Item G01 Governance Committee 11/04/16

N O R T H S Y D N E Y C O U N C I L R E P O R T S

Report to General Manager Attachments:

1. Report Prepared by Turnbull Planning Pty Ltd - March 2016

SUBJECT: Review of Conduct in Respect of Anderson Park DA 227/15

AUTHOR: Adrian Panuccio, Chief Operating Officer

ENDORSED BY: Warwick Winn, General Manager

EXECUTIVE SUMMARY:

The report responds to the 7 December 2015 Council resolution where the Council resolved:

1. THAT Council suspend action acting upon the development consent for the installation of

synthetic surface at Anderson Park pending a review of Council’s conduct as applicant of the

Development Application and the conduct of the NSIPP in determining the application

following the submission of a 95-page report by the applicant and that the report on the

internal review be returned to Council for consideration as soon as practicable.

2. THAT submitters on the Development Application be notified of the timing of that report

and meeting.

FINANCIAL IMPLICATIONS:

Nil

RECOMMENDATION:

1. THAT Council notes the contents of this report.

2. THAT Council calls for the preparation of comprehensive plain English “Code of

Practice” to guide the actions of Council Officers, Consultants, Councillors and the North

Sydney Independents Planning Panel where Council is the land owner or applicant or

otherwise stands to benefit from a development determination or a Review of Environmental

Factors.

3.THAT the “Code of Practice” called for above be prepared within the City Strategy

Division with appropriate internal consultant and be subject to appropriate public

consultation in draft form following adoption by Council.

4. THAT the draft “Code of Practice” be reported to Council within six (6) months of the

date of this resolution.

Report of Adrian Panuccio, Chief Operating Officer

Re: Review of Conduct in Respect of Anderson Park DA 227/15

(2)

LINK TO DELIVERY PROGRAM

The relationship with the Delivery Program is as follows:

Direction: 5.1 Our Civic Leadership

Outcome: 5.3 Council is ethical, open, accountable and transparent in its decision

making

BACKGROUND

Council resolved on 7 December 2015:

THAT Council suspend action acting upon the development consent for the installation of

synthetic surface at Anderson Park pending a review of Council’s conduct as applicant of

the Development Application and the conduct of the NSIPP in determining the application

following the submission of a 95-page report by the applicant and that the report on the

internal review be returned to Council for consideration as soon as practicable.

CONSULTATION REQUIREMENTS

In accordance with Resolution 2, all submitters on the Development Application have been

advised of the timing of this report to the Governance Committee.

SUSTAINABILITY STATEMENT

The sustainability implications are of a minor nature and did not warrant a detailed

assessment.

DETAIL

The General Manager and Senior Management in their consideration of this resolution

have recognised the need to ensure the maximum of transparency and credibility. This

dictated that the review be undertaken by a person remote from the application process and

external to the Council and not be the internal review as envisaged by the resolution. It is

also considered that a person (or group) who was qualified and/or experienced in both

Planning and the Law would be in the best position to review this matter and to make

appropriate recommendations. It was in this light that Turnbull Planning International Pty

Ltd was appointed to undertaken the review on behalf of Council.

As matter of background, the principals involved in conducting the review were Mr Pierre

Lebas who has both planning and legal qualification and Mr Ian Ellis Jones who has

considerable experience in Environmental Law.

The report of Turnbull Planning International Pty Ltd is offered in unabridged form for the

consideration of Council.

Report of Adrian Panuccio, Chief Operating Officer

Re: Review of Conduct in Respect of Anderson Park DA 227/15

(3)

It makes three recommendations as to potential improvements in relation to the process

and concerns raised by the community:

1. If Council does not already have such a document, Council should give consideration to

preparing and adopting a document enshrining, and setting out in plain English, the

procedure to be followed in cases where Council, or some person or body acting on behalf

of Council, is the applicant for development consent to a development application.

Comment;

While many of the themes contained within this recommendation are covered by a

number of related Codes and Practice Documents there is no single document that

guides Council conduct as an applicant. Such a code would be useful and assist all

stake holders in understanding their obligations in the preparation and lodgement

of Council Development applications. Such Code should extend to other

development related activities including the preparation of documents which relate

to works carried out by Council but are exempted from development consent by

instruments such as the State Environmental Planning Policy (Infrastructure)

2007. Appropriate recommendations have been included in this report.

2. The Council may wish to consider altering/amending the format for report writing and

production, so that it better reflects specific requirements of the EPA Act 1979 (s79C) and

also, so that the documents may be more easily followed and understood by members of

the local community.

Comment;

Council’s report format is a well establish document which has proven itself over

time and is subject to ongoing review and development. It similar to the formats

used by many other Councils and is similar to the format of reports used at State

Government level. Future reviews will continue to make improvements to ensure

that these documents are more easily understood by the broader community as well

maintaining legal integrity. Keeping this in mind a formal recommendation for

adoption has not been made by this report.

3. The Council may give consideration, during orientation of appointed staff dealing with

the assessment of development applications, to a short „induction seminar‟ regarding

potential for conflicts of interest and proper ethical approaches to dealing with

development applications.

Comment;

This recommendation should be read as including those who prepare and lodge

development application on behalf of/or for Council. Additional training is being

sourced and the issue will be well covered by the preparation of the code as

outlined in recommendation one. This issue is largely a management one, the

resolution of which is in train and as such a formal recommendation is not

required.

Report of Adrian Panuccio, Chief Operating Officer

Re: Review of Conduct in Respect of Anderson Park DA 227/15

(4)

2. THAT submitters on the Development Application be notified of the timing of that

report and meeting

In response with Resolution 2, all submitters on the Development Application have been

advised of the timing of this report to the Governance Committee.

INDEPENDENT REPORT REGARDING REVIEW OF CONDUCT

IN RESPECT OF ANDERSON PARK DEVELOPMENT APPLICATION

DA227/15

March 2016

T:\Current Matters\nor.cla1n1\nor.cla1n1_Independent Conduct Report.pdf

© Turnbull Planning International Pty Limited and Pierre Le Bas 2016

This document is Copyright

and apart from any fair dealings for the purposes of private study research criticism or

review as permitted under the Copyright Act no part may be reproduced in whole or in part

without the written permission of Turnbull Planning International Pty Limited

Suite 2301/4 Daydream Street Warriewood NSW

ABN 12061186409

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INTRODUCTION

North Sydney Council (‘Council’), at its meeting held on 7 December 2015,

relevantly resolved:

‘1. THAT Council suspend action acting upon the development consent for the installation of synthetic surface at Anderson Park pending a review of Council’s conduct as applicant of the Development Application [DA227/15]

and the conduct of the NSIPP [North Sydney Independent Planning and Panel] in determining the application following the submission of a 95-page

report by the applicant and that the report on the internal review be returned to Council for consideration as soon as practicable.’

It was determined by Council’s General Manager, Mr Warwick Winn, and

Senior Management, that in the interests of probity and transparency, the review required by Council’s resolution of 7 December 2015, should be

undertaken by ‘a person remote from the application process and external to Council’ and not be an internal review. Further, it was decided that a

person ‘qualified and/or experienced in both Planning and Law would be in the best position to review this matter and to make appropriate

recommendations’.

Turnbull Planning International Pty Limited (‘TPI’), Consultant Town Planners, was engaged by Council to provide a report to the Council making

appropriate recommendations, after carrying out a review of Council’s conduct as applicant of Development Application DA227/15 (‘the DA’ or

‘Anderson Park DA’) as well as the conduct of the North Sydney

Independent Planning and Panel (’NSIPP’ or ‘the Panel’) in determining the DA.

The instructions provided to TPI made it clear that the review was to be

limited to ‘the process that took place prior to [the] NSIPP determination on 2 December 2015, of DA227/15, which sought consent for the following

development: provision of a synthetic pitch and associated ground lighting at Anderson Park’ (source: Council letter, dated 15 January 2016, from

Stephen Beattie, Manager Planning and Development Services to TPI and supporting Minutes of NSIPP).

The review was carried out conjointly by Mr Pierre Le Bas, Director and

General Counsel of TPI, and Dr Ian Ellis-Jones, Special Counsel of TPI (the ‘Reviewers’).

BACKGROUND

The DA, which was lodged on 30 June 2015, sought approval from Council

for upgrade of the existing sportsfield on Anderson Park by the provision of synthetic surface with ancillary cut and fill, drainage works and

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replacement of flood lighting. The stated purpose was to allow for

increased usage of the existing facility.

In accordance with a previous resolution of Council and well-established practice and procedure of Council, the DA was referred to the NSIPP for

determination as the application involved works in respect of land in Council’s care, control and management. In this case, the land is also

Crown land.

The DA was first considered by NSIPP at its meeting held on 4 November 2015, where it was resolved to call for further information from the

applicant (Council). The request took the following form:

‘The Panel considered the consultant’s report [see report IPP07, dated 23 October 2015, and prepared by Kerry Gordon, Consultant Town Planner,

of Kerry Gordon Planning Services Pty Ltd] and the issues raised by the submitters and considered that the application should be deferred for more

information as follows:

(a) The history of Council studies and decisions regarding sports field upgrading leading to the lodgement of the subject development

application for provision of a synthetic turf sports field at Anderson Park including plans of management;

(b) Details of the extent of consultation undertaken with the community prior to lodgement of the DA;

(c) A review of the benefits and dis-benefits of the synthetic surface

recently installed at Cammeray Park; (d) The type and extent of fencing required to accommodate different

sports including hockey and soccer; (e) Upgrade lighting assessment to address light spill impacts to

adjoining residents as required by the conditions;

(f) The extent of uses that are currently accommodated and what future uses would be accommodated for both organised sport and

recreational activities at Anderson Park.

The Panel recommends a further report be prepared to address the above and be referred back to the Panel.

(Panel Reason: To allow a comprehensive assessment and to fully understand the context of the proposal and the issues raised by the

submitters).’

Council’s Open Space and Environmental Services Section (‘OSES’) provided further information and advice in response to the NSIPP’s

resolution of 4 November 2015.

In Report IP11, dated 2 December 2015, and prepared by Robin Tse, A/Team Leader Assessments as well as an Addendum Report of 1

December 2015, also prepared by Robin Tse, information was provided

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relating to the several matters referred to in paragraphs (a) to (f) of the

NSIPP’s resolution of 4 November 2015 as set out above.

Following submission of the above mentioned additional information and consideration of further written and verbal representations by the

community, the NSIPP at its meeting on 4 December 2015 resolved as follows:

‘The Council Officer’s Recommendation is endorsed by the Panel.

The Panel notes that the applicant has responded to all the issues raised by the Panel from the meeting of 4 November 2015, at which time it was

deferred [.] This additional information has enabled the Panel to make a determination having regard to the relevant concerns of the local residents, and the mechanisms to ameliorate the impacts of the proposed

development.

From the additional report and information prepared for the December

meeting, the Panel notes the history of decision making by Council concerning recreation needs and park improvements within the local government area including Anderson Park.

The Panel also notes that while North Sydney Council has a Plan of Management for Sports Grounds in the Local Government Area, the Panel

recommends that an ‘Operational Plan of Management’ be developed for Anderson Park in consultation with the local community and be reviewed every 5 years.’

CONDUCT ISSUES

Council’s resolution of 7 December 2015 identifies two sets of conduct to be reviewed, namely:

Council’s conduct as the applicant of DA227/15; and

The conduct of the NSIPP in determining the DA.

As a working definition of the word ‘conduct’, the authors of this report

have adopted the definition of the word contained in section 5(1) of the Ombudsman Act 1974 (NSW):

‘conduct’ means:

(a) any action or inaction relating to a matter of administration, and (b) any alleged action or inaction relating to a matter of administration.

Admittedly, the phrase ‘matter of administration’, words fraught with legal

and other difficulties, is somewhat inappropriate when considering action or inaction on the part of Council as applicant. Collectively, matters of

administration compendiously embrace a wide range of governmental

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activity carried on by bodies other than the legislature and the judiciary.

Be that as it may, the emphasis upon both ‘action’ and ‘inaction’ in relation to the performance of, firstly, Council’s role as applicant and, secondly, the

role of the Panel as consent authority, is helpful and instructive.

Although Council was not listed as the applicant on the DA form, it was referred to as the applicant in the statement of environmental effects, and

that was clearly the intention. For all intents and purposes Council was the applicant, and so shall be referred to as the applicant in this report.

TPI requested that Council articulate exactly what were the ‘conduct issues’

to be reviewed and reported upon. It was made clear to TPI, after TPI had sought clarification and specific instructions on the matter, which insofar as

the conduct of Council ‘as applicant’ was concerned, TPI’s brief was not to review or report upon:

(a) any conduct of Council or its members or staff that preceded the lodgment of the Anderson Park DA, or

(b) policy matters, and the exercise of policy-making functions, pertaining to the decision to prepare the Anderson Park DA, or

(c) any conduct pertaining to the exercise of administrative functions

by Council or its staff in relation to the processing of the Anderson Park DA, or

(d) any conduct of persons or bodies other than Council or its

members or staff or the Panel at any time occurring.

Thus, insofar as the conduct of Council as applicant was concerned, TPI’s brief was to focus on the procedural conduct of Council from the time of

lodgment of the Anderson Park DA, until the time of its determination by the Panel.

The primary focus of TPI’s inquiry into the conduct of Council as applicant

thus became a consideration by TPI of the adequacy and sufficiency of the planning reports and associated documents that accompanied the DA, the

procedures followed or not followed by Council, and a consideration of

whether Council as applicant achieved the level of transparency and accountability that is rightly required, indeed demanded, in cases where a

local council is both the applicant and the consent authority.

The level of focus and consideration required to be carried out in the review necessarily excludes a consideration of certain matters including the

conduct of, and preliminary decision-making by, Council staff as respects the discharge of Council’s role as consent authority in connection with such

matters as the acceptance of the DA and its preliminary review and administrative treatment at various stages from lodgment up to the point

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or points in time when the Panel first considered the matter on 4 November

2015.

Early in the course of TPI’s review Mr Le Bas and Dr Ian Ellis-Jones were made privy, on a confidential basis, to the details of a certain staff matter.

The subject-matter of the information provided on a confidential basis, related to the conduct of one of Council’s members of staff at a point in

time which would otherwise have meant that it would have formed part of the conduct to be reviewed and reported upon by TPI.

After discussing the staff matter with a number of persons, including but

not limited to Council’s General Manager and the Manager Development Services, and perusing a Council record, the Reviewers are fully satisfied

that this staff matter has been appropriately and fully dealt with and is now at an end. Accordingly, no useful purpose would be served by canvassing

the matter openly in this report other than in the broadest terms. Indeed,

only harm and prejudice (in terms of, among other things, an infringement of privacy and a breach of confidentiality) would ensue. Furthermore, staff

matters are fully ‘operational’ in nature and fall within the statutory province and purview of the General Manager. What the authors of this

report can and do say is this: the Reviewers are fully satisfied, on the basis of the interviews conducted with members of the Panel and Council staff,

that the conduct issue alluded to in this paragraph did not in way detrimentally affect the due, proper and genuine consideration and

determination of the Anderson Park DA.

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THE REVIEW

Review of documents

The following documents were perused and considered by TPI as part of

its review:

Council letter, dated 15 January 2016, from Stephen Beattie, Manager Planning and Development Services to TPI;

Development application documents submitted to Council as part of the DA, expert reports and submissions made as regards the

application; Confidential material relating to conduct by a Council staff

member (alluded to above); Report IP07 of 23 October 2015 submitted to NSWIPP meeting

of 4 November 2015;

Minutes of NSIPP meeting held on 4 November 2015; Report IP11 of 2 December 2015 submitted to NSWIPP meeting

of 2 December 2015; Addendum Report of 1 December 2015 submitted to NSWIPP

meeting of 2 December 2015; Minutes of NSIPP meeting held on 2 December 2015;

A written submission dated 8 March 2016 from Anderson Precinct.

Interviews

Various interviews were conducted on Tuesday, 1 March 2016, Thursday, 3 March 2016 and 8 March 2016 at North Sydney Council. Both Mr Le Bas

and Dr Ellis-Jones were present together throughout the interviews on 1

and 3 March 2016, whilst Mr Le Bas only, conducted the interview with the Anderson Precinct Committee representatives on 8 March 2016 (see

under). Some interviews were conducted over the telephone and some in person.

The persons interviewed, and the date on which they were interviewed, are

as follows:

1 March 2016

Mr Stephen Beattie Mr David Manson

Ms Jan Murrell Mr Ian Pickles

Ms Virginia Waller

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3 March 2016

Mr Stephen Beattie

Mr Warwick Winn Ms Robyn Pearson

Mr Robin Tse Mr Geoff Mossemenear

Mr Robert Emerson Mr David Hoy

Ms Lara Huckstepp

8 March 2016

Mr Colin Lynch Mr Graham Bates

The first person to be interviewed, and in person, was Mr Stephen Beattie, Manager, Development Services, CIS. He gave a full history of the DA and

made mention of the various persons who played some sort of role in the preparation and making of the DA as well as its handling thereafter. He also

referred to the role played by NSIPP in the determination of the DA.

The next person to be interviewed, again in person, was Mr David Manson, Council’s Parks and Reserves Manager. He described, among other things,

his duties and the role he played as respects the Anderson Park DA, which was for the most part providing input to other officers of Council who were

more heavily involved in the preparation of the DA. Mr Manson also referred to liaison he had with certain users and hirers. He came across to the

Reviewer’s as a sincere, enthusiastic and well-intentioned person who was familiar with the subject-matter of his responsibilities and was

knowledgeable about the various users and hirers of Council’s sporting and

recreational facilities.

The next person to be interviewed, over the telephone, was Ms Jan Murrell, a former Commissioner of the Land and Environment Court of NSW and

currently a member and the Chair of NSIPP. Ms Murrell stated that she was ‘very conscious of due process’ and outlined the extent of the Panel’s

deliberations concerning the Anderson Park DA. She outlined the various concerns articulated by the Panel at its meeting held on 4 November 2016

and referred to the additional condition imposed by the Panel at the time of granting development consent to the DA (viz the condition as respects

the need for an operational plan of management). When asked whether she was of the view that the planning reports in relation to the DA were

voluminous, and whether the Panel had not had sufficient time to give proper consideration to the DA, Ms Murrell replied that those concerns were

ill-founded. She also stated that the Panel ‘did our own reviews’ and that

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all the Panel members were experienced enough to properly digest and

consider lengthy reports and attachments.

Three (3) unsuccessful attempts were made to contact Panel member Michael Harrison by telephone. He was not interviewed.

Attempts were also made to contact Panel Member Francesca O’Brien, who

did attempt to return calls made, but whom was not ultimately interviewed despite various repeated telephone calls on the part of the parties, over a

number of business days.

The next person to be interviewed, again over the telephone, was Panel member Ian Pickles. Like Ms Murrell, Mr Pickles spoke at length about the

extent of the Panel’s deliberations concerning the Anderson Park DA. He said that this matter was ‘probably the most time consuming matter we’ve

dealt with’ in the three (3) years he has been a member of NSIPP. He stated

that he, along with the other Panel members, had ‘sought further information’ as respects certain matters, which he mentioned, the matters

being essentially the same ones mentioned by Ms Murrell. Mr Pickles mentioned that the panel had spent more than an hour considering and

deliberating upon the Anderson Park DA. He also referred to the imposition of the additional condition as respects the need for an operational plan of

management. Mr Pickles also stated that all the Panel members were able to properly digest and consider lengthy reports and attachments and that

they had not expressed any concern that they had too much to read or insufficient time to properly digest and consider the material.

The next person to be interviewed, also over the telephone, was Ms Virginia

Waller, who is also a member of NSIPP. Ms Waller stated that she was only present at the Panel meeting of 4 November 2015 when the decision was

made to defer the matter. As did the other Panel members interviewed, Ms

Waller listed with great specificity the various matters in respect of which additional information was sought by the Panel and stated that she was

very much of the view that the process followed by Council staff and the Panel was ‘open and transparent’.

There was a further round of interviews on Thursday, 3 March 2016. Each

person interviewed on that day was physically present, each in turn, in the room at the time of their respective questioning.

Before the interviews of that day began, the Reviewers again spoke to Mr

Stephen Beattie, more as a matter for courtesy than anything else, bearing in mind that the Reviewers had spoken at length to him on Tuesday, 1

March 2016.

The next person to be interviewed was Mr Warwick Winn, Council’s General

Manager. Mr Winn also gave a full history of the making and determination

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of the DA and formally confirmed for the benefit of the Reviewers, the

conduct issues to be dealt with.

The next person to be interviewed was Ms Robyn Pearson, Team Leader, CIS. Ms Pearson outlined the role she played regarding the DA. That role

was basically a supervisory one. After referring to Council’s established practice and procedure, Ms Pearson explained why the DA was referred to

an external planning consultant for the preparation of the planning report to be submitted to the Panel, and why Ms Kerry Gordon of Kerry Gordon

Planning Services Pty Limited was selected. (Ms Gordon had carried out the same role in relation to the Cammeray Park development, which was

exactly the same type of development.) The DA in question, in terms of the estimated amount of the cost of the development, was over the specified

threshold ($250,000.00) and hence was required to be submitted to NSIPP, for consideration and determination. Ms Pearson also stated that she took

the Panel members to Anderson Park for a site inspection and was present

when the Panel members met.

Mr Robin Tse, Planner, CIS, was the next person to be interviewed. He explained his role in the matter. That role was one as assessing officer. He

stated that he acted in Ms Pearson’s position as Acting Team Leader, CIS, for some 3 weeks and was the author of both the second planning report

and the addendum to that report, being documents submitted to the Panel’s second meeting held on 4 December 2015. It is important to emphasise

that as Mr Tse stated it was not his function, in preparing the second report, to recommend to NSIPP as to whether the DA should be approved or

refused. This was properly left to Ms Gordon.

The next person to be interviewed was Mr Geoff Mossemenear, CIS Executive Planner. Mr Mossemenear outlined the role he played in relation

to the DA. Essentially, that role was as convenor of NSIPP. His duties as

convenor included providing help with the agenda, arranging site visits and providing professional advice as planner to the Panel members when they

had queries about planning aspects of the DA. He also explained why it was necessary for this development application to be submitted to the Panel for

final consideration and determination (it was above the cost threshold of $250,000.00).

Mr Robert Emerson, Director of Parks, was the next person to be

interviewed. The Reviewers spoke at length with Mr Emerson about the staff matter referred to above. Mr Emerson informed the Reviewers of the

action taken by Council staff in relation to this matter. He also stated that although he was present at Council for the preparation of the DA he was

later on leave. The Interviewers questioned Mr Emerson about the content of the external planner’s report and planning assessment of the DA and

made mention, in that context, of the additional matters that the Panel

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decided required further particulars. Mr Emerson also stated that he had

been asked questions by the Panel and he had answered those questions.

The next person to be interviewed was Mr David Hoy, CIS Team Leader. Mr Hoy stated that he was one of the signatories to the first Council report

submitted to the Panel, as he was at that time acting in the position of Manager, Development Services. He also informed the Reviewers that he

was present at the first Panel meeting at which the DA was considered. He stated that he was also present at the second Panel meeting at which the

DA was considered but then in a different capacity (namely, Team Leader CIS, but present at the meeting only as an observer). Mr Hoy stated that

he went on the relevant site visits with the Panel (in this case, the visit in relation to the first Panel meeting at which the DA was considered by the

Panel).

The final person to be interviewed on Thursday, 3 March 2016 was Ms Lara

Huckstepp, CIS Executive Planner. Ms Huckstepp stated that she had no real involvement in the subject DA matter. She stated that she was,

however, present at the first meeting of the Panel at which the DA was considered because at that time she was acting in the position of Manager,

Development Services.

On Tuesday, 8 March 2016, Mr Pierre Le Bas met with Mr Colin Lynch, President, Anderson Precinct Committee, and Mr Graham Bates a member

of that Committee (‘Precinct Representatives’), at the offices of the Council.

There is no need to reiterate details of the role of the various Precinct Committee’s as regards DA consideration generally, as this will be well

known to most readers of this report. Suffice to say that the Precinct Committee is an independent body of local citizens whose function as a

collective, is to comment to the relevant consent authority (in this case

NSIPP) upon a variety of local matters and in particular development applications lodged with the Council.

The Precinct representatives presented oral and written submissions to Mr

Le Bas.

In summary, the Precinct representatives submitted, firstly, that they were concerned that Council selectively lobbied for submissions from outside of

the Municipality. Secondly, they considered that the Council failed to ‘effectively’ notify the local community regarding the DA. Thirdly, the

Precinct representatives stated that in their opinion, the Panel failed to provide adequate time for submitters/objectors to respond to the

documents tendered by the applicant and to digest the 95-page report and comment thereon, and in so doing denied natural justice to the objectors

and, fourthly, the Panel failed to adequately review the report of the

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independent consultant planner and the subsequent report that was

prepared by the Council officers.

The Precinct Representatives submitted that clear rules need to be put in place for situations where Council is the applicant, that NSIPP processes

need to be changed in such cases, that Council, as the applicant, should ‘cancel’ its approval of the DA based on the alleged ‘improprieties’, and that

Council, as the applicant, if it is so minded, should submit a new development application in respect of the proposed development. The

written submissions provided to TPI stated that a ‘timeline’ (Exhibit F) was included. Unfortunately a timeline was not provided as part of Exhibit F.

ASSESSMENT

Conduct of Council as applicant

Having carefully perused and reviewed the several documents listed under the sub-heading ‘Review of documents’ above, the Reviewers are fully

satisfied that Council, as applicant, caused to be produced a most comprehensive and well-articulated development application, statement of

environmental effects and associated plans, reports and ancillary documents. Some councils, as applicants, have been known to produce less

than fulsome applications and supporting documents when they themselves are the consent authority. That was not the case here.

The Reviewers acknowledge the Precinct Committee’s submission that

firstly, an officer in effect sought submissions outside of the Council area. In terms of the outcome of any so called ‘lobbying’, whilst it is apparent

that many submissions were from outside of the local precinct area, there

were also a number of submissions from ‘local’ residents. Notwithstanding some evidence that this has occurred (with appropriate Counselling of the

officer being undertaken subsequently), the Reviewers feel that this event notwithstanding, the NSIPP has the ability to balance the breadth of the

submissions and make an appropriate determination based, inter alia, on the issues raised and the opinions of all submitters whether for or against

the proposal. There is no evidence that the Reviewers are aware of, in this regard, that the process was corrupted or perverted by any action of the

Council. The report prepared by Ms Gordon (an independent planner) appears to properly relate the issues raised to the Panel (at pp13 & 14) and

deal with those issues in an objective manner (pp21 –24). To the Reviewers knowledge, the facility is not intended to be used exclusively by physically

proximate users and as such accepting submissions from a broad community cross section is entirely appropriate. As well, the manner of

provision of submissions relating to a DA to the Council, is not as important

as the issues themselves. The NSIPP assessment is, inter alia, ‘issues

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based’ and the total ‘number’ of submissions either for or against a proposal

are quite properly, not a head of consideration under Section 79C ‘Evaluation’ of the EPA Act (refer specifically 79(C)(1)(d)).

As to the second submission by Precinct Representatives, whilst the

Reviewers acknowledge the comments that ‘notices’ erected by Council Rangers may not have been ‘ideally located’ or may have been removed by

persons unknown, possibly before the end of the notification period, the proposal was also notified to nearby residents by letter and as far as we

can ascertain, to the Anderson Precinct Committee. In any case, there is on the Council file, an objection to the proposal on its merit, from the

Anderson Precinct Committee dated 13 November 2015. In the Reviewer’s opinion, there was no procedural failure in the notification process, caused

by the Council.

The Reviewers reject the opinion of the Precinct Representatives that

Council/NSIPP failed to provide adequate time for objectors to respond to the documents tendered by the applicant when the matter came before

NSIPP for the second time and in so doing, denied natural justice to the objectors. The Reviewers also reject the Precinct Representatives view that

the Panel failed to adequately review the report and recommendation that was prepared by Council itself. The Reviewers are of the opinion, that there

was a sufficient opportunity for submitters to consider the additional material which for the most part was far from complex or technical, and

then address the Panel in accordance with the Panel’s usual procedure and rules. In any event, the additional material had been sought by the NSIPP

at the first meeting at which the Panel considered the DA and was intended for its consideration rather than that of the Anderson Precinct. The Precinct

had already had an opportunity to comment on the development proposal during (and after) the notification period. Nothing was hidden from the

public and the purported invocation of the hearing rule of natural justice

seems in any event to be somewhat misplaced and inappropriate in the circumstances of this case.

However, the Reviewers agree with the precinct Committee that there is

merit in Council putting in place ‘clear rules’, that is, a clear, publicly available document that sets out, in plain English, how Council is to deal

with situations where Council is itself the applicant. Nevertheless, the Reviewers were not persuaded by the Precinct Committee’s submission

that the Panel’s processes need to be changed in cases where the Council is the applicant.

The Reviewers have also found no evidence of any lack of transparency or

accountability, or failure to follow established procedures, in relation to the conduct of Council as applicant in relation to the DA.

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Conduct of the NSIPP

Subject to one or two fairly minor concerns (discussed in the next

paragraph) the Reviewers are satisfied as a matter of law that the NSIPP had before it reports that were professionally prepared and which

canvassed in a genuine and proper way, the matters required to be considered and assessed.

The Reviewers note that neither the independent Report IPP07 for the

NSIPP meeting held on 4 November 2015 prepared by Kerry Gordon Planning Services Pty Limited nor the internal planning Report IPP11, for

the NSIPP meeting held on 2 December 2015 nor the addendum report of 1/12/15 referred to Council’s Foreshore Parks & Reserves Plan of

Management. Be that as it may, the Reviewers are satisfied that nothing untoward resulted from that omission, as the proposed development can

easily be seen to be consistent with the objectives of that plan of

management. The important thing was that the Sportsground Plan of Management 2011 as well as the site specific Anderson Park Plan of

Management were considered in one or other of the reports submitted to the Panel. Bearing in mind that Anderson Park is a sportsground, the

important thing was the last mentioned two plans of management be considered, and that was indeed the case.

Report IPP07 does not strictly follow the order of matters of consideration

as set out in section 79C of the Environmental Planning and Assessment Act 1979 (NSW) [the ‘EPA Act’]. For example, the section 79C(1)(c) matter

for consideration (the suitability of the site for the development) is treated under the heading ‘REFERRALS’ and various subheadings such as

‘Environmental Health’, ‘Engineering/Stormwater Drainage’, ‘Flooding’, and others. There is absolutely nothing ‘incorrect’ in so doing, and many NSW

councils do likewise as do many town planning consultants including our

own firm. The important thing, as a matter of law, is that the report analyse and weigh in the balance the various relevant matters for consideration and

otherwise assist the decision-maker or decision-making body (in this case, the NSIPP), to give ‘proper, genuine and realistic consideration’ to the effect

of its decision in all material respects: see Kioa v West (1985) 159 CLR 550; 62 ALR 321; 9 ALN N28; Chumbairux v The Minister (1986) 74 ALR

480.

Now, it is almost undeniable that the totality of the material was quite sizeable in that:

Report IP07 of 23 October 2015 submitted to NSWIPP meeting

of 4 November 2015 comprised in total 123 pages (inclusive of attachments);

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Report IP11 of 2 December 2015 submitted to NSWIPP meeting

of 2 December 2015 comprised in total 95 pages (inclusive of attachments); and

Addendum Report of 1 December 2015 submitted to NSWIPP meeting of 2 December 2015 comprised in total 2 pages.

The Reviewers understand from our discussions with Council staff (in

particular, Stephen Beattie) that there was some concern expressed that the NSIPP was not able to consider all of the documentation in a 5 day

period before the last meeting. As well as this, the Anderson Precinct Committee representatives expressed concern to Mr Le Bas, that they were

unable to consider this material in the timeframe provided before this second meeting of NSIPP, where the DA was finally determined. The

reviewers have dealt with the Precinct Committee concerns firstly. In this regard, as mentioned earlier, it is apparent that the material was provided

for review, assessment and consideration by the Panel rather than directly

for review and ‘assessment’ by the Precinct Committee. The community was given time to comment upon the proposal when it was notified in

accordance with the Council Policy. Further, community members were permitted to address the NSIPP at both meetings where the matter was

considered. Also, it was the request of NSIPP that gave rise to the volumes of additional information. Further, the information submitted was made

available to interested parties in an open and transparent manner, as far as we can ascertain from the documents we have received.

In terms of NSIPP’s consideration, the reports could be scanned by the

members of the Panel all of whom have had experience in reading and considering Council planning reports. Each report, other than the

Addendum Report which comprised only 2 pages, contained an executive summary as well as a conclusion and recommendations. With the benefit

of hindsight, it might have been more helpful if Report IP07 had contained

a more fulsome executive summary at the front and also a less perfunctory ‘Environmental Appraisal’ with its checklist ‘CONSIDERED … YES … N/A …’

but they are very minor criticisms of what is otherwise a demonstrably thorough and professional report.

It is the Reviewers experience that reports of that length and complexity

are by no means uncommon in NSW local government. Indeed, they tend to be the norm. On the positive side, the totality of the contents of the

various reports constitute what, in our view, was a more than legally sufficient assessment of the development application in all material

respects. Furthermore, as already mentioned, the Reviewers are fully satisfied that the Panel had more than sufficient time to fulfil its statutory

duty to give real, proper and genuine consideration to the Anderson Park DA.

There are legal principles that are relevant to the proper consideration and

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determination of development applications. Some of the more important of

those principles are PROVIDED as follows:

The council must not act in want or excess of power and must not exercise its powers for an improper purpose or in bad faith: see

Sydney MC v Campbell [1925] AC 338; Thompson v Randwick MC (1950) 81 CLR 87; [1950] ALR 711.

The council must act fairly and impartially and otherwise on the

basis of logically probative material: see Twist v Randwick MC [1976] HCA 58; (1976) 136 CLR 106 (17 November 1976);

McGovern v Ku-ring-gai Council [2008] NSWCA 209; Coleen Properties Ltd v Minister of Housing and Local Government [1971]

1 All ER 1049; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; 31 ALR 666; Mahon v Air New Zealand Ltd

(1983) 50 ALR 193.

The council must not must not fetter itself in advance as to how it will exercise its statutory discretion, whether by way of contract,

estoppel or otherwise: see NSW Trotting Club Ltd v Glebe MC (1937) 37 SR (NSW) 288; Wilkinson v Tamarang SC (1932) 50

WN 23; Doran Developments Pty Ltd v Newcastle CC (1984) 13 APA 436; Bruce Kerr Pty Ltd v Gosford CC (SC(NSW), Cohen J, No

4057/93, 7 July 1994, unreported).

The council must strictly comply with those procedural requirements in respect of which it was the intention of the

legislature that a failure so to do should result in invalidity of the ultimate decision made or action taken: see Project Blue Sky Inc

v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28.

Where the council is required to ‘take into consideration’ certain specified matters, it must give ‘genuine’ and ‘proper’

consideration to those matters: see Parramatta CC v Hale (1982)

47 LGRA 319.

The weight to be given to a particular circumstance is a matter for

the council, not the courts; nevertheless, the council, in considering all the relevant material placed before it, must give

‘proper, genuine and realistic consideration’ to the effect of its decision in all material respects: see Kioa v West (1985) 159 CLR

550; 62 ALR 321; 9 ALN N28; Chumbairux v The Minister (1986) 74 ALR 480.

The council is perfectly entitled to rely on the inquiry, advice and

recommendations of its officers: see Parramatta CC v Hale (1982)

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47 LGRA 319 at 346.

Equally, the council or other decision-maker may also rely on the recommendations of a consultant employed by it: see Bohun v

Commissioner for Main Roads (L & E Ct, Stein J, No 40203/87, 11 December 1987, unreported).

There is also no legal or policy objection why the council should

not be able to take into consideration a consultant's report submitted by, say, an applicant for approval: see Oshlack v

Richmond River Council (L & E Ct, Stein J, No 40090/93, 22 December 1993, unreported). However, it is for the council to

determine what weight, if any, it places upon such a report: Oshlack.

The council is not bound to follow the views or recommendations

of its officers; the final decision rests with the council: Parramatta CC v Hale (1982) 47 LGRA 319. In determining an application for

approval, the council is entitled to fix conditions of approval which are different from those recommended by a council officer: see

Scott v Wollongong CC (L & E Ct, Cripps J, No 40090/89, 21 September 1989, unreported). See also Scott v Wollongong CC

(1992) 75 LGRA 112.

A condition of development consent must satisfy the threefold Newbury test of validity laid down in Newbury District Council v

Secretary of State for Environment [1981] AC 578, namely, the condition must be imposed for a planning purpose, must fairly and

reasonably relate to the development proposed in the application, and must otherwise be reasonable. Additionally, a condition of

development consent must be final and certain: see Mison v Randwick MC (1991) 73 LGRA 349; Randwick Cl v Pacific-Seven

Pty Ltd (1989) 69 LGRA 13.

In that regard, the council must not exercise its powers

unreasonably in the sense that no reasonable council, acting within the four corners of its powers, could ever have reached the

decision in question: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680; [1948] 1 KB 223.

See also South Australia v Tanner (1989) 166 CLR 161 as to the principle of proportionality.

For the most part, the council has a wide discretion in reaching its determination: see Tooth & Co Ltd v Lane Cove MC (1967) 87 WN

(Pt 1) NSW 361. The range of matters that a council is bound to consider may not be coextensive with the range of matters which

it is entitled to consider: see Sean Investments Pty Ltd v

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MacKellar (1981) 38 ALR 363.

A failure by a council to take a relevant matter into consideration that the

council was otherwise duty bound to consider in determining an application for consent will ordinarily justify judicial review by the Land Court only if

that failure is serious in relation to the totality of other relevant factors: see Everall v Ku-ring-gai MC (1991) 72 LGRA 369. Indeed, the NSW Land and

Environment Court has indicated on a number of occasions that it will recognise a breach of, relevantly, s.79C of the EPA Act only after ‘anxious

consideration’: see Parramatta CC v Hale (1982) 47 LGRA 319; Boulton v Burwood MC (1988) 66 LGRA 131. Most importantly, in the absence of

evidence to the contrary, the presumption is that the council has given consideration to all relevant matters: see Jang Investments Ltd v

Sutherland SC (L & E Ct, Hemmings J, No 40048/89, 8 September 1989, unreported).

In Parramatta CC v Hale (1982) 47 LGRA 319 Moffit P, suggested that local councils would be well-advised to gather information themselves, or at least

through their officers, where this would not otherwise be available to them, particularly in relation to technical or otherwise controversial matters. This

is especially important where a council proposes to make a decision which many would regard as a ‘bad’ decision. Street CJ said (at 326):

‘There was no express obligation on the council or its officers to seek out

these reports, but the fact of the council not bothering to check on the existence, contents and possible significance of these reports is at least consistent with the proposition that by that time minds had closed and

conclusions had been formed on the part of the council.’

In short, a statutory application for the consent or approval of Council is required by law to be assessed by Council objectively, on its respective

merits, without bias whether by way of predetermination or otherwise, and without Council fettering its statutory discretion whether by way of

contract, estoppel or otherwise. In addition, Council, in determining any application submitted for its approval, must not, in determining that

application, take into account any irrelevant or extraneous considerations

and must not otherwise engage in any conduct that would constitute maladministration or corrupt conduct.

Based on our review, the Reviewers have found no evidence of any breach

by the Panel of any of the above legal principles or any other relevant principles of which the Reviewers are aware. Our interviews with the Panel

members the Reviewers were able to interview, have led us to conclude that the Panel gave real, proper and genuine consideration to the DA and

did not rush its consideration of the matter. Indeed, its consideration and deliberations extended over two separate meetings of the Panel and, as Ms

Murrell pointed out to us, the Panel ‘did [its] own reviews’ of the material provided to it, called for further information, considered the additional

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information provided and made its determination, even going so far as to

impose an additional condition of development consent.

In short, the Reviewers are fully satisfied that the Panel had more than sufficient time to fulfil its statutory duty to give real, proper and genuine

consideration to the Anderson Park DA. There is no evidence that the Panel failed to properly perform that duty, and there is evidence that it did in fact

properly perform the duty. The Panel members interviewed were not in any way overwhelmed, intimidated or otherwise negatively affected by the

lengthy material provided to them in relation to the Anderson Park DA. The very fact that they sought additional information when they first considered

the DA, and ultimately imposed one extra condition when making the decision to grant development consent to the DA, is clear and unambiguous

evidence that the Panel was able to, and did in fact, properly discharge its responsibilities.

FINDINGS

1. The Reviewers have found no evidence of any lack of transparency

or accountability, or failure to follow established procedures, in relation to the conduct of Council as applicant in relation to the

DA.

2. The Reviewers have found no evidence of any lack of transparency or accountability, or failure to follow established procedures, in

relation to the conduct of NSIPP in relation to the DA.

3. Subject to one or two fairly minor concerns (discussed in this report) the Reviewers are satisfied as a matter of law that the

NSIPP had before it reports that were professionally prepared and which canvassed in a genuine and proper way the matters

required to be considered and assessed.

4. The Reviewers are fully satisfied that the Panel had more than

sufficient time to fulfil its statutory duty to give real, proper and genuine consideration to the Anderson Park DA.

5. The Reviewers have found that the factual circumstances

pertaining to the staff matter alluded to in this report, did not in any way, adversely affect the otherwise proper handling and

consideration of the DA.

6. The Reviewers have found that the above mentioned staff matter

was handled properly and lawfully and is now fully at an end.

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CONCLUSIONS

1. The Reviewers have concluded that Council, as applicant, caused

to be produced a comprehensive, detailed and soundly articulated development application, statement of environmental effects and

associated plans and documents.

2. The Reviewers have concluded the Panel performed its statutory duty as consent authority in a proper manner and otherwise in

accordance with well-established legal principles.

3. The Reviewers have concluded, after carefully considering the

conduct of Council as applicant and the conduct of the Panel as

per the instructions provided to the Reviewers as their terms of reference, that there is no basis for cancelling or revoking the

development consent granted in respect of DA DA227/15, nor for submitting a new development application in respect of the

proposed development.

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RECOMMENDATIONS

1. If Council does not already have such a document, Council should

give consideration to preparing and adopting a document enshrining, and setting out in plain English, the procedure to be

followed in cases where Council, or some person or body acting on behalf of Council, is the applicant for development consent to

a development application.

2. The Council may wish to consider altering/amending the format for report writing and production, so that it better reflects specific

requirements of the EPA Act 1979 (s79C) and also, so that the documents may be more easily followed and understood by

members of the local community.

3. The Council may give consideration, during orientation of appointed staff dealing with the assessment of development

applications, to a short ‘induction seminar’ regarding potential for conflicts of interest and proper ethical approaches to dealing with

development applications.

……………………….

Mr Pierre A Le Bas BA (Geog) (UNE), LLB (Hons1), Grad Cert Leg Prac (UTS), MTCP (Syd)

……………………….

Dr Ian Ellis-Jones BA, LLB (Syd), LLM, PhD (UTS), DD, Dip Relig Stud (LCIS), Adv Mngt Cert