Centro Properties Limited v Hurstville City Council and Others

Centro Properties Limited v Hurstville City Council and Others - [2006] NSWLEC 78 - NSWLEC 2005 case summary — Zoe

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JUDGMENT 1 Talbot J: On 2 February 2005 Hurstville City Council ("the first respondent") resolved to grant development consent to a development application lodged with it by Richard Aberline ("the second respondent") on 14 July 2004 in respect of the construction of a mixed ten cinema and retail complex with an open air plaza on property known as 443-453 King Georges Road, Beverly Hills. The property is owned by Dimitrios Tsagias and Giannoula Tsagias ("the third respondents"). 2 Centro Properties Limited ("the applicant") is seeking a declaration that Development Consent No 462-2004 is invalid and of no effect on the following grounds:- (a) that notice of the Development Application was not given in accordance with the requirements of the Environmental Planning and Assessment Act 1979 ("the Act"). (b) that, notwithstanding that the Consent was purportedly granted subject to a deferred commencement condition in accordance with s 80(3) of the Act, it does not comply with that subsection; and (c) that, in determining to grant the Consent, the Council failed to take into consideration Draft State Environmental Planning Policy (Application of Development Standards) 2004 ("the draft SEPP") in breach of s 79C(1)(a)(ii) of the Act. 3 The council represented by Mr Robertson SC opposes the application. The second and third respondents submit to the orders of the Court save as to costs. Advertised development 4 Section 79A(1) of the Environmental Planning and Assessment Act 1979 ("the EPA Act") requires that notice of a development application for consent to carry out advertised development is to be given in accordance with the Act, the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulation"), any relevant environmental planning instrument and any relevant development control plan. Furthermore under s 79A(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 any development control plan that provides for the notification or advertising of that application. The applicant submits that the development application is either "advertised development" (s 79A(1)) or "specified development" (s 79A(2)). According to Mr Ayling SC, who appears for the applicant, if the development application was for "advertised development" it had to be notified in accordance with Division 7 of Part 6 of the EPA Regulation as well as DCP 17. If it was for "specified development" it had to be notified in accordance with DCP 17. 5 Advertised development is defined in s 4 of the EPA Act as follows:- advertised development means development, other than designated development, that is identified as advertised development by the regulations, an environmental planning instrument or a development control plan. 6 The EPA Regulation contains provisions for notification in Division 7 of Part 6.

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8 The applicant relies upon cl 5(2)(d). 9 There is no environmental planning instrument that identifies the subject development as "advertised development." 10 The only relevant development control plan for present purposes is Development Control No. 17 - Neighbourhood Notification and Advertising of Development Applications ("DCP 17"). The applicant contends that the development falls within Category D identified in DCP 17 as new buildings in a Business or Light Industrial Zone. Mr Ayling says that clause 2.1 of DCP 17 identifies the subject development as "other advertised development" within the meaning of clause 5(2)(d) of the EPA Regulation. 11 Specified development is not defined, yet the term appears in various provisions of the EPA Act (see ss 76(1), 76A(1) and 76B(a)). The applicant's argument is that the use of the term "specified development" where used in the EPA Act is consistent with a reference or references to a type or types of development of which Category D is one. The first respondent disputes that the development is advertised development but concedes that it falls within the category of specified development 12 The structure of the legislation is that advertised development is defined by the EPA Act in a way that requires it to be identified separately by the Regulations, an environmental planning instrument or a development control plan. In this respect cl 5 is framed in two parts. Subclause 1 identifies four types of development (none of which include the subject development) "for the purposes of the definition of advertised development in section 4". Subclause 2 in terms does no more than specify the "kinds of development" that are included in the term "other advertised development" in the Regulation. Subclause 2 does not of itself create a type of advertised development contemplated by the definition in s 4. It is no more than an interpretation clause in respect of the parts of the Regulation that refer to "other advertised development". The development referred to in cl 5(2)(a), (b) and (c) are respectively defined in cl 5(1)(b), (c) and (d). Development that was classified as state significant development before the repeal of s 76A(7) of the Act is not included within any reference to "other advertised development". Therefore upon a proper construction of cl 5 of the Regulation the subject development is not identified as advertised development by the Regulations.

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16 It therefore remains to be considered whether the subject development is identified as advertised development in a development control plan. DCP 17 provides control and guidelines for neighbour notification and advertising of development applications. Clause 1.7, in effect, repeats the definition of advertised development contained in s 4 of the Act. 17 The chapeau to cl 2.1, upon which the applicant relies, is as follows: 2.1 NOTIFICATION AND ADVERTISING REQUIREMENTS The category listings below aim to differentiate between minor and significant development, where Category A is minor development and Category C and D are more significant development. Upon Council receiving an application detailed below, the specific notification requirements will be met. 18 Even a broad reading of cl 2.1 in the way that a development control plan should be read does not accommodate an identification contemplated by s 4 of the Act. Nevertheless cl 1.2 of DCP 17 purports to apply its provisions to all land within the City of Hurstville to which LEP 1994 applies where a development application is lodged with council (with certain irrelevant exceptions). However, relevantly to the applicant's argument, cl 2.1 merely defines the notification requirements in respect of each individual category of development listed in cl 2.1 having regard to whether the development proposed is regarded as minor or significant. I reject the argument that the inclusion of a description of the subject development as a category in cl 2.1 is an identification of the subject development for the purposes of s 4 of the Act. If that was so, then all development applications lodged with council would be advertised development. Clause 2.1 of DCP 17 obviously imposes requirements for the advertising of certain categories of development but does not within itself identify those categories of development as advertised development. 19 I conclude therefore that the proposed development has not been identified as advertised development by the Regulations, LEP 1994 or DCP 17 in the manner contemplated by the definition of advertised development in s 4 of the EPA Act. The proposed development does not fall within any type of development identified in LEP 1994 or cl 5(1) of the Regulation as advertised development. DCP 17 does not, in terms, identify any category of development as "advertised development" but contains provisions that are of general application to all development applications irrespective of whether the application is in respect of advertised development. 20 The applicant's claim is based upon a breach of the EPA Act as it relates to advertised development. It is contended that the applicant for development consent and the council did not comply with s 79A(1) of the Act. As a consequence of my finding that the development was not in respect of advertised development as defined in s 4, there cannot be a breach of s 79A(1).

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