Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design

EXTEMPORE Judgment

1. HIS HONOUR: On 20 July 2016, the development application, DA16/0618, was lodged with Wingecarribee Shire Council (the Council) seeking development consent for the construction of a residential flat building at 1 Kangaloon Road, Bowral. A number of steps followed from that. Relevantly, for the purposes of the present proceedings, a Notice of Determination of that development application was issued on 4 April 2017. The application was determined by refusal. The refusal decision was made by Mr Nicholas Wilton, an officer of the Council who holds the role Group Manager, Planning Development and Regulatory Services.
2. In the material before me (Evidence Book, Exhibit A), I have, as at the relevant periods of time, copies of the Council's organisational structure that demonstrate that Mr Wilton is only subordinate to the General Manager of the Council and the Deputy General Manager, Corporate Strategy and Development Services.
3. I also have in evidence before me a copy of the organisational chart of those employees of, and contractors to, the Council who are subordinate to Mr Wilton. As at the relevant date, it clearly identifies that a Mr Wayne McDonald, who was engaged by the Council at the relevant times, was a contract town planner subordinate in the organisational structure to Mr Wilton.
4. On 11 May 2017, a request was made to the Council to review the determination. That request was made under what was then known as s 82A of the Environmental Planning and Assessment Act 1979 (the EP&A Act). It will be necessary later, when I make orders in these proceedings, to address the EP&A Act as it is presently numbered, as from 1 March 2018. By statute law reform legislative amendments, the EP&A Act has been renumbered in a decimal numbering fashion, now conventionally adopted for legislation in New South Wales. As at the date of the commencement of the proceedings, the renumbering of the EP&A Act had occurred.
5. On 11 May 2018, after receipt of the application for a review, that review was allocated to Mr McDonald for him to assess. Mr McDonald undertook a process of assessment. However, on 14 September 2017, Mr McDonald purported to sign a Notice of Determination for that development application as a result of his review. That Notice of Determination set aside, in effect, the determination made by Mr Wilton refusing development consent and, in lieu thereof, substituted a determination granting consent subject to conditions.