Body Corporate for Elandra Settlers v Noosa Council [2018] QPEC 37

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Body Corporate for Elandra Settlers Cove Community Title Scheme 37351 v Noosa Council [2018] QPEC 37 PARTIES: BODY CORPORATE FOR ELANDRA SETTLERS COVE COMMUNITY TITLE SCHEME 37351 (applicant) v NOOSA COUNCIL (respondent) FILE NO/S: D145/16 DIVISION: Planning and Environment PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court, Maroochydore DELIVERED ON: 10 August 2018 DELIVERED AT: Maroochydore HEARING DATE: 13 April 2017 JUDGE: Long SC DCJ ORDER: CATCHWORDS: ENVIRONMENT AND PLANNING – QUEENSLAND – PLANNING AND ENVIRONMENT COURT– POWERS – DECLARATORY RELIEF – where development approvals were finally granted for lot reconfiguration in 2005 and material change in use 2007 – where a condition of those approvals required another party to provide a bushfire information kit to the applicant and for the approval of it by the respondent, so that it could become part of the required Fire Management Plan – where that was not done and more recently, a document has been submitted to the respondent as a proposed bushfire information kit – where the respondent has not approved the bushfire information kit– where an issue is raised as to whether the respondent retains the power to approve any such bushfire information kit – where in any event, the respondent has further indicated they would refuse to approve the development approval for identified reasons, including lack of preparedness to give what may be seen to be prospective approval of actions in respect of bushfire management and which would otherwise require the approval of the respondent pursuant to another condition of the -- 1 of 30 -- 2 development approvals and which is also a requirement of a registered and indefeasible covenant – where the applicant seeks declaratory relief – whether the Court has power to make any declaration – whether there is utility in providing any declaratory relief – whether the respondent retains the power to approve a document as a bushfire information kit– whether an exercise of the respondent’s discretion to reject the proposed bushfire information kit, for the reasons identified, would be an invalid exercise of power LEGISLATION: Sustainable Planning Act 2009 ss 245, 456, 580 CASES: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Attorney-General (NSW) v Quinn (1990) 170 CLR 1 Bon Accord Pty Ltd v Brisbane City Council & Ors [2008] 163 LGERA 288; QPEC 119 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Pike v Tighe [2018] HCA 9; (2018) 92 ALJR 355 Water Conservation And Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 COUNSEL: M.A Williamson for the applicant A.H Sinclair for the respondent SOLICITORS: p&e law for the applicant Wakefield Sykes for the respondent -- 2 of 30 -- 3 Introduction [1] By an amended originating application, the applicant applies for the following declarations and order: “(c) A declaration pursuant to s.456(1)(a) of the Sustainable Planning Act 2009 that the Bushfire Information Kit prepared by Land and Environment Consultants, dated 23 September 2016 is: (i) a bushfire information kit for the purposes of condition 55 of the Material Change of Use Approval (DA23121); (ii) a bushfire information kit for the purposes of condition 70 of the Reconfiguration of Lot Approval (DA23118); (iii) consistent with the Material Change of Use Approval (DA23121); (iv) consistent with the Reconfiguration with Lot Approval (DA23118). (d) A declaration pursuant to s.456(1)(e) of the Sustainable Planning Act 2009 that the works the subject of the development application dated 12 October 2015 in respect to Operational Works (clearing native vegetation), to the extent they relate to pruning of trees, are not: (i) Operational Work as defined in the Sustainable Planning Act 2009; and (ii) assessable development for the purposes of the Sustainable Planning Act 2009. (e) An order pursuant to s.456(8) of the Sustainable Planning Act 2009 that the Respondent proceed to assess and decide whether the Bushfire Information Kit prepared by Land and Environment Consultants, dated 23 September 2016 ought be approved pursuant to: (i) condition 55 of the Material Change of Use Approval (DA23121); and -- 3 of 30 -- 4 (ii) condition 70 of the Reconfiguration of Lot Approval (DA23118). (f) Such other orders as the Court deems appropriate.”1 [2] However and at the outset, it may be noted that as the matter developed in the written and oral submissions, it was understood that the relief sought in sub-paragraph (d) of the amended application was not pressed. In short, that was in recognition of the apparent lack of utility arising from the evident situation of lack of dispute between the parties, as resolved in the position statements prepared to facilitate the hearing of the application. That is particularly because of the concession of the respondent that only the removal, as opposed to other actions such as pruning, of native vegetation is relevantly “clearing of native vegetation” and therefore operational works.2 [3] The uncontentious background to this application is that: (a) “Settlers Cove” is a reference to a residential development located on Serenity Close, Noosa Heads. It comprises of high density residential units and low density residential allotments; (b) “Elandra” is one component of development in Settlers Cove and specifically located at 6 Serenity Close, Noosa Heads. It was developed pursuant to a material change of use approval (multiple dwelling 16 units - DA23121), granted by the respondent on 17 April 2007 (“MCU Approval”);3and (c) Pursuant to the related approval for reconfiguration of lots for the entire Settlers Cove development and which contained similar conditions to those in the subsequent MCU Approval, a Fire Management Plan (the FMP) applicable to the whole Settlers Cove development was prepared by the developer, approved by the 1 Note that the reference to s 456(8) of the Sustainable Planning Act in paragraph (8) should, as agreed in oral submissions, been a reference to s 456(7) and the application was heard on that basis: T1– 56.32–43. 2 See Respondent’s written submissions at [7] and [38]-[42] and T 1-28.4 – 1-29.15 and 1-57.10 – 1- 58.32. 3 Relevantly to be found as attachment RVW–8 to the affidavit R V Wallerstin, filed 26 October 2016. It should be noted that this is the effective approval and as amended after the approval was just granted on 18 December 2003 (see RVW-3 at pp 7–27) and also amended on 24 August 2005 (see RVW-4 at pp 28–48). It may be further noted that there is repetition of the provisions to which reference is relevantly made in this application, in the complimentary development approval for lot reconfiguration and as first granted on 12 August 2004 (see RBW-7 at pp 84–112) and as finally amended on 13 July 2005 (see RVW-8 at pp 113–137). Given that the relevant provisions are simply repeated, it is only necessary (except perhaps for the terms of any relief that may be granted and as the application was argued) to refer to the final provisions in the material change of use approval. -- 4 of 30 -- 5 respondent and was also endorsed by the Queensland Fire and Rescue Authority;4 [4] It is, however, common ground that the FMP has been and is to be taken as the approved FMP in compliance with the MCU Approval.5 And whilst it may be noted to have attached, as appendix D, a document entitled “Bushfire Information Kit”, that is expressly directed to the “single lot residential area” and therefore not the residential high density area and of which the applicant’s property is a part. And reference to the FMP at 4.6 indicates the following specific reference to the provision of Bushfire Information Kits: “The Conditions of Approval requires for the provision of a Bushfire Information Kit to each of the purchasers of residential single allotments and to each of the Bodies Corporate for the Residential High Density allotments. A Bushfire Information Kit has been prepared for the single residential allotments and is included in Appendix D. A Bushfire Information Kit for each residential high density development will be submitted to Council for approval as part of the Operation Works for each high density development. The Bushfire Information Kit is to be provided to the Body Corporate for each residential high density development.”6 The Application [5] The applicant’s claim for relief is brought in respect of a document which the applicant has more recently caused to be prepared and has unsuccessfully submitted to the respondent for approval, as being in the character of a Bushfire Information Kit (“BIK”). It is contended that the relief sought from the Court “will enable the proposed BIK to be approved so that the applicant can: (a) comply with condition 55 of the MCU Approval; and (b) obtain certainty as to its obligations under the MCU Approval with respect to ongoing bush fire management works.”7 [6] That, in turn, is upon the premise that reference to the MCU Approval relevantly discloses the following: 4 See RVW–12. 5 T1-11.36 - 12.22. 6 See RVW-12 at pp 177–8. 7 See applicant’s written submissions at [12]. -- 5 of 30 -- 6 (a) That by conditions 12 and 13, there is an area of land situated adjacent to the land subject to the MCU Approval, which is referred to as the Private Open Space for Conservation & Waterways Protection (“POSCWP”) and which is equivalent to a defined area of “Retained and Enhanced Vegetation”, and that condition 13.2 effectively provides that: “No clearing or removal of native vegetation (other than that specified in the Ecological Restoration Plan) shall be undertaken within the area of ‘Retained and Enhanced Vegetation’ shown on the Vegetation Clearing Plan dated 23.9.03.” 8; (b) Condition 14 required the applicant for the approval to prepare “various management plans that relate to the design, construction and operational phases of the development”. Such plans were to “provide specific matters detailed” in the conditions of the MCU Approval and were to include an “Ecological Restoration Plan” and a “Fire Management Plan”.9 (c) Conditions 17 to 19 provide as follows: “Environmental Covenant 17. An environmental covenant as defined by Part 6, Division 4a of the Land Title Act 1994, shall be registered in favour of Council on the title of Lot 3 having an area described by metes and bounds on Drawing No. 1128 M & B dated 15 August 2003, described as Private Open Space Conservation & Waterway Protection area in accordance with condition 12. 18. The environmental covenant shall cater for the requirements of the conditions of approval protecting vegetation described as the ‘Retained and Enhanced Vegetation’ as shown on the Vegetation Clearing Plan dated 23 September 2003. Private Open Space for Conservation 19. The area of the site known as the ‘Private Open Space Conservation & Waterway Protection’ area on Drawing No. 1128 M & B (in accordance with condition 12) shall be: 19.1 Managed to protect and reinforce its environmental values, particularly its Koala habitat and corridor values, Glossy Black Cockatoo habitat values, scenic amenity values and water quality protection function. 8 See RVW–3 at p 10. 9 Ibid. -- 6 of 30 -- 7 19.2 Managed and maintained in accordance with the approved Environmental Management Plan, Fauna Management Plan, Fire Management Plans and Ecological Restoration Plan. 19.3 Separated from adjacent development by a 1.2m high fence. The fence shall be ‘fauna-friendly’ (Koala accessible) but shall deter unauthorised people from entering the area. 19.4 Have signs placed on the fence to inform people that the ‘Private Open Space for Conservation & Waterways Protection’ area is for conservation and waterway protection purposes and access is prohibited. 19.5 Maintained by authorised people only permitted in this area as appointed by the owner responsible for the management and protection of the ‘Private Open Space for Conservation & Waterways Protection.’ 19.6 Protected from infrastructure, tracks, drainage, water control devices, etc. or other development, other than the approved access to the jetty and the approved shelter for the jetty, shall be permitted in the ‘Private Open Space for Conservation & Waterways Protection’. 19.7 Protected so that native trees and vegetation are not removed, pruned, lopped, damaged or otherwise adversely affected without written approval from Council’s Manager – Environmental Services. 19.8 The ‘Private Open Space for Conservation & Waterways Protection’ area shall be restored and managed in accordance with the Ecological Restoration Plan.”10 (d) The specific conditions relating to the FMP are as follows: “Fire Management Plan 47. A Fire Management Plan shall be prepared, to the reasonable satisfaction of the Council, for the subject land and shall be implemented by the applicant. 48. The Fire Management Plan shall address: 48.1 Fire management and protection within the site. 10 Ibid at p 11. -- 7 of 30 -- 8 48.2 Bushfire management and control in all the area of Retained and Enhanced Vegetation 49. The Bushfire Management component of the Fire Management Plan shall be generally in accordance with the Bushfire Management Plan prepared by Greening Australia Queensland, dated May 2003. It shall incorporate recommendations for fuel reduction other than by fire. Further the Fire Management Plan will address: 49.1 More detail on the treatment of para grass in the watercourse between the development areas of the adjoining sites. 49.2 Provision of some fire hydrants on the proposed firebreaks on the adjoining land. 49.3 Some proactive monitoring of fuel loads on the land in the vicinity of the site described as Lot 600 – Conservation Land and perhaps the planned use of low intensity controlled burning as a management tool. 50. The Fire Management Plan is to be implemented by the Developer and future owners of the site and is to be referenced in any community management statement(s). 51. The Fire Management Plan shall demonstrate a high level of environmental care and responsibility and be consistent with best practice for developments of this type in similar environments. 52. Fire hydrants shall be supplied and located at the boundary of the development at the point where they abut or include areas of native vegetation. 53. The Fire Management Plan for the developed areas shall address, inter alia, the following:  setback zones from retained native vegetation;  access between structures and vegetated areas;  proposed building construction methods, materials and designs to reduce fire risks;  gutter treatments to avoid the collection of leaves and other fire-prone material;  location of fire hydrants and water points;  access for fire fighters and emergency workers;  fire suppression and evacuation procedures;  landscaping measures to reduce fire risk;  owners and operators training and responsibilities;  implementation procedures. -- 8 of 30 -- 9 54. The Fire Management Plan shall meet the provisions of the Queensland Fire and Rescue Authority Act 1990 and shall be endorsed by the Queensland Fire & Rescue Authority. 55. The Applicant shall provide a bushfire information kit to purchasers of allotments on the site. The bushfire information kit shall be submitted to Council for approval as part of the Fire Management Plan. 56. The Fire Management Plan shall incorporate all the relevant requirements of, and be consistent with, all the other management plans required by this approval.”11 [7] It is further identified that the FMP12 indicates at 1.3.3 that in respect of the residential high density (“RHD”) lots (noting that the property for which the applicant has responsibility is situated on such a lot): “The developer/owner is responsible for fire management up until titles are issued. Thereafter the Bodies Corporate will be responsible for on-going fire management. This includes the management of POSCWP areas within individual lots shown in the RHD area on Figure 1-1. A Bushfire Information Kit will be developed for each RHD lot at the Operational Works stage of the project.”13 [8] It is further pointed out that the only particular or specific requirements of the BIK thereby contemplated by the FMP are: (a) to provide for the definition or specification of the Fuel Control Areas, for implementation of the fire protection design controls, set out generally at 3.1.2 and which includes: “Fuel control within the adjacent POSCWP area will be actively implemented in conjunction with native vegetation and weed management strategies described in the Ecological Restoration Plan. Active fuel control (including under-planting with fire retarding plants if necessary) will be undertaken within the POSCWP area for at least 2.5m (ie on the POSCWP side of the fence between the POSCWP area and the development area of each lot).” 14; and (b) that Landscaping Design for Fire Control is dealt with at 3.1.6, as follows: 11 See RVW-3 at p 15. 12 See RVW-12 at pp 154-192. 13 Ibid at p 160. 14 Ibid at p 166. -- 9 of 30 -- 10 “The Landscape Master Plan and the Ecological Restoration Plan have specified the planning of fire retardant plants adjacent to the fire breaks and development areas that are subject to some level of bushfire hazard. Appendix C presents a preliminary list of plants with recognised fire retarding characteristics that are suitable for planting within designated Fuel Control Areas. Species listed comprise primarily low- growing plants that will limit the development of a vertical fuel load. Specific plants for each of the lots will be defined in the Bushfire Information Kits to be prepared at the Operation Works stage and be compatible with species presented in the Landscape Plans for each lot. Other fire controls to be considered for implementation as part of the design process include:  the use of suitable non-flammable mulch in areas of significant fire risk and  use of watering systems that enhance fire protection A Bushfire Information Kit will be prepared for each of the RHD lots at the Operations Works application stage and will define the need for the above within each of the lots.”15 [9] It may also be observed from the FMP that: (a) the stated “Fire Management Strategies” include a “Fuel Reduction Strategy”, in three stages (including a third stage to commence “after the ecologically restored areas are mature enough to withstand fire”, expressed to be “likely to occur 10- 15 years after the commencement of the ecological restoration work”, which as referred to in Stage 1 is to occur in conjunction with the initial construction work). It is stated that: “Control burning is not an appropriate means of fire fuel reduction in the narrow areas of restored bushland adjacent to residential areas. Therefore, fuel reduction in these areas will continue to be undertaken by hand. The fire fuel load shall not exceed 10 tonnes/ha. … 15 Ibid at p 168. -- 10 of 30 -- 11 The littoral areas and the mangroves and associated intertidal plant communities that are fire sensitive will remain as ‘no-burn’ areas.”16 (b) It is then further stated: “4.2 Fuel Load Monitoring The determination of the appropriate fuel load (ie.< 10 tonnes/ha) will need to be ascertained on an on-going basis by either the representative of the developer or body corporate, Council representative or as described in the Conservation Management Plan depending on the stage of the project (see below). Analysis of the fuel load within the RHD area would need to be undertaken annually, preferentially not later than the end of June each year. A fire management consultant or the QFRS will need to advise the relevant Body Corporate on the actual fuel load present and changes that may occur due to seasonal conditions and other factors and management strategies.”; and (c) Under the heading: “4.7 Bush Fire Management Program and Action Plan”, it is also stated that: “On-going Actions by Future Owners On going fire management for the site is essential to ensure appropriate bushfire protection outcomes. Section 1.3 presents on-going management responsibilities for the various areas. Actions generally relate to the following:  Maintenance of fire breaks (by Developer and subsequently by Council)  Monitoring of fuel loads on an annual basis (Developer, Council, Bodies Corporate and RSL residents). Bodies Corporate are to engage a fire consultant on an annual basis to assess the existing fire risk to the individual RHD lots, identify fuel loads and identify the actions to be taken should unacceptable fire risks be evident.  Undertaking fuel reduction to ensure fuel loads do not exceed 10 tonnes/ha (Developer, Council, Bodies Corporate and RSL residents).  Removal of rubbish (Developer, Council, Bodies Corporate and RSL residents).  Weed treatment/ removal (Developer, Council, Bodies Corporate and RSL residents).  Maintenance of access gates to fire break (Council). 16 Ibid at p 176. -- 11 of 30 -- 12  Maintain taps, hoses and reels (RSL residents and Bodies Corporate).  Undertake general fire controls as defined in Bushfire Information Kit (RSL land owners) and Bushfire Information Kit to be provided to RHD lots (Bodies Corporate).  Assess need for burning on an ecological basis with Environmental Park following 10-15 year time span (Council and Environmental Organisation responsible for park management). Responsibilities for implementing the above will depend on the area and stage of the project. This is defined in section 1.3.” Contentions [10] Accordingly, this application proceeds upon the basis that no requisite specific BIK has been provided (prior to the recent submission of a document by the applicant) nor approved, for the lot upon which the property of the applicant is constructed, and that in the context of condition 50 placing responsibility for ongoing implementation of the FMP on the owners of the site and the absence of an approved specific BIK potentially triggering liability in the applicant for breach of condition 55 of the MCU Approval, it is sought to both remedy that situation and to obtain certainty as to the applicant’s obligations under the MCU Approval with respect to ongoing bushfire management. [11] It is properly acknowledged by the applicant that the declaratory relief that is sought is discretionary and that questions may arise as to the utility of the relief that is sought.17 [12] As to the first aspect of the applicant’s contention, it was submitted that the jurisdiction of the court to grant declaratory relief is enlivened under s 456(1)(a) of the SPA, in that a declaration is sought “about… a matter … that should have been done for [the SPA]”; and alternatively under s 456(1)(e), in that the relief is “about … the lawfulness of land use or development”. [13] As to the application of s 456(1)(e), it was pointed out that despite condition 55 having placed an obligation in respect of providing and obtaining approval and distribution 17 See applicant’s written submissions at [45]–[48]. -- 12 of 30 -- 13 of a BIK upon another person or entity, the concern of the applicant lies in understanding its own potential liability for a development offence, in the absence of compliance with the condition and pursuant to s 580 of the SPA, having regard to s 245(1), which provides that: “(1) A development approval— (a) attaches to the land the subject of the application to which the approval relates; and (b) binds the owner, the owner’s successors in title and any occupier of the land.”18 [14] The written submissions for the applicant expressed the “grounds which support the exercise of discretion in favour of the Applicant” or the identified utility of the relief sought, as follows: “(a) The relief, if granted, will clarify whether a development offence (failing to submit to council and implement a BIK) has been committed; (b) The relief, if granted, will facilitate the applicant complying with Condition 55 of the MCU Approval; (c) The MCU Approval, Covenant and FMP provide a regime for managing an identified bushfire risk, which is a public safety issue. The BIK is an essential, but missing, component of that management regime – granting the relief sought will complete the necessary picture for ‘bushfire risk management’; (d) There is clear utility in granting the relief sought: In the absence of the BIK there has been confusion (on the part of the Applicant) about the interpretation and implementation of FMP and non-compliance with the MCU Approval. This confusion has resulted in the Applicant incurring not insignificant costs to engage consultants and experts to obtain advice about the implementation of the approved management plans. Members of the Body Corporate Committee have also volunteered considerable amounts of time attending meetings and liaising with its consultants and the Respondent whilst attempting to discharge important obligations under the MCU approval and associated management plans. (e) The BIK provides a clear and practical means for the Applicant to determine, with certainty, the bushfire management works required to discharge its obligations under the FMP (particularly parts 4.7 and 1.3) and minimise bushfire risk, being a matter which is in the public interest.”19 18 It may be noted that the line of reasoning in this submission is now supported by the subsequent decision of the High Court in Pike v Tighe [2018] HCA 9; (2018) 92 ALJR 355. 19 See applicant’s written submissions at [48], noting the reference therein to the affidavit of I K Crow, filed 3 April 2017 at [45]-[47] and the affidavit of D A Gardiner, filed 3 April 2017 in support of the contentions in sub-paragraph (d). -- 13 of 30 -- 14 [15] For the respondent, it was not ultimately contested that there was a basis in s 456(1) of the SPA for engagement of the discretionary jurisdiction to grant declaratory relief. However and apart from conceding some utility in declaring whether or not the respondent is now able to consider or approve a BIK for the subject lot, it was otherwise contended that there was absence of utility in what the applicant was seeking and that the appropriate exercise of discretion was to refuse relief. This was essentially for the following reasons: (a) that a fundamental obstacle to there being any utility in any further declaratory relief lay in understanding that the purpose of the application is to obtain permission to remove native vegetation without the necessity of obtaining separate written permission in each instance;20 (b) that to do so would be inconsistent with condition 19.7 of the MCU Approval; and (c) that whilst it was conceded that it was within the power of this Court to interpret the approval, and therefore condition 19.7 in the context of that approval, it had to be otherwise noted that as contemplated by conditions 17 and 18 of the MCU Approval, there is a registered covenant on the title of the subject land,21 which covenant is directed at the conservation of native plants and animals in the POSCWP, with effective replication of the terms of clause 19 as clause 3 of the covenant.22 Accordingly, it is correctly pointed out that the applicant is bound by an indefeasible and registered covenant23 and that this Court has neither jurisdiction nor power to make any declaration about that covenant or to make any binding ruling as to interpretation of it, pursuant to s 456 of the SPA or otherwise. [16] Those considerations are some essential context to understanding the applicant’s criticism of the respondent’s position, which was characterised as essentially 20 T1-41.32-42. 21 See RVW-1 and RVW-2, pp 1-6. 22 Ibid at pp 3-4. There are some differences or modifications but nothing was identified as turning on any such difference. 23 See sections 174, 176 and 184 of the Land Titles Act 1994 and section 53 of the Property Law Act 1974. -- 14 of 30 -- 15 involving the following reasons for refusal to consider approval of the now proposed BIK: 1. the document submitted is not a BIK; 2. there is no longer a requirement for the submission or approval of a BIK; and 3. that in any event the submitted document does not contain or acknowledge the requirement for consent to be obtained under the covenant and for that reason alone would not be approved by the respondent. [17] Whilst that is an adequate overview of the respondent’s position, it is also necessary to note that position in some more detail. In the respondent’s submission particular emphasis is placed upon its “right to decide” whether to approve any BIK, as going fundamentally to the utility of the declaratory relief that is sought and the exercise of the discretion of the Court as to any such relief. [18] Moreover, it was the frank submission of the respondent that it would not approve the submitted documents as the BIK, essentially for the following reasons: (a) it is not an information kit and exceeds the purpose of such an instrument, by going beyond the implementation of the FMP; and (b) it otherwise fails to acknowledge the requirement under the covenant (and condition 19 of the development approval) for the written approval of the respondent for any removal, pruning, lopping, damage, or otherwise adverse affectation, of native trees and vegetation and is designed to effect such outcomes without the requirement of first obtaining written approval from Council.24 [19] As to the latter contention, it was effectively conceded in the oral submissions for the applicant, that the submitted BIK was calculated to have the effect of obviating the need to obtain separate and subsequent written approvals from the respondent and as to the implementation of its ongoing responsibilities under the FMP.25 By extension, the contention is to the effect that written approval of the BIK (as part of the FMP) would be the necessary approval of all that was contemplated by it, for the purposes 24 See respondent’s written submissions at [1] and [6]. 25 T1–33.15–16 and cf: T1-41.32 – 1-43.24. -- 15 of 30 -- 16 of condition 19.7.26 And in that regard, the respondent identified the following specific aspects of the proposed BIK as being indicative of some concern and objection to that proposed BIK: (a) The absence of any specific expressed reference to any requirement for Council approval; and (b) That in addition to the acknowledgment of the fuel reduction strategy in s 4.1 of the FMP, under the heading “3.2 fuel reduction”, and more specifically under the sub heading “3.2.2 covenant fuel control area”, the document proceeds more specifically in respect of the POSCWP area, the area subject to the covenant, as follows: “3.2.2 Covenant fuel control area The covenant fuel control area extends 2.5m inside the covenant area boundary (measured from the boundary between the covenant area and the building area) as shown on Figure 3.1. Fuel reduction in the covenant fuel control area must be completed annually and prior to the onset of the annual fire danger season, ie before September. The fuel reduction performance objectives are based on the bushfire management concepts and strategies in the FMP and ERP. However, where the FMP and ERP does not provide measurable guidance, this has been taken from the Overall fuel hazard assessment guide. The fuel reduction performance objectives are:  treatment of weed species;  surface fuel layer (leaves, twigs, bark and other fine fuel particles lying on the ground as shown on Figure 3.2) is < 10-25mm deep across 60-80% of the area;  Near surface fuel layer (ground cover plants < 75cm high (including plantings) as shown on Figure 3.3) has a plant density of < 2 plants/3 m2 and no dead plant material (leaves, twigs, bark and other fine fuel particles) in accordance with Section 5.1 of the ERP;  Elevated fuel layer (plant material, suspended leaves, bark and twigs that have a clear gap between them and the surface fuel layers as shown on Figure 3.4) covers < 20% of the area in accordance with Section 5.1 of the ERP 26 T1-34.14-24. -- 16 of 30 -- 17 (plant cover is defined as the amount of ground blocked out by the fuel layer if viewed while looking straight down from above as shown on Figure 3.5); and  No dead trees, dead branches in trees or branches in trees which overhang the building or are in danger of being in contact with the building, ie within 1m of the building. The fuel reduction performance objectives will be achieved by:  treatment of weeds in accordance with Section 3.4;  undertaking fuel reduction works in accordance with the bush fire management specialist’s annual fuel reduction report. It was noted during the site assessment that many Acronychia sp. (a small tree to 6 m high) have been planted and make up the elevated fuel layer in this area. This plant form, ie small tree, is not recommended for the covenant fuel control area under the FMP (s 3.1.6). Given that all plant material can burn under extreme fire danger conditions and Acronychia sp. will contribute to vertical fuel load which contradicts the fuel management strategy in the FMP, it is recommended that these trees are thinned or completely removed from the covenant fuel control area. The dead tree (Casuarina sp.) should also be removed. If further thinning of shrubs/trees is required to achieve < 20% cover in the elevated fuel layer, thinning should first focus on the removal/pruning of non-viable/inappropriate natives, eg she-oak, wattles, cyprus, Monotoca and Ricinocarpus as described in section 5.1 of the ERP. It is likely that thinning of shrubs/trees in the elevated fuel layer will be a recommendation of the bush fire management specialist in the first annual fuel reduction report. 3.2.3 Covenant area This section applies to fuel reduction in the remainder of the covenant area, which extends from the covenant fuel control area to the Noosa Inlet. It consists of dry sclerophyll vegetation and littoral rainforest adjacent intertidal vegetation fringing the Noosa Inlet. Fuel reduction works are to occur in the dry sclerophyll vegetation between the covenant fuel control area and the littoral rainforest. Manual fuel reduction in the covenant area must be completed annually and prior to the onset of the annual fire danger -- 17 of 30 -- 18 season, ie before September. The fuel reduction performance objectives are:  treatment of weeds; and  combined surface and near surface fuel load are < 10 t/ha. The fuel reduction performance objectives will be achieved by:  treatment of weeds in accordance with Section 3.4;  undertaking fuel reduction works in accordance with the bushfire management specialist’s annual fuel reduction report. Manual fuel reduction may involve the removal of dead branches from fallen trees which are < 20 mm in diameter. The bushfire management specialist will advise the best way to treat the surface and near surface layers to achieve a fuel load of < 10 t/ha in their annual fuel reduction report following a site assessment. As mentioned earlier, site specific events will influence the treatment required, eg fallen trees, proliferation of weed species, scrub turkey nest building, surface water runoff, etc.”27 [20] For the respondent, contrast was then sought to be made with some relevant context in the FMP, as follows: (a) In section “3. Fire Protection Design Controls” and under the sub- heading “3.1.2 Fuel Control Areas” and after the reference to a 3m “fuel control area…to be established within the potentially developable portion of the RHD area adjacent to the POSCWP and Park areas”, it is stated: “Fuel control within the adjacent POSCWP area will be actively implemented in accordance with native vegetation and weed management strategies described in the Ecological Restoration Plan. Active fuel control (including underplanting with fire retarding plants if necessary) will be undertaken within the POSCWP area for at least 2.5 m (ie on the POSCWP side of the fence between the POSCWP area and the development area of each lot).”;28 27 RVW–14 at pp 279–80. 28 RVW–12 at pp 165-6. -- 18 of 30 -- 19 (b) That under the sub-heading “3.2.2 Fuel Control Area”, it is stated: “…As for the RHD area, fuel control within the POSCWP area will be an important management strategy as described in the Ecological Restoration Plan. Focussed fuel control as also defined in the Ecological Restoration Plan is to be implemented within the POSCWP area immediately adjacent to any Fuel Control Area. As stated in Section 3.1.6, the plants to be selected within the Fuel Control Areas are to be of low growth habit to limit the chance of vertical fuels developing. This is particularly important for those blocks adjoining the Environmental Park. Normally species would need to grow no higher than 300mm or be regularly topped to this height.”29 (c) Under the heading “4. Fire Management Strategies” and the sub- heading “4.1 Fuel Reduction Strategy”, it is relevantly stated: “4.1 Fuel Reduction Strategy Fuel Reduction is an essential component in achieving a reduced bush fire hazard outcome. The Fuel Reduction Strategy has three stages. These are described below.  Stage 1: This applies to the initial construction work and the initial ecological restoration work. Excessive fire fuels (ie forest litter, dead trees and shrubs, rubbish, etc.) are to be cleared from the site during this stage. Such fuels will be cleared from all native vegetation areas as described in the Ecological Restoration Plan and from those areas within the development areas of the individual lots where pockets of existing vegetation are to be retained. Machinery removal of fuel load in areas where native vegetation is to be retained will not be permitted. Figure 4-1 presents the areas of the site where the removal of the fuel load will be undertaken. The Ecological Restoration Plan describes how this reduction in fuel load will be undertaken in the retained native vegetation areas in conjunction with other restoration works. Weed reduction measures presented in the Ecological Restoration Plan, for example, are likely to have the additional benefit of significantly reducing the fuel load. During this stage, the bush fire hazard will be substantially reduced because: 29 RVW–12 at p 169. -- 19 of 30 -- 20  most of the excessive fire fuel load in the RSL and RHD areas will be removed when the development envelopes are selectively cleared, and  the excessive fire fuel load in areas to be ecologically restored will be removed during the site preparation stage of the ecological work (eg thinning and removal of non-viable vegetation).  Stage 2: This applies to the next 10-15 years before the ecologically restored areas are mature enough to withstand fire. During this stage (as presented in Figure 4-1), fuel reduction in the ecologically restored areas will be undertaken by hand so that the fire fuel load is not to exceed 10 tonnes/ha. In the wet heath lands of the RF Thompson Environmental Park, fuel reduction will be undertaken primarily by hand removal of fuel and, in certain circumstances relevant to ecological enhancement needs, by control burns. …  Stage 3: This stage will apply after the ecologically restored areas are mature enough to withstand fire. This stage is likely to occur 10-15 years after the commencement of the ecological restoration work (see Figure 4-2). The rate of growth of new plants will be determined by the prevailing weather conditions. Controlled burning is not an appropriate means of fire fuel reduction in the narrow areas of restored bushland adjacent to residential areas. Therefore, fuel reduction in these areas will continue to be undertaken by hand. The fire fuel load shall not exceed 10 tonnes/ha. … The littoral areas in the mangroves and associated intertidal plant communities that are fire sensitive will remain as “no-burn” areas.”30 It was further contended that the necessary context for these provisions in the FMP and for understanding the concept of reduction of “fuel load” incorporated in these provisions is to be found in the following earlier sub-section of the plan: 30 RVW–12 at 173–6. -- 20 of 30 -- 21 “2.5 Summary of Fire Risk and Approach to Fire Management Based on the assessment presented above, the overall fire risk of the site in its current condition is considered to be low. With the implementation of measures identified within this Fire Management Plan, the resulting fire risks associated with development of the Setters (sic) Cove project is considered likely to be very low to negligible. Fire risk factors identified above have been taken into account in determining the design and management strategies presented in this FMP and other documentation. Fire risk is affected to a large extent by the fuel load. While many dry sclerophyll species present on site present a fire threat due to their inherently high oil/resin content, of greater importance at the site is the volume of dead wood, leaf litter and flammable weed species in the understorey. Management strategies presented in this FMP provide a focus on managing this fuel load with an overall intent to ensure that the fuel load does not exceed 10 tonnes/hectare in any of the retained natural vegetation area. A significant focus in Settlers Cove master planning has also been the provision of suitable fire breaks and associated access points for fire control. The plan has been prepared in liaison with the QF & RS.” Discussion [21] As has been noted and despite earlier written submissions to different effect, in the course of oral submission and as it was understood, the respondent accepted that the Court was at least empowered by s 456(a) and/or (e) to declare whether or not the respondent could now approve a BIK to be part of the previously approved FMP and that there may be utility in doing so.31 Subsequently, it was also conceded that some potential utility might also lie in declaring the view of the Court as to whether or not the noted essential reasons for the respondent’s objection to approval of the submitted BIK, have legal validity.32 And it may be concluded that the effect of the primary position of the applicant, that there is no effective definition and more particularly, exclusion of what may be contained in a BIK, is to also beg the same question. 31 T1-45.20-27, and expressly conceded the desirability of having a BIK and it’s preparedness to approve a “proper BIK”, if it had power to now do so. 32 T1-55.32 – 1-36.9. -- 21 of 30 -- 22 [22] Notwithstanding such concessions, it remains for the Court to determine whether there is both power and utility for the granting of such relief. And in respect of the judicial review of exercise of discretionary power, the general principles are expressed as follows: “It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties."33 (citations omitted) [23] More particularly, it is necessary to note that such relief is here sought in a sense of review of administrative action, or inaction, as to the approval of a BIK. And the basal principle is that such review may occur in respect of the legality, as opposed to the merits, of any such administrative action or inaction. For instance, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,34 the plurality approved the following earlier exposition of Brennan CJ: “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”35 [24] The applicant expressly recognised that the Court does not have power to make or effectively make the decision, which is reserved to the respondent. Hence, the terms in which the applicant seeks declaratory relief are as to the consistency of its proposal with the necessary requirements of a BIK, or capacity of the proposal to be so regarded. Central to that approach is the primary contention of the applicant that 33 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581–2. 34 (1996) 185 CLR 259 at 272. 35 In Attorney-General (NSW) v Quinn (1990) 170 CLR 1, 35–6. Noting also that albeit for a different reason and one which does not require further elaboration for the reasons to follow, this authority was referred to the Court by the applicant. -- 22 of 30 -- 23 although condition 55 necessitates the formulation of a BIK, there is no definition nor restriction expressed in that or any other development condition as to what may be included in a BIK. [25] There is validity in the criticisms of the respondent as to the lack of efficacy or utility in the broad and somewhat nebulous terms in which the applicant seeks declaratory relief. However and again as discussed in the reasons to follow, the position of the respondent did allow for concession of power for and utility in, some declaratory relief, which ultimately included, in addition to declaration as to whether the power of approval was retained, the prospect of some determination as to the legality of the essential objections that the respondent has indicated to its approval of the proposed BIK.36 [26] In this instance it should be concluded that if the court has power to grant such declaratory relief, there is no mere hypothetical question. There is both a question as to whether the respondent can now approve a BIK and also dispute as to whether the specifically identified objections the respondent has to the submitted or proposed document are legally valid. Each issue involves the construction of the conditions of the approval of the development and particularly those relating to the requirement for a BIK. [27] Whilst the respondent’s position as to refusal to approve the proposed BIK is strictly a pre-emptive one, that must be viewed in the context that there is also a question raised as to whether it retains the ability or power to give such approval. As to that indicated refusal, the applicant’s reference to Attorney-General v Quin,37 as authority for the proposition as to reviewable error potentially lying in the respondent having represented or bound itself to a particular exercise of discretion in advance of the occasion for exercise of it, must be seen in the context of its primary contention. Moreover and on the respondent’s approach, the issues are as to the lawful requirements of any such approval and it may be observed that if the primary contention of the applicant is not accepted, the reality is that the presently identified 36 Notably, each party made reference to the decision in Bon Accord Pty Ltd v Brisbane City Council & Ors [2008] 163 LGERA 288; QPEC 119 and in the case of the respondent, specifically to the observations at [208]-[209] as to the potential applicability of judicial review considerations in respect of exercises of discretion by a council in the context of development approvals. 37 (1990) 170 CLR 1. -- 23 of 30 -- 24 impasse will not be improved. Hence, an indication of potential utility in determining if there is legal invalidity in the respondent’s position. [28] The power of the court to grant such relief is expressed broadly in respect of the circumstances otherwise set out in both section 456(1)(a) and (e), by the use of the word “about”. In the present circumstances, the ultimate concessions of the respondent should be accepted and the appropriate conclusion is that: (a) Section 456(1)(a) is engaged, in that the relief sought is about a matter that should have been done for [the SPA], in that it is about a matter that should have been done pursuant to a development approval given under that Act; and/or (b) Section 456(1)(e) is engaged, in that the relief sought is about the resolution of the question as to any ongoing unlawfulness of the development. [29] Further and in the circumstances outlined and for the following reasons, it should also be concluded that the respondent retains the ability, in the sense of power or right, to now approve a BIK and so as to allow compliance with condition 55 of the development approval: (a) First the context for condition of 55 should be noted as follows: (i) Condition 47 requires preparation of a FMP “to the reasonable satisfaction of the council” and the implementation of it by the relevant owner; (ii) Pursuant to condition 50, there is a requirement for on-going implementation of the FMP by owners of the site; (iii) As amended and considered from the perspective of the applicant, condition 55, in the first instance, requires that the Body Corporate manager have a BIK supplied to it by the applicant for development approval, and secondly, that such BIK be “submitted to council for approval as part of the FMP”; (iv) There is no express requirement that the BIK had to be submitted contemporaneously with the FMP and so as to become part of it. And consistently with that observation, it may be gleaned from the FMP, which has been accepted by the respondent as compliant with condition 47, that the particular -- 24 of 30 -- 25 obligation was stated as intended to be satisfied separately and “as part of the operation works for each high density development”; (b) Notwithstanding that the problem is that the root of the noncompliance with condition 55 lies in the failure of execution of the first stated intention and, in that sense, is a failure on the part of a party other than the present applicant, it would not be consistent with the intent of section 245 of the SPA, nor the reasoning in Pike v Tighe, to deny to a successor in title an ability to obtain effective compliance with the condition and thereby avoid any potential illegality attaching to the developed land; (c) Although condition 55 is capable of being read compendiously and so that the strict requirement was for the applicant for the development approval to submit a BIK for the approval of Council, and so as to become part of the FMP and to supply that approved BIK to the body corporate, the condition is also capable of an interpretation that does not exclude submission by another entity and so as to have it approved as part of the FMP. This is particularly because of the generally expressed requirement for a FMP in condition 47 and the effect of condition 50 in requiring implementation of such a plan by the applicant for the development approval, the developer and future owners of the site. The proposition may be tested by postulating that had a BIK been previously provided to the Body Corporate manager, without the prior approval of the respondent, the question may be asked as to how condition 55 would operate to prevent the owner, upon whom obligations for implementation of the FMP are placed, from submitting the same (or even a modified) BIK to the council, for approval and so that it might become part of the FMP and in substantial compliance of condition 55. [30] As has been noted, central to the applicant’s contentions as to the respondent’s objections to the submitted BIK, is the submission that there is nothing in condition 55 or the other conditions of the development approval, which defines, determines or restricts what may comprise such a BIK. Whilst that may be a strictly correct observation, it is otherwise necessary to note that the purpose and intention for a BIK, -- 25 of 30 -- 26 as stated in condition 55, is to be part of the FMP. Otherwise and as properly conceded for the applicant, it is, at least, difficult to see how the BIK and more specifically the fire controls that may be specified in a BIK, could be other than referable to the purpose of implementation of the FMP and not beyond or enlarging upon or derogating from such purpose.38 [31] Further, it is necessary to note that each of conditions 47 and 55 require and empower the Council to approve the FMP and the BIK. And in the specific circumstances of this case and where there is already an operative FMP, to the satisfaction or approval of the respondent, that necessarily provides further context as to the anticipated content of the BIK, as part of that FMP. Accordingly, and perhaps apart from the prospect of highlighting or summarising the specific obligations of the relevant body corporate, as a relevant owner, under the development conditions and the FMP, it can be noted that there are the specific matters which have been noted above,39 which have been noted in the FMP as contemplated to be dealt with specifically in the anticipated BIK. [32] Central to the respondent’s objections to the proposed BIK is the further context provided by reference to the requirement of condition 19 of the development approval, in respect of the POSCWP.40 And particular emphasis is placed upon the effective replication of those requirements in the registered covenant, required by and pursuant to conditions 17 and 18 of the development approval. As is correctly pointed out by the respondent, the applicant is bound, in this regard, by an indefeasible and registered covenant and this Court lacks jurisdiction, and therefore power, to make any binding ruling as to the interpretation or effect of that covenant, including the replicated terms of condition 19 in clause 3 of the covenant. However, and as was properly conceded for the respondent,41 such considerations do not preclude the appropriate exercise of any jurisdiction of this Court and more particularly power pursuant to section 456 SPA, to interpret condition 19 of the development approval and insofar as such interpretation may relate to the exercise of the power of this Court. But what must necessarily be noted as the particular relevance of the registered covenant, as required by conditions 17 and 18 of the development approval, is a 38 T1-71.25-29. 39 See paragraph [8], above. 40 As has been noted, it is in respect of the fire management of this area that this application is particularly motivated. 41 T1-48.12-13. -- 26 of 30 -- 27 contextual indication of particular sensitivity in respect of the protection of the POSCWP and the particular reservation of the right of the respondent to be consulted and give prior written approval for any removal, pruning, lopping, damage or adverse affect, of native trees and vegetation. [33] Further and whilst at a general level it may be accepted, as is critically inherent in the contentions for the applicant, that the approval of specifically contemplated actions of the kind noted in condition 19.7 could conceivably be given by the approval of a BIK prospectively expressing such contemplated actions, there are two impediments to the suggestion that the insistence of the respondent upon ongoing and specific application of condition 19.7, and as the need arises, and therefore its objection to a proposed BIK calculated to have the former outcome, is invalid: (a) In the first instance and although this was not expressly acknowledged in the course of submissions in this matter, it may be noted that the terms of condition 19.7 are more specific, in requiring such approval by a specific officer of the respondent: “Council’s manager – environmental services”. Therefore and unless the respondent was prepared to have an approval of the specified officer included as part of its approval of a BIK, pursuant to condition 55, there may be difficulty in the assertion that there is an approval satisfying the terms of condition 19.7;42 and (b) Moreover, the power or right of the respondent to approve a BIK pursuant to condition 55 and/or approve, in the sense of expressing satisfaction with a FMP pursuant to condition 47, is relevantly unfettered. Accordingly, this consideration is necessarily a significantly averse indication to any finding of invalidity in the objections of the respondent to the proposed BIK, unless perhaps some inconsistency with the conditions or the approved FMP, such as to found a conclusion of relevant unreasonableness (or perhaps improper purpose), is established in this context;43and (c) It is unnecessary to dwell upon a detailed examination of the extent to which the proposed BIK does or does not achieve the admitted 42 But and perhaps curiously, the position may be different in respect of satisfaction of clause 3.6 of the registered covenant. 43 See: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234, Water Conservation And Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505. -- 27 of 30 -- 28 calculated purpose. However, what can be observed is that irrespective of the contents of any approved BIK, there would remain an on-going obligation upon the applicant to ensure that the necessary approval, as required by condition 19.7, had been obtained for any action of the expressed kind. And it can be further observed that the respondent’s position as to periodic and specific approval, may have a virtue of clarity and protection of the applicant’s interest in compliance with its obligations. Conclusion [34] No relevant inconsistency nor unreasonableness should be appropriately discerned in respect of the respondent’s position. There is no contextual indication that condition 19.7 should operate other than as appears on the face of it. And that is, as a separate and overarching obligation of the applicant and responsibility of the respondent, in respect of the identified and sensitive area. In particular, there is nothing in any of the plans to which obligation to manage and maintain the area is to accord, pursuant to condition 19.2, which compels any contrary conclusion.44 [35] First, nothing was suggested to relevantly arise from either the Environmental Management Plan or the Fauna Management Plan. [36] Secondly, and as has been noted, the relevant FMP does not do so. Rather and in the context of a stated obligation to manage fuel load to less than 10 tonnes/hectare, there is specific reference to analysis and determination, annually and upon the basis of appropriate advice. That may be seen as contemplative of a complementary need to obtain any necessary approval pursuant to condition 19.7. And whilst there is particular emphasis upon fuel load, in the nature of “dead wood, leaf litter and flammable weed species in the understorey”, and in respect of which it is not contended that condition 19.7 would be engaged, there is nothing to indicate that to the extent that condition 19.7 may be engaged for the purpose of such management 44 In reaching such conclusion, it is only necessary to have regard to the terms of the development approval and unnecessary to traverse the argument of the respondent that some relevant regard may be had to its response to requests for amendment of any of the conditions of the approval and therefore the argument of the respondent as to the inappropriateness of doing so. -- 28 of 30 -- 29 or maintenance of the POSCWP area, that there should or may not be some ongoing and periodic obligation to obtain the approval required by condition 19.7. [37] Finally and in respect of the Ecological Restoration Plan,45 it may be noted that in the context of the references also made to that plan and the obligations created under it, in the FMP, attention was drawn, by the applicant, to the notation in that plan of the “specific task” of “ongoing thinning of regrowth, where necessary”, as an ongoing obligation of a relevant body corporate.46 However and quite apart from noting that this responsibility of bodies corporate for “ongoing maintenance” was to be after an initial maintenance period and in which the developer bore that responsibility, and the context that at the end of that initial maintenance period, for which the developer bore responsibility and obligation of monitoring by a restoration ecologist, there was specific provision for the restoration ecologist to have “consultation with Bodies Corporate, Council and other relevant organisations to ensure ongoing management of restoration areas, where necessary,”47 it should not be concluded that there is any inconsistency with any expectation of ongoing and periodic obligation for approval pursuant to condition 19.7. In particular the qualification “where necessary” begs a question as to how such necessity is to be determined and is particularly inapt to establishing any inconsistency with separate and ongoing obligation to obtain the approval of the respondent as the perception of such need arises. [38] Finally and in these circumstances and given the relevantly unfettered nature of the discretion reposed in the respondent in respect of any approval of a BIK pursuant to condition 55 and the evident sensitivity apparently underlying condition 19, not only may no improper purpose be discerned in the respondents essential position in seeking to preserve an entitlement or power to give separate and periodic approval to specific proposals so that condition 19.7 may be satisfied, but it would also not be appropriate to find that there is or would be any relevantly improper or unreasonable exercise of discretion, in not approving a proposed BIK which is calculated to achieve a different outcome. 45 See RVW–13 at 193-265. 46 Ibid at p 220. 47 Ibid at p 218. -- 29 of 30 -- 30 [39] Accordingly, the parties will have the opportunity to be heard as to whether or not the appropriate form of declarations, in reflection of these conclusions, is that: 1. The respondent retains the ability or power, pursuant to condition 55 of the development approval for material change of use granted on 17 April 2007, and condition 70 of the development approval for lot reconfiguration granted on 13 July 2005, to exercise discretion as to approval of any Bushfire Information Kit, as may be submitted to it by the applicant; and 2. The exercise of any such discretion is and would not be invalidated by any conclusion that such a Bushfire Information Kit should not include provisions which derogate or detract from a requirement of periodic and subsequent approvals, as may be required by condition 19.7 of each of the development approvals, granted on 17 April 2007, for material change of use, and on 13 July 2005, for lot reconfiguration. -- 30 of 30 --