Following the High Court’s consideration of Wednesbury unreasonableness earlier this year (see Minister for Immigration and Citizenship v Li  HCA 18), the Land and Environment Court (Court) has been asked to consider whether the decision by a consent authority not to notify an adjoining land owner of two development applications was ‘manifestly unreasonable’.
Two development applications (DAs) were lodged with Bathurst Regional Council (Council) for the construction of a swimming pool, retaining wall and pool safety wall (Development). The first DA concerned the construction of the swimming pool itself, a safety fence and a retaining wall (First DA). The second DA concerned a pool fence, pool filter cover and privacy screen (Second DA).
The plans and other documents forming the DAs were not sophisticated – involving drawings completed by hand – and were lodged by a pool construction company on behalf of the owner of land (Owner).
Notification requirements under the DCP
The Bathurst Regional (Interim) Development Control Plan 2011 (Bathurst DCP) was the applicable DCP at the time the DAs were lodged. The Bathurst DCP set out the notification requirements for development applications and, relevantly, provided:
2.3.1 What is notified development?
The factors that Council will take into consideration in determining whether a development application will be notified and to whom are as follows:
- the views to and the views from surrounding land,
- potential overshadowing of surrounding land,
- privacy of surrounding land,
- potential noise transmission to the surrounding land,
- the likely visual impact of the proposed building in relation to the streetscape, and
- any other issues considered by Council to be relevant to the application.
2.3.2 Who will be notified?
Generally written notice of a notified Development Application will be given to the owners of land directly adjoining the land on which the development is intended to occur. For the purposes of determining which properties are adjoining, Council will generally exclude properties which are separated by a road, pathway or other significant feature. Further larger properties or adjoining properties unlikely to be affected by the proposed development may also not be notified.
Council’s development assessment officer (First Officer) formed the opinion that the development the subject of the First DA would not have an “adverse impact” on the Applicant’s land, which adjoined the land the subject of the First DA.
A second Council development assessment officer (Second Officer) formed the opinion that the development the subject of the Second DA “would not have a detrimental effect in relation to the [DCP Criteria]”.
As a consequence, the Applicant was not notified of either of the DAs.
The Development was permissible with consent under the applicable environmental planning instrument and, despite the arguably ambiguous nature of the content of the DAs, Council granted development consent for both DAs.
The Applicant’s response
The Applicant claimed that, had she been notified, she would have made objections to both DAs. As a consequence, she brought proceedings in the Court claiming:
- that the Council breached section 79A(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) by failing to notify the Applicant of the DAs;
- the Council applied an incorrect test in determining not to notify the Applicant of the DAs;
- the Applicant was denied procedural fairness in not being notified of the DAs;
- the Council failed to consider a mandatory relevant consideration in granting development consent to the DAs, namely whether the Applicant should have been notified;
- that the decision not to notify the Applicant of the DAs was manifestly unreasonable; and
- the development consents for the DAs were void for uncertainty.
Cross-examination of the Council officers at trial
Under cross-examination the First Officer conceded, amongst other things, in relation to the First DA that:
- there were many different interpretations of the plans as to the heights of the retaining wall and the pool;
- the height of the retaining wall was not stipulated in the consent; and
- there was no limit on the height of the pool fence.
The Second Officer conceded, amongst other things, in relation to the Second DA that:
- it was not possible to determine the height of the pool fence; and
- it was not possible to determine where the pool fence or barrier was to be located.
A side issue: was the determination of ‘notified development’ a jurisdictional fact?
The Applicant claimed that the determination by Council as to whether the development application was to be characterised as “notified development” under clause 2.3.1 of the Bathurst DCP was a question of jurisdictional fact for the Court to determine.
By reference to a long line of authorities, culminating in the decision of Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) (see our In Brief on this case here), Pepper J held that the relevant clauses of the Bathurst DCP were not framed in terms of “facts” but concerned factors that the Council must consider in determining whether or not to notify the development.
As a consequence, whether a development application was to be notified, and if so, to whom, was a matter for the Council to determine and not the Court. It was not a jurisdictional fact.
Was the failure to notify manifestly unreasonable?
Pepper J held that the failure to notify the Applicant of both the DAs was manifestly unreasonable. In respect of the First DA, Pepper J arrived at the conclusion based on:
- the ambiguous nature of the hand drawn plans;
- the height of the pool above ground level, the height of the retaining wall and the height of the brick pool wall; and
- the material to be used in the construction of the pool wall.
In respect of the Second DA, Pepper J arrived at the conclusion based on the fact that:
- the plans did not indicate the precise location of the brick pool fence;
- the height of the pool deck; and
- that as a result of an estimation by the second Council development assessment officer, the pool wall would not be sufficient to afford privacy.
On the whole, and in addition to the ambiguities surrounding the DAs, the impact of the Development on the Applicant’s land was ‘dramatic’.
As a result it was held that there was no basis, let alone any reasonable basis, to justify the decision not to notify the Applicant of either of the DAs and the failure to do so was manifestly unreasonable.
A secondary issue: were the development consents void for uncertainty?
Pepper J referred to the seminal cases on the uncertainty of a development consent, being Mison v Randwick Minicipal Council (1991) NSWLR 734 and Kindimindi Investments Pty ltd v Lane Cove Council (2006) 143 LGERA 277, in determining that the First DA was void for uncertainty. Her Honour arrived at this conclusion on the fact that the hand drawn plans provided no cogent information to determine:
- the location or finished height of the pool;
- the height of the retaining wall;
- the relationship between the pool and the retaining wall;
- the materials to be used in construction;
- the location of the pool filter, pump and pool equipment; or
- the height of the safety fence.
Pepper J concluded that the plans not only tended towards uncertainty, they were apt to mislead.
However, although the Second DA was infected with some uncertainty, this uncertainty was not ‘sufficient’ to leave open the possibility that a significantly different development would result.
Should the Court exercise its discretion under section 25B of the Land and Environment Court Act 1979 (LEC Act)?
Section 79A of the Environmental Planning and Assessment Act 1979 requires notification of a development consent to be given in accordance with the provisions of the applicable DCP. Ordinarily, a breach by a consent authority would result in a declaration of invalidity of each of the development consents granted pursuant to an unlawfully notified development application.
However, section 25B of the LEC Act allows the Court to suspend the operation of a development consent and to specify terms which will provide validity to the consent.
In considering whether to apply section 25B of the LEC Act in this case, Pepper J applied the reasoning of Preston J in Simpson v Wakool Shire Council (2012) 190 LGERA 143. In particular, her Honour drew upon Preston J’s comments that:
“... Public participation in the development process is crucial to the integrity of the planning system ... 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.”
Her Honour held that the failure to notify the Applicant of the DAs was sufficiently grave and, accordingly, did not warrant the making of an order under section 25B of the LEC Act.
Despite the ‘grave’ nature of Council’s transgression in relation to the notification requirements, it was held that the demolition of the First DA development (i.e. the swimming pool) could not be justified for the following reasons:
- at all times the Owner believed they had the benefit of a valid development consent;
- the demolition of the entire pool structure would cause significant financial and emotional hardship to the Owner; and
- the impact of the Council’s failure to notify was not insignificant, but it was limited to a single adjoining property owner.
In relation to the Second DA, her Honour found that although many of the factors discussed above were directly relevant and equally applicable, it was less likely that the hardship occasioned to the Owner in respect of the demolition of the Second DA development would outweigh the Applicant’s detriment by reason of its continuance.
Accordingly, although both development consents were held to be invalid by reason of Council’s failure to notify, and the development consent granted to the First DA was void for uncertainty, the Owner was not required to demolish the swimming pool.
Although constituting a rare example of a finding of manifest unreasonableness in administrative decision making, one must wonder at the utility of the legal proceedings in this case.
The First DA, for the swimming pool, is now invalid; but the use of the swimming pool may continue in the absence of further action by Council, which, in the circumstances, appears unlikely to happen. As would it appear unlikely that a Court would order demolition if subsequent proceedings were brought under section 123 of the EPA Act.
Although an order was made for the demolition of the development the subject of the Second DA (i.e. the fencing), the outcome of the proceedings appears to be largely a Pyrrhic victory for the Applicant.