Posted on May 29, 2019 by Megan Hawley 5

Procedural Fairness and Amendment of Planning Proposals

Ku-ring-gai Council was recently required to defend a decision to amend its local environmental plan (LEP) to remove properties as heritage items from the LEP on the basis that it denied the owners of a house which remained listed procedural fairness as a result of the change in a recommendation regarding the listing of their house.

Facts

The facts in the case (Bailey v Ku-ring-gai Council [2019] NSWLEC 35)  were that after some lobbying by property owners, including the Applicants, Council had commenced the process of preparing and exhibiting a planning proposal to amend Ku-ring-gai Local Environmental Plan 2015 (LEP) to remove certain properties as heritage items. The planning proposal when initially advertised proposed to remove the Applicants’ property (along with 3 others) from the list of heritage items in the LEP.

A heritage assessment report written by the Council’s heritage specialist planner in 2017 supported the removal of the Applicants’ property as a heritage item (2017 Report). Contrary to that report, another Council report was prepared which recommended retaining rather than removing the listing of the Applicants’ property as an item of local heritage, although the heritage assessment was the same (2018 Report).

At a Council meeting, the Council resolved to vary the planning proposal to retain the listing of the Applicants’ property as a heritage item and then resolved to amend the LEP in accordance with the varied planning proposal.

The Applicants alleged that they had been denied procedural fairness because they were not given sufficient time to obtain expert heritage advice after finding out about the variation to the recommendation and before the Council meeting and there was no explanation for why the Council officers changed their recommendation. Without an explanation, the Applicants claimed that they were not in a position to make submissions against the recommendations in the 2018 Report.

The Applicants were:

• given an opportunity to make a submission on the planning proposal when it was publicly notified (and when it recommended delisting of their house),
• provided with the 2017 Report,
• notified 6 days before the relevant Council meeting that the Council would be considering the planning proposal at the meeting and invited to view the 2018 Report online and at the Council chambers (although the notice did not state that the recommendation had changed),
• expressly told of the change in recommendation a day before the Council meeting, and
• had the opportunity to, and did in fact contact the Councillors before the meeting and speak at the Council meeting.

Decision

Chief Justice Preston of the Land and Environment Court held that the Applicants were not denied procedural fairness.

Section 3.35 of the Environmental Planning and Assessment Act 1979 (EPA Act) provides that a planning proposal may be varied, but only requires further community consultation if the gateway determination issued for the planning proposal requires it. The Council in this case was not found to have breached any obligation in respect of community consultation under s3.35.

The Court found that the EPA Act did not require Council to give persons affected by a planning proposal an opportunity to make further submissions when it decides to vary a planning proposal. However, even if it did, the Applicants were not denied any opportunity to make submissions (due to the facts set out above).

The Applicants had ample opportunity to make submissions on both the planning proposal and the recommended revised planning proposal (which was provided 6 days before the Council meeting but which the Applicants did not read – assuming there was no change in recommendation). The fact that the Applicants sought further opportunities to make submissions did not make the opportunities that they did have insufficient or inadequate.

Furthermore, although the recommendation changed, the heritage assessment of the Applicant’s property did not, just the recommended decision based on that assessment. The Applicants’ had ample opportunity to address the heritage assessment and make comments on it, and tactically chose not to submit their own heritage evidence, on the assumption that the recommendation to delist their property would not change.

Ultimately, the Court found that the Applicants’ concerns were not about procedural fairness.  The Applicants expected that the Council officers would continue to recommend removal of the heritage listing of their property, and the Council would adopt that recommendation. This was an expectation of a particular substantive outcome and not an expectation regarding the  process of amending the LEP, and therefore could not be characterised as  a concern about procedural fairness.

Lessons

In our view, this case does not affect previous decisions which suggest further community consultation could be required if the variation to the planning proposal is so significant that the plan ultimately made could not be said to be a result of the process which included the community consultation. Read our previous blogs on this issue, here and here.

However, in this case, the Court did not discuss the significance or otherwise of the variation to the recommendation and the case turned more on the opportunities the Applicants’ were given to make submissions and particularly the fact that the expert heritage assessment relied on by Council had been available to the Applicants and they had ample opportunity to make submissions on it.

If you would like to discuss this case, please leave a comment below or call Megan Hawley on (02) 8235 9703 or Elaine Yeo on (02) 8235 9712.