Fenwick v Woodside Properties Pty Ltd [2016] NSWLEC 104 | Case summary

Land and Environment Court (NSW)|2016-08-15|Before: Pepper J, Mr P

Ms Fenwick Challenges the Validity of Three Modification Application Approvals

By further amended summons filed in Court with leave on 15 August 2016, the applicant, Ms Christine Fenwick, seeks declarations that three determinations by Wingecarribee Shire Council ("the council") approving three modification approvals are invalid, principally on the basis that, in respect of the first two determinations, there had been a failure to notify the modification applications as required under the Environmental Planning and Assessment Act 1979 ("the EPAA") and the Environmental Planning and Assessment Regulations 2000 ("the Regulations"), and in respect of the third determination, because it was premised, in material respects, on the earlier impugned modification approvals.
The parties relied on an agreed statement of facts which stated as follows: 1 The land the subject of the proceedings is former Lot 30 DP 1015355 and Lot 221 DP 738203, which are now Lot 33 DP 1205423 and Lot 32 DP 1205423, located at 102-106 and 108-114 Wingello Road, Bundanoon (Land). 2 The Land was within Zone 2(a) Residential "A" Zone pursuant to the Wingecarribee Local Environmental Plan 2010 (LEP) at all relevant times. 3 The First Respondent, Woodside Properties Pty Limited, is the owner of Lot 33 DP 1205423 and the Second Respondent, Rochester Estate Pty Limited, is the owner of Lot 32 DP 1205423, those lots together comprising the Land. 4 The Applicant and her husband are the registered proprietors and residents of property adjoining the Land, at 16 Forwood Crescent, Bundanoon. 5 On or about 3 March 2004, a development application was lodged for a 43 lot subdivision on the Land, being DA number 04/353. 6 On or about 18 July 2005, amended plans in respect of DA 04/3535 were submitted to the Council for a 33 lot subdivision. 7 On or about 2 August 2005, the amended plans for a 33 lot subdivision were publicly exhibited. 8 The Council received 13 submissions and a petition with 73 signatures. 9 On 28 September 2005, the Council resolved to approve DA 04/353. 10 On or about 4 November 2005, further amended plans were submitted in respect of DA 04/353 for a 32 lot subdivision. 11 On or about 20 April 2006 the Council issued a Notice of Determination in respect of DA 04/353. 12 Condition 16(a) provided that the linen plans of subdivision be accompanied by a s 88B instrument which required dwelling houses to be single storey only with a maximum 1.2m from natural ground level to floor level. 13 At all relevant times, clause 1.9A of the LEP provided as follows: 1.9A Suspension of covenants, agreements and instruments (1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a development consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose. (2) This clause does not apply: (a) to a covenant imposed by the Council or that the Council requires to be imposed, or (b) to any prescribed instrument within the meaning of section 183A of the Crown Lands Act 1989, or (c) to any conservation agreement within the meaning of the National Parks and Wildlife Act 1974, or (d) to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or (e) to any property vegetation plan within the meaning of the Native Vegetation Act 2003, or (f) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or (g) to any planning agreement within the meaning of Division 6 of Part 4 of the Act. (3) This clause does not affect the rights or interests of any public authority under any registered instrument. (4) Under section 28 of the Act, the Governor, before the making of this clause, approved of subclauses (1)-(3). 14 On or about 10 May 2006, notification appeared in the Southern Highland News that development application number LUA04/353 for a 32 lot subdivision of Lot 19 DP 831816 Forwood Crescent, Bundanoon (Rochester Park) had been approved on 12 April 2006. 15 On or about 11 September 2013, the Council approved a minor modification under s 96(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), removing the reference to Lot 19 DP831816 and its owners. 16 On or about 14 June 2013 an application to modify DA 04/0353 was submitted to the Council seeking, among other things, deletion of condition 16(a). 17 On or about 12 November 2013, the Council approved an application to modify the Consent under s 96(2) of the EPA Act, known as modification number 04/353.01 (Mod 01). Condition 16(a) was amended to provide that the linen plans of subdivision be accompanied by a s 88B instrument which required dwelling houses to be single storey, split level or if two storey with second storey element to be entirely contained within a dormer style roof. 18 On or about 3 December 2013, the Council approved a minor modification under s 96(1) of the EPA Act to correct a minor error, known as modification number 04/353.02. The Consent was modified by adding condition 2, which permitted the development to be carried out in four stages, as had been sought in an ealier [sic] modification application. The addition of condition 2 resulted in the renumbering of all subsequent conditions. 19 On or about 7 October 2014, an application to modify DA 04/0353 was lodged with the Council, seeking to delete or modify condition 17(a) (formerly 16(a)), known as modification number 353.04. 20 On or about 12 August 2014, the Council approved an application for a subdivision certificate, known as 04/353.03. 21 On or about 10 December 2014, the Council approved the application for modification number 04/353.04 (Mod 04). Condition 17(a) was amended to provide that the linen plans of subdivision be accompanied by a s 88B instrument which required the design of any future dwellings to be designed in accordance with the applicable provisions at the time of the lodgement of the Bundanoon Town Plan - Part C Provisions Applicable to Residential-zoned land. 22 On or about 25 February 2016, an application to modify DA 04/353 was lodged with the Council, known as modification number 04/353.05 (Mod 05). 23 Mod 05 was notified between 7 April 2016 and 25 April 2016. 24 On or about 10 May 2016, the Council purported to approve Mod 05, which had the effect of deleting condition [sic] 17(a) (formerly 16(a). 25 On 23 June 2016 an application to modify DA 04/353 was lodged with the Council, known as modification number 04/353.06 (Mod 06). 26 On 3 August 2016 the Council refused to determine modification number 04/353.06 Mod 06. 27 On 3 August 2016 the Council wrote to the owners of the Land advising of its intentions respecting Section 88B Restriction on Building Height for Development Consent No. 04/353. 28 On 4 August 2016 Class 1 proceedings against Council's decision in paragraph 26 above were commenced by case number 2016/235027.

Ms Fenwick Seeks an Extension of Time to Commence Judicial Review Proceedings

Rule 59.10 of the Uniform Civil Procedure Rules 2005 provides for a three month time limit within which to commence Class 4 judicial review proceedings: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
Mod 01 was determined on 12 November 2013 and Mod 04 was determined on 10 December 2014, however, Ms Fenwick did not commence proceedings until 5 June 2015 (the date the summons was filed). Plainly, therefore, she requires an extension of time to commence proceeding to challenge Mod 01 and Mod 04. The application was not opposed by the respondents, Woodside Properties Pty Ltd and Rochester Estate Pty Limited (the first and second respondents, respectively).
In support of her application for an extension, she read an affidavit affirmed by her on 2 August 2016.
In her affidavit, Ms Fenwick deposed to the fact that her property is adjacent to the development site and that she is directly affected by the consent, as modified by Mod 01, Mod 04 and Mod 05 (her property has a registered drainage easement in the developer's name that is part of the subdivision). While the council initially notified her and other residents of the development as proposed in the development application, it did not notify her of Mod 01, Mod 04 or Mod 05. Ms Fenwick was therefore not aware that the consent had been modified until works began on the site in May 2015 causing her to make appropriate enquiries of the council. Thereafter, Ms Fenwick moved with commendable alacrity to commence proceedings.
In my view, given these circumstances, time should be extend to allow Ms Fenwick to challenge Mod 01 and Mod 04.

Statutory Notification Requirements

Section 96(2)(c) of the EPAA states as follows: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: … (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, …
Mod 01, Mod 04 or Mod 05 were all s 96(2) modifications under the EPAA. Because there was no development control plan in place that required notification of applications for modification of development consents, the applications were required to be notified for a period not exceeding 14 days, or otherwise in the same manner as the original development application was notified.
Thus reg 119(2) of the Regulations provided: An application to which this clause applies must be notified or advertised for a period not exceeding 14 days but otherwise in the same manner as the original development application was notified or advertised.

The Declarations Sought Ought to be Made

The respondents, perhaps in anticipation of failure in these proceedings, on 23 June 2016, lodged a further modification application with the council in an attempt to cure the perceived deficiencies of the earlier modification determinations. The council refused the application on 3 August 2016 (pending the outcome of these proceedings), and on 4 August 2016, Class 1 proceedings against the council's decision were commenced in this Court.
If the Class 1 proceedings are successful, they will, practically speaking, be a complete answer to these proceedings (a copy of the Class 1 application was handed up to the Court).
This caused the Court at the hearing of these Class 4 proceedings to enquire whether or not the Class 4 proceedings ought not be heard after the Class 1 proceedings had been determined, or at the very least, whether the Class 1 and Class 4 proceedings ought to be heard concurrently, as a matter of efficiency and costs savings.
After a brief adjournment, the respondents made three concessions that effectively disposed of the Class 4 matter entirely, namely: 1. first, that Mod 01 and Mod 04 had not been publically notified as required; 2. second, that as a result, the decisions approving these applications were invalid; and 3. third, to the extent that the decision to approve Mod 05 took into account Mod 01 and Mod 04, at the very least, the council took into account an irrelevant consideration in determining Mod 05, and therefore, Mod 05 was also invalid.
As can be seen from the reasoning below, the respondents were, in my opinion, correct to make to make these concessions.
In addition to the original development consent, all three modification applications and their determinations were before the Court in these proceedings. So too was the council's Planning Assessment Report for Mod 05.

Failure to Publically Notify the Modification Applications Renders Them Invalid

As is evident from the legislative regime above, the council was required to publically notify the modification applications. This did not, however, as the respondents readily accept, occur.
The result is that the determinations of Mod 01 and Mod 04 contained jurisdictional errors and were invalid (Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186; (2013) 199 LGERA 147 at [87]-[100], Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel [2012] NSWLEC 166 at [12]-[15] and Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141 at [32]-[33]).
Neither respondent proffered any reason or evidence that would suggest that the declarations sought by Ms Fenwick ought not be made. Accordingly, they should.

Mod 05 is Also Invalid

The Planning Assessment Report in respect of Mod 05 made it abundantly clear (a fact not cavilled with by the respondents) that it was, in several material respects, premised on Mod 01 and Mod 04 insofar as it purported to modify the development consent already amended by the earlier modification approvals.
It is trite law that a decision that is infected with jurisdictional error is no decision at all (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [51] and [153], applied in Hollis v Shellharbour City Council [2002] NSWLEC 83 at [103]-[107]). The invalidity is generally retrospective, but a Court will try to fashion an order that is not only directed to the harmful consequences of the decision to the applicant, but is also appropriate in all the circumstances.
Again, no argument or evidence was advanced that would suggest that anything other than a finding of invalidity as at the date of the determinations would result in respect of Mod 01 and Mod 04.
That being so, what is effect on Mod 05 of Mod 01 and Mod 04 being invalid?
In my opinion, to the extent that the council took into account Mod 01 and Mod 04 in determining Mod 05, it fell into jurisdictional error because it took into account an irrelevant consideration (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24). Hence it too is invalid.
There being no reason not to grant the relief sought in relation to Mod 05, a declaration of invalidity should be made in relation to that determination also.

Costs

Because it is possible that the parties may seek costs against the council, who played no active part in these proceedings, it is appropriate to accede to the request of the applicant that costs be reserved.

Orders

The formal orders of the Court are therefore as follows: 1. extend the time for commencing proceedings pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005; 2. declare that in relation to development consent LUA04/0353 that the Third Respondent's decision to approve the following modifications are invalid and of no effect: 1. modification application 353.01 determined 12 November 2013; 2. modification application 353.04 determined 10 December 2014; and 3. modification application 353.05 determined 10 May 2016 November 2016; 1. reserve the question of costs; and 2. the exhibits are to be returned upon the publication of this judgment on Caselaw.

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: 16 August 2016

(2011) 181 LGERA 141

(2013) 199 LGERA 147

Fenwick v Woodside Properties Pty Ltd

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