Glowpace Pty Ltd v South Sydney City Council

The council has admitted the factual basis for each of these grounds. It admits that it had a notification policy, and that it failed to notify Glowpace of the development application. It admits that a condition of consent left for later determination a particular aspect of the proposed development, namely, its precise location. It admits to some uncertainty regarding that location, in that it proposes to construct the development upon the south-west corner of the intersection rather than the south-east corner as specified in the development consent.

In these circumstances, the case turns on matters of discretion, that is, the facts and circumstances upon which the Court should exercise its discretion as to whether or not to grant the relief which Glowpace seeks.

Because, as I shall presently explain, Glowpace's first two grounds of challenge have been made out, with the consequence that the development consent is void, it is unnecessary for me to deal with the third ground of challenge which was an alternative predicated upon the validity of the development consent.

The council has embarked upon a project of installing new street furniture throughout South Sydney. For that purpose, on 6 April 1998 it submitted development application number U98-00295 to itself. All the street furniture was to be located upon land shown uncoloured and unzoned on the relevant zoning map. It was not in dispute that, in those circumstances, development consent was required pursuant to cl 14 of the Environmental Planning and Assessment Model Provisions 1980 and pursuant to South Sydney Local Environmental Plan 101.

The development application sought approval for the installation of over 450 items of street furniture, including a number of automatic public toilets of a type designed and installed by J C Decaux elsewhere in Sydney. The following details may be derived from the development application and its accompanying documentation:

(1) Although all of the items were intended to be located upon public roads or public ways throughout the South Sydney area, the precise locations of the street furniture was not stated. Instead, the general location of each of the items was described by reference to a masterplan and an inventory; (2) In relation specifically to the automatic public toilet which is the subject of this case ("the Kings Cross APT"), the location was described in the following terms: Near Darlinghurst Road. Either at Springfield Ave, Roslyn St or Macleay St. (3) The statement of environmental effects which accompanied the development application contained a summarised assessment of each of the street furniture items by reference to considerations arising under s 90(1) of the EP&A Act. So far as concerns the Kings Cross APT, the summary indicated minimal effect on landscape or scenic quality; no adverse impact on the surrounding streetscape; no obstruction of pedestrian flow; and beneficial effect on the future amenity of the neighbourhood by providing a public toilet in a tourist area. (4) The accompanying inventory was expressed to provide "detail as to the streetscape context of the street furniture including a photograph of the existing location". In relation to the Kings Cross APT, the inventory described the location as "on footpath close to the kerb alignment". Although it referred to the three alternative locations of Springfield Avenue, Roslyn Street or Macleay Street, the inventory did not contain a photograph of the location but instead presented only a photograph of a foreign exchange/tourist information kiosk in Springfield Avenue. (5) The masterplan contained two maps, each showing, by coloured dots and marks, the locations of the street furniture. However, in the area of Darlinghurst Road and Roslyn Street, no dot or mark signifying an automatic public toilet was shown.

In June 1998, the development application was assessed by an independent consultant, and a report of that assessment was furnished to the planning and building department of the council. The report noted that precise locations of some of the items of the street furniture were yet to be determined. It commented upon the potential impacts of the three alternative locations suggested for the Kings Cross APT in the development application, and expressed the opinion that the only illustration of the Kings Cross APT in the development application indicated the Springfield Avenue alternative, being a deficiency which "may account for only a single submission from residents in the surrounding area". It also commented upon that submission, which came from the proprietor of the foreign exchange/tourist information kiosk. Ultimately, the independent consultant recommended development consent subject to a condition requiring the determination of final locations and more detailed maps of adjacent land uses.

On 24 June 1998, the council resolved to grant development consent subject to conditions in respect of the development specified in the development application. It issued a notice of determination under s 92 of the EP&A Act to itself on 13 July 1998. Two conditions are presently relevant. They are as follows: (B)(5) That the final locations of all automatic public toilets, accompanied by large scale plans showing their relationship to adjoining uses, shall be submitted to the Director of Planning and Building for approval prior to their installation;

Note: The applicant is strongly advised to consult with the Director of Planning and Building on modified or alternative locations for the automatic public toilets prior to making the submission. …

(C) That prior to the Director of Planning and Building's approval, referred to in condition (5), Council readvertise and re-exhibit revised locations of the automatic public toilets.

Detailed plans for the location of four automatic public toilets were ultimately prepared, including a plan for the Kings Cross APT, which was to be located "on the footway at the SE corner of the intersection of Darlinghurst Road and Roslyn Street". In September 1999, the independent consultant assessed these plans, and considered submissions which had been received from adjoining owners. He concluded that the Kings Cross APT would adversely affect adjacent land uses, particularly an adjoining outdoor eating area, and he recommended that the council refuse consent to the proposed location of the Kings Cross APT.

Despite that recommendation the council, on 23 February 2000, resolved to "grant consent" to the location of the Kings Cross APT "on the footway at the SE corner of Darlinghurst Road and Roslyn Street" . This resolution was not treated by the parties as a further development consent, despite its wording. It was apparently made pursuant to condition (B)(5) of the development consent, that is, it was meant to be a final determination of the precise location of the Kings Cross APT.

Glowpace is the registered proprietor of land being lot 1 in folio identifier 102340, known as 34 - 36A Darlinghurst Road, Potts Point ("the Glowpace land"). Erected upon the Glowpace land is a four storey commercial/residential building which is undergoing renovations so as to provide five retail shops fronting both Roslyn Street and Darlinghurst Road. Two of those shops will front directly on to the paved area immediately adjacent to the Roslyn Street facade of the building, which is the south-west corner of the Darlinghurst Road and Roslyn Street intersection. It is intended that one of those shops will be a fresh juice shop, and the other will be a fish and chip shop, but, as at the date of the hearing, no development consent had been furnished by the council for either of those uses.

It is well established that the existence and regular observance by the council of a policy of notifying adjoining owners of development applications gives rise to a legitimate expectation that such notice would be given and representations considered before development consent is granted. Failure to so notify denies the adjoining owners natural justice or procedural fairness ( Hardi v Woollahra Municipal Council and Anor (Cripps J, NSWLEC, 17 December 1987, unreported); Somerville v Dalby and Ors (1990) 69 LGRA 422; Kioa and Ors v West and Anor (1985) 159 CLR 550).

In its points of defence, the council conceded that it had such a policy and that it had an obligation to notify Glowpace of the development application. Mr V J Hodgson, a planning clerk in the employ of the council, gave evidence about the council's usual procedure which involves the delineation on a map of the area likely to be affected by the development application and a computer generated list of individual properties within that area, to which notification is then sent. Mr N R Salerni, the council's planning officer, stated in his affidavit that this procedure was followed in the present case, but the name and address of Glowpace was not listed or indicated. No explanation for this omission was put forward.

The council also conceded in its points of defence that it failed to notify Glowpace of the development application. Mr Jeong Kyun Kim, who is a director of Glowpace, gave evidence that he could not recall any notification of the development application being received by Glowpace, and his evidence was corroborated by Mr R C Osborne, who is a partner of Williams Hatchman & Kean, chartered accountants, who provide the registered office of Glowpace. Mr Osborne outlined the procedure regarding mail forwarded to Glowpace's registered office, and Mr K Bae, the director of that firm who bears primary responsibility for forwarding mail to Glowpace, confirmed that he could not recall seeing any notification of the development application.

By determining the development application in the absence of notification to Glowpace and thus depriving Glowpace of an opportunity to make representations to it, the council was in breach of its duty to accord procedural fairness to Glowpace. Accordingly, I find that the first ground of challenge has been made out.

The principle which applies to the circumstances of this case was stated by Clarke JA in Mison and Ors v Randwick Municipal Council and Ors (1991) 23 NSWLR 734 at 740 as follows: Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent can be regarded as final.

It is not in dispute that the development consent left for later determination the precise location of the Kings Cross APT. As I have already found, the development application did not specify a precise location. Rather, it suggested three alternative general locations. Condition (B)(5) of the development consent acknowledged this circumstance, by providing that "the final locations of all automatic public toilets" were to be submitted to the Director of Planning and Building "for approval prior to their installation" . Condition (C) took that concept further, by providing that "revised locations of the automatic public toilets" would be re-advertised and re-exhibited.

There can be no doubt, in my opinion, that the precise location of the Kings Cross APT was a fundamental aspect of the proposed development. It was fundamental to the assessment of the impact of the proposed development under s 90(1) of the EP&A Act. "Location" is a specific matter required to be taken into account under s 90(1)(e); and other matters requiring consideration under s 90(1) depend upon knowing the location of the development, such as, for example, the effect of the proposed development on the scenic quality of the locality (s 90(1)(c)), or the relationship of the proposed development to development on adjoining land or on other land in the locality (s 90(1)(h)), or the existing or likely future amenity of the neighbourhood (s 90(1)(o)).

I conclude that the development consent was neither final nor certain, and that accordingly it is not a valid consent.

Where a breach of the EP&A Act has occurred, the Court has a wide and unfettered discretion as to the orders which it may make and guidelines as to the exercise of that discretion were set out by Kirby P (as he then was) in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 - 341.

Mr Larkin, appearing for Glowpace, sought a declaration and injunction in Glowpace's favour, upon the following bases:

(1) The breaches were not purely technical ( Warringah v Sedevcic at 339). They were serious and they impacted upon Glowpace's rights. The failure to notify Glowpace deprived it of the opportunity to make representations to the council prior to the determination of the development application. The lack of finality and certainty of the development consent impeded the proper assessment of the environmental impacts of the Kings Cross APT and hindered proper representations from persons potentially affected by its impact. The breaches thus rendered nugatory the two purposes of a notification policy, namely, to afford an opportunity to make representations and to enable the council to fulfil its task as the responsible planning authority ( Scurr and Ors v Brisbane City Council and Ors (1973) 133 CLR 243 at 252); (2) The obvious intention of the EP&A Act is that those concerned in development and use of the environment will comply with the terms of the legislation ( Warringah v Sedevcic at 340). This applies with even more force to a local council, which itself is the consent authority and has a public duty in compliance with and enforcement of the law; (3) This is not a case where the development has already been carried out so that there is any degree of irremediability ( Warringah v Sedevcic at 340). On the contrary, the council's conduct could be easily modified to bring about compliance with the law.

In response, Mr Hawkes, for the council, submitted that the Court should refrain from making the orders sought. He submitted that, in the first place, Glowpace suffered no ultimate prejudice from the breaches because all the matters which Mr Kim indicated in his affidavit as being of concern to Glowpace had in fact been taken into account by the council. Submissions to the council regarding other proposed automatic public toilets raised concerns with drug dealing, drunkenness, queue congestion on the footpaths, odour problems, and unattractiveness to patrons of nearby food outlets, and, as the council officers' reports indicate, those matters were taken into account by the council in assessing the development application as a whole. Secondly, the making of the orders which Glowpace seeks would involve the council in delay, but, more importantly, would involve a greater public prejudice, in that the Kings Cross area does not have adequate public toilet facilities as pointed out by Mr F R Nour, the council's engineering support manager. Thirdly, the breaches do not evince a blatant disregard of the law on the council's part. Numerous adjoining owners were in fact notified of the development application. Furthermore, as Mr Salerni stated, when the precise location of the Kings Cross APT was finally worked out, which occurred in August 1999, a further letter of notification was sent, describing the location of the Kings Cross APT as "on the footway on the south east corner of the Darlinghurst Road and Roslyn Street intersection" and inviting written comments. Glowpace received this notification.

I have carefully considered these matters, and have concluded that the Court should exercise its discretion in Glowpace's favour. The breaches were serious. I agree with Mr Larkin that they not only affected Glowpace's right to make representations, they hindered the council's assessment of the development application.

It is true that Mr Kim, in his affidavit sworn for the purpose of these proceedings, outlined his concerns about the proposed development, and his concerns were echoed by Mr B K Michael, who is one of the owner of shops known as 1A and 1D Roslyn Street, Kings Cross. The occupants of those shops, Mr G Papaioannou and Mr Yong Yoo respectively, also gave evidence about what they perceived to be the likely adverse impacts of the proposed development. But the fact is that, since no notification was given to Glowpace and it consequently made no representations to the council, the council, as the consent authority, cannot know what Glowpace would have said nor can it know what effect upon its consideration any representation from Glowpace would have had. An example in this regard is the proposed use of two shops in the building owned by Glowpace as food outlets. Whilst the council's consultant recommended refusal of consent by reason of the proximity of the Kings Cross APT to an existing outdoor food outlet, he made no reference to the proposed use of these particular shops. These additional food outlets may or may not have been a significant factor to take into account in assessing the impact of the Kings Cross APT, but the critical matter is that the council did not have any representations on the point, and one cannot know what the outcome of its considerations would have been had it been informed of their prospective use.

I do not accept that the public need for more toilets in the Kings Cross area outweighs the significance of the breaches that have occurred. One of the important features of the EP&A Act is the opportunity for public participation in the planning and development process, and the denial of that participation to an adjoining owner is a particular consequence which in my opinion is not outweighed by the more general public need for the proposed development.

I accept that the breaches do not demonstrate a blatant disregard for compliance with the law on the part of the council, but there is, as Kirby P pointed out in Warringah v Sedevcic at p 340, an interest in securing equal justice and in ensuring that the equal and orderly enforcement of the EP&A Act is not undermined.

Mr Hawkes submitted that, if the Court was minded to find against the council, it should instead make an order under s 25B of the Land and Environment Court Act 1979 ("the Court Act"), which is in the following terms: 25B(1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part; and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations).

(2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out; or (b) terms requiring the carrying out of steps not already commenced or carried out; or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

Section 25B falls within div 3 of pt 3 of the Court Act. It is preceded by s 25A which deals with the application of div 3, and which provides that div 3 applies to a development consent granted or purporting to be granted under the EP&A Act by a consent authority. Importantly, the application of div 3 is confined by s 25A(2) which relevantly provides as follows: 25A(2) This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority or by any other person or body.

Section 25C provides for an ultimate declaration of validity and a revocation of the suspension in two different circumstances. One circumstance is where application has been made by the consent authority on the grounds that the terms specified under s 25B have been substantially complied with and that it is not proposed that the development consent be regranted with alterations. The other circumstance is where such an application has been made on the grounds that the terms specified under s 25B have been substantially complied with and the development consent has been regranted with alterations.

Section 104C of the EP&A Act is a complementary provision. It applies to a development consent in respect of which an order under s 25B has been made. Section 104C(2) provides that the consent authority may revoke such a development consent whether or not the terms specified under s 25B have been complied with. Section 104C(3) provides that, if those terms have been substantially complied with, the consent authority may revoke the development consent and grant a new development consent with such alterations to the revoked consent as it thinks appropriate "having regard to the terms themselves and any matters arising in the course of complying with the terms". The grant of a new development consent is referred to as a "regrant" of the consent.

Section 104D of the EP&A Act contains some consequential provisions relating to the finality of a development consent declared to be valid under s 25C and the date from which it takes effect.

These provisions apply, in my opinion, to the council's breach of procedural fairness by its failure to adhere to its notification policy and to notify Glowpace of the development application. The consequent invalidity of the development consent clearly falls within s 25A(2) because it is an invalidity which arises from a step preliminary to the granting of the development consent. The Court could make an order, pursuant to s 25B, suspending the operation of the development consent and specifying terms which require re-notification under the notifications policy. Of course, such a step has consequences. Glowpace, and others, may or may not make a submission consequent upon such re-notification. If such a submission is made, the council is bound to take it into consideration under s 90(1)(r) of the EP&A Act. Such consideration may lead the council to conclude that development consent should not be granted, and if that is the case the council is empowered, under s 104C(2) of the EP&A Act, to revoke the suspended development consent. On the other hand, such consideration may lead the council to exercise its power under s 104C(3) to revoke the suspended development consent and grant a new development consent with appropriate alterations, or it may decide not to regrant the suspended development consent. In either of these latter two cases, the council may apply to the Court for the appropriate orders under s 25C(1) or 25C(2).

However, the council's breach of the Mison principle is another matter. The lack of finality and certainty in the development application is not a step preliminary to the granting of a development consent in terms of s 25B(2), and, accordingly, div 3 of pt 3 of the Court Act does not apply. Furthermore, the breach of the Mison principle gives rise to a fundamental flaw in the development consent because, as Clarke JA pointed out in Mison v Randwick at p 740 (and Priestley JA pointed out in the same case at pp 738 - 739), the consequence of that breach is that the council has not finally disposed of the development application, and has not granted a development consent at all.

For these reasons, I decline to make an order pursuant to s 25B of the Court Act.

The development consent granted by the council to itself on 24 June 1998 covered all the street furniture which it proposed to install and not simply the Kings Cross APT. However, as I have earlier indicated, Glowpace's challenge is limited to the purported consent to erect and use the Kings Cross APT. Consequently, it sought a declaration of the invalidity of the development consent only insofar as it related to the proposal to erect and use the Kings Cross APT, and the injunction that it sought related only to the same proposal. It is appropriate to confine the declaration and injunction in those terms, and not to make any order in respect of the development consent as a whole.

In accordance with the foregoing I make the following orders:

(1) I declare that the development consent purportedly granted by the Respondent to itself dated 24 June 1998 for the erection and use of a public toilet block on land at the corner of Roslyn Street and Darlinghurst Road, Kings Cross, is void. (2) I order that the Respondent by itself, its servants or agents be restrained from constructing a public toilet block on land at the corner of Roslyn Street and Darlinghurst Road, Kings Cross, until such time as a valid development consent has been granted under part 4 of the Environmental Planning and Assessment Act 1979. (3) I reserve the question of costs. (4) 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.

(c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

30. Section 25B falls within div 3 of pt 3 of the Court Act. It is preceded by s 25A which deals with the application of div 3, and which provides that div 3 applies to a development consent granted or purporting to be granted under the EP&A Act by a consent authority. Importantly, the application of div 3 is confined by s 25A(2) which relevantly provides as follows:

25A(2) This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority or by any other person or body.

31. Section 25C provides for an ultimate declaration of validity and a revocation of the suspension in two different circumstances. One circumstance is where application has been made by the consent authority on the grounds that the terms specified under s 25B have been substantially complied with and that it is not proposed that the development consent be regranted with alterations. The other circumstance is where such an application has been made on the grounds that the terms specified under s 25B have been substantially complied with and the development consent has been regranted with alterations.

32. Section 104C of the EP&A Act is a complementary provision. It applies to a development consent in respect of which an order under s 25B has been made. Section 104C(2) provides that the consent authority may revoke such a development consent whether or not the terms specified under s 25B have been complied with. Section 104C(3) provides that, if those terms have been substantially complied with, the consent authority may revoke the development consent and grant a new development consent with such alterations to the revoked consent as it thinks appropriate "having regard to the terms themselves and any matters arising in the course of complying with the terms". The grant of a new development consent is referred to as a "regrant" of the consent.

33. Section 104D of the EP&A Act contains some consequential provisions relating to the finality of a development consent declared to be valid under s 25C and the date from which it takes effect.

34. These provisions apply, in my opinion, to the council's breach of procedural fairness by its failure to adhere to its notification policy and to notify Glowpace of the development application. The consequent invalidity of the development consent clearly falls within s 25A(2) because it is an invalidity which arises from a step preliminary to the granting of the development consent. The Court could make an order, pursuant to s 25B, suspending the operation of the development consent and specifying terms which require re-notification under the notifications policy. Of course, such a step has consequences. Glowpace, and others, may or may not make a submission consequent upon such re-notification. If such a submission is made, the council is bound to take it into consideration under s 90(1)(r) of the EP&A Act. Such consideration may lead the council to conclude that development consent should not be granted, and if that is the case the council is empowered, under s 104C(2) of the EP&A Act, to revoke the suspended development consent. On the other hand, such consideration may lead the council to exercise its power under s 104C(3) to revoke the suspended development consent and grant a new development consent with appropriate alterations, or it may decide not to regrant the suspended development consent. In either of these latter two cases, the council may apply to the Court for the appropriate orders under s 25C(1) or 25C(2).

35. However, the council's breach of the Mison principle is another matter. The lack of finality and certainty in the development application is not a step preliminary to the granting of a development consent in terms of s 25B(2), and, accordingly, div 3 of pt 3 of the Court Act does not apply. Furthermore, the breach of the Mison principle gives rise to a fundamental flaw in the development consent because, as Clarke JA pointed out in Mison v Randwick at p 740 (and Priestley JA pointed out in the same case at pp 738 - 739), the consequence of that breach is that the council has not finally disposed of the development application, and has not granted a development consent at all.

36. For these reasons, I decline to make an order pursuant to s 25B of the Court Act.

37. The development consent granted by the council to itself on 24 June 1998 covered all the street furniture which it proposed to install and not simply the Kings Cross APT. However, as I have earlier indicated, Glowpace's challenge is limited to the purported consent to erect and use the Kings Cross APT. Consequently, it sought a declaration of the invalidity of the development consent only insofar as it related to the proposal to erect and use the Kings Cross APT, and the injunction that it sought related only to the same proposal. It is appropriate to confine the declaration and injunction in those terms, and not to make any order in respect of the development consent as a whole.

38. In accordance with the foregoing I make the following orders:

(1) I declare that the development consent purportedly granted by the Respondent to itself dated 24 June 1998 for the erection and use of a public toilet block on land at the corner of Roslyn Street and Darlinghurst Road, Kings Cross, is void.

(2) I order that the Respondent by itself, its servants or agents be restrained from constructing a public toilet block on land at the corner of Roslyn Street and Darlinghurst Road, Kings Cross, until such time as a valid development consent has been granted under part 4 of the Environmental Planning and Assessment Act 1979.