Posted on February 9, 2012 by Stuart Simington
Section 79C consideration of matters not covered by the description of development in a development application
In Hoxton Park Residents Action Group Inc v Liverpool City Council  NSWCA 349, the NSW Court of Appeal upheld a challenge to the validity of a development consent and made some interesting findings about the consent authority’s obligation to consider the impacts of matters that are not part of the subject development application (‘DA’).
The Court also considered the validity of a public notice given under s101 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’), intended to protect the consent from challenges after a period of three months from the publication of the notice.
The Council granted development consent for the construction and operation of a school and the construction of an access road. Part of the access road traversed a public reserve owned by the Council. The construction of the access road involved the construction of a bridge across the public reserve and the clearing of more than 1,000m2 of bushland containing an endangered ecological community. The bridge was to be constructed by the developer on behalf of the Council.
Clause 94(1) of State Environmental Planning Policy (Infrastructure) 2007 (‘Infrastructure SEPP’) exempted the construction of the bridge from the need for development consent in such circumstances.
The bridge was not included in the DA (although the statement of environmental effects accompanying the DA addressed the bridge) and the Council specifically excluded consideration of the impact of the construction of the bridge under s79C of the EPA Act when determining the DA.
Consent was granted to the DA subject to a condition requiring the bridge to be constructed and the access road completed before the granting of an occupation certificate for the development.
The Council notified the granting of the development consent under s101 of the EPA Act but the public notice did not include a statement specifying the availability of the consent for public inspection ‘during ordinary office hours’ as required by clause 124(1)(c) of the Environmental Planning and Assessment Regulation 2000 (‘EPA Reg.’).
The Hoxton Park Residents Action Group (‘RAG’) challenged the validity of the consent in the Land and Environment Court some 9 months after the s101 notice was published.
The challenge to the consent
The RAG contended that:
- the Council had failed to consider the environmental impacts flowing from the construction of the bridge,
- such consideration was required under section 79C(1)(b) of the EPA Act even though the bridge was not the subject of the development application,
- the development consent was thereby granted in breach of the EPA Act and was void,
- the public notice was void because it was not given ‘in accordance with the regulations’ as required by s101,
- therefore, s101 did not protect the consent from challenge beyond the 3 month period specified in s101.
Land & Environment Court decision
Biscoe J in the Land and Environment Court:
- upheld the ground of challenge to the consent based on the failure to consider the environmental impacts flowing from the construction of the bridge under s79C(1)(b),
- dismissed the ground of challenge that the s101 notice was void
Accordingly, the challenge to the consent was dismissed because the consent was protected by s101.
Court of Appeal decision
The RAG appealed the decision of Biscoe J relating to the s101 notice to the Court of Appeal.
The developer filed a notice of contention seeking to overturn Biscoe J’s finding relating to consideration of the impacts of the construction of the bridge under s79C(1)(b).
The Court upheld RAG’s appeal and dismissed the developer’s the notice of contention and remitted the matter to the Land and Environment Court.
s79C consideration of bridge
In relation to the Council’s failure to consider the impacts of the construction of the bridge under s79C, the Court held:
- an environmental impact that was a likely consequence of development must be considered under s79C, even though it results from an activity that is not itself the subject of the relevant development application
- in this context, ‘likely’ means ‘a real chance or possibility’ rather than ‘more probable or not’,
- as remoteness from the development increases, the impact is likely to decrease, until it no longer has practical significance in terms of approving or refusing to approve the application,
- on the facts, the bridge was likely to be constructed and the likely impacts were not remote because the consent had ‘locked-in’ the construction of the bridge and the school could not be accessed or occupied unless it was constructed,
- the consent was given in breach of s79C.
Section 101 issue
In deciding the issue relating to the validity of the public notice under s101 , the Court followed the line of authority where the requirements for valid public advertisements of consents are strictly interpreted and applied. See the earlier post on Brown v Randwick City Council  NSWLEC 172 (Recent case on exercise of power to grant consent and validity of public notices).
In relation to the validity of the s101 notice, the Court held:
- clause 124 of the EPA Reg. sets out the essential elements for a valid notice under s101,
- as the Council’s s101 notice did not include a statement referring to availability of the consent for public inspection ‘during ordinary office hours’, it did not comply with clause 124(1)(c) of the EPA Reg. and was not given ‘in accordance with the regulations’ for the purposes of s101,
- comments made by Lloyd J in Hastings Co-operative Limited v Port Macquarie Hastings Council  NSWLEC 99 that it is self-evident that a development consent may be inspected during ordinary office hours and this is necessarily implied in a s101 notice,
- the courts have no authority to determine that a notice that does not comply with clause 124 is nevertheless valid and effective in some circumstances.
In the result, the 3 month limitation period in s101 of EPA Act had not expired and did not protect the consent from the challenge brought by RAG.
Implication of decision
The implication of the decision is that the scope of assessment of a development application cannot be artificially compartmentalised from other development with which it is necessarily associated.
In appropriate cases, consent authorities will need to request detailed information about the likely impacts of matters not falling within the description of the development for which consent is sought in a DA, but which is nevertheless a consequence of or otherwise associated with that development.