Australia: Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186: A consideration of Wednesbury unreasonableness in the context of notification requirements

Following the High Court's consideration of Wednesbury unreasonableness earlier this year (see Minister for Immigration and Citizenship v Li [2013] HCA 18), the Land and Environment Court (Court) has been asked to consider whether the decision by a consent authority not to notify an adjoining land owner of two development applications was 'manifestly unreasonable'.

BACKGROUND

Two development applications (DAs) were lodged with Bathurst Regional Council (Council) for the construction of a swimming pool, retaining wall and pool safety wall (Development). The first DA concerned the construction of the swimming pool itself, a safety fence and a retaining wall (First DA). The second DA concerned a pool fence, pool filter cover and privacy screen (Second DA).

The plans and other documents forming the DAs were not sophisticated – involving drawings completed by hand – and were lodged by a pool construction company on behalf of the owner of land (Owner).

NOTIFICATION REQUIREMENTS UNDER THE DCP

The Bathurst Regional (Interim) Development Control Plan 2011 (Bathurst DCP) was the applicable DCP at the time the DAs were lodged. The Bathurst DCP set out the notification requirements for development applications and, relevantly, provided:

2.3.1 What is notified development?

The factors that Council will take into consideration in determining whether a development application will be notified and to whom are as follows:

  1. the views to and the views from surrounding land,
  2. potential overshadowing of surrounding land,
  3. privacy of surrounding land,
  4. potential noise transmission to the surrounding land,
  5. the likely visual impact of the proposed building in relation to the streetscape, and
  6. any other issues considered by Council to be relevant to the application.

[DCP Criteria]

2.3.2 Who will be notified?

Generally written notice of a notified Development Application will be given to the owners of land directly adjoining the land on which the development is intended to occur. For the purposes of determining which properties are adjoining, Council will generally exclude properties which are separated by a road, pathway or other significant feature. Further larger properties or adjoining properties unlikely to be affected by the proposed development may also not be notified.

Council's development assessment officer (First Officer) formed the opinion that the development the subject of the First DA would not have an "adverse impact" on the Applicant's land, which adjoined the land the subject of the First DA.

A second Council development assessment officer (Second Officer) formed the opinion that the development the subject of the Second DA "would not have a detrimental effect in relation to the [DCP Criteria]".

As a consequence, the Applicant was not notified of either of the DAs.

The Development was permissible with consent under the applicable environmental planning instrument and, despite the arguably ambiguous nature of the content of the DAs, Council granted development consent for both DAs.

The Applicant's response

The Applicant claimed that, had she been notified, she would have made objections to both DAs. As a consequence, she brought proceedings in the Court claiming:

  1. that the Council breached section 79A(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) by failing to notify the Applicant of the DAs;
  2. the Council applied an incorrect test in determining not to notify the Applicant of the DAs;
  3. the Applicant was denied procedural fairness in not being notified of the DAs;
  4. the Council failed to consider a mandatory relevant consideration in granting development consent to the DAs, namely whether the Applicant should have been notified;
  5. that the decision not to notify the Applicant of the DAs was manifestly unreasonable; and
  6. the development consents for the DAs were void for uncertainty.

CROSS-EXAMINATION OF THE COUNCIL OFFICERS AT TRIAL

Under cross-examination the First Officer conceded, amongst other things, in relation to the First DA that:

  • there were many different interpretations of the plans as to the heights of the retaining wall and the pool;
  • the height of the retaining wall was not stipulated in the consent; and
  • there was no limit on the height of the pool fence.

The Second Officer conceded, amongst other things, in relation to the Second DA that:

  • it was not possible to determine the height of the pool fence; and
  • it was not possible to determine where the pool fence or barrier was to be located.

A SIDE ISSUE: WAS THE DETERMINATION OF 'NOTIFIED DEVELOPMENT' A JURISDICTIONAL FACT?

The Applicant claimed that the determination by Council as to whether the development application was to be characterised as "notified development" under clause 2.3.1 of the Bathurst DCP was a question of jurisdictional fact for the Court to determine.

By reference to a long line of authorities, culminating in the decision of Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) (see our In Brief on this case here), Pepper J held that the relevant clauses of the Bathurst DCP were not framed in terms of "facts" but concerned factors that the Council must consider in determining whether or not to notify the development.

As a consequence, whether a development application was to be notified, and if so, to whom, was a matter for the Council to determine and not the Court. It was not a jurisdictional fact.

WAS THE FAILURE TO NOTIFY MANIFESTLY UNREASONABLE?

Pepper J held that the failure to notify the Applicant of both the DAs was manifestly unreasonable. In respect of the First DA, Pepper J arrived at the conclusion based on:

  • the ambiguous nature of the hand drawn plans;
  • the height of the pool above ground level, the height of the retaining wall and the height of the brick pool wall; and
  • the material to be used in the construction of the pool wall.

In respect of the Second DA, Pepper J arrived at the conclusion based on the fact that:

  • the plans did not indicate the precise location of the brick pool fence;
  • the height of the pool deck; and
  • that as a result of an estimation by the second Council development assessment officer, the pool wall would not be sufficient to afford privacy.

On the whole, and in addition to the ambiguities surrounding the DAs, the impact of the Development on the Applicant's land was 'dramatic'.

As a result it was held that there was no basis, let alone any reasonable basis, to justify the decision not to notify the Applicant of either of the DAs and the failure to do so was manifestly unreasonable.

A SECONDARY ISSUE: WERE THE DEVELOPMENT CONSENTS VOID FOR UNCERTAINTY?

Pepper J referred to the seminal cases on the uncertainty of a development consent, being Mison v Randwick Minicipal Council (1991) NSWLR 734 and Kindimindi Investments Pty ltd v Lane Cove Council (2006) 143 LGERA 277, in determining that the First DA was void for uncertainty. Her Honour arrived at this conclusion on the fact that the hand drawn plans provided no cogent information to determine:

  • the location or finished height of the pool;
  • the height of the retaining wall;
  • the relationship between the pool and the retaining wall;
  • the materials to be used in construction;
  • the location of the pool filter, pump and pool equipment; or
  • the height of the safety fence.

Pepper J concluded that the plans not only tended towards uncertainty, they were apt to mislead.

However, although the Second DA was infected with some uncertainty, this uncertainty was not 'sufficient' to leave open the possibility that a significantly different development would result.

SHOULD THE COURT EXERCISE ITS DISCRETION UNDER SECTION 25B OF THE LAND AND ENVIRONMENT COURT ACT 1979 (LEC ACT)?

Section 79A of the Environmental Planning and Assessment Act 1979 requires notification of a development consent to be given in accordance with the provisions of the applicable DCP. Ordinarily, a breach by a consent authority would result in a declaration of invalidity of each of the development consents granted pursuant to an unlawfully notified development application.

However, section 25B of the LEC Act allows the Court to suspend the operation of a development consent and to specify terms which will provide validity to the consent.

In considering whether to apply section 25B of the LEC Act in this case, Pepper J applied the reasoning of Preston J in Simpson v Wakool Shire Council (2012) 190 LGERA 143. In particular, her Honour drew upon Preston J's comments that:

"... Public participation in the development process is crucial to the integrity of the planning system ... 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."

Her Honour held that the failure to notify the Applicant of the DAs was sufficiently grave and, accordingly, did not warrant the making of an order under section 25B of the LEC Act.

THE CONSEQUENCES

Despite the 'grave' nature of Council's transgression in relation to the notification requirements, it was held that the demolition of the First DA development (i.e. the swimming pool) could not be justified for the following reasons:

  • at all times the Owner believed they had the benefit of a valid development consent;
  • the demolition of the entire pool structure would cause significant financial and emotional hardship to the Owner; and
  • the impact of the Council's failure to notify was not insignificant, but it was limited to a single adjoining property owner.

In relation to the Second DA, her Honour found that although many of the factors discussed above were directly relevant and equally applicable, it was less likely that the hardship occasioned to the Owner in respect of the demolition of the Second DA development would outweigh the Applicant's detriment by reason of its continuance.

Accordingly, although both development consents were held to be invalid by reason of Council's failure to notify, and the development consent granted to the First DA was void for uncertainty, the Owner was not required to demolish the swimming pool.

CONCLUSION

Although constituting a rare example of a finding of manifest unreasonableness in administrative decision making, one must wonder at the utility of the legal proceedings in this case.

The First DA, for the swimming pool, is now invalid; but the use of the swimming pool may continue in the absence of further action by Council, which, in the circumstances, appears unlikely to happen. As would it appear unlikely that a Court would order demolition if subsequent proceedings were brought under section 123 of the EPA Act.

Although an order was made for the demolition of the development the subject of the Second DA (i.e. the fencing), the outcome of the proceedings appears to be largely a Pyrrhic victory for the Applicant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions