Limitation period
7An important object of the EP&A Act is "to provide increased opportunity for public involvement and participation in environmental planning and assessment": s 5(c). One mechanism adapted to the achievement of that object is the provision permitting "any person" to bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the EP&A Act, whether or not any right of that person has been affected by the breach: s 123(1). That provision is commonly referred to as an "open standing" provision. To take advantage of such a facility, members of the public must have notice of grants of consent. Against the facility for open challenge must be balanced the need for certainty and finality to permit the beneficiaries of approved development to carry out the relevant works without being at risk of a declaration of invalidity. That balance is achieved by imposing a time limit on the commencement of proceedings challenging the validity of a consent, following the provision of public notice of the grant of consent. The critical provision, which is central to the argument on the appeal, is s 101 of the EP&A Act, which, at the date of the consent, was (and remains) in the following terms:
" 101 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."
8It was not in doubt that a notice was given in the present case: the question was whether it was given "in accordance with the regulations". Clause 124 of the Environmental Planning and Assessment Regulation 2000 (NSW) ("the Regulation") was in July 2009 (and remains) in the following form:
" 124 What are the public notification procedures for the purposes of section 101 of the Act?
(1) The granting of a development consent is publicly notified for the purposes of section 101 of the Act if:
(a) public notice in a local newspaper is given:
(i) by the consent authority, or
(ii) if the consent authority is not the council, by the consent authority or the council, and
(b) the notice describes the land and the development the subject of the development consent, and
(c) the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours:
(i) at the consent authority's principal office, or
(ii) if the consent authority is not the council, at the consent authority's office or the council's principal office."
9There are aspects of the expression of cl 124 which leave something to be desired. For example, the structure does not follow the form of the section; rather than identifying requirements of a public notice, it purports to identify circumstances in which the granting of consent is "publicly notified". It does not deal with complying development certificates. Nothing turns on these matters for present purposes.
10Paragraph (a) requires that the notice be given "in a local newspaper". In the present case, the notice was published in a document entitled "Liverpool City Council News". No question was raised as to whether that was a publication falling within the ordinary meaning of the undefined phrase "a local newspaper". It also requires that the notice be given by the consent authority, but that adds nothing to the requirements of s 101 of the EP&A Act.
11Paragraph (b) requires that the notice describe the land and the development the subject of the consent. Notices in the publication referred to set out numerous approvals listed by area alphabetically, the subject consent being one of a number of approvals under the heading "Hoxton Park". The development application was identified by number and the land by a street address, namely, in this case, 612 Hoxton Park Road. It is not necessary to set out the description of the development as its adequacy was not challenged.
12Paragraph (c) requires that the notice contain "a statement" to the prescribed effect. The paragraph is uncertain in a number of respects. First, the requirement is for a statement having four generic elements. The first two elements, namely availability for public inspection and availability for such inspection free of charge, must presumably be included in those terms. The second two elements identify the period and place of inspection. It is unclear whether the statement must use the actual language of (c), or whether it must identify the office hours and the location of the consent authority's principal office. In respect of location, its seems unlikely that the content of paragraph (c) was to be copied verbatim into the statement and thus into the notice. Some part of the notice must identify the consent authority, which may not be the publisher of the notice. The purpose of the Regulation would also be ill-served if the location of the principal office of the consent authority or the Council, or both, were not to be given in the notice. The better view may be that the location, that is the address at which inspection may take place, is to be identified in the statement. It is not necessary to form a concluded view in that respect, because the absence of such an element in the statement did not form part of the challenge in the present proceedings.
13Of greater importance is the question whether it is sufficient that the statement identify the period of inspection as "during ordinary office hours", or whether those hours should be stated. If the hours are not identified, the reader will be required to make further inquiries. The fact that the statement does not need to include a telephone number or website by means of which such inquiries might be pursued, suggests that a purposive approach would require the statement to include identification of the ordinary office hours. A contrary argument may be that the concept of "ordinary office hours" is well-understood and does not require express identification. Again, it is not necessary to resolve this question, although it comes close to the heart of the present challenge.
14A further issue, not debated in the present proceedings, but again of potential relevance, is the identification of the "notice". The newssheet, so far as it was in evidence, was a two-page document. Each page contained three columns. The heading "Notice of Development Applications Approved by Council - June 2009" appeared near, but not at, the top of the third column on the first page. The same heading appeared at the beginning of the first column on the second page. Under the heading, on each occasion, the following statement appeared:
"To view the complete list, visit Council's website. All development consents are available for public exhibition free of charge at Council's Administration Centre."
15It was assumed that the Regulation permitted a "public notice", containing a relevant "statement" for the purposes of paragraph (c), which related to numerous development consents. It was also assumed, at least in this Court, that although the notice itself did not identify the location for inspection as the Council's "principal office", nor did it give the address of the "Administration Centre" to which it referred, that it was nevertheless sufficient in these respects, presumably on the basis that the Administration Centre was the Council's principal office, the address of which could be found elsewhere on the newssheet.
16The statements set out above made no reference to "public inspection", but rather referred to "public exhibition". Exhibition is something undertaken by the Council; inspection is something undertaken by the interested party. The two phrases thus have a different connotation and are separately dealt with, where appropriate: see, eg, s 74E, EP&A Act. No argument was based on this departure from the language of the Regulation.
17Critical for the present case was the absence from the statement of the words "during ordinary office hours", either alone or with a specification of the relevant hours. The appellant was content to rely upon the simple absence of the words contained in paragraph (c).
18In the Court below, Biscoe J noted that there was authority against the proposition that this particular notice did not comply with the requirement of the Regulation, namely Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWLEC 99; 167 LGERA 205 (Lloyd J). That case involved a challenge to the validity of a development consent. Because the challenge was rejected, it was unnecessary to consider the effect of the public notice of the consent, but Lloyd J did "briefly indicate" his conclusion on that issue. His Honour found the notice ineffective because of an inadequate description of the property: at [53]. The further comment on the failure to include reference to ordinary office hours was, therefore, doubly unnecessary. However, he disposed of a challenge to the omission of such a statement by saying that it was "self evident that the office would be open during ordinary office hours": at [54]. In the present case, Biscoe J adopted his Honour's conclusion and explained his reasoning in the following passage:
"[50] I am prepared to follow Hastings , which is indistinguishable . The effect of that decision is that in the case of a notice such as the present, it is so obvious that it goes without saying that the development consent may be inspected during ordinary office hours. In other words, although not stated expressly, as a matter of necessary implication the notice stated that the development consent may be inspected during ordinary office hours.
[51] The fact that this was stated implicitly rather than expressly arguably may not comply with cl 124 of the EPA Regulation . If so, it must be demonstrated that there is a legislative intention to invalidate the notice because of that non-compliance. ...
...
[54] In circumstances where a notice implicitly states (because it is so obvious that it goes without saying) that a development consent can be inspected during ordinary office hours, it is unlikely I think that the legislature intended that an omission to say so expressly would invalidate the notice. A contrary conclusion would have serious consequences not just for the proponent but for anyone who at any time in the future has an interest in Land since proceedings to challenge the validity of a development consent could be mounted decades into the future without any statutory time bar. The discretion to withhold a remedy in circumstances of long delay in the institution of proceedings and prejudice is another matter."
19In discussing the effect of the omission, his Honour referred to the principles stated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91] and [93]. In relation to the construction of privative clauses, his Honour referred to Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 at [75]. However, as a matter of principle, there are difficulties with the reasoning. First, it appears to have been assumed in the course of argument that the purpose of such a statement was to ensure that members of the public did not assume that inspection could occur outside ordinary office hours in circumstances where council meetings often did take place in the evening. However, the purpose is not so limited. In part it is to inform the public that inspection may take place throughout ordinary office hours, without limitation to particular periods or particular days. Further, the statement is intended to reflect the legal obligation imposed on the council by s 100, which requires the council to keep a register of determinations of applications for development consent which is "to be available for public inspection, without charge, at the office of the council during ordinary office hours": s 100(2). It is by no means self-evident, nor so obvious as to go without saying, that the council is under any such obligation. The obligation is a creature of statute, not of some amorphous public understanding of how councils operate. Accordingly, the language adopted in the Regulation was deliberate and not inadvertent, nor irrational.
20Furthermore, a notice requires writing: that which is not stated in writing is not stated in the notice. The idea that things are stated "implicitly rather than expressly" is, in this context, not an available characterization. So much appears to have been accepted at [51]. The conclusion that the notice did not comply with the Regulation is inescapable.
21The next question is whether the failure resulted in invalidity. As explained in Project Blue Sky , whenever the exercise of a power is made conditional, there will always be a question of statutory construction as to whether non-compliance with the condition renders the exercise of power ineffective. As explained above, the legislative scheme for public participation, including the right to challenge potentially invalid exercises of power, involves a balance of considerations. One important consideration, as noted by the primary judge, is the potentially disruptive effect for a developer who has obtained a development consent but finds it is the subject of challenge long after consent was given. The importance of that consideration may be conceded: nevertheless, it would be relevant even in a situation where no notice had been given at all. The giving of notice, it may be noted, is not a matter within the power of the developer: only the consent authority or the council can give an effective notice.
22On the other side of the balance is the diminution, in a practical sense, of rights given to the public at large to challenge possibly invalid consents in circumstances where no public notice is given of the determination of a development application. In Pallas Newco , Spigelman CJ noted at [75], in the passage relied upon by Biscoe J below, that s 101 does not provide an "absolute bar" because, unlike a general privative clause, it permits a challenge within a specified time, being a period of three months, which Biscoe J described as "reasonable": at [53]. However, in Pallas Newco the discussion of s 101 of the EP&A Act arose only indirectly, in considering whether the characterisation of the development in question involved a "jurisdictional fact" the validity of which depended upon the determination of the Court, or whether it was a fact which could be finally determined by the council. His Honour was concerned with the possibility that s 101 would not protect a decision of a council infected by jurisdictional error. Because he felt able not to apply a principle of strict construction to the section, he concluded that the word "validity" in s 101 was intended to protect decisions from jurisdictional error, including review of jurisdictional facts: at [79]. Accordingly, after the three month period, it was suggested that the only grounds of challenge would be those permitted by R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; 70 CLR 598 at 82-84.
23Pallas Newco involved a significant shift of control over planning decisions from local consent authorities to the Land and Environment Court. Those issues are not at stake in the present proceeding. Section 101 requires the calculation of a period of time within which proceedings may be brought questioning the validity of a development consent. The critical question is the date at which the three month period commences to run. That is identified as the date of giving a notice in accordance with the Regulation. Whether or not a notice complies with the Regulation depends upon the proper construction of the Regulation, not s 101.
24Factors which may indicate that a particular requirement of the Regulation is not mandatory, in the sense of being one absent which proper notice has not been given, may include the degree of precision with which the requirement is identified, by contrast with a requirement that involves elements of judgment or discretion. The matters required in the statement (ignoring infelicity of expression in the Regulation) are all matters which can readily be objectively identified and which do not require judgment on the part of the person drafting the statement. The same is not necessarily true of the description of the development and the land, but these matters are so critical to the purpose of the notice that even if correctly stated, the addition of further misleading information will invalidate the notice: see Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91, dealing with the giving of public notice of an amendment to a local environmental plan and compliance with the terms of then s 66 of the EP&A Act (since repealed).
25The contents of a statement in accordance with paragraph (c) of cl 124(1) should be easily achieved, readily subject to replication in identical form in numerous notices and without risk of causing confusion. As noted above, the contents of the statement reflect the statutory obligation imposed on a council pursuant to s 100 of the EP&A Act. There is no reason to construe the Regulation as giving greater significance to one element over others. The fact that compliance with the Regulation should, at least in this respect, be straightforward takes some of the force from the prejudice which could result to a developer from the council's failure to comply if that were to prevent the commencement of the limitation period. Further, as noted by Spigelman CJ in Pallas Newco, the existence of a discretionary power to refuse relief, even in a case of invalidity, provides a safety valve in the event of non-compliance with the Regulation, even though not a full answer to the potential prejudice to a developer: 61 NSWLR 707 at [66]; the Court Act, s 25B (providing for alternative orders to declarations of invalidity in respect of invalid development consents).
26It should be noted that this was not a case in which there was an attempted or part compliance with the requirements of the Regulation. The necessary statement included four elements; one was missing in its entirety.
27The appellant sought to rely upon the judgment of the High Court in Scurr v Brisbane City Council [1973] HCA 39; 133 CLR 242, in support of the view that where a consent authority is required to give public notice by way of advertisement of a development application, an inadequate notification will lead to invalidity of the consent. Although the reasoning of Stephen J (with whom all other members of the Court agreed) adopted the then conventional distinction between mandatory and directory language in statutory enactments, sometimes described as a distinction between an essential preliminary to the exercise of power as compared with a procedural condition for the exercise of power, distinctions abandoned by this Court in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 and by Project Blue Sky at [92]-[93], Scurr remains authority for the proper approach to planning legislation requiring public notification. Such requirements will generally be a precondition to the exercise of power. Since 1973, the legislature has placed enhanced emphasis on the importance of public participation, as reflected in the provisions of the EP&A Act referred to above: see also Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317 at 320 (Stein J).
28The right to challenge the validity of a development consent is an empty promise if the existence of the consent is unknown. The effect of the right is not triggered by the actual knowledge of the applicant of the existence of the consent; rather, it is triggered by the giving of public notice, which is deemed sufficient to allow interested parties to acquire the relevant information. The content of appropriate public notice has not been left in the hands of the local council, even though it should be treated as a knowledgeable and responsible authority. Rather, the legislature, through delegated legislation, has prescribed that which is required for giving effective notice. No authority is conferred on the courts to determine that a non-complying notice will be effective in some cases, but perhaps not in others. Nor does the Act or the Regulation provide any criterion by which such an exercise could be undertaken. The only rational way to give effect to the expressed purpose of the Act, is to give effect to a notice given in accordance with the Regulation, but not one which fails to comply. This approach will have no consequence for a developer relying upon a valid consent, other than the incidental effect of permitting late challenges. Further, whilst the developer is not the party responsible for giving notice, in protecting its own interest, it might well consider for itself the validity of any notice given and invite the council to publish a further notice if it or its financier is concerned about that issue. There is no time limit on the giving of a valid notice.
29The notice given by the Council on 8 July 2009 did not comply with the requirements of Regulation, cl 124(1)(c). Accordingly, it was not given "in accordance with the regulations" and therefore did not trigger the commencement of the limitation period in s 101. As a result, the proceedings brought by the appellant were not out of time.