8 The alternative argument that the modification to the April 2007 consent was uncertain and void for uncertainty was not strongly pressed (and it is hard to see how it can be in light of the Applicant's other arguments).
Respondents' submissions
9 The Council argued that if the whole of the Council's decision-making on the modification application is reviewed it is clear that it did not determine the modification application in April 2007. It decided to defer the determination of the Second Respondent's application to provide an opportunity to the Second Respondent to build a 1.8m fence. This was done albeit not within the three months required by the Council's April determination. The Council's resolution of 15 October 2007 was a deferred consideration of the modification application. A modified development consent was issued on 24 October 2007 following the construction of the fence extension. The Second Respondent adopted the submissions of the Council.
Finding on issue 1
10 The Applicant relied on Panagopoulos in which Bignold J held that once a decision to modify a development application has been made it can be communicated orally to amount to sufficient communication for the purposes of the EP&A Act. This was held to be available in addition to the requirement (then in cl 48(1) of the EP&A Regulation, now cl 122) to provide written notification of the determination of the modification application. That finding was said to support the argument that in this case the 17 April 2007 letter notifying the Applicant of the Council's resolution on the modification application was a communication of the final decision by the Council of the Second Respondent's development application. That finding does not answer the issue raised in this case of whether the modification application was finally determined by the Council in April 2007 and the decision communicated to the Second Respondent. The circumstances considered in Townsend are also quite different to those before me here. That case held that there must be formal notice of determination given in order for there to be an effective development consent.
11 The context in which a "decision" is made is relevant to determining whether a decision has in fact been made. In Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 (affirmed on appeal in Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533) Finn J held at [19]-[20]:
[19] For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.
[20] What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision's having been made, etc
The context being considered was whether a decision had been made by the Refugee Review Tribunal. The approach identified in [20] applies broadly, and indeed as a matter of logic, so that the entirety of the Council's decision-making processes need to be considered.
12 I agree with the Council's submission that when the Council's resolution passed on 16 April 2007 is considered in the context of all the steps in the Council's decision-making on the modification application including the terms of the April 2007 decision, subsequent correspondence and the events leading up to the October 2007 decision, the April 2007 resolution was not a final determination of the modification application but part of a process of decision-making that lead to the 15 October 2007 decision to modify the development consent by deleting conditions 6 and 7. The latter decision was the relevant determination of the modification application and the decision in relation to which notification under cl 122 of the EP&A Regulation was issued. It therefore follows that the Applicant's argument that the Council's determination of the modification application in October 2007 was beyond power is not correct. The Applicant is unsuccessful on this ground
Issue 2: The October 2007 decision was irrational and manifestly unreasonable
13 It is therefore necessary to consider the second ground raised by the Applicant which is that the October 2007 decision approving the modification application was irrational and unreasonable in a Wednesbury sense (see Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223).