Local Government Legal

Local Government Legal prepares a regular email newsletter with legal updates on relevant court judgements and a summary and analysis of legislative changes.

July 2012 – Failure to notify a development application

The Land and Environment Court has recently considered the issue of a Councils failure to notify a development application.  In Simpson v Wakool Shire Council[1] (“Simpson’s case”), Mr Simpson brought judicial review proceedings challenging the validity of the Council’s decision to grant development consent.  The grounds of review included procedural impropriety by the Council as it failed to notify affected land owners and occupiers of a development application as required by Council’s Development Control Plan No 8 – Notification Policy (the “DCP 8”).

Preston CJ held that the Council had miscarried its exercise of power to grant development consent by failing to give proper notification of the proposed development, which was in breach of the statutory requirements. Furthermore, the Court did not consider it appropriate to exercise its discretion not to set aside the development consent, either inherent in the power to remedy the breach or under s 25B of the Land and Environment Court Act 1979 (the “Court Act”).  The specific detail of the case is discussed below.

The Statutory Requirements

The land was zoned 2(v) (Village or Urban Zone) under the Wakool Local Environmental Plan 1992 (the “LEP”).  The proposed development was not advertised development under the LEP.

Development Control Plan No 1 – Shire of Wakool (“DCP 1”) and DCP 8 had been adopted by Council, and both development control plans applied to the land.  DCP 1 required notice to be given of certain proposed developments in the industrial precinct.  Clause 4.3(a)(ii) provided:

“Any proposed development of vacant industrial land or change of land use within an existing industrial premises will require written notification to the adjoining property owners and occupants prior to the application being determined by Council. The notice shall allow a fourteen (14) day period for any submissions to be lodged with Council.”

DCP 8 applied to all land within the Shire of Wakool.  Furthermore, its notification policy applied to industries in zone 2(v) (Village or Urban Zone), and required:

“Both owners and occupiers of land that adjoins a site where an application has been received and owners and occupiers of land that may be affected by a development proposal will be notified in writing. Adjoining land will include land that is opposite or directly abuts a site, or is separated from it only by a pathway, driveway, laneway or similar thoroughfare.

Council reserves the right to notify any public authority likely to be affected, or any other individual, organization, group or similar that may be affected by the proposal.

Notification will include the address of the subject premises, applicants’ details, a brief description of the development, details of where and when the application can be viewed, and details of the period in which Council will accept submissions.

Applications can be inspected for a period of seven (7) days. Details of this period will be provided in the notification letter.”

Section 79A(2) of the Environmental Planning and Assessment Act 1979 (the “EPA Act”) provides as follows (our emphasis):

“A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.

The notification given by Council was defective

The Council notified the development application only in accordance with DCP 1, giving notice to adjoining landowners only.  DCP 8 required notification to be given to owners and occupiers of land that adjoin a proposed development site and also to owners and occupiers of land that may be affected by the development proposal.  Accordingly, Council breached section 79A(2) of the EPA Act as it failed to notify the development application in accordance with the provisions of DCP 8.

Furthermore, section 79C(1)(a)(iii) of the EPA Act required Council to take into consideration the provisions of DCP 8 as it was an applicable development control plan.

Remedy for breach of failure to notify

(a)     Discretion to decline relief

Preston CJ held that the Council deprived itself of the opportunity of considering submissions from objectors and owners who may have been affected by the proposed development, as a result of Councils failure to comply with the statutory requirements for notification of the development application.  Furthermore, the Court could not know whether the Council would have made the same determination of the development application had Council complied with the notification statutory requirements.

Preston CJ noted that:

  1. the breach was not purely a technical breach; there was no material delay in the commencement of the proceedings by Mr Simpson; and the consent holder had not commenced development;
  2. the orders sought involved the enforcement of a public duty imposed by the EPA Act, to uphold the public interest in public participation in the development approval process;
  3. there were no circumstances that justified the Council’s non-compliance with the notification statutory requirements; and
  4. the orders sought involved a prospective change of use (as compared to a static development that has already occurred), which could be restrained readily and at no great cost.  Furthermore, the breach could be remedied by the Council complying with the notification statutory requirements[2].

Accordingly, Preston CJ considered it not appropriate or just to exercise the discretion not to make a declaration of invalidity, as “To do so would condone the breach of a mandatory statutory requirement in the public interest and leave it unremedied.[3]”

(b)     Discretion under section 25B of the Court Act

Section 25B of the Court Act provides discretion to the Court to make orders that validate a development consent instead of declaring it invalid.  Section 25B of the Court Act provides as follows:

“(1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order:

(a)  suspending the operation of the consent in whole or in part, and

(b)  specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2)  Terms may include (without limitation):

(a)  terms requiring the carrying out again of steps already carried out, or

(b)  terms requiring the carrying out of steps not already commenced or carried out, or

(c)  terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.”

Furthermore, section 25C of the Court Act provides that the Court may make an order on the grounds that the terms specified under section 25B have been substantially complied/complied with and the development consent is valid or validly regranted.

Preston CJ held that it was not appropriate to make an order under s25B of the Court Act instead of declaring the development consent invalid on the following grounds:

  1. a significant difficulty in making a suspension order under section 25B and a subsequent validation order under section 25C is being able to craft appropriate orders which will not only lead to a validation of either the original consent or the regranted consent, but to do so in a way which does not impede or frustrate the objects of the statutory notification requirements breached and the intended statutory process for consideration and determination of a development application;
  2. compliance with the mandatory requirements for notification of development applications is in the public interest.  Public participation in the development process is crucial to the integrity of the planning system under the EPA Act and promotes the objects of the EPA Act.  It is not to be viewed as a technical and tokenistic speed hump designed to slow but not divert or prevent the inexorable passage of a development application along the highway to approval.  To the contrary, if notification is undertaken in accordance with the statutory requirements, the consent authority’s consideration and determination of the development application might change;
  3. one cannot know who might make submissions in response to being notified, what the content of their submissions might be, how cogent or compelling their submissions might be, or how the Council might consider and weigh their submissions.  The matters the Council as consent authority is obliged to consider under s 79C of the EPA Act, the facts and circumstances of the matters, and the relative weight to be assigned to the matters, might all change as a result of the new submissions and the Council’s consideration of them.  There is utility in having the process of notification, submission, consideration and determination of the development application undertaken in accordance with the EPA Act.  This should be done not in the shadow and servitude of a suspended existing development consent pending validation but in the light and freedom of a development application that has become undetermined by reason of the existing development consent being set aside;
  4. the circumstances of this case were distinguishable from those, and justify a different exercise of discretion from that, in Csillag v Woollahra Council[4] and Csillag v Woollahra Council (No 2)[5] where the Court did make an order under section 25B of the Court Act suspending the operation of a development consent on terms requiring renotification and readvertising of a development application and an order under section 25C of the Court Act declaring that the development consent had been validly regranted.  In that case, there was proper notification to owners of adjoining and neighbouring land in accordance with the applicable development control plan as well as an advertisement in the local newspaper, however the advertisement insufficiently described the address of the land to which the proposed alterations to the apartment related.  In Simpson’s case, there was no compliance with the notification requirements in DCP 8 at all and in particular no notification was given to owners and occupiers of land that may be affected by the proposed development. Therefore, the breach was different;
  5. The nature of the proposed development and its impacts in Csillag v Woollahra Council[6]  and Csillag v Woollahra Council (No 2)[7] were also different to Simpson’s case, as the proposed development involved alterations and additions to one apartment in a residential flat building. The Court found that, without suggesting that the alterations and additions could have no external impact, it would appear that the impacts, if any, would be limited to relatively few people. Moreover, the proposed alterations and additions were, by any objective standard, relatively small in their scope of work and cost.  In contrast, the proposed development in Simpson’s case was of an industrial nature likely to have external impacts in terms of noise, odour, traffic generation and loss of amenity, which have more potential to adversely affect more people in the neighbourhood of the proposed dairy processing plant[8].

Accordingly, it now seems that were a Council fails to notify a development application in breach of the statutory notification requirements, where no notification is given to owners and occupiers of land that may be affected by a proposed development, and the nature of the proposed development is likely to have external impacts that are likely to affect those people, the Court will not exercise its discretion under section 25B of the Court Act, and will proceed to declare the development consent invalid.  It is important to note that each case depends on its particular facts, and the Court if it follows the Simpson’s case as a precedent may still distinguish the facts and exercise its discretion in other cases.  Such examples may include if:

  1. the breach was purely a technical breach;
  2. there was material delay in the commencement of the proceedings;
  3. the consent holder had commenced development;
  4. circumstances justified the Council’s non-compliance with the notification statutory requirements;
  5. if the orders sought involved a static development that has already occurred, which could not be restrained readily and/or would involve a great cost.

[1] [2012] NSWLEC 163
[2] Simpson v Wakool Shire Council [2012] NSWLEC 163 at [91]-[94]
[3] Simpson v Wakool Shire Council [2012] NSWLEC 163 at [95]
[4] [2011] NSWLEC 17
[5] [2012] NSWLEC 135 per Craig J
[6] [2011] NSWLEC 17
[7] [2012] NSWLEC 135 per Craig J
[8] Simpson v Wakool Shire Council [2012] NSWLEC 163 at [100] – [105]

Note:  This information is not to be relied upon as legal advice.

Subscribe By Email

Receive an email each time we release a publication.