John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning and Ors [1999] NSWLEC 213 (1 December 1999)

Last Updated: 13 December 1999

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: John Brown Lenton and Co Pty Ltd v Minister for Urban Affairs and Planning and Ors [1999] NSWLEC 213

PARTIES:

APPLICANT

John Brown Lenton and Co Pty Ltd

RESPONDENT

Minister for Urban Affairs and Planning and Ors

CASE NUMBER: 40129 of 1999

KEY ISSUES: Environmental Planning Instrumentsdraft local environmental plan - absence of consultation required by s 62 of the EP&A Act - absence of statement required by s 64 - numerous alterations made to draft plan following exhibition - alterations to draft plan so extensive as to constitute a different plan to that exhibited - draft plan not in accordance with plan for which s 65 certificate was issued - plan not re-exhibited - discretionary considerations - injunction restraining further action on draft plan

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, Pt 3, Div 4, s 62, s 64, s 65, s 66, s 67, s 68, s 69

Environmental Planning and Assessment Regulations 1994

Interpretation Act 1987, s 9

CORAM: Cowdroy J

DATES OF HEARING: 02/09/99, 14/09/99, 15/09/99, 01/10/99, 05/10/99

DECISION DATE: 01/12/1999

APPEARANCES

APPLICANT

Mr D Wilson (Barrister)

SOLICITORS

Wilshire Webb Solicitors

FIRST & SECOND RESPONDENTS

Mr M Leeming (Barrister)

SOLICITORS

Legal Services Branch

THIRD RESPONDENT

Mr J Robson (Barrister)

SOLICITORS

McPhee Kelshaw

JUDGMENT:

Applicant

First Respondent

Second Respondent

Third Respondent

Background

1. By application class four the applicant seeks a declaration that the respondents have failed to follow the provisions of Part 3, Division 4 of the Environmental Planning and Assessment Act 1979 ("the Act") in the preparation of the draft Amendment No 25 to the Blue Mountains Local Environment Plan 1991 ("the 1991 LEP"). Consequential orders are sought restraining the second respondent from undertaking further steps in the gazettal of the draft Amendment No 25. The first and second respondents have submitted to any order the Court may make other than costs.

2. On 11 March 1997 the third respondent ("the council") resolved to prepare a draft local environmental plan designed to resolve anomalies in respect of land zoned Residential Bushland Conservation Zone ("RES-BC") under the 1991 LEP. Such resolution became dormant. On 15 July 1997 the council again resolved to prepare a draft plan ("the draft plan") pursuant to s 54 of the Act and to seek certification for exhibition of that draft plan pursuant to s 65 of the Act. The draft plan sought to impose new restrictions upon the development of land in zones subject to the 1991 LEP and to clarify the objectives of land zoned RES-BC. On 17 July 1997 the council notified the Department of Urban Affairs and Planning ("DUAP") of the proposed draft plan pursuant to s 54(4) of the Act and cl 6 of the Environmental Planning and Assessment Regulations 1994 ("the regulations"). The council also provided information concerning the preparatory procedures to seek certification pursuant to s 65 of the Act. Section 65(1) provides:-

65 (1) Where the Director receives a copy of a draft local environmental plan from a council under section 64, the Director may cause to be issued to the council a certificate certifying that the draft plan may be publicly exhibited in accordance with section 66.

3. On 12 August 1997 the council resolved to notify in writing all private land owners of the proposed exhibition of the draft plan.

4. On 4 September 1997 the Director issued a certificate pursuant to s 65 which authorised public exhibition of the draft plan. An accompanying letter requested the council to inform the public that the draft plan may be altered after exhibition due to legal drafting requirements. Thereafter from 11 September 1997 the draft plan was exhibited publicly at five locations together with a `plain English' version and explanatory notes. The exhibition initially intended for a duration of two months, was extended to 31 December 1997. The council forwarded 8,000 individual letters to property owners and public response was invited. During the period of exhibition the council notified and received comments from numerous statutory bodies including the State Rail Authority, Hawkesbury Nepean Catchment Management Trust, National Parkes and Wildlife Service, Environment Protection Authority and the Roads and Traffic Authority. No objections were received from these organisations to the proposals contained in the draft plan. Whilst suggestions were made for additional changes there was overall support for the proposed amendments.

5. On 2 December 1997 council convened a public meeting which was held at the Mid-Mountains Community Centre at Lawson following publication of a notice in the Blue Mountains Gazette on 26 November 1997 of such meeting. Council subsequently responded in writing to the 260 persons who provided submissions arising from public participation.

6. The council originally intended to hold an additional public hearing concerning the draft plan once all submissions had been received. However at its ordinary meeting held on 12 May 1998 council considered a report and in view of certain recommendations made therein, resolved not to hold a public hearing. The reason for this decision is stated in the council minutes:-

The objections to the restraint on subdivision of land zoned RES BC - 8 lots per hectare, are not considered to be significant in that the proposed amendments to development standards relate to the environmental capacity of the land to accommodate development, no compensation is applicable in such a circumstance, and the determinants of that environmental capacity are consistent with the existing development criteria and the intent of the exhibited draft instrument.

7. At the same meeting as a result of the submissions council received, various alterations to the draft plan were considered. Council resolved to amend the exhibited draft plan and to refer it to a legal practitioner for further drafting. The draft plan which was amended subsequent to its exhibition is hereafter referred to as `the draft LEP'

8. On 30 June 1998 the council considered the draft LEP and the changes resulting from legal drafting. Council then resolved to forward the draft LEP to DUAP pursuant to s 68 of the Act. Section 68(4) of the Act requires the council to submit to the Director of DUAP details of all submissions, the draft LEP and the reasons for any alterations made thereto, statements verifying that the provisions of s 66 and s 67 were complied with (such sections relate to public exhibition and public involvement in the making of the draft LEP) and details of any inconsistency between the draft LEP and any other instrument.

9. By letter dated 31 August 1998, Wilshire Webb, (solicitors for the applicant) wrote to Mr R Mason, Director of DUAP asserting that the draft LEP was not the product of the statutory process required by Pt 3, Div 4 of the Act (hereafter referred to as "Pt 3") and provided a report containing details of the alleged differences between the draft plan as exhibited and that sent for approval under s 68 of the Act. The letter complained that the concept of `development excluded land' (see definition in paragraph 40 (g) of this judgment) was not incorporated in the draft plan as exhibited and that the changes made could lead to arbitrary restrictions on the development of residential land in the Blue Mountains. The letter concluded with the assertion that council was required to exhibit the final draft LEP or to delete the definitions of `development excluded land' and `development intensity area', being definitions only introduced after exhibition of the draft plan.

10. Council obtained a legal opinion concerning the matters so raised and was advised that the draft LEP could be implemented. Council also considered the matters raised by Wilshire Webb and generally reviewed the draft LEP at a meeting held on 28 October 1998 with representatives from DUAP. On 27 November 1998 council wrote to Mr Mason pointing out that the draft LEP `has targeted the general issue of land capability and site responsiveness of subdivision development within land zoned Residential Bushland Conservation 8 lots per ha across the City'. A chronology giving the history of the preparation of the draft LEP accompanied the letter.

Subsequent events

11. Considerable correspondence passed between the legal advisors of the council and the Director of DUAP concerning the numerous changes to the draft LEP in the months following its exhibition. By letter dated 16 June 1999 the Parliamentary Counsel advised DUAP that the draft LEP `may legally be made'. At its ordinary meeting on 29 June 1999 council resolved to endorse the draft LEP as amended by Parliamentary Counsel with a further amendment relating to the definition of `development excluded land'. By letter dated 30 June 1999 the council forwarded the draft LEP to the Director of DUAP with a request that the draft LEP be made.

Challenges by applicant

12. The applicant has made several challenges to the plan making process and they are considered hereunder.

I) Provision of details

13. The regulations require certain particulars to be provided to the Director of DUAP. Regulation 6(2)(f) requires:-

Details of the known environment (including social and economic factors) of the subject land.

14. In the submission made by council to DUAP under cover of its letter of 17 July 1997 the council had provided the necessary details by reference to the topic set out in reg 6(2) of the regulations. In relation to sub-paragraph 6(2)(f) under the heading `known environment' the council provided the following information:-

There is a strong environmental basis to the landuse zones which apply under LEP 1991. The original planning study, Environmental Management Plan stage 1, documented many of the environmental issues which had to be addressed by the LEP.

The environment is complex and often highly constrained. The environmental values and sensitivities to development arise from the high landscape values of the often unique setting; the fragile nature of the soils, steeply sloping sites and poor accessibility; the sensitivity of many of the valued vegetation units to sedimentation and weed infestation and changes in nutrients and water regime; the sensitivity of, and desired standards for the receiving waters within the National Park, and the dispersed nature of the source of many of the impacts arising from existing development; the high to extreme bushfire hazard, and an historic subdivision and land ownership pattern which has created a highly dispersed ridgeline settlement pattern with a very long boundary with the National Park.

The National Park and other crown acquisitions have attempted to address some of the more discrete and major conflicts caused by early subdivision within these sensitive ecosystems. Nevertheless, many private allotments remain, and the requirements within the instrument must be sufficiently flexible to be relevant to a wide range of site conditions.

Whilst the applicant submits that such statement does not satisfy the requirements of reg 6(2)(f), there is no substance to such assertion. The information provided by council describes the known environment relating to the land. The applicant, apart from its allegation of deficiency, has not pointed to any specific details which should have been provided. The details provided are adequate when consideration is given to the nature of the zoned land.

II) Consultation with other authorities and councils

15. As a second ground of challenge the applicant says that the draft plan was not submitted in accordance with s 64 of the Act because it was not accompanied by a statement specifying the names of the public authorities, bodies and other persons that council was required to consult pursuant to s 62 of the Act. Section 62 provides:-

In the preparation of an environmental study or a draft local environmental plan, the council shall consult with -

(a) such public authorities or bodies (including authorities of the Commonwealth or other States) as, in its opinion, will or may be affected by that draft local environmental plan

(b) where the draft local environmental plan applies to land adjoining a boundary between the council's area and another area - the council of that other area; and

(c) such other persons as the council determines.

Section 64 provides:-

When a draft local environmental plan has been prepared, the council shall submit a copy of the draft plan to the Director, together with a statement specifying the names of the public authorities, bodies and other persons the council has consulted with pursuant to section 62.

16. The applicant also submits that the council did not consult with other councils whose boundary adjoins the land in the draft plan as required by s 62(b). No consultation took place prior to the issue of the s 65 certificate, but consultation took place in January 1998 with all such councils namely Penrith, Greater Lithgow, Oberon and Hawkesbury. In addition it was not until the exhibition of the draft plan that council conducted consultations with the statutory bodies referred to in paragraph (4) of this judgment. The land affected by the draft LEP and bordering the lands of adjoining councils was not only the RES-BC zone but also national park, rural conservation and environmental protection zones.

17. In response the council submits that since the RES-BC zone was the zone most directly affected by the draft LEP and since only approximately 500 m of land so zoned adjoined the Hawkesbury Council boundary, the failure to consult was de minimis. Such submission however overlooks the other zones which were affected by the draft LEP.

i) Consideration of s 62 of the Act

18. Section 62 provides that in the preparation of an environmental study or a draft local environmental plan the council `shall consult' with various bodies. The words `in the preparation of' and the word `consult' require the council to undertake the process of consultation at some stage in the course of the preparation of the draft plan. The council has argued that it is immaterial whether the consultation was effected before or after the issue of the s 65 certificate. Whilst s 62 does not state whether such consultation is to take place before or after any application for a certificate pursuant to s 65 of the Act, s 64 makes it clear that the process of consultation is to be conducted prior to any such application. This construction of s 62 is supported by the decision of the New South Wales Court of Appeal in Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc.(1996) 98 LGRA 335 (see Priestley JA at 347).

19. By virtue of Pt 2 s 9 of the Interpretation Act 1987, `shall' is prima facie mandatory, although it must be construed in the context of the relevant legislation (Hatton v Beaumont (1978) 52 ALJR 589 at 591 - 592; Noroton Holdings Pty Ltd at 342).

20. In Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 their Honours McHugh, Gummow, Kirby and Hayne JJ at 388 stated:

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.

Their Honours at 390 continued:

A better 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...In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute." (Tasker v Fullwood [1978] 1 NSWLR 20 at 24)

21. In relation to s 62(b) the words `shall consult' make it apparent that council is under an obligation to provide sufficient information to enable other councils to consider the proposal and express their opinions so that they may be taken into account. The judgments of Rollo v Minister of Town Planning [1948] 1 All ER 13 at 17; Port Louis Corporation v Attorney General of Mauritius [1965] AC 1111 at 1124; TVW Enterprises v Duffy [No 2] (1985) 7 FCR 172 at 178 - 179, support the concept that a requirement for consultation imposes a duty. (See also Leichhardt Council v Minister for Planning (1992) 78 LGERA 306 and Edmondson and Anor v Warringah Council and Anor (NSWLEC unreported 40059 of 1998, 15 September 1999), Talbot J at 11).

22. The wording of s 62(a) and s 62(c) indicates that the council has a degree of flexibility in relation to those public authorities, bodies or other persons they consult and whether to consult with these parties at all. No such flexibility is apparent in s 62(b). If council boundaries adjoin, the obligation to consult arises and the observation of Lord Morris of Borth-y-Guest in delivering the judgment of the Privy Council in Port Louis at 1124 has application, namely:-

The requirement of consultation is never to be treated perfunctorily or as a mere formality.

23. In Ku-ring-gai Municipal Council v Minister for Planning and Environment and Anor (1982) 49 LGRA 223, Cripps J at 232 observed that s 60, s 61 and s 62 `imposed obligations on councils to consider submissions and to consult with various bodies'. Recently the New South Wales Court of Appeal in Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6, (1999) 46 NSWLR 78 determined that the consultation process required by Pt 3 of the Act constituted one of the essential elements of the statutory scheme for procedural fairness. Their Honours agreed that it is the intention of the legislature that this statutory scheme for procedural fairness be observed in the making of a local environment plan. (Spigelman CJ at 90; Meagher JA at 113 - 114; Powell JA at 115.) Consistent with the approach to the interpretation of the High Court of Australia in Project Blue Sky it can be concluded that if a council has not complied with the requirement of s 62 an essential requirement for the making of a valid LEP has not been fulfilled.

24. The importance of the consultation process is further highlighted by the fact that s 64 of the Act requires evidence of compliance with s 62 to be supplied to the Director of DUAP at the time of the submission of a draft LEP.

25. Council did not consult with the adjoining councils in relation to the draft LEP until after a report was submitted to DUAP under s 64. It is puzzling that DUAP did not query the absence of any statement required by s 64. There is no evidence to suggest that the council's failure to consult was ever noticed or considered by DUAP.

26. Since the consultation required by s 62 did not occur, and as a consequence no statement envisaged by s 64 was brought into existence, there has been a breach of s 64. In view of the findings made concerning the effect of the breach of s 62, it is unnecessary to decide whether a breach of s 64 is by itself, sufficient to render invalid the draft LEP.

27. For completeness it should be noted that whilst Cripps J in Asquith v The Minister for planning and Local Government and Ors (unreported no 40011 of 1989, 24 October 1989) held s 62 was ancillary to the process of making an LEP and did not impose a mandatory obligation, His Honour's decision cannot be regarded as current law in view of Project Blue Sky and Vanmeld.

III) Public exhibition of draft plan

28. As a third ground of challenge the applicant submits that the exhibition of the draft plan required by s 66(1)(b) of the Act did not advise the public of possible changes to the draft as instructed by DUAP in its letter dated 4 September 1997. Such letter states:-

The Department is therefore issuing the certificate on the understanding that Council when exhibiting the draft LEP, makes it clear to the public that the draft plan may be changed to satisfy legal drafting requirements, and provides a plain English version explaining what the plan does.

A `plain English' version was provided but no statement was made at the time of exhibition by council that the draft plan might be altered to satisfy legal drafting requirements.

29. Section 65(2) of the Act provides:-

65 (2) A certificate issued under this section may be granted subject to the condition that the draft local environmental plan be amended in the manner specified in the certificate before it is publicly exhibited in accordance with s 66.

Section 66(1) relevantly provides:-

(1) Where a council receives a certificate under s 65 with respect to the draft local environmental plan it shall after complying with any condition subject to which the certificate was granted and subject to the regulations-

...

(d) publicly exhibit such other matter as it considers appropriate or necessary to better enable the draft plan and its implications to be understood.

The words `any condition subject to which the certificate was granted' contained in s 66(1) suggest a formal requirement but the letter referred to `an understanding' rather than a `condition'. Neither the letter or the certificate could be said to contain conditions of the kind referred to in s 65(2) or s 66(1). The certificate was issued without conditions. If DUAP sought to impose conditions they should have been incorporated as conditions upon the issue of the certificate. An `understanding' has no statutory basis in the Pt 3 procedure.

30. The applicant has alternatively submitted that the failure to notify the public that the draft plan might be changed due to legal drafting requirements was unreasonable within the principles enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

31. There is no evidence to suggest that council considered that the letter was to be construed as imposing conditions, nor does such consideration arise from its contents. In these circumstances it cannot be suggested that council acted unreasonably in the `Wednesbury' sense by failing to make reference to the possibility of drafting changes.

32. Accordingly the grounds of challenge relating to public exhibition of the draft plan fail.

(IV) No public hearing

33. The applicant submits that council was obliged to hold a public hearing. Section 68(1) of the Act gives council a broad discretion to determine whether a public hearing is necessary and whether the issues raised in any submission are of such significance as to warrant the holding of a public hearing. It provides:-

68 (1) Where -

(a) a person making a submission so requests; and

(b) the council considers that the issues raised in a submission are of such significance that they should be the subject of a hearing before the council decides whether and, if so, what alterations should be made,

the council shall, in the prescribed manner, arrange a public hearing in respect of the submission.

The applicant refers to the report considered by council on 12 May 1998 which recommended that requests for a public hearing not be granted since the report `addressed the issues of significance raised in the submissions'. Council accepted the recommendation not to hold a public hearing.

34. There is a distinction to be drawn between the phrases `matters of significance raised in the submissions' (as used in the report) and issues that are of `such significance that they should be the subject of a hearing' (s 68(1)(b)). There is no necessary correlation. Whilst issues of significance may have been raised by the submissions, that does not mean that they necessarily comprise issues of such significance as to require council to hold a meeting. The council retains the discretion as provided by s 68. It could not be said that the exercise of its discretion was fundamentally erroneous. Accordingly this ground of challenge fails.

(V) Compliance with s 68 of the Act

35. The applicant submits that the requirements of s 66 and s 67 have not been satisfied because there has been no public involvement in the preparation of the draft LEP as sent to DUAP under s 68(4). The applicant contends that a draft LEP altered pursuant to s 68(3A) is required to be re-exhibited and re-advertised by council.

36. Section 68(3) provides:-

(3) The council shall consider the submission and the report furnished pursuant to subsection (2) and may make any alterations it considers necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing.

Section 68(3A) and s 68(3B) provide:-

(3A) An alteration made by a council pursuant to subsection (3) need not relate to a submission.

(3B) The council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3). The provisions of this section and sections 66 and 67, with any necessary adaptations, apply to any such exhibition of a draft plan, but not so as to require a further certificate under section 65.

Section 68(3B) gives the council a discretion to give public notice and to publicly exhibit any draft local environmental plan that has been altered `pursuant to subsection (3)' which as a matter of construction encompasses s 68(3A). Accordingly there is no obligation upon council to re-exhibit the draft plan after alterations have been made pursuant to s 68(3A) of the Act. This conclusion is supported by the decisions in Coles Supermarkets Australia Pty Ltd and Anor v Minister for Urban Affairs and Planning and Anor (1996) 90 LGERA 341 and Noroton, per Priestley JA at 350 . In Coles Supermarkets at 360, Pearlman J found that s 68 imposes no obligation upon a council to re-exhibit an altered draft LEP and adopting the reasoning of Priestley JA in Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78 at 84, Her Honour stated at 361:-

a draft local environmental plan must be re-exhibited if an amendment made to the draft plan under s 68(3) is such that the draft plan as amended can be said to be a quite different plan in some important respect from the draft plan as exhibited.

(VI) A different plan to that exhibited?

37. The applicant submits that the final draft LEP is so different to the exhibited draft plan that the council is required to make a fresh resolution to seek a further s 65 certificate and to publicly exhibit the draft LEP under s 66 of the Act. The applicant alternatively submits that the decision of council of 29 June 1999 to endorse the final draft LEP as settled by the Parliamentary Counsel but with council's further amendment relating to `development excluded land' was unreasonable in the `Wednesbury' sense because the procedures contained in Pt 3 of the Act were not followed.

i) Principles relating to validity

38. These challenges require consideration of the principles relating to the extent to which alterations may be made to a draft plan without changing its character. In Leichhardt [No 2] the New South Wales Court of Appeal found that certain discrepancies between a regional environmental plan as made by the Minister and the draft plan as publicly exhibited were so substantial that the plan could not be said to be the product of the Pt 3, Div 3 process under the Act and was accordingly invalid. The critical issue concerned the removal from the exhibited draft plan of a building height restriction. As a consequence buildings could be erected to any height provided the consent authority had reference to specified criteria. Such alteration was considered by Priestley JA to be very significant. His Honour at 84 said:-

...but the power to alter must be confined by the need for the ultimate plan to be the outcome of the process which included the public exhibition of the draft plan; if either s 49 or s 51 were interpreted so that the power of alteration of the Director and the Minister could bring about the making by the Minister of a plan so different from the publicly exhibited draft that in some important respect it could be said to be a quite different plan then Pt 3 div 3 would be emptied of any substance.

Priestley JA at 88 rejected the submission that the Minister could make an altered plan provided there remained a recognisable relation with the draft plan.

39. Although Leichhardt [No 2] related to a regional environmental plan rather than a local environmental plan, the same principles can be applied by analogy (see Coles Supermarkets Australia Pty Ltd at 361, see also L. Pearson, `Environmental Planning Instruments-Consultation and Alteration' (1995) 12 EPLJ 352 at 361). Accordingly it is necessary to consider whether the draft LEP now before the Minister can be characterised as a product of a Pt 3 process, or whether the draft LEP is now `a quite different plan' (Leichhardt [No2] at 84) from the exhibited draft plan. This in turn requires a consideration of the changes that have occurred since the exhibition of the draft plan and the draft LEP in its current form.

ii) Significant changes

40. Following exhibition of the draft plan, it was altered significantly. For convenience, a summary of the principal alterations is provided hereunder:-

(a) Aims of the plan

Additional aims were inserted as follows:

(c) replace the definition of "Usable land area" with two additional definitions, one relating to the intensity of development, and the other relating to land which should not be developed, and

...

(e) alter the subdivision provisions, so that each new lot has suitable land for future development and so that the number of lots created by a subdivision of land within the Residential Bushland Conservation Zone for which a zone subscript of (8/ha) is specified on the map supporting the 1991 plan more directly reflects the capacity of the land, and...

(b) Residential Bushland Conservation (RES-BC) Zone

(i) An addition was made to clause 6.3(a) as shown in italics:-

(a) To ensure that all development, including subdivision, is environmentally sensitive and site responsive and maintains and facilitates sustainable natural ecosystems and biodiversity within the City.

(ii) A new clause (b) was inserted:-

(b) To protect and enhance existing perennial and non-perennial watercourses and the associated riparian zone, improve water quality, maintain pre-development downstream flow patterns and promote ecologically sustainable water and land management practices.

(c) A new clause was added to 10.5:-

(g) The Council shall not consent to any development for the purpose of a dwelling house, including development ordinarily incidental and ancillary to a dwelling house, on any lot created in accordance with the provisions of clause 34.1(c), unless the Council is satisfied, by means of a detailed environmental assessment, that the development will not have an adverse environmental impact on the development excluded land identified when the Council granted consent to the subdivision of the land in accordance with which the lot concerned was created.

(d) A new table to clause 10.9 was inserted:-

(e) Changes were made to cl 34.1

34.1 General Provision

(a) The Density Control Provision shown on the Map specifies the maximum number of lots per hectare into which land may be subdivided with the consent of the Council.

(b) The Council may consent to subdivision of any land covered by a Density Control Provision shown on the Map only if the total number of lots (other than lots for a public purpose) existing after the subdivision will not exceed the product of the development intensity area of the original lot, in hectares, multiplied by the maximum number of lots per hectare specified in the Density Control Provision in respect of the original lot, rounded down to the nearest whole number.

(c) The Council may consent to subdivision of any land that is zoned Bushland Conservation or Residential Bushland Conservation only if each new lot proposed to be created (other than lots for a public purpose and lots created as part of integrated housing development), and intended to be the site of a dwelling house, includes land with a minimum area of 720 square metres, no part of which area is development excluded land, and which is so configured as to be capable of being the site of a dwelling house and of accommodating development ordinarily incidental and ancillary to a dwelling house.

(d) The Council may consent to subdivision of any land for the purpose of integrated housing development only if it is satisfied that:

(i) all development for the purpose of any dwelling house proposed to be erected as part of the integrated housing development; and

(ii) all development ordinarily incidental and ancillary to a dwelling house,

is not to be located on any development excluded land.

(e) For the purpose of paragraphs (c) and (d), "development ordinarily incidental and ancillary to a dwelling house" includes:

(i) the erection of any structures or the performance of any works other than for the purpose of providing utility services for the dwelling house; and

(ii) the clearing of native vegetation from natural bushland; and

(iii) the provision of access, car-parking and hard-stand areas for the dwelling house; and

(iv) such measures, including the provision or use of stormwater control devices, as are required in order to meet the requirements of clause 10.5.

(f) Clause 34.4 Residential Bushland Conservation Zone - Special Provisions

(a) Where a Density Control Provision is shown on the Map for land within the Residential Bushland Conservation Zone, subdivision of the land, even if it would be in accordance with clause 34.1, to a density exceeding that shown, is prohibited.

(b) For the purpose only of clause 34.1, the development intensity area of that part of a lot zoned RES-BC and subject to a Density Control Provision of (8/ha) shown on the Map shall not include any land which is steeper than 20% (1 in 5).

(c) The Council may consent to subdivision of land shown RES-BC (NS), RES-BC (CONS) or RES-BC with a Minimum Area Requirement on the Map only if:

(i) it is for a boundary adjustment where no additional lots are created; or

(ii) it is for the purpose of providing land for public purposes.

(g) New definitions were included:-

"Development excluded land" means any part of a lot:

(a) which is land zoned Environmental Protection; or

(b) which is designated on the Map as Environmental Constraint Area, together with any buffers required by the Council to protect any such Areas; or

(c) on which any Schedule 3 environmentally sensitive vegetation unit is located, together with any buffers required by the Council to protect that unit; or

(d) which is significant habitat of any endangered species or vulnerable species of flora or fauna, within the meaning of the Threatened Species Conservation Act 1995; or

(e) which is significant habitat of any rare species of flora, together with any buffers required by the Council to protect that flora; or

(f) which comprises a stream or any buffers required by the Council to protect that stream; or

(g) which has a slope in excess of 20%; or

(h) comprising any significant landscape or special feature which in the opinion of the Council is worthy of preservation.

"Development intensity area" means that part of a lot neither zoned Environmental Protection nor designated on the Map as an Environmental Constraint Area.

iii) Consequences of the changes

41. It is apparent that there have been numerous alterations to the exhibited draft plan. Upon analysis, a change in philosophy can be discerned in the formulation of many of the development criteria. In most instances, the changes are reflective of council's desire to render the criteria more prescriptive. Such changes also reflect thoughtful measures for the protection and conservation of the bushland environment.

42. There are however, highly significant restrictions which were not incorporated in the exhibited draft that may be summarised as follows:-

1. The addition to cl 6.3(a) imposes a positive obligation to require that development `maintains and facilitates' sustainable natural ecosystems and biodiversity within the Blue Mountains City Council land.

2. Clause 6.3(b) imposes a substantially more rigorous obligation than required by the exhibited draft plan. It requires not only the protection of water systems but also the enhancement thereof and the promotion of ecologically sustainable water and land management practices.

3. The new cl 10.5(g) requires that subdivisions for dwelling houses must be accompanied by an environmental assessment to demonstrate that development excluded land is not adversely impacted by the development. The applicant asserts that this clause will create a prohibition on development as considered by the Court in North Sydney Municipal Council v P D Mayoh Pty Limited [No. 2] (1990) 71 LGERA 222. It is not necessary for the Court to determine whether such provision would constitute a prohibition or a development standard. It is sufficient to observe that it creates a new requirement which was not exhibited.

4. The new table inserted into cl 10.9 results in an amendment to the range of the development intensity area. It provides a larger building coverage on a lot.

5. The new cl 34.1(c) imposes a minimal lot size requirement on subdivision of land in two zones if such lots are intended for use as a dwelling house.

6. The new cl 34.4 restricts development in the RES-BC Zone. Land within the RES-BC cannot be subdivided if it would result in a density exceeding that shown in the relevant density control provision. This is so even if the subdivision would be in accordance with cl 34.1 of the altered LEP. In addition when calculating the development intensity of land in the RES-BC that is subject to a density control provision of 8/ha, land which is steeper than 20 per cent (1 in 5) must be excluded.

7. The changes to the definitions are significant. The change of definition from the term `usable land area' to `development excluded land' and `development intensity area' has produced the net result that there is an increase in land which cannot be developed.

43. The impact of these new provisions creates a stringent regime for development which was not stated in the exhibited draft plan. No opportunity for public consultation or participation has been afforded in respect thereof.

44. When the draft LEP was considered by the Parliamentary Counsel's office a memorandum was made on 10 December 1998 which observed:-

It [the draft LEP] contained many provisions that are highly unusual and would impose very considerable constrictions on the carrying out of development. The draft plan also gives the Council extremely wide discretions and should be checked carefully by the Department to ensure that it complies with its policy requirements before return to the Council.

The `highly unusual' provisions referred to by the Parliamentary Counsel, namely the `very considerable constrictions on the carrying out of development' and the `extremely wide discretions' arise essentially from the amendments made by council after exhibition of the draft plan.

45. The process provided by Pt 3 invites public participation, being exhibition and the receipt of submissions in relation to the draft LEP. Due to the numerous and substantial changes that were made to it the final draft LEP is a different plan from that which was exhibited. Whilst council may make changes which are of significance (Vanmeld), in this instance the totality of such changes results in an LEP which bears little or no resemblance to that which was exhibited. In Vanmeld only one significant change was made which did not alter the character of the plan (see Vanmeld per Meagher JA at 114; Spigelman CJ at 91). The draft LEP has its genesis in the exhibited draft plan but it has been transformed into a different plan. The result is analogous to that found by the Court of Appeal in Leichhardt [No 2], namely that the draft LEP cannot be said to be the result of the process provided by Pt 3 of the Act.

46. The appropriate procedure would have been to re-exhibit the draft LEP. Public participation is an important objective of the Act and should be regarded as crucial to the transparency and fairness of the plan making process (see Scurr and Ors v Brisbane City Council and Anor [1973] HCA 39; (1973) 133 CLR 242 at 252). In Carstens v Pittwater Council [1999] NSWLEC 249 at [20], Lloyd J drew attention to the need to interpret statutes by reference to their objectives. In the instant case the relevant objective is s 5(c) which states:-

(c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.

47. Principle 10 of the Rio Declaration and Agenda 21 of the United Nations Conference on Environment and Development 1992 acknowledges the desirability of public participation in management of the environment. The Rio Declaration is not legally binding in Australia but it serves as a reminder that the provisions of Pt 3 of the Act ensuring public participation in the making of a local environmental plan should be strictly observed.

Discretion

48. The applicants have locus standi to seek a declaration of invalidity and any consequential injunction (Brettingham-Moore v St Leonards Municipality [1969] HCA 40; (1969) 121 CLR 509 per Barwick CJ at 525, Rosemount Estates Pty Ltd v Cleland (1995) 86 LGERA 1 at 13, 14). The council submits that the Court should not grant any injunctive relief since the draft LEP is not final and may be altered by the Minister (s 70). This is not a ground upon which the court would refuse injunctive relief. In Brettingham-Moore, Barwick CJ at 522 stated:-

I would not regard the fact that the report is not self-executing or that the discretion of the Executive is interposed between it and any actual consequence to the person in the situation of the respondent as necessarily preventing the making of the appropriate order at the instance of such a person.

It would be incongruous if the Court did not intervene having found breaches of statutory procedures that could only result in an invalid LEP. Pursuant to s 124 of the Act the Court is empowered to make such order as it thinks fit to restrain an existing or anticipated breach. The need for such intervention arises due to the failure of council and of DUAP to observe the statutory requirements of s 62(b) of the Act and the metamorphosis of the draft plan without public participation following its exhibition.

Orders

49. The Court makes the following declaration and orders:-

1. A declaration that in the formulation of draft Amendment No 25 to the Blue Mountains Local Environmental Plan 1991, the second and third respondents failed to follow the provisions of Part 3, Division 4 of the Environmental Planning and Assessment Act 1979.

2. An order restraining the first respondent from making Amendment No 25 to the Blue Mountains Local Environmental Plan 1991 unless and until the provisions of Part 3 of the said Act are first complied with in respect of that plan.

3. An order that the second respondent be restrained from undertaking any further steps under Part 3, Division 4 of the Environmental Planning and Assessment Act 1979 in the making of Amendment No 25 or publishing of Amendment 25 in the Gazette until the provisions of Part 3, Division 4 of the Act have been complied with.

4. The exhibits be returned.

5. Liberty to re-list the matter for argument as to costs.