Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel

LEGAL PRINCIPLES - PUBLIC NOTIFICATION 9Public participation in the development approval process is important if the best possible ecologically sustainable development outcomes are to be achieved. This principle is recognised internationally. Thus, Principle 10 of the Rio Declaration on Environment and Development produced at the United Nations Conference on Environment and Development in 1992 in Rio de Janiero, attended by 172 nations including Australia, states: Environmental issues are best handled with participation of all considered citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. 10The Rio+20 Declaration on Justice, Governance and Law for Environmental Sustainability produced at the 2012 World Congress on Justice, Governance and Law for Environmental Sustainability declares that: "Environmental sustainability can only be achieved in the context of fair, effective and transparent national governance arrangements and rule of law, predicated on: [among other things] ...public participation in decision-making, and access to justice and information, in accordance with Principle 10 of the Rio Declaration". 11The real test of Rio Principle 10's significance lies in domestic law rather than international law. In New South Wales the principle is reflected in the objects of the EPA Act "to provide increased opportunity for public involvement and participation in environmental planning and assessment" and "to encourage ecologically sustainable development": ss 5(c) and 5(a)(vii). These statutory objects are given teeth by the public notification provisions of ss 79 and, in this case, 79A, and by provisions which facilitate access to environmental justice. The access provisions include s 123 of the EPA Act which gives open standing to bring judicial review proceedings to remedy or restrain a breach of the EPA Act, and r 4.2 of the Land and Environment Court Rules 2007 which empowers the Court not to order costs when judicial review proceedings brought in the public interest are unsuccessful. 12Section 79A(2) of the EPA Act provides for a most important part of the public participation process, that of public notification or advertisement. It not only gives force to the statutory objects, it gives statutory force to the common law obligation to afford procedural fairness in the exercise of public power, a breach of which may be jurisdictional error: Lesnewski v Mosman Municipal Council [2005] NSWCA 99, 138 LGERA 207 at [57], [68]; Bennett v Hurstville City Council [2012] NSWLEC 108 at [16] per Biscoe J. As Craig J said of s 79A(2) in Csillag v Woollahra Council [2011] NSWLEC 17, 181 LGERA 141 at [33] - [34]: [33] ...First, it affords a form of procedural fairness by providing an opportunity to those who have an interest in or who may be affected by proposed development to learn of its detail before any decision is made. Secondly, it affords the opportunity to improve the process of decision making by enabling the consent authority to make a decision, fully informed of the potential consequences of development as perceived by the community. [34] This important statutory objective would be frustrated if the notification and advertisement of a given development application was inadequate to identify the place at which the proposed development was to be undertaken. 13The following analysis shows that strict or substantial compliance with the public notification requirements of s 79A(2) of the EPA Act is a jurisdictional fact, that is, a condition precedent to the exercise of the power to determine a development application. The word "jurisdictional" is a little awkward when applied to an administrative decision-maker but is used in the sense of "authority to decide": Abebe v Commonwealth of Australia [1999] HCA 14, 197 CLR 510 at [24] per Gleeson CJ and McHugh J. A jurisdictional fact is a criterion, satisfaction of which enlivens the power of the decision-maker: Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, 199 CLR 135 at [28]; Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43, 236 CLR 120 at [43]. To express it another way, a jurisdictional fact is an essential pre-condition to the exercise of power: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190, 78 NSWLR 393 at [148], [96], [32]. 14Absence of a jurisdictional fact is a species of jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531 at [72]. A jurisdictional error is one which renders a decision invalid as being beyond power. A decision is invalid if, by reference to the statutory scheme, the Court discerns a legislative intention that the breach of the statute will invalidate that action under the statute: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55 at [37] (a jurisdictional fact case) and Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) [2012] NSWCA 208 at [77], [81] per Basten JA (a jurisdictional error case), both citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [93]. Project Blue Sky did not refer to jurisdictional error (or jurisdictional fact) and its invalidity test appears to have been subsumed into an essential element of jurisdictional error. A list of types of jurisdictional errors was compiled in Craig v State of South Australia [1995] HCA 58, 184 CLR 163 at 179, but the list is not exhaustive: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 at [82], and it is not possible to mark the metes and bounds of jurisdictional error: Kirk at [71]. 15The proper approach to planning legislation requiring public notification is that substantial compliance with such requirements will generally be a pre-condition to the exercise of power to determine a development application, that is, a jurisdictional fact: Scurr v Brisbane City Council [1973] HCA 39, 133 CLR 242 at 255-256; Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349, 184 LGERA 104 at [27]. A minor non-compliance may not be sufficient for invalidity: cf Lesnewski at [60]. In order to attain the public participation object of the EPA Act consistently with a provision such as s 79A(2), "strict or substantial compliance is required as a pre-condition to consideration of an application": Johnson v Lake Macquarie City Council [1996] NSWLEC 196, 91 LGERA 331 at 341 per Stein J. 16If the beneficial effect of public notification is defeated by inaccurate or incomplete information in it, the notification will be misleading and hence invalid: Doueihi v Canterbury City Council [2003] NSWLEC 267 at [30] per McClellan CJ citing Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91 (NSWCA).

FIRST GROUND: THE ADDRESS 17Section 79A(2) of the EPA Act mandates that a development application must be notified in accordance with the DCP. Clause A11.2.2(a) of the DCP mandates that the notification letters include the "address of the site (Lot No. Deposited Plan, and House No.)". 18The development application stated that the address of the Site was 152 -154 Marine Parade, Kingscliff. The SEE stated that the address was 154 Marine Parade, Kingscliff. 19However, the notification letters gave the address of the Site as "Lot 701 DP 1002309, Pearl Street Kingscliff". 20The applicant submits that "Pearl St" is not the address of the Site and that its address is Marine Parade; therefore the notification letters do not comply with the DCP, and s 79A(2) of the EPA Act is breached. 21As can be seen in the SEE plans annexed to this judgment, the Site is roughly triangular in shape and bound by public roads on all three boundaries. As described in the SEE, the northern boundary of the Site is a 103.58 metre frontage to Marine Parade, the western boundary is a 57 metre frontage to Pearl Street, and the southern boundary is a 116.3 metre frontage to Kingscliff Street. Plans accompanying the SEE note the western frontage as Pearl Street (see annexures A and B to this judgment). The entrance to the police station and to one of the two freestanding residences on the Site are from Marine Parade. The entrance to the other residence on the Site is from Kingscliff Street. There is no entrance to the Site from the western frontage. 22The applicant contends that in fact the western frontage of the Site is not Pearl Street but an "unnamed lane". This is said to be because (a) Pearl Street is located and sign-posted on the other (southern) side of Kingscliff Street; and (b) the "unnamed lane" is not sign-posted at all and has landscaping across its southern end at Kingscliff Street so that vehicular access is not possible from its southern end. In my view, the width and other features of the contentious western frontage are such that it should be described as a street rather than as a lane. It is asphalted and wide enough for two-way traffic and has pedestrian verges. It presents as a continuation of Pearl Street but for the landscaped area at its southern end which precludes vehicular access from that direction. In my view, in the absence of a contrary street sign, it could reasonably be understood to be part of Pearl Street. 23The DCP does not say that the address for the purpose of cl A11.2.2(a) is the address on the Council's records. However the address as recorded in the Council's records is expressly recognised in two other clauses of the DCP. First, cl A11.1.5 of the DCP defines "Owner" as "the name and address of the proprietor as registered in Council's property record". Secondly, cl A11.2.1 provides that notice of a development application is to be sent to (inter alia) "all persons who, according to Council property rating records, own land immediately adjoining the application site". 24According to the Council's rating records and NSW Land and Property Information, the address of the Site is "Pearl Street". According to a letter of 18 April 2012 from the Council's solicitors to the applicant's solicitors, "the smallest road frontage" is used by the Council for address and rating purposes. 25According to NSW Police online records and the telephone White Pages, the address of the Kingscliff police station is 154 Marine Parade, Kingscliff. 26According to a Google search for Kingscliff police station, its address is 156 Marine Parade, Kingscliff: 156 is incorrect because that is the number of an apartment block to the west of a fire station, which is itself to the west of the Site. 27As regards numbers physically attached to the front of buildings, the position is as follows. The number 152 is attached to the existing residence on the Site to the east of the police station, both of which are accessed only from Marine Parade. No number is physically attached to the police station, immediately to the west of that residence. Continuing west along Marine Parade there is the "unnamed lane" (the applicant's contention) or Pearl Street (the respondents' contention); then a fire station on the corner, which has no number physically attached to it; then an apartment block to which is physically attached the number 156. Thus, the physically attached numbers go from 152 to 156, with the police station and the fire station between. 28A similar issue of more than one address arose in Csillag. There the development site was a penthouse in a large apartment building at Double Bay with frontages to both New South Head Road and Edgecliff Road. Woollahra Municipal Council's rating records recorded the address as 325 New South Head Road; its property database recorded the address as either 325 or 335 New South Head Road for the western and eastern arms of the apartment building respectively. However, its heritage records recorded the address as 353 Edgecliff Road. The street number affixed to the gatepost at the Edgecliff Road entry was 353. The development application nominated the address as 335 New South Head Road. Craig J formulated the following test at [41]: ...I have concluded that the provisions of the DCP pertaining to notification and advertisement are to be interpreted in the purposive manner that I have earlier indicated. The information either advertised or notified must be sufficient in its identification of the land to which the development application pertaining to apartment 15 relates so that those reading the advertisement or notification letter could reasonably understand where on this site the development was contemplated. His Honour also said at [51]: ...I can accept that if a given site or property has a single address that is recorded by a Council for rating purposes, the fact that a small section of the community identifies the site by a means other than its "official" address would not ordinarily require that the latter be the subject of advertisement required by a plan such as the DCP. 29The DCP required the notification letters to contain the "address of the site (Lot No. Deposited Plan, and House No.)". The essential requirement is that the address of the site must be notified. The words in parentheses may be examples or alternatives of how this can be done rather than cumulative requirements. Of course, there may be no house number. 30The notification letters gave the correct lot number and deposited plan number and indicated that the address was the site of the existing Kingscliff police station. The point of contention is that they gave the street address as Pearl Street. The applicant contends that the address of the Site was in Marine Parade (although the applicant does not contend for a particular number in Marine Parade). The Kingscliff police station was in fact known by two different addresses: 154 Marine Parade and Pearl Street, depending on the source of information: see above at [24] - [25]. In my view, looking at the notification letters as a whole, the recipients would have understood the letters' reference to "Pearl Street", read in conjunction with the reference to the police station, to be the western frontage of the Site: see above at [22]. The reference in the notification letters to the Kingscliff police station provides something extra in communicating to them the address of the Site. That is because a police station has a special identity which distinguishes it from the general ruck of development sites, particularly in a small community such as Kingscliff and particularly where the notification letters were only sent to owners and residents of adjacent land or land in the immediate vicinity. In that respect, a development at the address of a police station bears some comparison to, although it is not as striking an example as, say, a notification of a development in Hyde Park, central Sydney, to owners of nearby properties. 31In my opinion, the references in the notification letters to the correct lot and DP number, to Pearl Street - being the address in the Council records - and to the Kingscliff police station, were sufficient to identify the address of the Site to recipients of the notification letters, being owners of adjacent land or land in the immediate vicinity. 32Accordingly, I do not accept the address ground of challenge.

SECOND GROUND: DESCRIPTION OF THE PROPOSAL 33Clause A11.2.2(c) of the DCP required the notification letters to contain "a brief description of the proposal expressed as informatively as possible in a short statement". 34The words "as informatively as possible" set the bar quite high, although they are tempered by the requirements that the description be brief and the statement short. 35The description of the proposal in the development application is: Demolition of existing police station and the adjoining two residences. Construction of a new two storey police station and basement parking. 36The description of the proposal in the notification letters is: demolish the existing Police Station and construct a new two (2) storey Police Station at Lot 701 DP 1002309, Pearl St Kingscliff. 37Thus, the notification letters omitted to say that the two residences on the Site were also to be demolished and that the new police station was to have basement carparking. The applicant submits that s 79A(2) of the EPA Act was thereby breached. 38The context is that the SEE accompanying the development application indicates that the Site has an area of 3,802 square metres. The SEE includes plans showing that the existing single storey police station occupies only a small part of the Site and that the two existing single-storey police owned residences also each occupies only a relatively small area of the Site (Annexure A hereto). In contrast, the SEE includes plans showing that the proposed new two-storey police station would cover most of the Site including the footprints of the existing police station and two residences (Annexure B hereto) and that it would have basement carparking. The explanation for the much larger new police station appears to lie in the SEE's description of the proposed development as being designed as the new location of the Tweed Byron Command, suggesting a larger requirement than that of a local police station. 39In my opinion, by reason of the said omissions outlined at [37] above, the notification letters do not satisfy the requirements of cl A11.2.2(c) of the DCP. Those reading the notification letters could reasonably but erroneously understand that only the existing police station - and not the two residences on the Site - were to be demolished and that the new police station would not intrude on the footprints of the existing residences. It is necessary to describe the proposal as including not only demolition of the police station but also the two residences in order to adequately indicate that the proposed new police station would be very much larger than the old and hence have a greater intensity of use. Similarly, it is necessary to describe the proposal as also including an underground storey (the basement) in order to adequately indicate still greater intensity of use of the Site. For good measure, it should also be indicated that the new police station is for the Tweed Byron Command. In my opinion, without this information, the notification letters do not satisfy the requirement of cl A11.2.2(c) that they contain "a brief description of the proposal expressed as informatively as possible in a short statement". Therefore there is a breach of s 79A(2) of the EPA Act. 40Accordingly, I uphold the description ground of challenge.

INVALIDITY 41The next question is whether the breach would invalidate the development consent. In my opinion it would on the basis of the legal principles analysed above at [9] - [16], subject to consideration of Division 3 of Part 3 (ss 25A - 25E) of the Land and Environment Court Act 1979.

SECTION 25B LAND AND ENVIRONMENT COURT ACT 42Section 25E of the Land and Environment Court Act imposes a duty on the Court to consider making an order under Division 3 of Part 3 of that Act instead of declaring or determining that a development consent to which that Division applies is invalid in whole or in part. Sections 25B and 25C provide: 25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order: (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation): (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act.

25C Orders for validity of development consents (1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order: (a) declaring that the terms have been substantially complied with, and (b) declaring that the consent is valid, and (c) revoking the order of suspension. (2) On application by the Minister or any other consent authority for an order under this subsection on the ground that the terms specified under section 25B have been substantially complied with and that the development consent has been regranted with alterations as referred to in section 103 of the Environmental Planning and Assessment Act 1979, the Court may make an order: (a) declaring that the terms have been complied with, and (b) declaring that the development consent has been validly regranted, and (c) declaring that the suspended development consent has been revoked, and (d) revoking the order of suspension. 43The respondents submit that an order should be made under s 25B. The applicant opposes the making of such an order. 44The process of suspension of a development consent and validation under ss 25B and 25C was recently discussed by me in Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43 at [30] - [41]. A significant difficulty in making a s 25B order and a subsequent validation order under s 25C is being able to craft appropriate orders which will not only lead to a validation of either the original consent or the regranted consent, but to do so in a way which does not impede or frustrate the objects of the statutory notification requirements breached and the intended statutory process for consideration and determination of a development application: Simpson v Wakool Shire Council [2012] NSWLEC 163 at [100]. In that case, Preston CJ declined to make a s 25B order, reasoning at [101] - [103]: 101 In the circumstances of this case, I do not consider that it would be appropriate to suspend the operation of the development consent on terms that the Council give notice of the development application in accordance with DCP 8 and s 79A(2) of the EPA Act and then reconsider and redetermine the development application taking into account any submissions received in response to the notification. 102 As I have observed earlier, compliance with the mandatory requirements for notification of development applications is in the public interest. Public participation in the development process is crucial to the integrity of the planning system under the EPA Act and promotes the objects of the EPA Act. It is not to be viewed as a technical and tokenistic speed hump designed to slow but not divert or prevent the inexorable passage of a development application along the highway to approval. To the contrary, if notification is undertaken in accordance with the statutory requirements, the consent authority's consideration and determination of the development application might change. 103 One cannot know who might make submissions in response to being notified, what the content of their submissions might be, how cogent or compelling their submissions might be, or how the Council might consider and weigh their submissions. The matters the Council as consent authority is obliged to consider under s 79C of the EPA Act, the facts and circumstances of the matters, and the relative weight to be assigned to the matters, might all change as a result of the new submissions and the Council's consideration of them. There is utility in having the process of notification, submission, consideration and determination of the development application undertaken in accordance with the EPA Act. This should be done not in the shadow and servitude of a suspended existing development consent pending validation but in the light and freedom of a development application that has become undetermined by reason of the existing development consent being set aside. 45I respectfully agree and apply this reasoning in the present case. 46In Csillag Craig J did make an order under s 25B suspending the operation of a development consent on terms requiring re-notification and re-advertising of a development application and subsequently, an order under s 25C declaring that the development consent had been validly regranted. However, in that case, where the address was insufficiently described, the nature of the proposed development and its impacts were different to the present case. There the proposed development involved alterations and additions to one apartment in a residential flat building. The impacts, if any, would be limited to relatively few people and the proposed alterations and additions were relatively small in their scope of works and costs. It was in those circumstances that his Honour considered it appropriate to make a s 25B order: at [59]. In contrast, the proposed development in the present case is of a large police station on a large site in a prominent position in a prominent street and likely to have significant impacts on many people, whether they own or reside on land in the vicinity or pass by or enter the Site. 47For these reasons, I do not consider it appropriate to make an order under s 25B.

COSTS 48The active parties have requested that costs be reserved and the submitting parties have submitted save as to costs. Costs will be reserved.

ORDERS 49The orders of the Court are as follows: (1)Declaration that development consent to development application DA 11/0257 for demolition of the existing police station and the adjoining two residences and construction of a new two-storey police station and basement carparking on land described as Lot 701 DP 1002309 is invalid. (2)Order restraining the third and fourth respondents, their servants and agents from acting on the said development consent. (3)Costs are reserved. The parties are within two working days to approach the Registry to have the matter listed before me as soon as possible to determine the issue of costs and are to file and serve any evidence and submissions on costs by two working days before the costs hearing. ANNEXURE A ANNEXURE B DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2012