(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".