Public notification of development applications—When a public notice is no notice at all16 September 2016
The two recent Land and Environment Court (LEC) decisions of Fenwick v Woodside Properties Pty Ltd  NSWLEC 104 (Fenwick) and Protect our Parks Incorporated v Wollongong City Council and Ors  NSWLEC 99 (Protect our Parks) illustrate how a failure to comply with the public notification requirements under the Environmental Planning and Assessment Act 1979 (EPA Act) can invalidate development or modification approvals granted by Councils.
Councils need to ensure that notification of development applications and modifications comply with the requirements of the EPA Act—a failure to do so can render a council's ultimate decision on the development unlawful.
In Fenwick, Wingecarribee Shire Council granted Woodside Properties Pty Ltd (Woodside) an approval for a subdivision on land at Bundano. Woodside sought modifications to the approval on 14 June 2013 (modification 1), 12 August 2014 (modification 4) and 25 February 2016 (modification 5). These modifications were subsequently approved by the Council, however, only modification 5 was publicly notified.
The Applicant, who was the owner of the adjoining land, brought Class 4 proceedings seeking a declaration that modifications 1, 4 and 5 were invalid. The Applicant contended that modifications 1 and 4 were invalid on the basis that they had not been publicly notified in line with s 96(2) of the EPA Act. According to the Applicant, modification 5 was also invalid as the Council had taken into account an irrelevant consideration, namely modifications 1 and 4, when determining modification 5.
The Respondents ultimately conceded that modifications 1 and 4 had not been publicly notified as required. On this basis, the Court held that modifications 1 and 4 were invalid as they contained jurisdictional errors. Modification 5 was also found to be invalid as it was premised on the earlier invalid modifications.
Protect our Parks
In Protect our Parks, Wollongong City Council was the appointed trustee and trust manager of Stuart Park—a Crown reserve in North Wollongong. Skydive the Beach and Beyond Sydney Wollongong Pty Ltd (Skydive) maintained a commercial relationship with the Council to use Stuart Park as part of its skydiving activities, which included the occupation of a building for administrative purposes pursuant to a lease from the Council.
In 2014, Skydive sought to demolish the building and construct a new administration building within the park. Construction of the proposed new administration building required demolition of two Council buildings; the existing administration building and amenities building. The development application was later amended by Skydive to alter the location of the proposed administration building, however, the re-notification of the amended application failed to mention the demolition of the existing Council buildings.
In the Class 4 proceedings, the Applicant contended that the Council's description of the amended development proposal in its public notice was insufficient as it did not mention the demolition of the existing buildings. On this basis, the Applicant submitted that the Council's notice did not comply with the public notification requirements contained in the relevant Development Control Plan, in line with s 79A(2) of the EPA Act .
The Court adopted the reasoning in Hoxton Park Residents Action Group Inc v Liverpool City Council that "a notice which is inadequate in a material respect is no notice at all". It was therefore held that the Council's notification of the amended development proposal was defective in a material respect as it failed to refer to the demolition of the existing Council buildings.