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July 2014 – Case law: Notices under s81(1) EP&A Act must strictly comply

The case of Director General NSW Department of Industry and Investment v Mato Investments Pty Ltd [2014] NSWCCA 132 involves a consideration of whether a notice given under section 81(1) of the EP&A Act must reflect strictly the requirements of the EP&A Regulation in order for a development consent to become effective and operative by virtue of s83(1).

The issue arose in the context of an appeal to the Court of Criminal Appeal against a decision of Pain J in the Land and Environment Court in which the respondents were found not guilty of offences under the EP&A Act. The respondent was the owner of a rural property on the bank of the Murray River on which it was constructing an Eco Tourist Resort pursuant to a development consent granted by the Corowa Shire Council (Council). In the first instance, the respondent was found to be in breach of condition 16 of the Consent:

No snags (large woody debris on the bank or in the water) are to be moved, relocated or removed either at the time of construction or in the future without consultation with DPI.”

The issue arose because there were two notices of determination of the granting of Consent, in different terms, both dated 30 May 2007. The first was signed by the General Manager and reflected the Council’s resolution. The second was signed by the Council’s Director or Environmental Services, Mr Parr (the Parr Notice). Mr Parr signed the notice after changing the conditions to impose two conditions as deferred commencement conditions.

The Court found that the Parr Notice misstated the terms in stating two of the conditions were deferred commencement conditions and as such, the Parr Notice was not effective to make the Consent operative within the meaning of section 83(1) of the EP&A Act. More broadly the Court found that a notice given under s81(1) EP&A Act must strictly comply with the notification requirements of the Regulation in order for the consent to become effective.

The Court reasoned as follows:

  1. The question depends on the opening words of s 81(1) of the EPA Act, “The consent authority must, in accordance with the regulations, notify its determination of a development application”. 

In my opinion, a consideration of the context of the provision and its purpose in the legislative scheme leads to the conclusion that the notice of development consent must at least state accurately the critical matters required to be notified by the Regulation. This includes in particular, as in the present case, the conditions upon which the development consent has been granted. This is for the following reasons.

First, although not conclusive, the use of the words “must, in accordance with the regulations” suggests that strict compliance is required for the notice to be effective.

Second, the notice operates as a pre-condition to the consent being operative: EPA Act, s 83(1). The fact that it operates in this way as distinct from merely informing the appellant of the decision of the consent authority also suggests that strict compliance is required.

Third, and importantly, the notice is required to be given to any person who has made submissions in respect of the development and the time for any appeal is set by reference to the date of the notice. In those circumstances, strict compliance with the form of the notice generally is required …”

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

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