Reulie Land Co Pty Ltd (the Applicant), is the owner of land at 4 Myra Vale Road, Wildes Meadow, NSW (Lot 4 in DP 739390) (Lot 4). Lot 4 is located within the Third Respondent, Wingecarribee Shire Council's (the Council) local government area.
The Second Respondent, Lasovase Pty Ltd, is the registered proprietor of the land comprising Lot 1 in DP 725832 and known as 421 Myra Vale Road, Wildes Meadow, NSW (the Subject Property). The Subject Property is adjacent (separated by the road) to Lot 4.
The First Respondent, Lee Environmental Planning Pty Ltd (Lee), are town planning consultants who act on behalf of the Second Respondent.
Each of the Respondents has filed a submitting appearance, save as to costs, in the matter.
The proceedings concern a challenge by the Applicant to the validity of a development consent for staged development granted by the Council to Lee with respect to a building envelope for a future dwelling house on the Subject Property owned by the Second Respondent.
[2]
Evidence
On 19 June 2018, Lee lodged a staged development application relating to the Subject Land seeking consent for Proposed Building envelope for future dwelling house (Exhibit B Tab 20 p 395) (the Envelope DA). The Statement effects of Environmental Effects (SEE) that accompanied that development application noted (Exhibit B Tab 23 p 418):
This Statement of Environmental Effects has been prepared to support a Development Application for a dwelling house to be built upon land at Myra Vale Road, Wildes Meadow.
The Development Application has been lodged as a staged development application under the provisions of Section 4.22 of the Environmental Planning and Assessment Act, 1979.
As such, it is not supported by detailed architectural plans of the proposed dwelling at this time. The focus of the Development Application is upon the initial question of the suitability of the proposed siting of the future development of a new dwelling rather than any of the physical works involved in that development.
By letter dated 13 July 2018, the Applicant was notified of the Envelope DA in accordance with the provisions of Wingecarribee Councils (sic) Community Engagement and Notification of Development and Planning Proposals Policy (Exhibit A Tab 1).
During the week commencing 23 July 2018, the Applicant undertook a review of the available documentation for the Envelope DA. The representative of the Applicant (Mr Wilder) telephoned the Council's Assessment Planner Mr Gounder, and had a conversation in words to the following effect (Affidavit of Mr Wilder sworn 13 November 2019 at [8]) (the Wilder Affidavit):
I said: Can you please confirm that the proposed siting of the envelope shown in the plans for the DA for a building envelope at 421 Myra Vale Road will not be changed? I need to know whether I ought to make a submission by way of objection.
He said: The proposal for the DA includes a building envelope in the location shown in the plans dated 19 June 2018, being in line with the north-eastern boundary of your Lot 4 property. You will be unable to see the proposed dwelling from your property.
I said: As long as a dwelling built in that location will not have a negative impact on my views, I have no objection with it. I don't need to make a submission on the DA.
He said: It will not affect your views.
I said: In that case, I will not make a submission by way of objection, but please inform me if there are any changes that are made to the DA.
The Applicant did not make an objection to the Envelope DA.
In October, the Applicant became aware that the Subject Property was for sale. Mr Wilder telephoned Mr Gounder at the Council and had a conversation in words to the following effect (Wilder Affidavit [10]):
I said: Could I please have an update on the Council's consideration of the DA at 421 Myra Vale Road?
He said: Council has requested that the applicant for the DA shift the building envelope approximately 14 metres down the hill to the north-west of the location shown in the 19 June 2018 plans.
I said: Why have you asked the applicant to move the envelope?
He said: It is Council's policy to seek to maintain rural views from public roads in that area. If the envelope is moved down the hill, it will have less of a visual impact when viewed from the road. It will still be in line with your north-eastern property boundary.
I said: Will it change the impacts on the views from my property?
He said: No. The view impacts will be largely the same as in the original application plans. The proposed envelope will in no way impact upon your views.
I said: Can you please provide me with a copy of any amended plans for the DA?
He said: I don't have the plans, but the envelope is just moving 14 metres down the hill. It will not impact you.
I said: As long as there is still no impact on my views, I have no issue with that and will not make an objection.
The Applicant did not lodge any submission in relation to the DA with the movement of location of the envelope as described to him (Wilder Affidavit [12]).
By letter dated 6 November 2018, the First Respondent sought to amend the Envelope DA pursuant to the provisions of cl 55 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) (the Amended DA). The letter accompanying the plans stated that (Exhibit B Tab 34):
In effect the proposed envelope has been pushed further from the Myra Vale Road frontage so that it now observes the minimum setback of approximately 56 metres rather than the original 40 metres, with the far edge of the envelope now over 100 metres from the road frontage.
A further plan with contours and a cross section of the building envelope was lodged on 12 November 2018 as part of the Amended DA.
A development application was approved by Notice of Determination on 13 November 2018 (the Development Consent) (Exhibit B Tabs 34, 35 and 36).
The Applicant was not notified (other than referred to above) as to the lodgement of any amended plans, the Amended DA or of the determination of the Envelope DA/Amended DA.
On or about 24 December 2018, the Applicant received a letter from the Council notifying it of the lodgement of a development application for the subdivision of the Subject Property (the Subdivision DA). The Applicant reviewed the documents comprising the Subdivision DA. The Applicant noted that the Subdivision DA SEE contained a plan purporting to show the location of the envelope approved by the Envelope DA. The Applicant noted that such envelope was located directly across the road from the dwelling on Lot 4. This was not the location it understood that was described by Mr Gounder prior to the approval of the Envelope DA. The Applicant interrogated the Council's "DA tracker" website and located the Notice of Determination for the Envelope DA but was unable to view the plans referred to therein.
On 7 January 2019, the Applicant, through Mr Wilder, telephoned the Council and had a conversation in words to the following effect (Wilder Affidavit [19]):
I said: I would like to have a copy of the plans referred to in the consent for DA 18/0788.
Council Officer said: We cannot provide copies of those plans as they are protected by copyright. If you would like to view them, you can arrange to attend Council Chambers to inspect them in person.
On 19 January 2019, Mr Wilder telephoned Mr Gounder and had a conversation in words to the following effect (Wilder Affidavit [20]):
I said: The documents accompanying the DA for subdivision at 421 Myra Vale Road show a building envelope that is sited in a different location to that notified to me by Council. It is also significantly different to the siting of the building envelope that you described to me previously. Where is the envelope going to be?
He said: The envelope is in the location that I previously described to you - 14 metres downhill from the siting of the envelope shown in the original plans. It has not moved from that location.
I said: The plans for the subdivision DA and the development consent for the building envelope DA do not show that. They show a different envelope location that is directly acorss the street from the dwelling on my property. I am looking at these plans on my computer screen as we speak.
He said: That is not correct. The envelope is only 14 metres downhill from the location of the Original Building Envelope. It still in line with your north-eastern boundary. You are mistaken.
I said: Are you certain?
He said: Yes, I am absolutely sure.
On 14 January 2019, Mr Wilder met with Mr Gounder at the Council Chambers. Mr Wilder was provided with a copy of the Council file for the Envelope DA. Mr Wilder observed that the file did not contain an assessment report for that DA. Mr Wilder had a conversation with Mr Gounder in words to the following effect (Wilder Affidavit [23]):
I said: Can I please see a copy of the assessment report for the Envelope DA?
He said: There isn't one. There is only the consent. There is no assessment report on file.
Mr Gounder then called up the plans referred to as approved in the Notice of Determination on a Council computer. Mr Wilder then had a conversation with Mr Gounder in words to the following effect (Wilder Affidavit [24]):
I said: The plans in the subdivision DA have the same date of 12 November 2018 as the plans referred to in the consent for the building envelope DA, and they show the building envelope as being immediately across the street from my dwelling. This is significantly south-east of what I understood was the envelope's location, which you said was 14 metres down the hill from the location of the original building envelope and still in line with my north-eastern boundary.
He said: The building envelope was approved in a different location to any of the plans notified for either the building envelope DA or the subdivision DA. The approved location is as shown in the plans originally included with the Envelope DA but just moved 14 metres down the hill. The envelope has not moved to the south-west.
I said: Are you absolutely sure?
He said: Yes.
Approximately one week after the meeting with Mr Gounder, Mr Wilder contacted Mr Wilton, Group Manager, Planning Development and Regulatory Services at the Council, they had a conversation in words to the following effect (Wilder Affidavit [29]):
I said: I understand from Mr Gounder that Council had intended to approve the envelope DA with the building envelope to be in a location not shown on any of the plans. Could you please confirm what has actually been approved and where this is recorded in the documents?
He said: I will look into this and call you back.
Neither Mr Wilder nor the Applicant received any further contact from Mr Wilton, despite several attempts to make telephone contact.
The Applicant itself and through town planners retained by it lodged objections to the Subdivision DA. The Subdivision DA was refused by the Council by Notice of Determination dated 27 September 2019.
On about the same date the Applicant was notified of a development application for a dwelling house on the Subject Property within the location of the envelope shown on the Amended DA (the Dwelling House DA). The Applicant, by its consultant town planner, objected to the Dwelling House DA.
[3]
Findings on the evidence
In order to determine the issues in this matter it is necessary to make findings as to:
1. Was the building envelope approved by the Notice of Determination in the same location as that shown in the Envelope DA?
2. If the location of the envelope in the Envelope DA is different from the envelope in the Amended DA, what did the Council assess in granting the Development Consent: the Envelope DA or the Amended DA?
3. Is there any evidence of the substance of the Council's assessment of the determination of the application it considered?
As the Applicant is the party asserting invalidity it must establish any asserted errors on the balance of probabilities, in order to be entitled to the making of the declarations and relief sought: Parramatta City Council v Hale (1982) 47 LGERA 319 at 345; GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 at 667 [83].
Material in the possession of the Council will generally be considered to be in the possession of the decision maker: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 31. There is a prima facie presumption that the decision maker has read the material on the Council file: Schroders Australia Property Management Limited v Shoalhaven City Council and Fabcot Pty Ltd [2001] NSWCA 74 at [67] and [72]. That presumption is capable of rebuttal and in order to ascertain the effect of the presumption it is necessary to ascertain the party that bears the onus of rebutting the presumption: GPT Pty Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 at [83].
[4]
Was the building envelope approved by the Development Consent in the same location as that shown in the Envelope DA?
The Envelope DA was accompanied by:
a survey plan dated 19 June 2018 (Exhibit B Tab 11);
a Bushfire Assessment Report (Exhibit B Tab 12);
a Site and Soil Evaluation Report (Exhibit B Tab 20);
a Statement of Environmental Effects dated June 2018 (Exhibit B Tab 13); and
an aerial photograph upon which a survey had been overlaid with the envelope and contours in the area of the envelope (Exhibit B Tab 25).
None of these documents (apart from the aerial photograph) identify or locate Lot 4 as it relates to the envelope location. If it is inferred (and I have no reason not to accept this) that the survey at Tab 11 and the aerial with survey overlay at Tab 25 are identifying the same location, it can be observed that the proposed building envelope was roughly aligned in a location to the East of the boundary to Lot 4. That is, there was no material part of the building envelope that aligned with any part of the boundary of Lot 4 along its Myra Vale Road frontage.
The Amended DA was accompanied by a letter dated 6 November 2018 that enclosed a survey plan dated 5 November 2018 (Exhibit B Tab 34). By email dated 12 November 2018 (Exhibit B Tab 35) a further survey plan of the proposed envelope showing contours and a cross section to illustrate the height of the envelope land in relationship to the road was provided to Council (Exhibit B Tab 36).
None of the material that accompanied the Amended DA identified the location of Lot 4 relative to the proposed building envelope. An overlay of the Envelope DA at the same scale as the Amended DA survey was prepared for these proceedings (Exhibit D). The comparison that is available from that exhibit disclosed that the proposed envelope in the Amended DA differed from the Envelope DA proposed envelope in the following respects:
1. The setback of the building envelope from Myra Vale Road had increased from 42.07m to 56.335m (an increased setback of 14.265m);
2. The increase setback had been achieved by reducing the depth of the envelope (being the measurement from the road to that part of the envelope protruding farthest into the Subject Property) from 70.1m to 50m (a reduction of 20.1m);
3. The width of the envelope parallel to the road frontage had increased from 70.1m to 82m (an increase of 11.9m);
4. The envelope had moved within the Subject Property further to the West such that the whole of the envelope was now situated parallel to the Lot 4 boundary at the Myra Vale Road frontage. That is, the proposed envelope had moved West by no less than 70m (being the width of the Envelope DA envelope). As a result no part of the proposed envelope was located to the east of the eastern most boundary of Lot 4.
The Notice of Determination (Exhibit B Tab 37) imposed condition 2 that provided:
The development shall be implemented in accordance with the approved plans and supporting documents set out in the following table except where modified by any conditions of development consent.
Plan Title / Supporting Reference / Version Prepared By Dated
Document
Plan of Proposed 2813E Sheet 1 of 2 Keatley Surveyors 12/11/2018
Dwelling Envelope
Cross Section 2813E Sheet 2 of 2 Keatley Surveyors 12/11/2018
[5]
It further imposed condition 5 in the following terms:
All future development occurring on the site is to conform to the concepts shown on the Proposed Building Envelope Plan prepared by Keatley Surveyors ref no 2813E Sheets 1 and 2 and dated 12 November 2018. In particular:
a. any and all new buildings erected on the site are to be located within the area shown as Proposed Dwelling Envelope;
Reason: To ensure that the development is undertaken in accordance with the submitted plans and documents.
There was no other condition that identified or varied the location of the approved envelope.
The two sheets of plans referred to in condition 2 were stamped as approved and dated 13 November 2018 (Exhibit B Tab 39). The stamped plans were the same plans as accompanied the Amended DA.
In order to determine what was approved by the Council it is necessary to consider the instrument of approval being the Notice of Determination and any document relevantly incorporated into that consent either by express reference or necessary implication. The intention of the decision maker is not relevant to that exercise: House of Peace v Bankstown City Council (2000) 48 NSWLR 498 at [37].
The Notice of Determination clearly refers to, and therefore incorporates, the stamped plans as identified in condition 2. Those plans identify that the approved location of the building envelope is a location approximately 70m further West than the Envelope DA plans and a location wholly aligned with the Myra Road frontage boundary of Lot 4. As a consequence of the construction of the Notice of Determination and the plans incorporated, I find that the approved envelope location is that in the Amended DA and that such location is materially different from that shown in the Envelope DA.
[6]
Is there any documentary evidence of the substance of the Council's assessment?
At Exhibit B Tab 39, there is an unsigned document (although it nominated Mr Gounder as the Assessing Officer) dated 12 November 2018 and styled "Section 4.15 Assessment". This document was questioned in the proceedings as it was not produced by Council pursuant to Notice to Produce served in the proceedings dated 22 February 2019 (Exhibit B Tab 16). The document was produced only after further correspondence between the parties (Affidavit of Timothy Allen sworn 13 November 2019 at [21]). It was further observed that the document was not noted on the Council's "DA Tracker" website details for the Envelope DA (Exhibit B Tab 6) and that Mr Gounder had advised Mr Wilder in his conversation of 14 January 2019 (recited at [19] above) that there was no such document on the Council file. It was, in an appropriately careful manner, submitted that little weight should be given to the document in light of the conflicting advice of Mr Gounder and the fact that it was open to Mr Gounder to explain the conflict and the Council had elected to call no evidence and submit to orders (save as to costs).
Notwithstanding the questions that remain unresolved with respect to why the document was not produced pursuant to the Notice to Produce or why the document did not appear on the Council's DA tracker website, I am unable, on the evidence before me, to rebut the operation of the presumption that, as the document is on the Council file and bears a date that such a document was prepared on or before the nominated date and represents a written record of the decision maker's determination of the DA. I therefore find, primarily through the operation of the presumption, that the 4.15 Assessment document is a written record of the matters to which the decision maker had regard.
However, the question then arises as to what is the utility of this evidence, in the context of these proceedings. I have difficulty making any meaningful use of this document. The document does not identify the proposal being considered in any fashion that enables the location of the building envelope under purported assessment to be ascertained. Further, the document makes no mention at all of the amendment to the Envelope DA or of Lot 4 and the relationship of the DA to that lot. For the reasons I identify below, this assessment does not establish, by inference, operation of a presumption or otherwise that a relevant matter was relevantly taken into account, rather it provides evidence to the contrary.
[7]
What did the Council assess in granting the Development Consent: the Envelope DA or the Amended DA?
It is apparent that the Council had assessed the Envelope DA and considered that it was not worthy of approval in its submitted form (Exhibit B Tab 32). The Council considered that the envelope had the potential to impact on public views and required a reconsideration of the size of the envelope and a relocation of that envelope to a position between contours 695 and 710.
The Council's request for the relocation of the envelope was accompanied by a sketch plan. The existence of the sketch plan is evidenced both by the Council's request and the Amended DA letter. The sketch plan has been unable to be located by the Council and has not been produced (Exhibit B Tab 44 folio 523). I do find that on the balance of probabilities that the Council did not request the relocation of the building envelope to the West of the original location - as if it did it would refer to such a fact, whereas the request referred in terms to locating the envelope further distant from the road rather than in a different location on the site. This position is also supported by Mr Gounder's advice to Mr Wilder on or around 29 October 2018 (recited at [10] above), wherein the change was limited to the set back from the road.
It is also apparent that, notwithstanding the Council's request to relocate the envelope, the Applicant submitted its Amended DA proposing an alternative to the Council's request (Exhibit B Tab 34). The description in the letter enclosing the Amended DA plan did not identify a relocation to the West of the envelope, rather that the envelope "…has been pushed further from the Myra Vale Road frontage…".
Therefore, I infer from the evidence, that the sketch of the relocation of the envelope did not require the envelope to be moved to the West as identified in the plans that accompanied the Amended DA and that were ultimately approved by the Council.
Further, I find that the issuing of the Notice of Determination after the amendment to Envelope DA and the incorporation into that consent of the Amended DA plans, is, on the balance of probabilities, an acceptance by the Council of the requested amendment to the DA pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000. As a consequence the development application before the Council for determination was the Amended DA and the reference in the Notice of Determination to the plans that accompanied the Amended DA is, on the balance of probabilities, evidence that the Council determined to approve the Amended DA.
[8]
Determination of issues in the proceedings
Having regard to these findings on the evidence, it is then necessary to apply these findings to the grounds of challenge to the Council's determination to approve the Amended DA.
The Applicant challenges the determination by the Council to grant consent on the following broad grounds:
1. The Council failed to take into account mandatory relevant considerations, namely the likely impacts on the Lot 4, particularly with respect to view impacts, amenity and privacy (s 4.15(1)(b)): Summons Grounds 2(b), (d), (e), and 3;
2. The Council failed to renotify the relocation of the envelope after the notification of the Envelope DA:
1. Contrary to the requirements for re-notification in the EP&A Act and the Council's Notification Policy, in that: Summons Grounds 1, 2(a), and 3:
1. The Council failed to notify it of the Amended DA;
2. The Council either failed to consider whether it was required to notify the Amended DA or if it did its decision was manifestly unreasonable;
1. The Council denied the Applicant procedural fairness by not notifying it of the Amended DA: Summons Ground 4.
[9]
Failure to take into account a mandatory relevant consideration
As noted above, the Applicant bears the onus of establishing breach. As was observed by Moffitt P in Parramatta City Council v Hale (1982) 47 LGERA 319 at 345:
.. Proof of a state of mind whether of a person or collegiate body may be a matter of difficulty, but the person, who seeks under s. 123 to bring down a decision, must discharge that onus however difficult that may be and he must do so in accordance with proper legal requirements and by inference not suspicion. The responsibility to make the consent determination is given to a responsible authority, which will normally be a council democratically elected. The court exercising jurisdiction under s. 123 does not sit on appeal from its determination. A conclusion by a court finding a breach of s. 90 by way of inference is one to be come to only after anxious consideration, but when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has drawn.
Section 4.15 of the Environmental Planning and Assessment Act 1979 (EP&A Act) mandates the matters that, where relevant, a consent authority must take into consideration in determining that development application. It was submitted that relevant to the determination of this development application, the following are relevant mandatory considerations:
1. The Provisions of the Council's Rural Lands DCP: s 4.15(1)(a)(iii);
2. The likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality: s 4.15(1)(a)(b);
3. The impacts of the relocation of the envelope on matters such as bushfire and the relationship of the envelope to the Subject Land generally.
The substance of the considerations that are said not to have been relevantly taken into account relate to the relationship of the envelope to the Subject Land and Lot 4 and in particular the impact such location will have on the amenity of Lot 4.
The process of determining whether a mandatory relevant matter has been given the requisite consideration was described by Tobias JA in Anderson v Director-General, Department of Environment and Climate Change & Anor (2008) 163 LGERA 400 at [58] in the following terms:
…[B]ut whether or not it can be judged that a matter has been considered is essentially an evaluative process based exclusively on what the decision-maker has said or written.
In undertaking the evaluative process of what was said or written by the consent authority, it must be borne in mind that in order that a matter is given the requisite consideration:
1. There must be more than mere advertence to a matter or giving it mere lip-service, or adverting to it and then discarding it as irrelevant: Anderson (supra) at [58]. The relevant matter must serve as the focal point for the consideration or constitute a fundamental element in the determination: Zhang v Canterbury City Council (2001) 115 LGERA 373 at [64], [74]-[77];
2. That a failure to take matters into consideration may be demonstrated where it can be shown that the consent authority had insufficient personal knowledge of the facts and issues: Parramatta City Council v Hale (1982) 47 LGERA 319 at 335;
3. Generally speaking, understanding the scope of a problem is a prerequisite to consideration of it: Centro Properties v Hurstville City Council (2004) 135 LGERA 257 at [37].
Having regard to the written and spoken evidence relating to the Council's determination of the Amended DA, for the reasons that follow, I find that the Council failed to give the necessary consideration to any of the mandatory considerations as required by s 4.15.
Fundamentally, it appears that the Council was not aware of the relationship of the proposed envelope in the Amended DA on the Subject Land or Lot 4. Having regard to the totality of the evidence this conclusion seems to be the only inference available on the evidence outlined above as:
1. There is no reference to the envelope having moved to the West in any document before Council (apart from the survey plan) including in the 4.15 Assessment Report;
2. The survey plan contains no overt reference to Lot 4 and its relationship to the envelope;
3. The continued assertion by the Council after the Development Consent was granted that the envelope was "still aligned" with what was referred to as the north-eastern boundary of Lot 4: ([18] above); and
4. There is no material contained in the Amended DA that, without more, would alert the assessing officer to the move westward of the building envelope;
5. In so far as the 4.15 Assessment Report addressed matters such as the Council's Rural Land DCP and bushfire impacts it does so, one can only discern from the material, on the erroneous assumption that the envelope was located no further to the West than the Envelope DA.
Where the Council does not understand the subject-matter of what it is considering it cannot on any basis be said to have given the mandatory matters the requisite consideration. In this case the material movement of the envelope had the capacity to affect a consideration of: the impacts and suitability of the development as it related to the Subject Land; the relationship between the Subject Land and Lot 4; the views from the public land and adjoining private land; and the amenity of the most proximate adjoining dwelling being that on Lot 4. It is apparent that in forming the decision to approve the Amended DA that the Council had a fundamental misunderstanding of the location of the envelope, and, as a consequence of that misunderstanding, did not (and could not) take into account the mandatory requirements that could affect the decision.
Accordingly, I find that the Council failed to give the consideration of the mandatory matters as outlined in [48] above, as required by s 4.15 of the EP&A Act in the determination of the Amended DA and that as a consequence the determination is invalid.
[10]
Ground 2 - the failure to renotify the Amended DA
By this ground the Applicant contends that the Amended DA was required to be renotified and by failing to renotify the decision to grant Development Consent is invalid as either:
1. The Council failed to have regard to a mandatory relevant consideration required by s 4.15(1)(d) of the EP&A Act, namely: any submissions made in accordance with this Act or the regulations, or s 4.15(d) in that the Council failed to have regard to the public interest in the application of its own Notification Policy; and/or
2. The Applicant was denied procedural fairness.
In order to establish invalidity with respect to the failure to take into account the requirements of s 4.15 the Applicant must establish that the requirement to renotify such that it could not take into account the consequence of re-notification (namely, any submissions) was mandated by either the EP&A Act or its Notification Policy, and that such failure operated to deny the opportunity for Council to consider the submissions and as such was a breach of a mandatory relevant consideration. In order to establish invalidity on the second basis, the Applicant must establish that the Applicant was a person with a sufficient interest such that they were entitled to be afforded procedural fairness in the manner contended for by it.
The Applicant does not challenge the notification of the Envelope DA and accepts that such notification was in accordance with the requirements of the Act and the Notification Policy. The Applicant, however, asserts that by operation of the EP&A Act and the Notification Policy, re-notification was mandated and that the Council was required to consider whether to renotify the Envelope DA when it was amended and became the Amended DA.
[11]
Relevant statutory and policy provisions relating to notification
On 22 February 2012, the Council adopted a policy entitled: Community Engagement and Notification of Development and Planning Proposals Policy 2.4 (Notification Policy): Exhibit C Tab 2. The Notification Policy was stated as replacing the Council's previous Development Control Plan 45- Neighbour Notification of Proposed Development.
After the proceedings had concluded it became apparent that the Council had adopted a Community Engagement Policy on 26 November 2014 that had not been the subject of evidence or submissions in the proceedings.
A communication was sent to all parties, the relevant part being in the following terms:
Dear Parties
I refer to the above matter.
It has come to her Honour's attention that the Third Respondent adopted a Community Engagement Policy 2.10 on or about 26 November 2016: https://www.wsc.nsw.gov.au/uploads/550/community-engagement-policy.pdf
That Policy, in terms, references the Community Engagement and Notification of Development and Planning Proposals Policy 2.4. Her Honour assumes that such policy is the same as the document adopted on 22 February 2012, tendered at Exhibit C Tab 2.
Her Honour has requested that each party who wishes to provide submissions as to:
a. Whether the policy (and any other relevant document) should be tendered and if so whether leave should be granted to allow such policy to be tendered should be granted; and/or
b. Whether such policy is a `"community participation plan" within the meaning of Division 2.6 of the Environmental Planning and Assessment Act; and/or
c. If the answer to b) is "yes" what further or other submissions the parties wish to make as to the consequences of such a finding and/or
d. Does the matter require further listing for oral submissions to be made on the above or are written submissions adequate;
e. Any other matter for which leave is sought and obtained.
…
Submissions were received from the Council and the Applicant. The history of the Notification Policy was set out in the Council's Submissions. It is a common position between the Applicant and the Council that the Notification Policy is not a Community Participation Plan within the meaning as ascribed to such plans by Division 2.6 of the EP& A Act.
Pursuant to the invitation extended to the parties the Applicant sought leave to reopen its case and tender:
1. Council's Community Engagement Policy 2.10 adopted by Council on or about 16 November 2014; and
2. The published "community participation plans" from the NSW Planning Portal website.
For the reasons outlined at the Applicant's Supplementary Submission at [7]-[10] I consider it appropriate to grant the leave sought. The document at [63(a)] will become Exhibit E and the document at [63(b)] will become Exhibit F.
As a consequence of the Council not having adopted a Community Participation Plan the provisions of s 2.22(1) of the EP&A Act apply which provides:
2.22 Mandatory community participation requirements
(1) Part 1 of Schedule 1 sets out the mandatory requirements for community participation by planning authorities with respect to the exercise of relevant planning functions….
Part 1 of Schedule 1 relevantly provides that in circumstances where there is no Community Participation Plan:
1. A development application (other than for a complying development certificate, for designated development, for nominated integrated development, for Threated Species development or for State Significant Development) is to be notified for a minimum period of 14 days: clause 7;
2. The minimum public exhibition period for re-exhibition of any amended application is the period (if any) determined by the person or body responsible for publicly exhibiting the application or matter: clause 13;
3. Re-exhibition is not required if the environmental impact of the development has been reduced or not increased: clause 23(2).
The Notification Policy made the following relevant provisions with respect to development applications and amendments:
1. The policy stated at Exhibit C folio 540: It is mandatory for all Council officials to comply with this Policy.
2. The Notification Policy included the "associated Policy Guidelines".
3. The guidelines identify that notification will occur if either: the Notification Policy mandates notification; or, after a consideration by the assessing officer of:
1. Views to and from the land;
2. Overshadowing and solar access;
3. Privacy;
4. Amenity impacts (such as potential noise impacts) visual aspects of the building in relation to streetscape including heritage considerations;
5. Other localised issues such as access, previous land uses and drainage.
Council will generally determine whether there is a detrimental affect in the terms of the above criteria.
1. If a detrimental impact on adjoining properties is determined in accordance with (c) (referred to in the Guidelines as Section 1) above notification will occur: Exhibit C folio 544.
2. The Notification Policy guidelines also provide that: With most forms of residential development, and in some instances amendments to developments, Council will notify the public regardless of the assessment conducted in Section 1 of this policy guideline: Exhibit C folio 543.
3. Part 5 of the guidelines relevantly provides that:
a. Amendments
The applicant may submit amended plans that address the concerns raised by Council or from a previous notification. In these instances Council will generally choose not to renotify the development proposal. Where issues have not been addressed in the opinion of Council staff, the application may be renotified and/or reported to a committee or Council meeting outlining all of the issues and dealing with the submissions received….
1. Part 6 of the guideline indicates that plans relating to a development application will be available for viewing on the Council's website in the DA tracker or at Council Chambers.
The Applicant contends that absent the adoption of a Community Participation Plan the Council was required to comply with the notification requirements in Part 1 to Schedule 1 of the EP&A Act that required the DA to be notified and if amended (with an increase in environmental impact) renotified.
It further contends that the Notification Policy also required the DA to be notified as of a matter of course because it constituted a form of "residential development" or, in the alternative because the Council's assessment of the impact identified detrimental affect. In either case, the Council notified the Envelope DA and asserted in the letter of notification that:
You are being notified in respect of this application due to your proximity to the proposed development, in accordance with the provisions of Wingecarribee Councils (sic) Community Engagement and Notification of Development and Planning Proposals Policy.
It submits that where an amendment occurs, unless it falls within the stated exceptions provided in Part 5 of the Notification Policy, the Notification Policy requires the amended application to be renotified. In this case, the Amended DA, in so far as it moved the building envelope to the West of its original location, was not an amendment to address "concerns raised by Council" therefore the discretion not to renotify had not been engaged and the Amended DA was required to be renotified.
In the alternative, the amendment comprised a fresh DA and required notification as a development application pursuant to both the EP&A Act and Notification Policy.
Section 4.15 of the EP&A Act does not expressly require a consideration of Council's Notification Policy. In order for that policy to be a relevant consideration it must be something that can be said to be in the public interest.
The question as to the relevance of a Council policy (as opposed to a statutorily recognised Development Control Plan) in determining a development application was considered in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 at 272 in the following terms:
88. The Environmental Planning and Assessment Act gave statutory recognition to development control plans. However, there was before that Act, and there remain, many cases where a council adopts statements of policy for its area, or part of it, which are not included in development control plans. They relate to many matters and may include master plans for sites or parts of a council area. They may be adopted after considerable public participation, detailed research and describe fundamental expectations of the relevant council. When there is a relevant policy which is not a development control plan, the question arises as to the approach to that policy and the weight to be given to it in the decision of the relevant council and in an appeal, if any, to this Court.
89. In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195, Mason P discussed the role of policy in the consideration process. The President emphasised that environmental planning instruments are not "the only means of discerning planning policies or the 'public interest'" (at LGERA 210).
90. The public interest is expressly acknowledged as a relevant consideration in s 79C(1)(e) of the Environmental Planning and Assessment Act. It was similarly acknowledged in s 91 of the Act in its original form. It must extend to any 272 NSWLEC [(2004) 88 89 90 well-founded detailed plan adopted by a council for the site of a proposed development either alone or forming part of a greater area, even if it is not formally adopted as a development control plan.
91. In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.
92. To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:
• the extent, if any, of research and public consultation undertaken when creating the policy;
• the time during which the policy has been in force and the extent of any review of its effectiveness; • the extent to which the policy has been departed from in prior decisions;
• the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;
• the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;
• whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.
In the circumstances of this case I find that the Notification Policy was a relevant consideration as part of the Public Interest for the purposes of s 4.15 of the EP&A Act and that the consideration of the Notification Policy was a mandatory relevant consideration. Of significance to this finding are the following matters:
1. The Council adopted the Notification Policy as part of its adopted Community Engagement Policy: Exhibit E.
2. The Community Engagement Policy was the subject of public consultation;
3. The Council had notified the development expressly in accordance with the Notification Policy: [7] above;
4. The Council had not adopted any other policy that operated in the field of notification such that the Notification Policy was the single expression of the Council's intention with respect to public consultation; and
5. Most importantly, to my mind, the Council adopted the Notification Policy and in express terms provided that compliance with that policy was mandatory: Exhibit C folio 540.
A finding that the application of the Notification Policy was a mandatory requirement, however, is not sufficient to establish invalidity. The Applicant must establish that the Council failed to notify in accordance with the EP&A Act or the Notification Policy such that any submissions could not have been received and taken into account as required by s 4.15.
The Applicant asserts that Council was required to renotify either:
1. Part 1 of Schedule 1 of the EP&A Act requires re-notification as the only reference to re-notification is to exclude the requirement for it in certain nominated circumstances. The facts of this case do not fall within the nominated circumstances and therefore the exception to re-notification does not apply.
2. The Council Notification Policy at Exhibit C folio 544 (recited at [67(e)] above) requires notification of amendments "in some circumstances". The only reference to amendments appears in Part 5 of the Notification Policy (extracted at [67(f)] above) which excludes notification of amendments in certain circumstances. Having regard to the facts of this case, those circumstances were not relevant and therefore the exclusions did not apply;
3. The Council was required to consider whether the amendment was required to be notified or should be notified and the Council either failed to consider this or if it did a determination not to notify was unreasonable.
For the reasons advanced by the Applicant I find that it was a mandatory requirement that the Amended DA was renotified and by failing so to do, the decision made by the Council to approve the Amended DA was invalid.
The EP&A Act and the Council's Notification policy both contained provisions relating to the notification of amendments to development applications. Those references only identified the circumstances in which notification of amendments were not required. Accordingly, the only reasonable construction of those provisions is that where the exception to notification is not met an amended application will be renotified. In this case: there was a potential for additional adverse impact thereby rendering the exception in Part 1 of Schedule 1 inapplicable; the movement of the envelope to the West was not at the request of the Council or in response to a submission and therefor Part 5 of the Notification Policy was inapplicable. The Amended DA was required to be renotified as a precondition to the Council determining the Amended DA, it was not, the decision was invalid.
In light of the findings at [78] it is unnecessary for me to consider whether the Applicant was also denied procedural fairness, and so I do not.
[12]
Did the Amended DA require re-notification as a fresh DA?
The Applicant submitted that the Amended DA should be treated as a fresh DA, rather than an amendment, as the change in the envelope location was a significant material change such that it could not comprise an amendment.
In making these submissions the Applicant relied upon the decision of Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 where Talbot J identified at [35] two criteria that could be helpful in considering whether a development application could be amended or varied as:
35 If it is necessary to place some boundary or outer limit on the broad view taken by Bignold J, I would tentatively raise two practical criteria that may provide some guidance, although each case will need to be dealt with on its merits as no doubt Bignold J appreciated when he took such an unconstrained view in Ervin Mahrer. The two criteria that could be helpful in considering whether a development application may be amended or varied are:-
(1) Whether the development as amended can be regarded as the same development as the one originally proposed in the context of the characterisation of the overall concept and the surrounding circumstance of the development application.
(2) Whether there are essential elements that are so altered in the context of a consideration under the EPA Act that they place the development in a different category for the purpose of assessment.
Caution must be exercised in applying authorities dealing with amendment in the context of an appeal to the Court as opposed to the exercise of the power to amend conferred upon the original consent authority by cl 55 of the EP&A Regulation. By s 39 of the Land and Environment Court Act 1979 (LEC Act) the Court is only conferred jurisdiction to hear an appeal in respect of an application before the Council, it is not conferred with a jurisdiction to entertain an original development application: Waite v Blacktown City Council [2004] NSWLEC 157 at [22]. The capacity for the Court to permit an amendment that would convert what was before Council to a fresh application is therefore limited. Accordingly, the authorities dealing with the Court's power of amendment pursuant to cl 55 are quite distinct from the Council's power where it is conferred with the jurisdiction to entertain an original application. The Applicant was invited to identify any authority that indicated a similar constraint on the Council's power to amend pursuant to cl 55 and (after appropriate research) it was unable to identify any relevant authority dealing with this issue.
Clause 55 provides:
55 What is the procedure for amending a development application?
(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.
(2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development.
(3) If the development application is for -
(a) development for which concurrence is required, as referred to in section 4.13 of the Act, or
(b) integrated development,
the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body.
This power is not limited to changes that are confined to the original application. As can be observed from the language in cl 55(2) the expectation is that the power to amend includes a power to amend to a "changed development" the only limitation on the extent of the change is that the consent of the Council is required to give effect to the amendment to the application. In this case, for the reasons identified at [44] above, the Council did consent to the amendment and therefore the Amended DA did not comprise a fresh DA but was an amendment within the power conferred by cl 55. For those reasons I do not accept that the Applicant's submission and I find that the Amended DA was not a fresh DA.
[13]
Duty under s 25E of the Land and Environment Court Act 1979 - Discretion
In any proceedings where it is found (inter alia) that the invalidity of the grant of the impugned development consent was caused by steps preliminary to the granting of the consent that either were taken or should have been taken, Part 3 of Division 4 of the LEC Act imposes a duty upon the Court to consider the matters in that Division: s 25E LEC Act. In the discharge of the Court's duty, the Court is required, in its discretion, to consider making orders pursuant to s 25B-25D as an alternative to declaring the development consent invalid either in whole or in part.
The Applicant submitted that the exercise of the discretion conferred was inappropriate in the circumstances of this case as:
1. The breach, on either ground, was fundamental to the determination of the development application and did not relevantly relate to steps preliminary to the determination;
2. It is inappropriate to exercise the discretion where there has been a complete failure of the merit assessment process.
I agree with the Applicant's submissions. The nature and extent of the errors in the determination of the Amended DA are fundamental to its assessment and go to the heart of the decision making process. No appropriate order could, in my view, be crafted from the discretionary powers conferred by the LEC Act that would adequately enable the deficiencies to be remedied. For those reasons I decline to exercise the discretion under Part 3 of Division 4 of the LEC Act and determine that it is appropriate in the circumstances of this case to make the declarations and orders sought in the summons with the exception of the costs order.
[14]
Costs
In this case the usual order is that costs would follow the event and as such the Applicant would be entitled to an order that the Respondents pay its costs. However, as the Respondents submitted save as to costs I will grant an opportunity for the parties to have discussions to determine whether the question of costs can be resolved by consent. If so, the parties will be given leave to file consent orders with my Chambers. Should the parties be unable to agree to any appropriate order, I list the matter for mention before me at 9am on 11 February 2020 for directions and the fixing of a hearing date for an argument on costs.
[15]
Orders and directions
For the reasons outlined herein, the Court:
1. Declares that the Development Consent no. 18/0788 granted by Wingecarribee Council to Lee Environmental Planning on 13 November 2018 for a "Building Envelope for a future Dwelling House" on land comprising Lot 1 in DP 725832 and known as 421 Myra Vale Road, Wildes Meadow, NSW (The Consent) is invalid and of no effect;
2. Orders that the First and Second Respondents be restrained from carrying out development in accordance with The Consent;
3. Costs are reserved;
4. The exhibits will be retained until completion of the costs hearing and will thereafter be returned.
The Court directs that the matter be listed for mention before it at 9am on 11 February 2020 to fix the matter for a hearing on costs (if required);
The parties are given leave to relist the matter on costs on 3 days notice or to file any document representing a consent disposal of the costs matter directly with my Associate.
[16]
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Decision last updated: 18 December 2019