Posted on August 30, 2015 by Megan Hawley

Need for valid notices of determination

Councils should keep in mind the need to be accurate when issuing notices of the grant of development consent. The  effectiveness of such notices has a number of implications for the consent and potential challenges to the consent.

In the recent Court of Appeal decision in Rossi v Living Choice Australia Ltd [2015] NSWCA 244, the Court considered, amongst a range of challenges to some development consents, a claim that notices of determination in respect of one of the consents were invalid.

Section 81 of the Environmental Planning & Assessment Act 1979 (EPA Act) provides that ‘the consent authority must, in accordance with the regulations, notify its determination of a development application to…the applicant… in the case of a development application for consent to carry out designated development, each person who made a submission under section 79 (5), and…such other persons as are required by the regulations to be notified of the determination of the development application’.

In this case the development application had been determined by the relevant Joint Regional Planning Panel (JRPP), but the function of notification of the grant of development consent was retained by the Council.

Clause 100 of the Environmental Planning & Assessment Regulation 2000 (EPA Reg) sets out detailed requirements for a notice of determination under s81 of the EPA Act.

There were two issues with the notice in question in this case. One was that the notice stated that it was a notice of a determination by the Council, when it was the JRPP who determined the development application, and the other was that the Council had included additional conditions in the notice which were not conditions of the consent granted by the JRPP.

Pain J in the Land & Environment Court was not concerned with the validity of the notice because she took the view that the additional conditions included by the Council had no effect, as there was no legal power for the Council to impose those conditions. Furthermore Her Honour considered that the improper reference to the Council as the authority who granted the consent was immaterial as the EPA Reg did not specifically require the name of the consent authority to be noted.

However, the Court of Appeal took a different view. The Court of Appeal held that the notice was ‘positively misleading‘ and much was to be said for the view that it was ‘invalid‘.

The Court considered that the inclusion of additional conditions was of concern as the recipient of the notice (such as an objector) may be satisfied with the determination on the basis of the additional conditions included in the notice, not being aware that those conditions would be unenforceable. Furthermore, the Court noted that s81(1) of the EPA requires ‘notice of a determination of a development application‘ and a notice purporting to refer to a determination by an entity (Council in this case) who had no power to determine the development application could not constitute such a notice.

The Court of Appeal found support in the earlier decision in Hoxton Park Residents Action Group Inc v Liverpool City Council regarding the need for accuracy in public notices given of the grant of development consents (see our blog regarding that case here). I also refer to our earlier blogs regarding the need for accuracy in statutory notices (see our blog on the validity of clean up notices here).

The Court of Appeal noted the significance of the validity of a notice of determination.

Under s83 of the EPA Act, subject to any appeal, a consent becomes effective and operates from the date endorsed on the notice of determination. If a notice is not properly considered to be a notice of determination because of errors or inaccuracies, the consent may not operate. The Court of Appeal said ‘there may also be an issue as to whether a determination, of which no valid notice has been given for a significant period, will itself remain indefinitely a valid determination.

Councils should therefore take care to ensure that they properly comply with the requirements of the EPA Reg  when drafting notices of determination, and also ensure that the notices are not misleading, even if they appear to cover the required matters in the EPA Reg.

In addition, applicants should scrutinise notices of determination and if there are errors in the notice, should  request that the relevant consent authority issue a corrected notice.

If this is not done and the notice is subsequently found to be invalid, then it could be argued that the consent did not lawfully come into operation under s83 of the EPA Act which could clearly have far reaching consequences.