Posted on May 30, 2012 by

Hoxton Park Residents Action Group – Casenote update

In February we wrote about the decision in Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349: Section 79C consideration of matters not covered by the description of development in a development application.

Briefly, the Court of Appeal held that a notice made under section 101 of the Environmental Planning and Assessment Act 1979 (EPA Act) was invalid. Because of this the consent was not protected from the challenge by the Resident Action Group and the development consent for the construction of a school was declared invalid.

The Court of Appeal remitted the matter to the Land and Environment Court. Since then there have been two related proceedings worthy of a brief update.

Land and Environment Court

In Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43, Justice Biscoe dealt with the question of the appropriate relief and costs.

The Developer submitted that the Court should exercise its discretion under s124 of the EPA Act and decline to make any final orders as to relief.

Alternatively, the Developer argued that the Court could make orders pursuant to s25B of the Land and Environment Court Act 1979 suspending the operation of the consent in part and specifying terms compliance with which would validate the consent.

The Applicant submitted that the Court should declare the consent invalid and restrain the developer from carrying out further works and from using the land as a school.

The Land and Environment Court rejected the Developer’s submissions for the following reasons:

1. The Court was not persuaded that there was no environmental utility in granting relief. The Court concluded there was in fact environmental utility in the consideration of the likely impacts on the environment made by the bridge. The Court said that ‘Refusal of relief would effectively mean that the Council would never consider a mandatory matter…in the Part 4 context.’
2. Nor was it persuaded that the developer would suffer hardship owing to the fact that the school is currently in operation. The hardship could be overcome by an order suspending the injunction restraining the use of the land for a school for one (1) year. The Court reasoned that this would allow the Developer a reasonable opportunity to apply for and obtain a  valid development consent.
3. The Court declined to make orders under s25B of the Land and Environment Court Act 1979 on the basis that such orders would be inappropriate in a case relating to the failure to consider a relevant matter. The Court cited past authority for the proposition that ‘this Court has generally found it inappropriate to make s25B orders in cases of failure to consider a mandatory matter under s79C of the EPA Act because balancing and weighing the s79C matters against all other matters relevant to the consent authority’s consideration would necessitate a re-opening of the whole process.’

Ultimately, the Land and Environment Court made the following orders:

1. Declaration that the development consent for DA-346/2009 granted by the first respondent to the third respondent on 30 June 2009 for the construction and use of a school and road on land owned by the second respondent at 612 Hoxton Park Road, Hoxton Park, NSW, being Lot 24 DP 1123873 and Lot B DP 418231, is invalid.
2. Order that the second and third respondents are restrained from carrying out any further work on the said land pursuant to the said development consent unless and until a further development consent authorising the work is granted.
3. Order that the second and third respondents are restrained from using the said land as a school unless and until a further development consent to do so has been granted.
4. Order that Order 3 be suspended until and including 31 March 2013.
5. Order that the respondents pay the applicant’s costs of the proceedings.
6. Order that the second and third respondents indemnify the first respondent in respect of its liability for the applicant’s costs insofar as those costs are attributable to defences unsuccessfully raised by the second and third respondents.
7. Liberty to apply on three days’ notice.
8. The exhibits may be returned.

High Court of Australia

On 11 May 2012 the Developer sought special leave to appeal to the High Court of Australia.

The Developer raised two issues:

1. the Time Bar Ground, and
2. the Substantive Ground.

The Time Bar Ground

This ground relates to section 101 of the EPA Act, which operates as a time bar against the bringing of proceedings in circumstances where public notice of the grant of a development consent is given in accordance with the regulation.

The notice in the present case had failed to include the phrase ‘during ordinary office hours’. The Court of Appeal had held that strict compliance with the regulation was required, and as this phrase had not been included in the notice, it was not a valid notice for the purposes of section 101.

The Developer argued before the High Court that the principles of statutory interpretation laid down in the Project Blue Sky case should be applied to determine whether it was the intention of the Parliament to strike down notices of the kind in this case, where although not in strict compliance with the regulation, the notice still ‘notifies’ the granting of development consent.

‘…to use the Project Blue Sky principle, can it be said that if we have something that may be regarded as not so critical, is it Parliament’s intention or can it be construed as Parliament’s intention that the notice should be regarded as defective…’

The Substantive Ground

The Substantive Ground involved the issue of whether section 79C required consideration to be given to the likely environmental impacts of a bridge required to be built as a condition of the consent.

The Court of Appeal found that consideration of the likely environmental impacts that flowed from the bridge was a mandatory consideration under section 79C.

The Developer argued that the Court of Appeal decision was wrong, and that ‘in circumstances of a case such as this where the same act, namely, the Environmental Planning and Assessment Act, splits the transaction between an activity to be determined and assessed under one section and an activity to be determined and assessed under another, it may well be entirely wrong to say that a mandatory relevant consideration in the first one must be the assessment of the impact of the second.’

The High Court held that an appeal to the Court would not enjoy sufficient prospects of success. As such special leave was refused with costs.