20 However, the case involving notice under section 52(1)(a) is different for two reasons. First, in deciding whether the council's decision was manifestly unreasonable, I am not reviewing the merits of the council's decision and deciding whether this is a good decision and one that I would make upon review. Rather, I am deciding whether the decision was so unreasonable that no reasonable council could have come to it.
21 Second, under section 52(1)(a) the council must be satisfied about a negative proposition. It must be confident that it had realised and foreseen all possible ways in which a detriment might be caused.[8] This is much more difficult to establish than the test under section 52(1)(d).
22 In my view, this is a case where the caution administered by Justice Morris in Baarmutha Residents Association Inc v Indigo SC[9] is relevant. I am not required to agree with the Council's decision that the grant of a permit would not cause material detriment to any person. Rather, I must consider whether this was a view that no reasonable responsible authority could form.
23 In the circumstances of this case, I consider it would have been reasonable for the council to decide not to give notice under section 52(1)(a). But I am equally satisfied that it was open to the Council to decide that there may be potential detriment caused by the grant of the permit, even though it was difficult to speculate what that might be, and it was therefore in keeping with the spirit of the Act that notice should be given to adjoining owners and occupiers, especially in light of the previous level of interest in the development. The Council's ultimate decision regarding the permit application may be that there will be no material detriment caused by the grant of a permit to any person. Alternatively, it may decide that any detriment is outweighed by benefits or is so insubstantial as not to justify refusal of a permit. However, that is a decision to be made later after any notice has been given and people have been given an opportunity to consider how they may be affected. It is wrong to confuse the decision about whether to grant a permit with the decision about whether to be satisfied that there is no potential to cause any detriment to any person.
24 I regard the objective of the planning framework set out in section 4(2)(i) of the Planning and Environment Act, coupled with the non-reviewable requirement in section 52(1)(a) to give notice to adjoining owners and occupiers, as establishing a presumption that notice will generally be given to adjoining owners and occupiers. This requirement to give notice is a fundamental tenet of the Act. It is left in the hands of the responsible authority to decide those circumstances when notice will not be required. The consequences of failing to give notice can be serious and may give rise to an application under section 87 to cancel or amend a permit. Therefore, if a responsible authority has turned its mind to the question of whether notice is required, which the council did in this case (even getting a legal opinion), and has decided that it is not satisfied that the grant of the permit would not cause material detriment to any person, it would take very persuasive evidence that this was a manifestly unreasonable decision rather than just an ultra-cautious decision. There is no such evidence here.
25 I have therefore reached the conclusion that the Council's decision under section 52(1)(a) to require notice to be given to adjoining owners and occupiers was a decision that a reasonable responsible authority acting reasonably could have reached. I am not prepared to make the declaration under section 149B that the applicant seeks.
26 The practical outcome of my decisions is that notice should be given under section 52(1)(a) of the Act to the owners and occupiers of adjoining land but that additional notice to any other persons is not required under section 52(1)(d).