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[2012] NSWLEC 108
Land and Environment Court (NSW)
2012-05-14
Biscoe J
Original judgment source is linked above.
Judgment 1The applicant in these undefended judicial review proceedings challenges the validity of a development consent 2011/DA-00102 granted by the council, the first respondent, to the second respondent on 18 July 2011 for alterations and additions to the third and fourth respondents' dwelling at 2A Cook St, Mortdale. 2The applicant's house at 105 Victoria Ave, Mortdale adjoins and is set to the south west of the subject land. 3The grounds of the applicant's challenge to the consent are the following: (a)denial of procedural fairness; (b)failure to take into account a mandatory relevant consideration (impact on the applicant's home) under s 79C of the Environmental Planning and Assessment Act 1979 (EPA Act), and Wednesbury unreasonableness in the resulting consent (or illogicality and irrationality in the application of s 79C); and (c)failure to have regard to the applicable parts of cl 4.6 of the Hurstville Development Control Plan No 1 (DCP) as a mandatory relevant consideration pursuant to s 79C(1)(a)(iii), and as a fundamental matter required by law. 4The relief sought is that the consent be declared invalid, and that work in reliance on it be restrained. 5The respondents have filed submitting appearances. 6It is well established that the Court will not necessarily grant declaratory relief by consent or merely because of the absence of a contravener, and that a declaration should only be granted on the basis of evidence and submissions. Accordingly, the applicant does not submit that the submitting appearance of the Council in itself entitles the applicant to the declaratory relief it seeks. The Court must be satisfied of the utility of granting a declaration, and also that the relevant material has been put before it to allow a considered decision on the facts and law. I am satisfied as to these matters on the substantial documentary and affidavit evidence before me and the applicant's submissions.
PROCEDURAL FAIRNESS 7The procedural fairness challenge is based largely on a material breach of s 79A(2) of the EPA Act, which provides: 79A Public participation-advertised development and other notifiable development ... (2) 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. 8The DCP required a written notice to be forwarded by the council to the owners and occupiers of adjoining land containing specified information including a "notification plan" for developments such as this: cll 2.2.3.1 and 2.2.2.1. The requirement of the notification plan included a requirement that it "show the height...of any proposed building in relation to the site on which it is proposed to be erected" and "have clearly configured dimensions to indicate...height...of the building": cl 2.2.3.2(c) and (f). The maximum height of an outbuilding (defined to include a carport) was 3 metres: cl 4.6.2.4. 9The first respondent notified the applicant in writing by letter dated 11 April 2011 that the development application and accompanying documents could be inspected from 13 April 2012 to 3 May 2012, that submissions were required to be lodged in that period, and that late submissions would not be considered. The letter enclosed the second respondent's "notification plan". 10The notification plan did not comply with the DCP, as it did not disclose the height of the rear carport. 11On 1 May 2011, the applicant lodged a submission with the council. 12On 6 May 2011, an officer of the council responsible for assessment of the development application attended the property and confirmed to the applicant that the increase in height of the rear carport above the existing structure would only be 300 mm. 13On 11 May 2011 a plan of the proposed new rear carport was lodged with the council. It shows (with the assistance of survey evidence in the case) that the increase in height above the existing structure was in fact 700 mm - 800 mm. The applicant was unaware of this until August 2011. 14Meanwhile, the said council officer prepared a report to the council which referred to the increase in height as approximately 300 mm, and on 18 July 2011 council granted development consent. 15The applicant was unable to lodge a submission based on an understanding of the relevant dimension of the carport impacting on his amenity, due to the deficient notification plan which did not disclose that height. This is material because, as the applicant told the council in a letter of 1 May 2012, there was an issue of blocking of natural light to his kitchen if the rear carport was more than 1.8 metres high. There is evidence from a town planner that there will be a substantial impact upon the amenity of the applicant's home due to reduced solar access, primarily to the kitchen windows and the northern living room window in the morning. There is also a visual impact. 16Section 79A(2) gives statutory force to the common law doctrine that the obligation to afford procedural fairness attaches to the exercise of public power, subject to any statutory modification: Lesnewski v Mosman Municipal Council [2005] NSWCA 99, 138 LGERA 207 at [56] - [57] per Tobias JA (Hodgson & Ipp JJA agreeing). Breach of the requirement of procedural fairness has generally been associated with jurisdictional error: at [68]. Tobias JA said at [60] - [64]: 60 In any event a breach of s 79A(2) does not necessarily lead to the conclusion that there has been a denial of procedural fairness. It is possible to envisage a non-compliance with a requirement of the Notifications DCP that would be regarded as minor, such as the failure to notify the location of the consent authority's principal office. 61 The Notifications DCP sets out some nine items under the heading "What will they [the neighbours] be notified about?". It would be a matter for argument as to whether the failure to comply with one or more of those items would result in a denial of procedural fairness. It is well established that the content of the duty to afford procedural fairness depends on the circumstances of the case. It was described by Mason J in Kioa v West (1985) 159 CLR 550 at 584-585[PDF], in a passage cited with apparent approval by Spigelman CJ in Vanmeld (at [54]), in these terms: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention ... Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute ... What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision maker is acting ... In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual concerned in the light of the statutory requirements, in the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations." 62 Again, in a passage cited by the Chief Justice in Vanmeld (at [58]) in Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602[PDF], 96 LGERA 114[PDF] Brennan CJ, Dawson and Toohey J observed: It should not be assumed that the exercise of a power conferred in general terms cannot be confined by the procedures adopted by a repository. If the power must be exercised in conformity with the rules of natural justice, a failure by the repository to adhere to a declared procedure may constitute or result in a failure to accord natural justice to a person whose interests are liable to affection by the exercise of the power. ... 64 In the present case, it is inappropriate to express any findings as to whether any particular non-compliance with the Notifications DCP (including that alleged in paragraph 21 of the Amended Points of Claim) amounts to a denial of procedural fairness. I would have little doubt that, if it is established (as apparently alleged) both that no plans were sent with the letter of notification and at no time during the period notified by the Council as available for inspection of the plans were they in fact available, then a denial of procedural fairness could be established. But if those assertions are not proven, then other considerations may arise for determination... 17In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6, 214 CLR 1, an administrative decision-maker represented that a particular procedure would be followed but did not follow it. It was held that no breach of procedural fairness was established because there was no suggestion that in reliance on the representation the applicant failed to put to the decision-maker any material he otherwise would have urged upon it: at [37] - [38], 106]. 18Unlike Lam, the present case is not a mere representation case. It is a stronger case of failure to comply with a statutory notification requirement. It may be that it is also, as the applicant suggests, a representation case. The council represented to the applicant that the increased height of the carport was only 300 mm and did not inform him that, after the closing date for objections and prior to granting development consent, a new plan had been lodged which indicated that the increased height of the carport was 700-800 mm. The practical injustice or unfairness is that the applicant has been denied the opportunity to make submissions on the crucial plan, showing the height of the carport, affecting his and his family's interests, due to its lodgement after the nominated exhibition and submission period and the failure of the first respondent to take any corrective measure, such as advising the applicant that it had been received and the period for making submissions was extended. The evidence indicates that the applicant would have taken advantage of that opportunity had it been afforded to him. 19It follows that the consent is void for a breach of the rules of procedural fairness, and should be so declared. 20Given that the proceedings are undefended, it is unnecessary to consider the applicant's additional challenges to validity.
DISCRETION 21There is no good reason on the evidence for the Court to withhold relief in the exercise of its general discretion. The existence of actual adverse amenity impact arising from the unassessed part of the rear carport is a reason for declining to exercise any discretion against granting relief. There is no evidence of any work having yet commenced at the respondent's land pursuant to the consent. The absence of power to determine the consent (which arises here from jurisdictional error constituted by the denial of procedural fairness) is a reason for not exercising the separate discretion under s 25B of the Land and Environment Court Act 1979.
ORDERS 22The orders of the Court are: (1)Declaration that development consent 2011/DA-00102 granted on 18 July 2011 by the first Respondent is invalid and of no force and effect. (2)An order that the second, third and fourth Respondents be restrained from carrying out any development in reliance on the development consent. (3)An order that the first Respondent be restrained from granting a construction certificate in reliance on the development consent. (4)No order as to costs. (5)The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 May 2012
Bennett
Hurstville City Council