Posted on August 7, 2012 by Megan Hawley

Do s101 notices provide any protection?

Section 101 of the Environmental Planning & Assessment Act 1979 (EPA Act) states that proceedings to challenge the validity of a development consent cannot be commenced more than 3 months after public notice of the grant of the consent has been given.

There is a substantial body of case law which makes it clear that to be of any effect in preventing legal challenges, public notices given for the purposes of  s101 need to strictly meet the requirements of  clause 124 of the Environmental Planning & Assessment Regulation (EPA Reg) which specifies the content of such a notice.

However, the range of legal challenges which can proceed even if a valid notice has been given, has expanded such that in most cases the notice, even if valid, will be of no effect.

In Kirk v Industrial Relations Commission [2010] HCA 1, the High Court held that state legislation cannot compromise the capacity of the Supreme Court to exercise its supervisory jurisdiction to review decisions for jurisdictional error.

This means that s101 of the EPA Act cannot prevent a challenge to a development consent which involves jurisdictional error.

In Brown v Randwick City Council [2011] NSWLEC 172, Preston CJ held that a failure to consider relevant matters when carrying out the assessment task under s79C, constitutes a jurisdictional error. This would cover a broad range of challenges to the validity of development consents, such as failure to consider the provisions of a DCP, failure to consider ESD, and a failure to consider public submissions.

In Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel [2012] NSWLEC 166, Biscoe J said that a failure to substantially comply with the requirements of the EPA Act in relation to publicly notifying neighbours of a development application also constitutes a jurisdictional error.

Biscoe J stated that ‘strict or substantial compliance with the public notification requirements of s79A(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.’ He explained that if a decision is made without the jurisdictional fact having been established, then that constitutes jurisdictional error.

As a result, a legal challenge to the validity of a development consent, based on an error or misleading information in the public notice of the development application, is also not precluded by s101 of the EPA Act.

If a consent authority does publicly notify development consents, then it should ensure that the notices strictly comply with the  requirements of cl124  of the EPA Reg, for the notice to be considered a notice under s101.

However, no-one should assume that a consent is safe at the end of the 3 month period.