Clark & Davis v Wollongong City Council & Others

Environmental Planning and Assessment Act 1979, s.74C, s.79A, s.79C, s.101, s.153 LEGISLATION CITED: Land & Environment Court Act 1979 ss.25A-25E Local Government Act 1993, s.602, s.604, s.710

Bungendore Residents Group Inc v Palerang Council & Anor (No.4) [2007] NSWLEC 536 Currey v Hargraves and Others (2007) 155 LGERA 91 Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929; [1963] All ER 180 Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361 Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 CASES CITED: Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695 Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Limited [2007] NSWLEC 411 North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 Sisic v Rockdale City Council and Anor [2007] NSWLEC 687 Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707

APPLICANTS Mr A Galasso SC with Mr A Pickles SOLICITORS Aiken Lawyers

FIRST RESPONDENT Mr M Fraser SOLICITORS Kells the Lawyers LEGAL REPRESENTATIVES: SECOND RESPONDENT Submitting appearance SOLICITORS Burridge & Legg

THIRD RESPONDENT Mr T To SOLICITORS Watkins Tapsell

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

40614 of 2007 Anne Clark & Greg Davis v Wollongong City Council & Others

JUDGMENT Introduction 1 His Honour: The Applicants in these proceedings, Drs Anne Clark and Greg Davis, seek (i) a declaration that a Development Consent ("DC") granted by the First Respondent, Wollongong City Council, in favour of Alison Eilbeck (the Third Respondent), is invalid, and (ii) an order restraining any development pursuant to it. 2 Ms Eilbeck owns a battleaxe block at 139 Lawrence Hargrave Drive, Austinmer (Lot 35, DP 651153 - "No.139"), and the consent allows her to demolish the existing dwelling and construct on that site a new single-storey dwelling with a detached double garage and in-ground concrete swimming pool. 3 The Second Respondent (Molnar Freeman Architects Pty Ltd) lodged the relevant development application (No.2006/296 - "DA"), and was granted the consent (Exhibit W1, folio 153ff), on Ms Eilbeck's behalf, but took no active part in these proceedings (apart from Mr Freeman providing affidavit evidence and participating in a conference of experts). 4 The Applicants' (principal) claims of invalidity are:

(a) that the Council failed to notify them of the DA, (b) that the DA exceeded the relevant floor space ratio controls and was not accompanied by the necessary SEPP1 objection, and (c) that the Council failed to consider matters of relevance under s.79C of the Environmental Planning & Assessment Act 1979 (" EP&A Act "). 5 If the Applicants are successful in having the consent found to be invalid, the Respondents urge the Court either (i) to exercise its discretion to decline declaratory and injunctive relief sought, or, alternatively, (ii) to invoke the provisions in Division 3 of Part 3 (ss.25A-25E) of the Land & Environment Court Act 1979 ("the Court Act"). (At the hearing the question of discretion was not pressed). 6 The Applicants argue against the invocation of Division 3, but the Court is obliged to consider that course before declaring a consent invalid and proceeding to injunctive relief. See Mid Western Community Action Group Inc v Mid-Western Regional Council & Stockland Development Pty Limited [2007] NSWLEC 411 ("Mid-Western"). The relevant facts and arguments 7 Drs Clark and Davis completed their purchase of a battleaxe block at 145 Lawrence Hargrave Drive, Austinmer (Lot 501 in DP 848943 - "No.145"), as joint tenants, on 31 January 2006. 8 Due to the unusual layout of battleaxe blocks on top of the coastal escarpment in that area, all having addresses in Lawrence Hargrave Drive, No.145 is immediately south of No.139. "No.135" (Lot 1 in DP 654329) is also a battleaxe block, located immediately to the north of No.139. Relevantly all three of these adjoining properties have eastern boundaries fronting public open space, with a walkway, on top of the escarpment. (No.135 is wrongly shown as "137" on some plans in evidence, but No.137 is west of No.139, fronting Lawrence Hargrave Drive). Clark and Davis are said to own also No.145A (Lot 500 in DP 848943), which also adjoins the southern boundary of No.139, but which is to the west of No.145, also fronting Lawrence Hargrave Drive (see maps in Exhibit W1, folio 254 and Exhibit W2, folio 11). No.145A is shown as "141-143" in some records, but it does not figure in these proceedings in any event. 9 Clark's and Davis's conveyancing solicitor (Anthony Kenneth Brooks of Surry Partners) notified the Council, by letter dated 1 February 2006, that the purchase of No.145 by his clients had been completed. The notification letter was accompanied by a cheque for "fees" (presumably an adjustment of rates) in the sum of $3,251.51, and included a request that all Council notices etc. be sent to the couple at 5 Merchant Street, Stanmore. Copies of both the letter and the cheque are annexed to Mr Brooks' affidavit of 8 November 2007. Council admits receiving the letter and banking the cheque, but did not otherwise respond to, or act upon, the contents of the letter. 10 The Council's practice is not to effect any updating of its "rates register" records until officially notified by the Land Titles Office ("LTO") of a change in title registration. The transfer to Clark and Davis of the title to No.145 was officially notified to the Council, according to its officer Phillip Lloyd, only on 3 April 2006, and the Council's "rates register" records were altered later that day to reflect that notice and 28 others. (The title searches in evidence indicate actual transfer dates of 23 March 2006 for No.145, and 13 June 2006 for No.145A, but the LTO notice bears "print date 24/03/06 00:00" - see Annexure 'A' to Lloyd's affidavit of 26 November 2007). The LTO notice confirms a settlement date of "31/01/2006", and sale/purchase price of $3,295,000. (See also transfer document at Exhibit W1, folio 250). 11 The central events in this case occurred during the period between the completion of the sale of No.145 (31 January 2006) and the receipt of the LTO's advice by Council (3 April 2006). 12 The DA was lodged on 14 March 2006, and it was notified by a Council letter to "adjoining and adjacent property owners" on 24 March 2006. No.145 is certainly an "adjoining and adjacent property", and the evidence shows that a letter was addressed to the previous registered proprietors of No.145 (EM, RA and JW Pincham), the vendors of the property to Clark and Davis, at that address (Exhibit W1, folio 251, and Exhibit W8). Clark and Davis did not receive that letter, nor any other notice of the DA, and the assertion that no letter was addressed to them is not disputed. Ms Alison Jean O'Donnell, the registered owner of the other "adjoining and adjacent property", No.135, has no recollection of receiving any notification of the DA from Council. I am satisfied, on all the evidence from the relevant Council officers, that letters compliant with the requirements of the Council's published policy were despatched to both the Pinchams and Ms O'Donnell (Exhibit W1, folios 251 and 257, and Exhibit W8). 13 The exhibition period for the DA ran from 24 March till 11 April 2006. 14 Consent was eventually granted on 24 July 2006, under delegated authority (confirmed at Exhibit W1, folio 248) by Council's Mr David Whitfield, no objections or submissions having been received. On 2 August 2006 a notice pursuant to s.101 of the EP&A Act and the relevant Regulations, was published in the local "Advertiser" newspaper (Exhibit W1, folio 263). 15 Clark and Davis did not learn of the grant of DC until 9 March 2007. These proceedings were commenced on 2 July 2007, well after the expiry of the period of 3 months (from 2 August 2006) specified in s.101 of the EP&A Act. 16 Clark and Davis assert, inter alia, a denial of procedural fairness in the Council's determination processes, and argue that s.101 does not operate as a barrier to any challenge to the consent, based upon a denial of procedural fairness. Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 ("Lesnewski"). 17 They further say that if they had been aware of the DA they would have retained a consultant town planner to prepare an objection. The consultant town planner they subsequently retained (Anthony Rowan) gave evidence of a number of matters that he would have included in any objection he would have lodged on their behalf with the Council. Ms O'Donnell says she too would have lodged an objection had she been notified. The new house proposed for No.139 would be much closer to the eastern/coastal boundary line common to Nos.135, 139 and 145 than the current dwelling at No.139, which is "centrally set" on the block, and thus set back further from the coast than the existing houses at Nos.135 and 145. (See Exhibit E2, aerial photographs at Exhibit W2, folios 17 and 18, and plans at Exhibit W1, folios 166 and 167). 18 Mr Rowan says that the proposal in the DA required a SEPP1 objection to deal with its exceeding of the floor space ratio ("FSR"). No SEPP1 objection was submitted, so the grant of consent is said to be beyond Council's approval power. Council failed to pick up the DA's exceedence of the FSR at the time of Mr Whitfield's assessment, but it would have been picked up in any objection prepared and lodged by Mr Rowan. Council initially disputed what the true FSR is, and argued initially that a SEPP1 objection may not be required. At the Court's direction, Mr Whitfield, Mr Rowan, and a third expert engaged by the Third Respondent (Mr Antony Freeman of the Second Respondent), conferred on the FSR issue and subscribed to a report of their agreements and disagreements regarding it (see Exhibit E1). In the end analysis, Council conceded that a SEPP1 objection was required in this case (T.71 of 5.12.07), Mr Whitfield having admitted that he made a serious mistake in calculating the FSR at the assessment stage by measuring dimensions off a plan not drawn to scale. 19 Clark, Davis and Rowan assert that, in addition, various matters were missed, or inappropriately assessed, by the Council in the determination of the DA, such as setbacks, footprint near the coast, social comfort/privacy, overshadowing, character/form, view loss, and loss of vegetation. 20 The Respondents submit that the FSR/SEPP1 matter, and these other challenges to the assessment of the merits are precluded by s.101 in any event, but the Applicants argue that s.101 will bar neither the procedural fairness challenge, nor the FSR/SEPP1 challenge, and that the other failures in Council's assessment process, while "probably" protected by s.101, should (i) be considered in any decision the Court makes in the exercise of its discretion, and should (ii) persuade the Court not to invoke Division 3 of Part 3 of the Court Act to "save" the consent. The Planning Regime 21 The three relevant properties (Nos.135, 139 and 145) are zoned "7(c) (Environmental Protection Residential Zone)" under the Wollongong Local Environmental Plan 1990 ("WLEP" - Exhibit W3). Dwelling houses are permissible "only with development consent", but DAs for them do not need to be advertised. (See the Table to cl.9 at p 45 of Exhibit W3). 22 The objectives of Zone 7(c) are stated to be: "(a) to cater for limited residential and village development in selected areas possessing special environmental qualities or that may be affected by environmental hazards, and

(b) to allow some diversity of activities that will not prejudice achievement of the objective referred to in paragraph (a) or detrimentally affect the environmental quality or character of the locality or the amenity of any existing or proposed development in the locality." 23 Relevant definitions are contained in cl.6, including "Floor space ratio" ("FSR"), which, as usual, means the ratio of the gross floor area of a building to the area of the site on which it is situated. "Gross floor area", as defined, relevantly means that the area of each floor of a building "is taken to be the area within the outer face of the external enclosing walls as measured as a height of 1400mm above … floor level, excluding - (a) columns, fin walls, sun control devices, awnings and any other elements, projections or works outside the general lines of the outer face of the external wall; … (c) carparking needed to meet any requirements of the Council and any internal designated vehicular or pedestrian access thereto; …". 24 Under cl.12(2) of the WLEP the FSR of a building in the 7(c) zone should not exceed 0.30:1, or 30%. 25 Wollongong Development Control Plan No.9 ("DCP 9" - Exhibit W1, folios 1-116) applies throughout the Council area, covers residential standards, and deals with matters such as building setbacks and design requirements. Relevantly it includes special provisions for houses on "non-standard blocks" such as "battle-axe blocks without full road frontage", and requires (i) that "wherever possible, the design should respect views from adjoining dwelling"; (ii) "a minimum of two off-street carparking spaces"; and (iii) that "in environmentally sensitive areas, … the siting and design of the house should be such as to minimise its impact". DCP 9 also includes special provisions for development within environmental protection zones, such as: s No significant trees shall be removed or threatened as a result of the development itself, access thereto, potential views, or any works or activities associated with the measures set out above. s Cliff Top Sites - Development of residential zoned land between Lawrence Hargrave Drive and the ocean shall be restricted to one dwelling per existing lot and so designed to minimise intrusions into the landscape and to maximise the views of the ocean from the road where possible. … s There must be general conformity to existing seaward building lines and height alignments where the dwelling has direct access to a beach or cliff top. All buildings must be at least 10 metres from the cliff top and a geotechnical survey provided to prove that they are safe from long term coastal erosion. 26 Part 2 of DCP 9 (Exhibit W1, folio 32) covers residential design guidelines and provides that, in respect of the 7(c) "environmental protection living area", those guidelines seek, inter alia, (a) to cater for residential and village development in selected areas possessing special environmental qualities or which may be affected by environmental hazards; and

(b) to allow some diversity of activities which will not prejudice objectives being achieved or detrimentally affect the environmental quality or character of the locality or the amenity of any existing or proposed development in the locality. 27 Council has also adopted Design Guidelines for "residential dwelling development in the 7(c) environmental protection residential zone". These are contained in Technical Policy No.95/9 ("TP 95/9" - Exhibit W1, folios 117-120). Land in the 7(c) zone is said to be "usually steep, well vegetated, visually prominent or in a coastal location. Therefore it is environmentally sensitive and deserves particular attention". Folio 118 of Exhibit W1 (p 2 of the document) says that "in calculating the floor space ratio not more than 40 sqm may be deducted from the gross floor area for garages". There are specific height and setback controls and detailed provision regarding driveways and other access and parking issues. "A minimum of two off-street parking spaces are required for each lot". The Guidelines go on to deal at some length with climate comfort, energy saving, social comfort and privacy, building character and form, landscaping, bushfire protection measures, drainage, sewerage, etc. 28 The fourth relevant instrument is Development Control Plan 99/3 - Notification Policy, dated October 2004 ("DCP 99/3" - Exhibit W1, folios 121-152). It applies to all land covered by the WLEP, but not to exempt, designated or advertised development, and it sets out what development applications will be exhibited for public comment before determination by Council, how public exhibition takes place, what public notification will be given, and what rights people have in relation to inspecting details of DAs and making submissions to be considered when determination occurs. "The policy also sets out how owners of surrounding land are notified by the Council or an accredited certifier of the issue of a complying development certificate". 29 DCP 99/3's stated objectives express the following "aims", (inter alia), namely to: … Specify how the public exhibition will be carried out in relation to where the exhibition will be held, how long the exhibition will last and what information will be exhibited; Specify how the community will be notified of the exhibition in terms of newspaper advertisements, display of notices and letters to landowners and occupants of premises; Determine who will be notified by letter with regard to specific development, development on specific land or development on land in specific zones, identified in the City of Wollongong Local Environmental Plan 1990. … 30 Part 2 of DCP99/3 (Exhibit W1, folio 126) deals with "Notification and Exhibition". DAs listed in Part 5 will be publicly exhibited by way of "letter to adjoining landowners and various community organisations", or a "display of a notice on the land", or "publication of a notice in local newspaper", or "a combination of these", with the appropriate "type of notification" delineated in Part 5 itself. 31 At folio 127 of Exhibit W1, under the heading "Who will be notified by letter?", DCP 99/3 says "a letter of notification of the public exhibition of a development application must be forwarded to - · Such persons as appear to the Council to own land adjoining the land to which the development application relates; …" and goes on to say: " A letter of notification of the public exhibition of a development application to the owner of adjoining land will be posted to the address of the owner recorded in the Council's Rate Register ". 32 Part 5 of DCP 99/3 (which commences at folio 136 of Exhibit W1) makes clear that "any" DA must be "placed on public exhibition in accordance with this plan", but then says "Council may vary the provisions of this policy, to require notification of a DA where Council considers it necessary having regard to the individual circumstances of the case". Part 5 provides for eight "types" or "categories" of notification - "A" involves a letter (to "adjoining and adjacent property owners") plus a newspaper ad, and a notice on the land; "B" involves such a letter plus only a newspaper ad; "C" requires only a "letter to adjoining and adjacent property owners"; "E" only a newspaper ad, and there are provisions in "D", "F", "G" and "H" for various particular community organisations to be notified. 33 "Dwelling houses" and "ancillary structures" in Zone 7(c) are all to be dealt with as per Zone 2(a). (See folios 140-142 and 149-150 of Exhibit W1). In Zone 2(a), and thus also in Zone 7(c), there is no requirement to notify ancillary structures or single-storey dwelling houses if they have a setback equal to or greater than 900mm. 34 Instruments such as these, all being in the nature of subordinate legislation, "should not be construed in a strict or over-technical way, but rather in a practical, reasonable and common sense way", calling in aid "the apparent policy of the instrument", e.g. its stated objectives (per Lloyd J in Currey v Hargraves and Others (2007) 155 LGERA 91 ("Currey"), at [19]-[23], quoting Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929, [1963] 3 All ER 180, and citing also North Sydney Municipal Council v Lycenko & Associates Pty Ltd (1988) 67 LGRA 247). 35 While it is a little cumbersome to have to cross-reference four instruments, the duty that falls on a consent authority and the Court is to read them together (dealing with any inconsistencies as the law has clearly prescribed), and I have come quite easily to clear conclusions as to their impact on the Council's processes regarding the DA in this case. Although he made a most unfortunate error in his initial calculation of the FSR, the delegated officer of the Council, Mr Whitfield, appears to have had no difficulty explaining and dealing with the planning regime, in relation to the relevant DA, whereas both other experts involved in the case fell into error applying the four instruments simultaneously. 36 On a proper construction and application of these instruments to the DA, an FSR would be arrived at in excess of the 30% provided (not "one-third" as Mr Freeman applied in the Statement of Environment Effects -see Exhibit W2, folio 13), triggering the now-admitted need for the proponent to seek a dispensation under SEPP1. Consideration 37 As set out in par 4 of these reasons, the Applicants have three claims in regard to possible invalidation of the consent granted in this matter. As also noted earlier in these reasons, apart from the Respondents' arguments on these specific claims, they generally rely on s.101 of the EP&A Act to "save" the consent. If any of the three challenges survive(s) the s.101 defence, the Respondents ask the Court not to overturn the consent and grant injunctive relief, but rather to invoke Division 3 of Part 3 of the Court Act (namely ss.25A-25E). Section 25E of that Act imposes a duty on the Court to consider making an order under this Division instead of declaring or determining that a DC to which the Division applies is invalid, whether in whole or in part. Section 25B allows the Court to suspend the operation of the consent in whole or in part and specify "terms compliance with which will validate the consent", and various options are mentioned. 38 I turn first to consider the possible impact of s.101 of the EP&A Act on each of the challenges brought against the consent. That section provides: Validity of development consents and complying development certificates If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given. If invoked, the courts have insisted on strict compliance with the requirements of both the section and the relevant regulations pertaining to it. 39 The current state of the law in respect of the application of s.101 is summarised very well indeed by Lloyd J in his judgment in Currey, and I respectfully adopt His Honour's analysis of the key authorities, namely, R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 ("Hickman"); Woolworths Ltd v Pallas Newco Pty Ltd and Another (2004) 61 NSWLR 707 ("Pallas Newco"), Lesnewski, and Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695 ("Anambah"). As noted in Lesnewski at par [72], the line of authority underpinning Pallas Newco received the imprimatur of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. 40 It is important to note, at the outset, that Lesnewski squarely affirmed that a proven denial of procedural fairness is not barred from challenge by the operation of s.101, but what of the other two challenges? 41 In his judgment in Currey (delivered on 3 August 2007), Lloyd J noted that s.101 could be avoided by bringing the claim within the so-called Hickman Principles (see Hickman at 615), or (to adopt His Honour's summary of the submission put to him - see [29]) by establishing that "a statutory requirement sought to be protected by s.101 is such an essential feature of the legislative scheme in which it forms a part that it could not possibly have been the parliament's intention that a private provision operate in relation to it". In Pallas Newco Spigelman CJ said that a relevant feature of the scheme could not only be "essential", but perhaps "indispensable", "imperative" or "inviolable". In Anambah the Chief Justice listed some classes of features which might be found to be "inviolable restraints". 42 This is clearly not a Hickman case, but, on the reasoning of those three Court of Appeal decisions of recent times, especially Lesnewski, and on the analysis of them by Lloyd J, it is clear that neither the alleged failures of Mr Whitfield in the assessment of the DA, nor the Council's failure to recognise the need for Ms Eilbeck to invoke SEPP1 to allow her to exceed the FSR clearly imposed on her DA by the collective operation of the various instruments, bulletins, etc, will prevail over the statutory bar imposed by s.101, but a proven failure to afford procedural fairness to the Applicants will do so. 43 The outcome of this case will, therefore, turn upon the Applicants' first ground of challenge, namely whether Council's failure to notify the Applicants of the DA amounts to a denial of procedural fairness sufficient to overcome s.101. As Tobias JA makes clear in the lead judgment in Lesnewski, this Court needs to make findings of fact supporting the allegation of there being a denial of procedural fairness, before considering the application of s.101 to those findings. 44 Before I proceed to deal with the Notification/Procedural Fairness issue in the requisite detail, I need to say, briefly, something more about the operation of s.101 in respect of the other two challenges which were brought in this case. 45 While it is clear that s.101 will protect a consent in cases where the consent authority has failed to consider, or to properly consider, important matters prescribed by the EP&A Act, and/or the applicable instruments, I am not satisfied by all the evidence in this case that every important issue was adequately considered by Mr Whitfield during his assessment of the DA on behalf of the Council. 46 Although I accept that he may have adequately assessed many factors, and may have considered more factors than he included in his written assessment report (Exhibit W2, folios 4-8), and that his superior acknowledged that he had properly discharged his assessment duties (Exhibit W1, folio 248), his oral evidence made it clear to the Court that his assessment of at least (i) view loss by No.145 (looking to its North/East) and No.135 (looking to its South/East), (ii) tree removal necessitated by the siting of the new house on No.139, and (iii) overshadowing of Nos.135 and 145 by No.139, were less than satisfactory. 47 It is now common ground that the DA infringed the development standard imposed by the FSR control, and that the DC is infected by the failure of the proponent to seek and obtain from Council a dispensation pursuant to SEPP1. This shortcoming is relied upon by the Applicants as a second ground upon which the consent should be struck down, despite s.101 of the EPA&A Act and Division 3 of Part 3 of the Court Act, albeit not the primary ground. 48 The Respondents rely on Pallas Newco (and the other cases reviewed in Currey) to argue that this second ground is jurisdictional error, and not "inviolable restraint" (in that a dispensation is available), and I agree with that argument. I do not accept the Applicants' submission that s.101 does not protect the consent in this respect. (I note that Mr Galasso SC appeared to suggest that some SEPP1 cases would, "in the circumstances of the case", be so serious as to meet the test, but even if that is so - and there is no authority for it - this is not such a case, in my view. Nor does it matter that Mr Whitfield may have required a specific "sign-off" from his superiors to grant any SEPP1 dispensation sought by the proponent). The Notification Argument 49 The EP&A Act s.74C provides for the preparation of development control plans ("DCPs"). Section 74C(1)(c) envisages that a DCP will provide for or exclude public or particular advertising or notification of, inter alia, a development application for specified development. Section 79A(2) provides that 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 relevant DCP which provides for the notification or advertising of the application. DCP 99/3 has force in this case as a consequence of this regime. Where notification is required, s.153(1) provides for an individual to be notified by sending the notice or other document required by way of pre-paid post addressed to the relevant person "at the address, if any, specified by him or her for the giving of notices or service of documents under this Act …", and s.153(2) deems a notice sent by such prepaid post to have been "given or served at the time at which" it "would be delivered in the ordinary course of post".

50 The DA in this case was a category "C" development requiring notification to "adjoining and adjacent property owners", unless it met the stated exception based on setback from the boundary. I reject the defence based on the assertion that "on its proper construction the DCP did not require Council to notify the lodgement of the DA" (Third Respondent's POD 7, November 2007, par 9.1). The dwelling is to be set back more than the 900mm from all boundaries, but the garage will abut a boundary, and is properly characterised as a vital part of the dwelling house DA. Therefore, the DA infringed the 900mm setback and generated the requirement for notification by letter to all adjoining or adjacent property owners. Alternatively the 2(a)/7(c) notification regime required the notification of at least the garage as an "ancillary structure". 51 In any event, Council embarked upon a category "C" notification process because Mr Whitfield thought it "prudent" to do so, in "the individual circumstances of the case", namely the site's "sea edge location … in the region from Thirroul to Stanwell Park, which has high resident involvement in DAs" (see Mr Whitfield's affidavit 26 November 2007, at par 10). 52 The Applicants say that, having decided to notify, Council incurred obligations to extend to them procedural fairness, and to implement the process on a proper basis. Council notified the Applicants' predecessors in title on 24 March 2006. The Pinchams remained on the Rates Register at that date, and the Council says that Pain J's decision Sisic v Rockdale City Council and Anor [2007] NSWLEC 687 ("Sisic") is authority for the proposition that the receipt of the notification, or non receipt of it, is not relevant; it is the sending of the notification which discharges the duty. 53 In Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361 ("Muli Muli ") the Court of Appeal held (at pars [32]-[35]) that provided the letter was prepaid and properly addressed in accordance with the paragraph, "it is the act of posting that constitutes service and, once posted, the act of service is complete and the time of completion is self-evident". Muli Muli concerned a similar provision in the Local Government Act 1993 (s.710), which does not contain a deeming provision such as appears in s.153(2) of the EP&A Act. 54 In Sisic, the proceedings were also filed well outside the three month s.101 period, and the alleged denial of procedural fairness was the failure of the Council to notify, and so provide an opportunity to express concerns about the impact of the proposed development and have them taken into account. Pain J concluded that the Council satisfied its "obligations" in relation to the notification of development applications by posting appropriate letters to the appropriate address, and, accordingly, there was no room for a finding that the applicant has been denied procedural fairness. 55 The circumstances in this case differ, in a crucial way, from Sisic as, in this case, it is now conceded that no notification letter was directed to the Applicants at either their "specified" address (s.153), or at No.145. 56 Section 602 of the Local Government Act 1993 ("LG Act") requires a Council to keep a "record", which has been referred to throughout this case as a "Rate Register", in relation to each separate parcel of land within its area and its "owner or lessee". Section 602(2) enables (not requires) the Council to "amend the record as the occasion requires". 57 Section 604 of the LG Act provides as follows: " 604 Notice of transfer of land (1) Notice is required to be given to the council of the following events by the person specified in relation to the event: (a) the transfer of the estate of a rateable person in rateable land - by the transferee, (b) the entry into possession of rateable land under a mortgage - by the mortgagee, (c) the grant of probate or letters of administration in respect of the estate of a deceased person which includes an estate in rateable land - by the trustee, executor or administrator. (2) The notice must be given within 1 month after the event occurs. (3) It is not necessary to give notice of a mortgage or the discharge of a mortgage, except as provided by subsection (1) (b). (4) A person is taken to have satisfied the requirements of this section in relation to an event if notice of the event is lodged with the Registrar-General in accordance with the Conveyancing Act 1919 or the Real Property Act 1900 within 1 month after the event occurs."

58 In this case Council banked the Applicants' rate(?) payment, but simply ignored Mr Brooks' covering letter advising that his clients became "owners" of No.145 on 31 January 2006. This Council's practice - adopted also, according to Mr Lloyd's evidence (T.28-29 of 6.12.07), by many (if not most or even all) other Councils in NSW - is to ignore such advices, and rely only upon the LTO's confirmation of a change in "registered proprietors" of rateable land. 59 The Court was told that this policy/approach is sanctioned by the NSW Government, and/or by the Local Government and Shires Association(s), but if advices proffered by purchasers or their legal representatives, in response to specific obligations imposed by s.604, are not responded to, as was the case here, the Court wonders if anyone in the general community realises that this is the usual practice of many Councils. I cannot accept Mr Fraser's submission that the Rates Register, the DCP relied upon by Council, and "how councils go about things" are "in the public domain" (See T of his oral submissions, pp 20 ff). 60 In his affidavit of 26 November 2007 (par 4) Mr Lloyd says that LTO transfer notices are "always" received, and accurately "reflect the correct ownership details of the land", whereas notices, by citizens or their representatives, given in pursuance of their statutory duties under s.604 of the LG Act, "are not received in every case of a transfer of land", are "generally given by conveyancers and solicitors", rather than the acquiring citizens themselves, and "may contain errors or omissions". 61 He also volunteered that "this process is also open to fraud", but he did not appear to have any such concern about the common, more informal contact apparently acceptable to effect change of address etc. (T6.12.07 at pp28-34). The Council's evidence is that such other details in the Rates Register (but not "owner") are readily changed on receipt of an email, a letter, or even a telephone call, yet the substantive contents of a letter advising of the transfer of a property, whose owners may well have a significant interest in Council's activities relevant to the local area, is as a matter of firm policy, ignored. 62 If the Rates Register of this Council is updated as a result of LTO advice received during the exhibition period (even on the day the letters are prepared and sent out), those responsible for the notification system are not informed, and there is no review of the notification list. Nor are they informed of any notification letters which are returned to Council undelivered or asked to send them out again to a new/correct address. No one else in Council does so either (T14-20 of 6.12.07). 63 Unless the purchase of an adjoining property is on both the LTO title and on this Council's Rate Register by the actual day the notification letters are going out, the new owner will miss out on a letter notifying a DA, and so miss an invitation to make a submission. 64 I find it extraordinary that correspondents like Mr Brooks are not even warned, by a prompt response, that their clients' particulars will not be registered by Council until the LTO confirms that its records have been updated. By virtue of their solicitor's having sent a letter following settlement of their purchase, one would expect, but for the Council's policy, that the Applicants would "appear to the Council to own land adjoining the land to which the development application relates", and that the Stanmore address in the letter would become the "address recorded [for them] in the Council's Rates Register", as envisaged by DCP 99/3 (see par 28ff above). Section 602 of the LG Act regrettably does not require the Council to "amend the record as the occasion" of a solicitor's formal advising "requires" (see par 56 above). 65 Furthermore, whether the Council regards itself as becoming aware of the Applicants' claim to be owners, and so entitled to notification, on 24 March 2006 (the date on the LTO document), or on 3 April 2006 (the date Mr Lloyd swears Council received it), the fact is, in this case, that the Council knew, formally, of their ownership of "adjoining and adjacent" land prior to the closure of the exhibition period on 11 April 2006. 66 This policy clearly denies procedural fairness to citizens or organisations who/which purchase property at any time prior to the end of relevant exhibition periods. The government should give consideration to reform of this policy or practice, or to at least ensuring that the public and the conveyancing industry are made fully aware of it. 67 Such a denial of procedural fairness cannot be, and is not, protected by the operation of s.101. See Lesnewski, at p 224, pars [76]-[78]. Conclusion 68 Accordingly, I conclude that the Applicants' first challenge to the consent granted in this case must be upheld, and they are prima facie entitled to the declaration sought by them, and possibly also the consequential relief. 69 As noted above, the Court must now give consideration to making orders under Division 3 of Part 3 of the Court Act (see pars 5 and 37 above). Both Respondents support the making of an order under s.25B, arguing that, as this DA is for only a single one-storey dwelling, as distinct from a major project, this is an ideal case for such an order. I am not sure size or value of a project should be the test - the Applicants in this case certainly consider this project has "major" implications for them. 70 Counsel for the proponent of the development specifically submitted that, if the Court found for the Applicants only on the notification/procedural fairness ground, the Court should apply s.25B, and impose a term "requiring notification and consideration of any submission coming forth as a result" (Mr To's written submissions, par 33). 71 On the other hand, Mr Galasso SC for the Applicants submits that "the consent granted is infected with sufficient error … that s.25B is an inappropriate path", even for a single dwelling situation (Submissions T.34 L44-5). He also submitted that a "full reconsideration of the merits" would be required, rendering the situation "not suitable for an order under s.25B" (written submissions par 33). 72 My attention has also been drawn to several cases where "fundamental" failures have led to this Court not making a s.25B order. See Bungendore Residents Group Inc v Palerang Council & Anor (No.4) [2007] NSWLEC 536, per Pain J, especially at pars [41]-[43]. 73 Mr Fraser for the Council ultimately suggested the Court "look at" the s.25B issue once its decision on validity is announced (submissions T.26 L15-20, referring to Mid-Western). 74 The question of consequential relief will, therefore, be stood over for future argument by, and hopefully some negotiation among, all parties, and I direct all parties to approach the Registrar within seven (7) days of the publication of these reasons to have the matter listed before me for final disposition on the first available date. 75 Having been successful, at least on one of their challenges to the consent, the Applicants are prima facie entitled to at least some order for costs, but I will formally reserve that question for final argument at the same time.

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