Posted on November 9, 2011 by Megan Hawley

Recent case on exercise of power to grant consent and validity of public notices

A recent decision of the NSW Land and Environment Court – Brown v Randwick City Council [2011] NSWLEC 172 – has found both a development consent granted by the Council, and a public notice of the grant of consent to be invalid.

The Applicant, Mr Brown, challenged the validity of a determination of Randwick City Council (‘Council’) granting consent for the erection of a new elevated swimming pool and deck at a neighbouring property.

Council’s Co-coordinator refused the development application under delegated authority in September 2009.  At a Council meeting in November 2009 Council proceeded to grant consent to the application subject to 28 conditions, without any reference to the prior refusal.

The primary ground of challenge to the development consent was that Council had, by its delegate, already refused the development application and therefore had no power to make a second determination under s80 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’).

Public notice of consent

As a preliminary point, the Council argued that as the grant of consent was publicly notified under s101 of the EPA Act and clause 124 of the Environmental Planning & Assessment Regulation 2000 (‘EPA Reg’), the grant of the consent could not be challenged.

Section 101 of the EPA Act provides that where public notice of the grant of a development consent is given in accordance with the EPA Reg, the validity of the consent cannot be challenged more than 3 months after the date of the public notice.

In this case, the public notice described the development consent, which was for “new swimming pool and deck to rear of existing building” as a consent for a “new swimming pool”. The Court found that there was a material omission in the notice, due to the failure to refer to the deck, and that the notice therefore did not satisfy the requirement in s124(1)(b) of the EPA Reg that such a notice describe the development.  Therefore as the notice has not been given in accordance with the EPA Reg, it was ineffective to prevent a challenge to the consent.

The case is a reminder to councils of the need to be precise in framing public notices of the grant of consents.  The Court takes a strict view in relation to compliance with the EPA Reg in respect of such notices, and they will be ineffective to prevent a challenge where the statutory requirements are not complied with, or where the notice is misleading.

Becuase the notice, in this case, was ineffective to prevent a challenge to the consent, his Honour went on to consider the grounds of challenge to the consent.

Power to determine application has already been exercised

As stated above the primary ground of challenge was that Council did not have the power to grant the consent, as it had previsouly refused consent to the relevant devleopment application.

The Council argued that as no notice of determination had been issued under section 81 of the EPA Act in respect of the determination to refuse consent, the Council could make a second determination in respect of the application.

The trial judge rejected this argument. He stated that the issuing of a notice of determination under s81(1) of the EPA Act is merely evidence of a determination of a development application.

Where the determination is to refuse consent, that determination operates and is effective from the date of the making of the determination under s80(1)(a) of the EPA Act, and therefore no further functions could be exercised in respect of that development application unless, for example, an application was lodged under s82A of the EPA Act for a review of the determination.

The Court noted that whilst section 83(1) of the EPA Act provides that in respect of the grant of consent, the consent is not effective and does not operate until the date endorsed on the notice to determination, there is nothing in the EPA Act to the effect that a refusal of consent is not effective until a notice of determination is issued.

Arguments were put before the Court as to whether there is an inherent power to review a determination prior to the issuing of the notice of determination. Given the failure of the Council to conduct such a review, the Court did not need to consider those arguments.

If a council does wish to reconsider a determination made in respect of a development application, it needs to ensure that it relies on a power under the EPA Act, or Local Government Act 1993 to do so, such as a power of review under s82A of the EPA Act, or the power to rescind a resolution under the Local Government Act 1993. Whilst it was not finally decided in this case, because a refusal is effective from the date of the determination, it may be that there is no opportunity to review such a decision, for example by way of rescinding a resolution to refuse consent, except on making of an application under s82A of the EPA Act.