Table of trouble
Council reports regularly feature tables or summaries of objectors’ submissions. The importance of ensuring that a summary of submissions contained in a table is accurate was reinforced in the recent Land and Environment Court decision in Castle Constructions Pty Limited v. North Sydney Council & Anor [2008] NSWLEC 137.
Background
In Castle Constructions, the applicant sought a declaration that resolutions made by Council to forward a draft Local Environmental Plan to the Department of Planning, and thence to the Minister to be made, were invalid.
One of the submissions made by the applicant turned upon whether the Council had complied with section 68(3) of the Environmental Planning & Assessment Act 1979 (EP&A Act), which requires the Council to consider submissions made to Council whilst a draft Local Environmental Plan is on exhibition.
The applicant's case was that Councillors had not considered the actual submissions or, alternatively, if they had read the submissions from the public, the summary table provided by the Council staff, when read, would still have mislead the Councillors.
The summary of submissions table prepared by staff noted two separate submissions in relation to a perceived reduction in potential floor space produced by the draft local environmental plan. In relation to both submissions, the Council response provided in the table was that "this matter is covered in the main body of the report". However, the Court found that an examination of the report revealed that the issue was not specifically addressed.
On the applicant’s submission, because the table was not complete and accurate, it misled Councillors in advising them not to direct their minds to fundamental questions raised by the submissions. If the Councillors were then misled, the applicant asserted that it was not possible to infer that the Council had given genuine and realistic consideration to those submissions, as required by section 68(3) of the EP&A Act.
Decision
The Court accepted the applicant’s assertions and held, on the basis that the summary table was misleading, that it could not be said that Council had given proper, genuine and realistic consideration to the submissions. Accordingly, section 68(3) of the EP&A Act had not been complied with. The Council resolutions were therefore invalid and of no effect.
Implications
It is common for assessment reports to contain summaries of information received in tabular form.
This case illustrates the importance of ensuring that summary tables, particularly in relation to submissions made by objectors, are adequately dealt with, either in the table itself, or specifically within the rest of the report.
The case also has potentially wider ramifications in development assessment, where tables in relation to compliance with development standards and DCP controls are widespread. It is possible to imagine a scenario where a report placed before the Council is misleading (particularly say in relation to a variation to a development standard), and the decision is struck down because proper, genuine and realistic consideration has not been given to the issue at hand.
If you require further information please contact Kirston Gerathy on 02 9334 8628 or Jeff Reilly on 02 9334 8642.
