution of 27 November 2013 as merely “secretarial”. Nor do I accept the primary Judge’s characterisation that Mr Pepping acted merely as “a functionary amanuensis and signatory”. It appears that the drafting of the Amending LEP was a relatively straightforward task. But the drafting still had to take place in consultation with the Council. Decisions had to be made on matters not expressly dealt with in the Planning Proposal itself, such as whether the Amending LEP should include a savings provision for pending LUAs. Queries had to be addressed, as shown by an email of 16 December 2013 from the Parliamentary Counsel’s Office raising a question as to the relationship between maps forwarded by the Council to be incorporated in the Amending LEP. Similarly, issues arose as to the order in which various amendments to the 2010 LEP were to be made and as to the correct formatting of the maps.

18. [133]

    It was also open to the Council (and the Minister if so advised) at any time prior to the Amending LEP being made to determine that the matter should not proceed or to vary the Planning Proposal. Alternatively, the Council could have decided to make the Amending LEP subject to variations of the Planning Proposal. As it happened, apparently nothing occurred in the present case that would have caused the Council to halt the process or materially vary the Planning Proposal. Nonetheless, circumstances might have occurred that warranted a reconsideration of the “final proposals”. Whether or not that was the case, a decision was required that it was appropriate to exercise the statutory power to make the Amending LEP.

19. [134]

    For these reasons, I conclude that the primary Judge was in error in holding that Mr Pepping had authority as the Council’s agent to sign the draft Amending LEP. His actions in purporting to make the Amending LEP were done without the authority of the Council.

20. [135]

    I should add that in brief supplementary written submissions filed after the hearing, the Council drew attention to the resolution of 12 December 2012 [68] as a possible basis for the primary Judge’s observation [69] that in specifying that Mr Pepping was to sign the instrument, it was appointing him as the Council’s agent for this purpose. The supplementary submissions did not suggest that a purported sub-delegation to Mr Pepping in contravention of s 377(1) of the LG Act could be construed as granting authority to Mr Pepping to make EPIs as the Council’s agent. In any event, a submission to that effect could not succeed.

21. [136]

    As has been seen, the primary Judge would have refused relief on discretionary grounds even if Mr Pepping lacked authority to make the Amending LEP. The Council’s written submissions supported this as an alternative basis for upholding her Honour’s orders. The submissions adopted her Honour’s reasoning and added the comment that any breach was “purely technical”.

22. [137]

    It may be accepted that the L & E Court’s jurisdiction to grant declaratory relief is broad and its discretion is not subject to close fetters. [70] But the discretion is not absolute.

23. [138]

    The primary Judge’s contingent exercise of discretion miscarried. Her Honour regarded the resolution of 27 November 2013 as the “operative act” for the making of the Amending LEP and she also considered the acts to be done after that as “of a secretarial nature”. For the reasons that have been given, her Honour erred in making each of these findings.

24. [139]

    It is therefore necessary for this Court to determine whether declaratory relief should be granted. The appellant has established that the Amending LEP was not validly made because the conditions for the exercise of the power conferred by s 59(2) of the EPA Act were not satisfied. This is not a mere technically that can be overcome by a Council officer asserting that if she realised that legislation had not been complied with she would have taken remedial action. The fact is that the purported making of the Amending LEP was not authorised by the statutory scheme and is invalid. It is therefore appropriate to grant declaratory relief.

The DCP

1. [140]

   The appellant’s notice of appeal included grounds challenging the primary Judge’s finding that the DCP was not invalid, despite the failure of the Council to exhibit the draft DCP publicly. The appellant’s written submissions addressed these grounds.

2. [141]

   In oral submissions Mr Galasso said that if the Court held the Amending LEP to be invalid, he was “not particularly concerned” about the status of the DCP. He took this position because the DCP has no effect to the extent that it is inconsistent with a provision of an EPI. [71] There is therefore no need to determine whether relief should be granted in respect of the DCP.

Orders

1. [142]

   The appellant’s challenge to the validity of the Amending LEP succeeds on the ground that it was not made in conformity with the requirements of the EPA Act. I propose the following orders:

2. [143]

   The appellant advanced a very large number of grounds both before the primary Judge and on appeal. Most of the grounds were unsuccessful and some were without any substance. A good deal of time and effort went into dealing with the unsuccessful grounds, which were quite distinct from the ground on which the appellant ultimately succeeded.

3. [144]

   In these circumstances, the appellant should have only a proportion of his costs in the L & E Court and in this Court paid by the respondent. I therefore propose these additional orders: