In the case of Mulpha FKP Pty Ltd v The Hills Shire Council  NSWLEC 101 Justice Biscoe considered whether a council is obliged to respond to a notice of voluntary surrender of a development consent under s104A of the EP&A Act and cl97 of the EP&A Regulations given that such a notice only takes effect when the consent authority notifies the person surrendering the consent.
Clause 97 of the EP&A Regulations provides that a notice of surrender of a development consent takes effect when the consent authority notifies the person that:
“4(a)(i) it is satisfied that so much of the development as has been carried out has been carried out in compliance with any condition of the consent, or any agreement with the consent authority relating to the consent, that is relevant to that part of the development, and
(ii) that the surrender will not have an adverse impact on any third party or the locality, … “
The Council contended that it was not legally obliged to respond to a voluntary notice of surrender and, alternatively, if there is a legal obligation to consider whether to issue a notice of surrender, the obligation is to do so within a reasonable time which, in this case, had not elapsed.
The Court rejected these submissions and found that a Council’s function under s97(4)(a) is in the nature of a duty, not a discretion, which the Council is expected to exercise. The Court also found that, in this instance, a reasonable time had elapsed and ordered the Council to decide whether the surrender will have an adverse impact on any third party or the locality (the development in question had not commenced so cl.97(4)(a)(i)was not relevant). If the decision is that it will not, the Council was compelled to give the Applicant notification, and if the decision is that it will, the Council was ordered to inform the Applicant of that decision.
The Council was ordered to pay the Applicant’s costs.
Note: This information is not to be relied upon as legal advice