Wolgan Action Group Incorporated v Lithgow City Council

29. The applicant's primary arguments may be summarised as follows:- (1) The second application for modification of development consent sought approval for development that is not substantially the same as the development approved by council on 14 September 1992;

(2) The council failed to satisfy the mandatory requirements of s 96(2)(c) of the EP&A Act and cl 72A(6) and cl 73 of the Environmental Planning and Assessment Regulation 1994 ("the EP&A Regulation") by not placing the application for modification of development consent and supporting documents on display during the period notified. The claim in relation to cl 72A(6) and cl 73 is made on the basis that the original development application for the consent was an application to carry out designated development; (3) Alternatively, if the Court is not satisfied that the original development application for the consent was an application to carry out designated development, the council failed to comply with the mandatory requirements of s 96(2)(c) of the EP&A Act and cl 72B(6) of the EP&A Regulation; (4) The council failed to satisfy the mandatory requirements for notifying and exhibiting the application for modification after the application was made because the prescribed fee payable, pursuant to cl 71A(b) of the EP&A Regulation, was not paid until 20 June 2000; (5) The notification and advertisement of the application to modify the development consent gave rise to a legitimate expectation for any person to make submissions and for these submissions to be taken into account by the respondent. The actions by the respondent, following receipt of the application, denied such a legitimate expectation; (6) That the decision to approve the application for modification of development consent was unreasonable for the following reasons:- (a) The council adopted 38dB(A) as the background noise level contrary to all expert opinion;