Simply stated it is the Applicant's case that following (i) its determination granting conditional development consent to the Second Respondent's development application No 93/74 and (ii) its giving notice on 25 October 1993 pursuant to s92 of the EP&A Act of that determination, the First Respondent, in consequence, lacked the legal jurisdiction, power or capacity to recall, reconsider, review, amend or modify its communicated determination without the existence of (i) a further or fresh development application or (ii) an application for modification pursuant to s102(1) of the EP&A Act and that by virtue of the absence of either such application the First Respondent's purported action at its special meeting held on 1 November 1993 (whether that action be understood as the grant of a modification of the existing development consent or the grant of an amended development consent) is a nullity because there was no jurisdiction (or power) so to act.

The Second Respondent seeks to resist these legal challenges by proffering competing interpretations of the facts and competing views of the legal signification of those facts in the light of the relevant provisions of the EP&A Act. Alternatively, it asks the Court to withhold relief in the exercise of its statutory discretion conferred by s124 of the EP&A Act.

The determination of these competing arguments accordingly requires an investigation into (i) what actually happened during this critical two week period and (ii) what the legal signification of what happened is. The factual enquiry must begin with the immediate sequel to the First Respondent's resolution of 18 October 1993 granting conditional development consent to the Second Respondent's development application No 93/74.

C. THE SEQUEL TO THE FIRST RESPONDENT'S RESOLUTION OF 18 OCTOBER 1993 GRANTING CONDITIONAL DEVELOPMENT CONSENT

The relevant evidence as to what subsequently occurred is not in dispute (except for the legal significant of those facts) and findings in as follows:

1. On 19 October 1993 the Second Respondent's managing Director (Mr McConaghy) received a telephone call from the First Respondent's Planning Director (Mr Pavitt) advising him that the Council had approved the development application but had deleted the service station component and would not approve any extension to the Council's Duke Street car park. Mr McConaghy responded by saying that he wished to address the Council on those matters and he wished the Council to hold another meeting to hear his submissions. He stated that the Second Respondent could not proceed on those conditions. The First Respondent's Planning Director said that he would check the matter with the Mayor and later again telephoned Mr McConaghy informing him that it would be okay and that the Mayor "wants you to send us a letter formally requesting what you want".

2. On 20 October 1993 Mr McConaghy received from the First Respondent's Planning Director a facsimile copy of the minutes of meeting of the Council on 18 October 1993 when the Council granted conditional development consent to the Second Respondent's development application.

3. Later on 20 October 1993 Mr McConaghy (on behalf of the Second Respondent) wrote to the First Respondent in the following terms:

"Following my telephone conversation with the Mayor yesterday our company formally requests the Council's permission to address its next meeting concerning the following aspects of the Development Applicant No 93/74 -Grafton Shopping world site on the following points.

2. That Council not permit extension on the Duke Street Central car park.

16. That improved architectural details are submitted for the facade treatment of the Villiers Street frontage.

18. That the service station/corner store be omitted from the development and the space made available be used for on-site car parking.

Reason: We believe that Council may not have been fully aware of the facts and circumstances relating to the reason for the application of the service station.

We request that the proposed meeting of Council be held at your earliest convenience and we await your advice."

4. On 28 October 1993 the Second Respondent received by post Notice of Determination pursuant to s92 of the EP&A Act dated 25 October 1993 of the determination by the First Respondent granting conditional development consent to the Second Respondent's development application at its meeting held on 18 October 1993.

5. On the evening of 28 October 1993 Mr McConaghy accompanied by Mr Albiez, the Architect responsible for the plans of the proposed extensions to the shopping complex, attended a special meeting of the First Respondent when they addressed the Council both in open and closed session. At the conclusion of the meeting, Mr McConaghy was informed that the Council would continue to discuss the matter in committee and that he would be informed in due course.

6. The Council's minutes of the meeting held on 28 October 1993, (Exhibit 1, MFI 3) reveal that the meeting opened with the resolution:

"that Mr McConaghy be now permitted the opportunity to address Council on Development Application No 93/74"

"That the matter be considered in conjunction with the Minutes of the Special Meeting of Council held on 18 October 1993 and adjourned to a further Special Meeting of Council to be held on Monday 1 November 1993 at 6 pm, with the agenda for that meeting including draft recommendation on the issues raised."

7. On 1 November 1993, the First Respondent considered at a Special Meeting a written report of its Planning Director. It is of some interest to note that the written report was headed "reconsideration of Development Application 93/74..." However in the body of the report the Planning Director refers to "the reconsideration" of matters in regard to "the development approval" (my emphasis) (including three of the conditions imposed on the grant of development consent by the Council at its meeting on 18 October 1993).

The report proceeded to provide three options of recommendations to assist the Council in reaching a decision. The recommendations made in respect of each of the three options recommended that "the development consent be amended pursuant to s102 of the EP&A Act". The ultimate recommendation was:

"That Council consider the request by McConaghy Developments to amend development consent DA 93/74."

8. According to the Minutes of the Special Meeting held on 1 November 1993 (Exhibit 5), the First Respondent resolved, inter alia, that:

"...pursuant to section 102 of the Environmental Planning and Assessment Act that Development Consent 93/74 is amended by the deletion of Condition 18 and the substitution of Condition 18 reading as follows:

That inclusion of the service station/corner store on the corner of Fitzroy Street and Villiers Street be approved subject to -

a. disabled access is provided into/within the building in accordance with building requirements. (Reasons: To ensure adequate disabled access is provided).

b. the Fitzroy Street access to the development site is designed to allow only one lane entry/exit and makes allowance for petrol tanker access. (Reason: To ensure traffic movements are carried out in an acceptable manner).

c. Compliance with the Environmental Protection Authority guidelines collection and disposal of surface water from the service station site. (Reason: To ensure the environment is protected)."

9. On 5 November 1993, the First Respondent gave the Second Respondent Notice pursuant to s92 of the EP&A Act of "the determination by the Grafton City Council of the Development Application No 93/74 (as amended)..." granting consent subject to conditions specified in the Notice. Those conditions included Condition 18 in accordance with the First Respondent's resolution passed at its Special Meeting on 1 November 1993. The Notice contained the following endorsement:

"Endorsement of date of consent - Council Meeting 18 October 1993. Date of Amendment - 5 November 1993."

The Notice, according to the First Respondent's answers to interrogatories administered by the Applicant, "reflect[ed] the resolutions passed by the Council at its meetings of 18 October 1993 and 1 November 1993 following the purported modification of the Development consent on 1 November 1993."

10. On 10 November 1993, the Second Respondent received a facsimile transmission from the First Respondent's Planning Director containing a blank form of application under s102 of the EP&A Act for amendment of development consent together with a form with details filled in and bearing date 20 October 1993. After receipt of this transmission the First Respondent's Planning Director telephoned Mr McConaghy and told him to "fill in the form as I have indicated and send it back to me" whereupon Mr McConaghy had his secretary type up the blank form as requested, which he duly signed and despatched to the First Respondent on 10 November 1993.

11. On 6 November 1993 the First Respondent gave the required public notice as referred to in s104A of the EP&A Act of the granting "during October 1993" of the development consent to development application No 93/74.

12. On 11 December 1993 the First Respondent gave the required public notice as referred to in s104A of the EP&A Act of the granting "during November 1993" of development consent to development application No 93/74 (as amended).

The foregoing findings of fact do not include any findings in relation to the Applicant's written objections to the Second Respondent's development application and the First Respondent's consideration thereof or the Applicant's representations to the First Respondent upon learning of the Second Respondent's actions seeking to have the First Respondent review its determination of 18 October 1993 granting conditional development consent.

D. THE RELEVANT PROVISIONS OF THE EP&A ACT

There are a number of provisions of the EP&A Act relevant to the proven facts of this case and to the parties' competing interpretations of the legal signification of those facts.

These are the provisions relating to (i) making of a development application; (ii) grant of development consent; (iii) notification of a development consent; (iv) making of application to modify or amend a development consent; and (v) the grant of a modification application; and (vi) notification of grant of a modification.

Section 77 deals with the subject of "making of development applications" subsection (1) qualifying the identity of an applicant and subsection (3) requiring, inter alia, the consent to "be made in the prescribed form and manner". Clause 26(1)(a) of the Regulation made pursuant to the EP&A Act ("th Regulation") prescribes the form of a development application (form 3).

Section 91 dealing with the determination of a development application is of fundamental importance (cf Mison v Randwick Municipal Council (1991) 23 NSWLR 734). It relevantly provides:

"(1) A development application shall be determined by -

(a) the granting of consent to that application either unconditionally or subject to conditions; or

Section 92 deals with the subject of notice of determination of development applications.

"(1) The consent authority must give notice of determination of the development application in the prescribed form and manner.

(2) The date of the determination and the date from which the development consent operates... must be endorsed, as prescribed, on the notice."

Clause 44 of the Regulation prescribes the form of the notice (Form 7): subcl (1); requires notice to be given "when or as soon as practicable after that determination is made": subcl (2); and requires the endorsed date to be "the date on which the notice is posted or delivered to the applicant": subcl (4).

Section 102(1) of the EP&A Act confers the power to modify a development consent "[u]pon application being made in the prescribed form".

Clause 47(1) prescribes that an application under s102 shall be (a) made in writing; (b) clearly identify the development consent; (c) clearly indicate the details of the modification sought; and (d) show cause.

Clause 48 of the Regulation requires notice in writing of the determination of a modification application to "be given to the applicant as soon as practicable after the determination is made".

In Panagopoulos v Willoughby City Council (1992) 78 LGERA 270, I had occasion to consider the aforesaid statutory provisions in some detail.

E. APPLICATION OF STATUTORY THE PROVEN PROVISIONS OF

EP&A ACT TO FACTS

The First Respondent's determination of the Second Respondent's development application No 93/74 was notified to the Second Respondent on or before 28 October 1993 (cf s153(2) of the EP&A Act) by Notice dated 25 October 1993.

The date that the development consent so notified, became effective was 25 October 1993 being the date of the notice (see cl 44(4) of the Regulation and s93(1) of the EP&A Act).

It follows that at the time that the Second Respondent addressed the special meeting of the First Respondent held on the evening of 28 October 1993, the development consent the subject of the First Respondent's determination of 18 October 1993 as notified to the Second Respondent, had already become effective. At this stage the determination was beyond the recall or review the First Respondent unless there was the interposition of (i) a further development application (including a re-submission of the already determined development application No 93/74) or (ii) a modification application under s102 of the EP&A Act: Somerville v Dalby (1990) 69 LGRA 422 at 430/431. This position remained unchanged at the time the First Respondent took action at its special meeting held on 1 November 1993.

On the evidence I find that there was neither a further or fresh development application nor a modification application before the Council when it made its decision at the Special Meeting held on 1 November 1993.

In particular the Second Respondent's letter dated 20 October 1993 did not constitute a development application or a modification application under the EP&A Act.

The terms and form of the First Respondent's relevant resolution passed at the special meeting held on 1 November 1993 (which I have earlier recited) are entirely inconsistent with there being before it a further development application (ie other than development application No 93/74 which had already been determined by the grant of conditional development consent and which had become effective from the date of its notification to the Second Respondent).

The First Respondent's Notice pursuant to s92 of the EP&A Act of its determination of "development application No93/74 (as amended)" did not accurately or properly reflect the First Respondent's resolution passed at its special meeting held on 1 November 1993.

The Applicant's foundational submission is that on 1 November 1993, the First Respondent clearly lacked jurisdiction either to grant development consent (original or amended) or to modify the conditional development consent granted by it at its meeting held on 18 October 1993.

This submission is solidly founded upon established authority, and in particular Somerville v Dalby, the authority of which was not challenged by the Second Respondent. I would respectfully agree with the following propositions enunciated at p430:

"Upon determination of the development application and giving of notice thereof, Council has no further function or jurisdiction with respect to its terms or conditions..."

".. unless and until a consent authority is in receipt of either an application to modify pursuant to s102, or a further development application, it has no jurisdiction to grant another or modified development approval."

Quite apart from established authority, the clear and plain terms of the power to grant development consent and the power to modify an development consent, conferred upon consent authorities by s91(1) and s102(1) of the EP&A Act respectively, demonstrate that each power is only enlivened by a relevant application. As I have earlier noted Mison clearly establishes the link between a development consent and the relevant development application. Similarly Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257 establishes the link between the modification of a development consent and a modification application.

In my opinion, there is simply no justification in the present case for applying the beneficent interpretative approach commended in Woods v Bate (1987) 7 NSWLR 560 at 567. The requisite applications are obviously essential to the enlivening of the powers respectively conferred by ss91(1) and 102(1) of the EP&A Act.

Faced with the overwhelming difficulty raised by the Applicant's case of absence of jurisdiction (or power) in the First Respondent to justify its decision made at its special meeting of 1 November 1993, and the state of established authority solidly in support of the Applicant's case, Counsel for the Second Respondent ingeniously proffered alternative interpretations of the facts and asserted that the notice dated 25 October 1993 given pursuant to s92 of the EP&A Act was a legal nullity.

Thus the Second Respondent submitted that the First Respondent's deliberation of the Second Respondent's development application No 93/74 "was continuous up to 1 or 5 November 1993".

This submission however must fail unless the Second Respondent can make good its submission that the aforesaid s92 Notice was a legal nullity. The Second Respondent advanced three grounds in justification of this conclusion:

1. when the First Respondent's Planning Director signed and posted the Notice on 25 October 1993, he was aware of the fact that the Mayor had agreed to call a Special Meeting of the Council to consider the Second Respondent's representations seeking to review certain aspects of the First Respondent's determination (and especially the decision to impose Condition 18 eliminating the convenience store/service station component of the proposal);

2. it was contrary to the rules of natural justice for the First Respondent's Planning Director to give the s92 Notice in these circumstances and it should be inferred that he exceeded his authority; and

3. the s92 Notice did not contain an endorsement of the date of consent in accordance with cl 44(4) of the Regulation.

In my judgment none of the grounds asserted by the Second Respondent invalidates the s92 Notice.

At the time the s92 Notice was given there had been no resolution by the First Respondent suspending or rescinding its determination on 18 October 1993. All that had happened was that the Mayor had agreed to call a Special Meeting of the Council to allow the Second Respondent to address it on the matters causing concern to the Second Respondent.

There is simply no evidence that the First Respondent's Planning Director exceeded his authority in giving the s92 Notice and in these circumstances the presumption of regularity and validity should be applied. It should be noted that the giving of the s92 Notice is a statutory duty imposed upon the First Respondent.

There is also no foundation in the Second Respondent's assertion that it was denied natural justice by virtue of the giving of the s92 notice since the Second Respondent was accorded the opportunity to address the First Respondent at the meeting held on 28 October 1993 and it did so. It was never suggested that that opportunity necessarily meant staying or suspending the First Respondent's determination of 18 October 1993 of that the opportunity was a futility because the development consent had been notified. Moreover, I infer that both the First Respondent and the Second Respondent knew of the s92 notice at the time of the First Respondent's special meeting held on 28 October 1993, and neither knowledge of that fact, nor indeed that fact, was prejudiced the Second Respondent in advancing its representations.

Finally the fact that the s92 Notice showed as the endorsement date the date of the Council resolution (18 October 1993) rather than the date of posting the Notice (25 October 1993) is not a material error, especially since the correct date was also endorsed on the Notice under the signature of the First Respondent's Planning Director.

For all these reasons, I hold the s92 Notice to be valid and an effective communication of the First Respondent's determination granting conditional development consent.

Accordingly I must reject the Second Respondent's submission that the First Respondent's deliberations on the Second Respondent's development application No 93/74 "were continuous up to 1 or 5 November 1993".

I must likewise reject the Second Respondent's argument based on George v Lismore City Council (1983) 52 LGRA 178. That case, in my opinion, is clearly distinguishable from the present case by virtue of the fact that in the present case the First Respondent duly gave the s92 notice of its determination of 18 October 1993.

The Second Respondent advanced an alternative argument to the effect that the Second Respondent's letter of 20 October 1993 and its addressing the First Respondent's Special meeting held on 28 October 1993 gave rise to a fresh application (or a re-application in the same terms of development application No 93/74). The Second Respondent claimed support for this version of the facts from the First Respondent's s92 Notice given on 5 November 1993.

In my judgment, this argument is denied by my factual findings that there was no further development application before the First Respondent when it made its decision at its special meeting held on 1 November 1993. Moreover, the terms of the First Respondent's resolutions passed at that meeting are entirely inconsistent with the version of the facts the Second Respondent would now invite me to accept. Finally as I have pointed out the First Respondent's s92 Notice given on 5 November 1993 does not truly or properly reflect the First Respondent's decisions made at the meeting of 1 November 1993. An inaccurate s92 Notice cannot, in my judgment, cure any legal defect in the First Respondent's determination. Nor can it operate independently of the determination.

Turning to the Second Respondent's alternative argument based upon the assumed finding that what the First Respondent did at its meeting of 1 November 1993 was to modify the existing development application pursuant to s102 of the EP&A Act, the Second Respondent submits that the decision arrived at by the First Respondent was "reasonably open to it".

In my judgment this submission does not address (let alone answer) the Applicant's "no jurisdiction" case. I have already held that the power conferred by s102(1) to modify a development consent is only enlivened by there being before the consent authority a relevant modification application. There was no such application before the First Respondent and the evidence adduced displaces any presumption of regularity or validity.

Accordingly, the Second Respondent's submission that the First Respondent's decision was reasonably open to it must fail at this point.

However even if there had been a modification application (and the application which came into existence ex post facto at the behest of the First Respondent's Planning Director is not such an application) I would have accepted the Applicant's submission that the First Respondent's decision was manifestly unreasonable in as much as the power being conditional upon, inter alia, the consent authority being "satisfied that the development to which the consent as modified relates is substantially the same development" (as was the subject of the development consent in its unmodified form) on the proven facts of this case, it would not have been open to the First Respondent to be so satisfied.

This is because Condition 18 of the original consent entirely eliminated the convenience store/service station component of the proposed development so that the relevant area of the development site could be made available for on-site car parking, whereas the modified development consent fully re-instated the proposed convenience store/service station and thereby eliminated the on-site car parking otherwise required to be available under the original condition 18.

Accordingly, even if (contrary to my finding) the First Respondent had jurisdiction to modify the development consent, I would have accepted the Applicant's case that the exercise of the power had miscarried by virtue of the First Respondent's failure to comply with the qualification on the power imposed by subsection (1)(a).

The Applicant advanced other grounds of invalidity by alleging (i) non-compliance with s102(1)(b) and (ii) denial of natural justice. However, in view of my conclusions that the First Respondent lacked jurisdiction to exercise the power conferred by s102(1) and that even if it possessed jurisdiction, the exercise of that power had miscarried on account of failure to comply with the qualification on power imposed by s102(1)(a), I would prefer to leave open the other grounds of invalidity advanced by the Applicant's legal attack, other than to say that they were in my judgment less cogent and convincing.

G. DOES SECTION 104A OF THE EP&A ACT PRECLUDE

The Second Respondent relies upon s104A which provides as follows:

"In the event that public notice of the granting of a consent is given in accordance with the regulations by a consent authority, the validity of the consent shall not 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."

It is clear on the proven facts that the public notice as referred to in s104A given on 6 November 1993 relates only to the development consent as originally granted ie on 18 October 1993. This is necessarily the case because the public notice describes the development consent as having been granted "during October 1993".

The Second Respondent's submission accepts this fact and of course places no reliance on the public notice given on 11 December 1993 in respect of the "amended development consent" because the present proceedings were commenced within the three month limitation period enacted by s104A.

It is also to be recalled that in these proceedings, the Applicant does not challenge the validity of the development consent granted on 18 October 1993 (whether this is so, because of the operation of s104A is immaterial).

The Second Respondent argues that since the present proceedings attack the validity of the First Respondent's decision at its meeting of 1 November 1993 they necessarily bring into question the validity of the original development consent and this entitlement is denied by the operation of s104A. It needs to be appreciated that this argument can only proceed on the basis that the First Respondent's decision on 1 November 1993 was in purported exercise of the power to modify the existing development conferred by s102 of the EP&A Act, since if the decision were rightly to be understood as the grant of development consent (i) the existence of the original development consent and (ii) the immunity to legal challenge thereof conferred by s104A both would be irrelevant.

The Second Respondent's argument places fundamental reliance upon s102(4) of the EP&A Act which provides:

"(4) Modification of a development consent in accordance with this section shall not be construed as the granting of development consent under this Division but a reference in this or any other Act to a development consent shall be a reference to the development consent so modified."

Relying on this provision the Second Respondent's argument would read it into s104A to the effect that the reference therein to "consent" must be taken to mean consent as modified pursuant to s102. Thus in the present case, so the argument goes, the immunity conferred by s104A on the original development consent also extends to the modification thereto purportedly made by the First Respondent on 1 November 1993.

I am unable to accept this ingenious argument, which though founded on s102(4) was also said to advance the policy of the Act cf the observations of Cripps CJ in Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55 at 64.

In my judgment the last clause in s102(4) is in the nature of a definition provision, and as such, is to be read subject to context and subject matter. So read I am of the opinion that the context and subject matter of s104A, a privative or preclusive provision, exclude its application, or at least that aspect of its application that was advanced by the Second Respondent's argument. The logical thrust of that argument is that where by force of s104A a development consent has the immunity thereby conferred that immunity extends to any modification of that development consent whenever made, including at times well after the statutory five month limitation period. In my judgment this argument is lacking both in logic and good sense and is not advancing the policy or object of the Act, particularly as found in the provisions of ss122 to 124 (inclusive) for the civil enforcement of breaches (or threatened breaches) of the Act.

However even if the operation of s102(4) were to be read into s104A it cannot be read into it selectively, as the Second Respondent's argument would have it, because that argument only applies the definition in the second reference in s104A to "consent". If the definition is to be read into s104A it must also be applied to the first reference to "consent". Thus where public notice of the granting of development consent as modified is given, as referred to in s104A, the immunity applies to that development consent as modified. Significantly, this modified consent in the present, was the subject of separate public notice under s104A given on 11 December 1993 and the present proceedings are not precluded by s104 in relation to that notice because they were commenced within the statutory limitation period.

More fundamentally it is apparent that s104A confers (and is intended to confer) immunity from legal challenge only in respect of a development consent that has been the subject of the public notice referred to in s104A. In this case the only public notice relied upon by the Second Respondent is the notice given on 6 November 1993 and that notice only applies to the development consent as originally granted on 18 October 1993.

Finally I should note that the Second Respondent's argument appears to me to be founded on the fallacy that a successful challenge to the validity of a modification to a development consent necessarily involves a collateral challenge of the development consent in its condition not so modified. This clearly is not so. A successful challenge to a modification leaves the unmodified development consent untouched. This was the outcome of the litigation in Woolworths v Bathurst City Council where the original development consent was held to be unchallengeable by virtue of immunity conferred by s104A but where a subsequent modification thereof was declared (albeit by consent) to be invalid.

Accordingly, I hold that the present proceedings are not precluded by s104A of the EP&A Act.

For all the foregoing reasons the Applicant has established that the First Respondent's decision in purporting to modify the original development consent or to grant an amended development consent at its Special Meeting held on 1 November 1993 was invalid because of an absence of jurisdiction so to act. Moreover even if it possessed the requisite jurisdiction to modify the existing development consent the exercise of the power under s102(1) of the EP&A Act miscarried for the reasons I have given.

The Second Respondent submits that in the circumstances of this case, I should in the exercise of the wide judicial discretion conferred by s124 of the EP&A Act (see Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 withhold relief.

The Second Respondent claimed that the Applicant's case essentially relied upon a technical breach of the Act or on legal technicality without establishing substantial injury or damage.

I regret that I cannot accept this submission in the circumstances of this case which involve a decision taken by the First Respondent as the relevant consent authority under the EP&A Act without possessing the necessary jurisdiction so to act. The absence of jurisdiction necessarily invalidates the First Respondent's action.

Both the grant of development consent and the grant of a modification of a development consent involve important statutory powers and duties conferred upon Council's under the EP&A Act. Any attempt to exercise such a power without jurisdiction (or without fulfilling the correlative duty) must be regarded as a serious matter when the Court is called upon to exercise its judicial function in proceedings for the civil enforcement of the EP&A Act. Accordingly, I must emphatically reject the Second Respondent's argument that the only legal error or flaw established in the present proceedings is of a technical nature. For the Court to sanction or lightly pass upon acts done by consent authorities under the EP&A Act without jurisdiction would obviously involve grave risks to the proper and efficient administration of the EP&A Act which is a very important statute in this State by any reckoning.

Notwithstanding these sentiments, I have given anxious consideration to the proposition that if the First Respondent had had before it at its meeting on 1 November 1993 a further or fresh (or a re-submitted) development application its decision could have been perfected. However there are serious difficulties with any such enquiry because it inevitably involves speculation and hypothesis. Moreover, the fact that the Second Respondent some six months later obtained development consent for the same development but subject to a condition containing considerably greater requirements for the provision of car parking accommodation cannot be ignored. I infer that it is because the Second Respondent considers the recently obtained development consent to be far more onerous than the consent obtained by virtue of the First Respondent's decision on 1 November that it has chosen to defend these proceedings and in that defence ultimately places no reliance on the recently obtained development consent.

The Second Respondent relies upon the fact that the development has now been completed except for the convenience store/service station (the site of which remains vacant). However this fact does not weigh against the grant of relief since the original development consent is not challenged in these proceedings. However it is relevant to the precise relief to be granted and would justify limiting relief to that aspect of the development consent that concerns the proposed convenience store/service station.

Finally the Second Respondent relied upon the financial hardship that will be caused if relief is granted. Other than assertions made to the First Respondent at the meeting of 28 October 1993 concerning the viability of the proposed extensions to the shopping complex depending upon the inclusion within the project of the convenience store/service station, the Second Respondent has not adduced evidence of financial hardship.

In any event there are other courses of action available to the Second Respondent in its quest of obtaining consent for the convenience store/service station. One such course has already been taken but the result (ie the more onerously conditioned development consent) apparently is not acceptable. Another course available would be for the Second Respondent to appeal to the Court pursuant to s97 of the EP&A Act either against the conditions imposed on that development consent or against the imposition of Condition 18 of the original development consent.

In the exercise of my judicial discretion, I am satisfied that this is a case which requires the grant of relief.

In this case, I think it important that there be a strict coincidence between the declaratory and the injunctive relief. Thus although the Applicant has established an entitlement to a declaration that the decision of the First Respondent on 1 November 1993 to modify the existing development consent is wholly invalid he has not established (nor sought to establish) that the consequential injunction should apply to all matters purportedly determined by the First Respondent on 1 November 1993. More particularly the Applicant's concern and the focus of the attention in these proceedings has been in respect of the proposed convenience store/service station only.

In these circumstances in the exercise of my discretion I would confine both the declaratory and injunctive relief to the First Respondent's decision in respect of the convenience store/service station only. (Other aspects of the First Respondent's decision have been acted upon on and the development, but for the convenience store/service station, has been completed and is operational).

1. Declare that the decision made by the First Respondent on 1 November 1993 to amend the development consent granted in respect of development application No 93/74 by deleting Condition 18 and by substituting a new Condition 18 is null and void.

2. Declare that the Notice pursuant to s92 of the E_P&A Act_ 1979 given by the First Respondent to the Second Respondent on 5 November 1993 in respect of development application No 93/74 (as amended) in invalid.

3. Order that the Second Respondent by itself, its agents and servants be restrained from acting upon, or in reliance on, the First Respondent's decision made on 1 November 1993 to amend the development consent granted in respect of development application No 93/74 by substituting Condition 18.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 31 PAGES

ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT

Second Respondent McCONAGHY DEVELOPMENTS PTY LTD

Key issues Extensions to retail shopping complex.

Service station and convenience store part of application.

Applicant seeks declarations that modification of consent/grant of amended consent is invalid.

Can Council modify under s102 or grant a new consent without a proper application?

Council acted without jurisdiction and in excess of power.

Statutes Environmental Planning and Assessment Act s102

Solicitors Applicant Pollack Greening & Hampshire

Declaration that First Respondent's purported actions are invalid in respect of the service station and convenience store.

Second Respondent restrained from acting in accordance with invalid actions.