Notification Under the DCP
54Section 79A(2) of the EPAA imposes, as the parties agreed, an obligation on the council to act in accordance with a DCP that provides for the notification and advertisement of a development application. In order, therefore, to determine if there has been a breach of s 79A(2) of the EPAA, it is first necessary to properly construe cls 2.3.1 and 2.3.2 of the DCP.
55Notification of a property owner, even an adjoining property owner, of any proposed development is not mandatory under the DCP. So much so is plain from the language of cls 2.3.1 and 2.3.2. Rather, in order to determine if an application "will be notified", the council must have regard to the factors specified in cl 2.3.1 and assess the criteria against the plans relating to the proposed development. Once that process has been undertaken, the council must decide whether or not the development application is "notified development".
56Thus, while there is a mandatory obligation, in my opinion, on the council to undertake the process of assessment, the classification of the development application as "notified development" is nevertheless discretionary insofar as it is dependent upon the council's evaluation of the criteria in cl 2.3.1 of the DCP. If the development application is determined to be "notified development", the council must then determine who, if anyone, will be notified having regard to the guidance provided in cl 2.3.2. The decision of who¸ if anyone, must be notified is also discretionary in nature and there is nothing in cl 2.3.2 that compels actual notification of a "notified development".
57Nevertheless, in circumstances where a development may adversely impact the views, privacy and visual amenity of an adjoining property owner; may overshadow an adjoining property owner; or may result in increased noise levels to an adjoining property owner, it is difficult to conceive of a reasonable determination that there is to be no notification of the proposed development to that owner.
58Two distractions emerged during oral argument bearing upon the correct interpretation to be afforded to cls 2.3.1 and 2.3.2 of the DCP.
59The first distraction was Mrs Manning's submission that whether or not a development application was to be characterised as "notified development" was a question of jurisdictional fact for the Court to determine.
60The contention was not that the public notification requirement of s 79A(2) of the EPAA was a jurisdictional fact, compliance with which was a precondition to the exercise of power by the council to determine the first and second DAs - it is (Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel [2012] NSWLEC 166 at [13]-[15]) - rather, it was argued by Mrs Manning that the determination of whether the first and second DAs were "notified development" under the DCP gave rise to a jurisdictional fact.
61When regard is had to the now established principles governing the existence of jurisdictional facts (see the discussion in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at [28]; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; (2004) 61 NSWLR 707 at [39]; Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at [43]; Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [38]-[39]; Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 at [114]-[115]; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [57]-[58] and Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 at [236]-[239]), this submission must be rejected. On any reasonable construction of their text, cls 2.3.1 and 2.3.2 of the DCP are not framed in terms of 'facts' but concern factors that the council must consider in determining whether or not to notify the development. That is to say, cls 2.3.1 and 2.3.2 establish the mandatory matters that the council must take into account during the course of its assessment as to whether or not to notify the proposed development, rather than stipulate facts about which the council must be satisfied. Whether a development application is to be notified, and if so, to whom, is a matter for the council to determine and not the Court.
62The second distraction was the meaning of the term "unlikely to be affected" in cl 2.3.2. Mrs Manning argued that the word "affected" meant any change whatsoever. Thus, if the proposed development was likely to affect, in any way, an adjoining property owner, then notification should occur. In other words, cl 2.3.2 created a presumption in favour of notification of all adjoining property owners, irrespective of the application of the factors contained in cl 2.3.1.
63I do not agree. In my opinion, the words "unlikely to be affected" do no more than ensure that the very vice about which the council cautioned against during the hearing, namely, a construction of cls 2.3.1 and 2.3.2 that imposes an obligation on the council to notify all adjoining property owners of all development applications irrespective of the negligible impact of the proposed development does not arise. In other words, "affect" is not to be construed to include any and all 'effects', no matter how trivial, of a development. As discussed above, the function of cl 2.3.2 is to provide guidance to the council in determining, once the development application is classified as "notified development", who should be notified. The clause does not bind the council in its determination, but sets out the factors that the council must consider in making it.
64Having regard to the facts set out above, it is clear that both Mr Sproul and Mr Nelson had regard to cls 2.3.1 and 2.3.2 of the DCP and adequately considered, first, whether the first and second DAs were "notified development", and second, whether or not Mrs Manning should be notified, and on each occasion determined that she should not.
65With the exception of the challenge pursuant to manifest unreasonableness, the merits of the council's decisions cannot be cavilled with. The Court is only concerned with whether consideration was in fact given by the council to the question of whether or not notification was required. In my opinion, the evidence has demonstrated that it was.
66Further, contrary to the submission of Mrs Manning, more than mere 'lip service' was given by the council officers to the criteria contained in cls 2.3.1 and 2.3.2 of the DCP (see Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 at [58]). Or, to use the language of the amended points of claim, "proper, genuine and realistic consideration" (for the genesis of this epithet and its subsequent application and criticism, see the discussion in Fullerton Cove at [154]-[156]. More recently the Full Federal Court of Australia has employed the formulation "active intellectual engagement with the mandatory criteria (or the submission or representation)": Mentink v Minister for Home Affairs [2013] FCAFC 113 at [44]) was given to whether or not the first and second DAs were "notified development" and whether Mrs Manning ought to be notified of the applications. In short, a sufficiently fulsome consideration was given by the council to the question of notification.
67Mrs Manning also argued that the council had applied the wrong test in determining not to notify her on each occasion insofar as both Mr Sproul and Mr Nelson were concerned with whether the impact of the proposed development would have a "detrimental effect" (Mr Nelson) or an "adverse effect" (Mr Sproul) when assessed generally against the content of cl 2.3.1 of the DCP, or that certain aspects of the development, for example, overshadowing and noise, would not be "adverse" or "significant" (Mr Sproul).
68The council submitted in reply that it would be contrary not only to the proper construction of cls 2.3.1 and 2.3.2 of the DCP, but to all commonsense, if the council was obliged to notify property owners, including adjoining landowners, of proposed development that had a beneficial or positive effect.
69Leaving aside, for present purposes, the correctness or otherwise of the council officers' assessment of the impact of the first and second DAs, I do not accept, on the balance of probabilities in this instance, that Mr Sproul applied the wrong test in relation to the first DA. Rather, the language relied upon by Mrs Manning in this respect amounts to no more than a descriptive summary of Mr Sproul's opinion that the impact of the proposed development was sufficiently trivial that, having regard to the balancing exercise demanded by the factors in cls 2.3.1 and 2.3.2 (insofar as Mrs Manning was an adjoining property owner), no notification was required. I therefore do not find that Mr Sproul applied the wrong test when assessing the criteria contained in cl 2.3 of the DCP; instead he had regard to whether or not the impact of the development application would be immaterial or inconsequential. These considerations do not speak of error on the part of the council. The council's contention that the terms of the DCP do not demand that every impact, however negligible, of any development gives rise to an obligation to notify is, in my view, correct upon a proper construction of those clauses.
70In relation to Mr Nelson, however, the evidence supports the contrary conclusion, namely, that he did apply a test of detriment when assessing the factors relevant to determining whether the second DA was "notified development". Evaluating the cl 2.3.1 factors only through a prism of detrimental effect amounts to an unwarranted and impermissible gloss on the proper construction of that clause (and cl 2.3.2 to the extent that it informs its interpretation) having regard to its text, subject matter, scope and purpose, and was, in my opinion, in error.
71Moreover, in my view, if, having regard to the factors in cl 2.3.1 of the DCP, the council considered that the potential impact of a development application would be material but nevertheless beneficial to an adjoining property owner, it would not axiomatically follow that notification was not required. At all times, within the framework of cls 2.3.1 and 2.3.2 of the DPC, the only applicable touchstone is one of materiality, or conversely, immateriality or triviality, and not detriment or benefit.
72The case law is replete with statements concerning the importance of strictly adhering to planning legislation requiring public notification (Curac v Shoalhaven City Council (1993) 81 LGERA 124 at 129; Tweed Business at [16] and Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143 at [83]-[87]). In Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141 Craig J emphasised the central importance of public notification in the planning regime in this State. His Honour stated as follows (at [32]-[33]):
32 By requiring the advertising and notification of development applications, the DCP is giving effect to an important object of the EPA Act. That object, as expressed in s 5(c), is "to provide increased opportunity for public involvement and participation in environmental planning and assessment." Relevantly, s 79A(2) gives statutory force to the DCP by mandating notification and advertisement of a development application in accordance with its provisions (Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 at [58]).
33 The purpose achieved by giving effect to the legislative object is twofold. First, it affords a form of procedural fairness by providing an opportunity to those who have an interest in or who may be affected by proposed development to learn of its detail before any decision is made. Secondly, it affords the opportunity to improve the process of decision making by enabling the consent authority to make a decision, fully informed of the potential consequences of development as perceived by the community.
73Thus, any material change to the privacy, visual impact, overshadowing or amenity of another property owner, particularly an adjoining property owner, will not be precluded from notification under cl 2.3 of the DCP, merely because its effect is not considered to be adverse by the council.
74This is because one person's perceived potential development bonanza may be another person's consequential construction curse. It is only through strict compliance with any mandated notification process that individuals will be afforded the opportunity of commenting upon development in order to protect their interests and those of the broader public. By failing to comply with the statutory requirements for notification of development applications, the council deprives itself of the opportunity of considering submissions of owners and objectors who may be affected by the proposed development.
75Finally, and in passing, it should be noted that at the hearing Mrs Manning expressly disavowed any reliance on a common law duty of procedural fairness to notify a development application, separate from the statutory obligation enshrined in s 79A(2) of the EPAA. Because I have concluded that it was manifestly unreasonable for the council not to have notified Mrs Manning of the first and second DAs, I do not propose to address further the issue of whether Mrs Manning was denied procedural fairness by reason of the council's failure to notify her of the first and second DAs.