Posted on October 15, 2012 by Stuart Simington

Court Not Bound by Council Notification Policy

In an interesting decision (V’landys v Land and Environment Court of NSW [2012] NSWLEC 218), Biscoe J has held that the Court is not bound to follow the Hunters Hill notification DCP policy where amendments are  made to a DA in the course of merits appeal proceedings before the Court.

In particular, Biscoe J held that:

• the Court is not bound to consider procedural provisions of a notification DCP under s 79C(1)(a)(iii) of the EPA Act;
• the particular requirements of the Hunters Hill’s notification DCP are intended only to bind the Council, not the Court on an appeal;
• it is open to the Court, although not obligatory, to take account of notification provisions in a development control plan and, if the Court considers it appropriate, to give directions for notification in accordance with such provisions.

In relation to the first point, Biscoe J held that s79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 does not extend to procedural provisions of DCPs such as for notification of proposed amendments to DAs.

The second and third points are the most interesting.

Section 79A(2) of the Environmental Planning and Assessment Act 1979 provides for the notification of a development application in accordance with the provisions of a development control plan as follows:

A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.

If a notification DCP provides for the notification of amendments to a DA, it has been common practice for the Court to adjourn the appeal proceedings while this occurs.

However,  in this case, Biscoe J appears to have held that s79A(2) was not enlivened by the Hunters Hill notification DCP which, as a matter of construction, was not intended to bind the Court. This was apparently because clause 3.5 of the DCP specified that one of those purposes of the DCP was:

To set out the rights of adjoining, neighbouring and interested owners and residents to make submissions on applications and in respect of the determination of applications by the Council. [my emphasis]

In other words the Hunters Hill notification DCP only applied where the DA was being determined by the Council not the Court on appeal.

Although Biscoe J’s finding on the issue was not necessary (and is therefore not binding), it is likely to be persuasive. It is also sure to be the cause of some debate and probably future litigation by third party objectors who feel that they have been excluded  because amendments are not re-notified.

In any particular matter, it seems that it will be necessary to review the Council’s notification DCP to discern whether the DCP is intended to bind the Court on appeal or only the Council. Council’s have a judgment to make in this regard. If there is a doubt about the matter, the Council needs to consider whether an amendment is necessary to clarify whether the notification DCP is or is not intended to bind the Court.

In view of the writer, Biscoe J’s decision is pragmatic and will help to allow planning appeals to be resolved more quickly and efficiently.  Where amendments  are proposed to a DA in the course of an appeal and the amendments  do not, in the opinion of the Court require re-notification, the additional cost and delay that re-notification would cause may not be necessary. It seems to the writer that it is appropriate to leave this judgment to the Court.