Local Government Legal

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April 2012 – Public notice of the granting of a consent or a complying development certificate


The NSW Court of Appeal in the Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 has recently considered the public notice procedures of the granting of a development consent.

Section 101 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) provides that if public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Land and Environment Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

Clause 124 of the Environmental Planning and Assessment Regulation 2000 (“EPA Regulation”) provides the public notification procedures for the purpose of s101 of the EPA Act. In particular, clause 124(1)(c) provides that the notice contain a statement that the development consent is available for public inspection, free of charge, during ordinary office hours at the consent authority’s principal office, or if the consent authority is not the council, at the consent authority’s office or the council’s principal office (our emphasis).

The Court of Appeal held that a notice which does not include a statement referring to availability “during ordinary office hours” does not comply with the clause and is not a notice given “in accordance with the regulations” for the purposes of s 101 of the EPA Act. In the absence of such a notice, time will not commence to run for the purposes of the limitation period under s 101 of the EPA Act. Furthermore, Council may publish a further notice if it is concerned about the validity of any notice given. There is no time limit on the giving of a valid notice.

Note:  This information is not be relied on as legal advice

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